Tyco Sets the Tone

Granted, the name Dennis Kozlowski (search) may not resonate with readers as loudly as does the name Martha Stewart, or perhaps even Sam Waksal or Kenneth Lay. But Kozlowski is the first CEO from the bull-market crime wave of the 1990s who gets to insist upon his innocence before a jury of his peers.

Two blocks away, a second trial, in a federal courtroom, will feature a former CS First Boston (search) investment banker named Frank Quattrone (search), doing much the same thing. But the Kozlowski trial, for symbolic reasons alone, can be counted on to eclipse the narrowly focused Quattrone matter, which is expected to last just a couple of weeks.

By contrast, the Kozlowski trial is likely to last into next January, and be drenched in the mesmerizing aroma of greed.

Kozlowski's story will emerge through the actions of a man who grew up in the inner-city projects of Newark, so hungry for money - and ashamed of his past - that he invented a fictionalized version of much of his life, filling his middle years with the random and infantile fantasies of a Romanoff czar. Jurors will hear of everything from gold shower curtains and $15,000 umbrella stands to university buildings adorned with his name - all of it paid for with the money of his company's shareholders.

But the Kozlowski trial is also important because of the impact its outcome is likely to have on as many as a dozen other defendants who have likewise pleaded innocent in similar cases and are also now awaiting trial.

If Kozlowski is acquitted, defendants such as Martha Stewart (search), whose own trial is scheduled to begin in New York in January, may be encouraged to keep pushing ahead with claims of innocence, and take their chances in front of a jury.

But if Kozlowski is convicted - and particularly if he lands a heavy sentence - the resolve of Martha and other defendants could begin to weaken, presenting prosecutors with a potential avalanche of plea bargain offers.

There is yet another player in this drama, whose presence will be felt every day of the trial: Kozlowski's prosecutor, Manhattan District Attorney Robert Morris Morgenthau.

Morgenthau is without question the greatest living prosecutor in America today, with a record in both federal and state law enforcement that spans four decades, seven New York City mayors, and nine U.S. presidents.

But Morgenthau's advancing age (now 84) and his lifetime of experience in prosecuting white-collar crime cases on Wall Street adds an almost Shakespearean dimension to the drama that is about to unfold.

Seen from the proper distance, Morgenthau's entire career in public life - from his days as New York's top federal prosecutor in the 1960s to the nearly three decades since then as Manhattan's elected district attorney - has been tending toward this one larger-than-life moment: fifteen rounds, fought by courtroom surrogates in his name, for the right to lay claim in the winter of his career to the title of post-war America's undisputed heavyweight champ of law and order on Wall Street.

There are many who say (and some who have argued for years) that in using his office to pursue white-collar crime on Wall Street, Morgenthau has been grandstanding for headlines by duplicating what the federal government already does through its office of the U.S. Attorney for the Southern District of New York.

In fact, the only reason Morgenthau is prosecuting Kozlowski is that the feds are not. While they were distracted with other matters, Morgenthau's office developed a New York State tax fraud case against Kozlowski and then used it to pry open a world of Bourbonesque grandeur that lay hidden within the financial accounts of the company Kozlowski ran: Tyco International Inc. (TYC).

In his tenure as Manhattan D.A., Morgenthau has been a hovering presence on Wall Street on every major law enforcement initiative Washington has either undertaken or, on occasion, attempted to bury. Year after year Morgenthau has been there, ready at the first sign of a fumble to grab the ball and run.

It is a role no different from what New York State Attorney General Eliot Spitzer (search) is himself now being praised for, as he emerges as a kind of shadow-version of the Securities and Exchange Commission (search) regarding Wall Street civil matters.

Yet Spitzer is simply copying the performance of his own first boss in public life: Morgenthau, who had already been serving as Manhattan's top prosecutor for a decade when Spitzer went to work for him in 1986 as an assistant D.A.

The Office of the Manhattan D.A. investigates and prosecutes more than 130,000 cases a year, from murder to Medicaid fraud. But the big white-collar crime cases of Wall Street are what Morgenthau will be remembered for - the shutting down of boiler room swindle shops like A.R. Baron and Duke and Co. And, of course, the biggest, most politically radioactive white-collar crime case of them all: The Bank of Credit and Commerce International, which at the start of the 1990s ran a worldwide multibillion-dollar money-laundering service for everyone from Latin drug lords to African dictators and arms smugglers.

A conviction in the Kozlowski case is by no means a slam dunk. The case involves a 94-page criminal indictment for such things as false and omitted bookkeeping entries designed to cover up an elaborate scheme of self-enrichment to benefit himself, his second wife, Karen Mayo Kozlowski, and others. The company's chief financial officer, Mark H. Swartz, will be at his side throughout the trial as a co-defendant.

The pre-trial rulings to date by the judge in the case, Michael Obus, are generally thought to have favored the defense. And Kozlowski will also benefit from the experience of his lead attorney, Stephen Kaufman, who has been a fixture at the defense table in high-profile white-collar crime cases dating back beyond the Drexel Burnham junk bond prosecutions of the 1980s.

But Kaufman, who also began his legal career, at the start of the 1960s, as an assistant prosecutor under Morgenthau, is at his best when privately negotiating with prosecutors to fend off indictments before they're ever filed, or negotiate plea bargains afterward. And it's too late for that now.

What's more, the very complexity of the prosecution's evidence could, oddly enough, turn out to be one of Morgenthau's strongest weapons. Lawyers agree that juries in state trials are rarely as "book-learning" smart as those in federal cases, and are more easily swayed by the emotional as opposed to the intellectual elements of the cases before them.

And in the case of Kozlowski, the jurors can be counted on to spot him as a "peer" - whether or not the prosecution introduces a bit of information about his working-class roots as a second-generation Polish-American kid from the streets of Newark.

In the end, they may simply grow impatient with tedious explanations from the defense about why it was technically legal for Kozlowski to stick more than $600 million of Tyco money in his pocket and conclude, "We don't care what he did, anyone with that much money is guilty of something!"

That, of course, is months down the road, and no one can foresee how things might change in the give-and-take of the trial itself. But everyone involved in this case has a lot on the line, and people will be talking about the outcome for a long time to come. Today the drama begins.