At 10:30 a.m. on Thursday, December 22, SDNY DJ Richard Holwell is going to hear oral argument on the habeas petition filed by Dennis Kozlowski.
It is a well-known case. Kozlowski, who is the former CEO of Tyco, and Mark Swartz, the former CFO, were prosecuted in New York state court for grand larceny based on allegations that they awarded themselves a substantial bonus compensation to which he was not entitled. The litigation in state court went all the way up to the Court of Appeals. One issue raised in state court was whether the trial court properly quashed subpoenas that sought recorded statements from Tyco's directors who later testified against Kozlowski at trial. The Court of Appeals held that it was reasonably likely that the statements contained information that had the potential to be both relevant and exculpatory. However, the court concluded that the defendants were disqualifed from obtainining the statements because they failed to attempt to replicate the statements at "an earlier time."
In his habeas petition, Kozlowski has asserted that his constitutional right to present a defense was violated when the trial court quashed the subpoena for the statements of these prosecution witnesses and that the reasons for quashing the subpoena were arbitrary.
The current status of the case is that an MJ has issued an R&R recommending that the petition be denied based on a procedural default with respect to the right to present a defense claim. The R&R did not address the merits of the claim. Kozlowski filed objections to the R&R.
It's a really interesting case. If you are in lower Manhattan and have some free time on Thursday morning, I'd recommend checking out the oral argument.
Update: I should have mentioned that the DJ will be hearing oral argument on Swartz's petition as well.