ALBANY – Prosecutors may have locked up their own star witness in the Joseph Percoco corruption trial, but they still want him to look good when he resumes his testimony in a Manhattan courtroom on Monday morning.
U.S. Attorney Geoffrey Berman on Saturday wrote to a judge presiding over the trial asking that she tell jurors that Todd Howe, a former lobbyist, has been incarcerated following his revelation during testimony Thursday that he violated a cooperation deal he signed with prosecutors in 2016.
“In an effort to avoid speculation by the jury as to why Mr. Howe is now incarcerated, we respectfully request that before cross examination resumes, the court instruct the jury that Mr. Howe was remanded as a result of his bail being revoked,’’ Berman wrote in a letter to U.S. District Court Judge Valerie Caproni.
Berman also asked that Howe, 57, be allowed “to continue to wear a suit for the remainder of his testimony.’’ While defendants who are in custody are allowed to wear street clothes during their trials, inmates who testify are usually in jail clothing.
Under questioning from Daniel Gitner, a lawyer representing one of four defendants in the highly watched corruption trial involving Percoco, a longtime close aide to Gov. Andrew Cuomo, Howe on Thursday admitted that he tried to bilk a Manhattan hotel by claiming he did not stay at the hotel in June 2016 when he was billed $604 for a one-night stay.
On the witness stand, Howe admitted he stayed at the hotel that night because he was in town being interviewed by federal prosecutors in the Percoco case. In October that year – a month after he signed a cooperation deal with prosecutors in which he promised to stay out of any trouble – Howe called his credit card company to try to get the hotel charge removed.
Within hours of his stunning revelation Thursday, U.S. marshals knocked on Howe’s hotel room and arrested him. He has been in a federal facility in Manhattan since. Howe began testifying against Percoco and the others last Monday, and his testimony had been due to go through at least this Tuesday.
The arrest of Howe, whose character and credibility were a major focus by defense lawyers in the case, was a blow to the prosecution. How serious that blow is won’t be known until after jurors decide the fate of Percoco and three others accused of engaging in a bribery scheme. Howe already pleaded guilty to eight felonies, several related directly to his own admitted role in the alleged bribes of Percoco, who prosecutors say used his position with the governor to enrich himself by cashing in with three private sector executives looking to for access within the Cuomo administration.
The trial was set to resume Monday – a week after Howe first took the stand in a trial that began Jan. 22. But on Sunday afternoon the judge was notified by Gitner’s colleagues that he is ill and may not be able to resume his cross-examination of Howe until Wednesday. Gitner is the lead attorney for Peter Galbraith Kelly, a former energy firm executive accused of bribing Percoco.
“While we regret having to request any adjournment of the trial, Mr. Gitner's ability to complete his cross examination of this critical witness is obviously essential to Mr. Kelly's defense,'' Gitner's firm writes to Judge Caproni.
A lawyer representing Steven Aiello, a Syracuse developer also on trial accused of bribing Percoco, on Sunday requested that the judge reject prosecutors’ attempts to have her instruct the jury about why Howe was arrested and is now in federal custody. Scott Iseman, Aiello’s lawyer, said the reasons for Howe’s arrest should come out during cross-examination by defense lawyers, not by an instruction from the judge.
“The government, however, should not be able to cloak its position with the court’s authority via an instruction,’’ wrote Iseman.
The lawyer said prosecutors appear to be attempting to limit “our right to vigorously cross-examine Mr. Howe on whatever the reasons are for his incarceration by having the court, rather than Mr. Howe, inform the jury of the basis for his arrest.’’