ALBANY – There have been a lot of odd moments in the corruption trial of Joseph Percoco and three others over the past four weeks.
The best entry from Wednesday, arguably, was the “Herb” moment.
But, some backdrop.
There have been no more weird moments in the trial than the arrest last week of Todd Howe, the prosecution’s chief witness who has been locked up in a federal jail – for a statement he made on the witness stand last week that appears to have violated a cooperation deal with the government. His only time out of jail, for now, is sitting on the witness stand being grilled by lawyers in a fourth floor courtroom at the U.S. District Court in lower Manhattan.
But there’s also been the nonstop talk of “ziti,’’ which prosecutors say is the code word Percoco and Howe used to describe bribe money flowing to Percoco, a longtime confidante to Gov. Andrew Cuomo, by three of the business executives on trial with him. There was the attempt to show a brief video of the TV show “The Sopranos,’’ from which Percoco allegedly adopted the “ziti” code name. The judge said no to that request.
There have been the nonstop complaints – growing increasingly sharp – coming from Judge Valerie Caproni and directed at defense lawyers for their apparent slothlike ways in making their points before jurors. “You have wasted a tremendous amount of time, and now I have lost patience. The jury lost patience at least four hours ago, if not eight hours ago,’’ the judge snapped Wednesday at Daniel Gitner, one of the defense lawyers.
It was Gitner who got Howe to admit on the stand last Thursday that he tried in 2016 to bilk a credit card company for a hotel stay – after Howe had agreed to stay out of all trouble in his cooperation deal with prosecutors. (Howe has already pleaded guilty to eight felonies, some tied to the Percoco case.)
It was Gitner who that day became ill and who got the judge to delay the trial this week by one-and-a-half days. On Monday, without Gitner or jurors present, the judge spent considerable time asking about Gitner’s health. She demanded to know the medications he was on, how long it had been since he had a fever and grew incredulous when Gitner’s partner did not want to reveal the illness that had struck Gitner. “We can say the word flu. It is really not a dirty word,’’ Caproni said.
Gitner, sick at home, did not want to return to court to resume questioning of Howe until Wednesday. When Caproni heard he had been fever-free, she invoked the health rule her mother insisted upon when the judge was growing up. “Well, if he was fever-free yesterday and he is fever-free today, why can’t he come tomorrow? The Betty Caproni rule is made. He can go to school on Tuesday,’’ the judge said.
Outside forces have been a factor in the case, too. There have been environmental protesters inside and outside the courthouse, timing their sidewalk demonstrations to when jurors are heading into the courthouse. It has led the judge to tell jurors to ignore what protesters are saying.
On the trial's first day, one protestor confronted Percoco in an elevator, yelling that he had "ruined" her life. Percoco snapped at her and said she was only carrying on like that because a reporter was also in the elevator. On Wednesday, several dozen environmentalists, including character actor James Cromwell, whose films include "Babe,'' rallied outside the Percoco courthouse.
And there have been verbal tussles between lawyers, though not just the usual kind over evidence or lines of questioning that get played out before the judge to decide.
The first away-from-the-bench lawyer wrangling occurred a few weeks ago when Richard Morvillo, Howe’s attorney, and Steve Coffey, a lawyer for Syracuse defendant Steven Aiello, exchanged some insults at the back of the courtroom. On Wednesday, Coffey said Morvillo again spoke to him just after Coffey finished up a bit of tense questioning of Howe. Earlier, the judge had several times warned Coffey to stop arguing with Howe during his line of questioning.
“Mr. Morvillo turns to me and says: ‘Oh, that’s the way they do it in Albany, huh?’ ’’ Coffey told the judge in relaying what Morvillo just said to him moments earlier. Morvillo repeated, Coffey said, “That’s the way you act in Albany?’’
“I said, ‘Grow up. Stop it,’ ’’ Coffey said. “I don’t want to battle with him. I don’t want to go through this, but I don’t want to start getting harassed again after my cross-examination. Frankly, I don’t care if he likes it.” Coffey then asked the judge: “You don’t want me to start arguing with him, do you? I don’t want to do that.’’
The judge replied: "No, I don’t. I want you to be an adult and ignore him,’’ she said.
Earlier, Coffey was at the center of the “Herb” moment. Howe has testified that “Herb” was a nickname that several aides to then-Gov. Mario Cuomo – including Howe and Percoco – started using to refer to each other at certain moments. Howe said the name was a mocking reference to Herb London, a Conservative Party challenger to Mario Cuomo in 1990.
“Mr. Howe, I want to ask you about this Herb business,’’ Coffey said to Howe on Wednesday afternoon. “Actually, Herb comes from a 1985 Burger King commercial in which Herb was the last man in America not to eat at Burger King. That’s where you got the name Herb, isn’t it?’’
“No,’’ Howe replied.
That was the first and last mention of Burger King in the trial, now in its fourth week.
There is an end in sight to the trial that began Jan. 22. Howe is on the stand again Thursday, but lawyers on both sides have estimated they have about four or five more hours of questions for Howe, who first took the witness stand on Feb. 5.
Prosecutors told the judge Wednesday evening that they believe they will wrap up their case on Tuesday; between now and then, they expect to call seven final witnesses. It is uncertain who is on the full list. If the relatively brief time prosecutors expect to have those witnesses on the stand is any indication, it appears that a number of top advisers to Cuomo, as well as Cuomo himself, will not be testifying.
Percoco’s lawyer Barry Bohrer, speaking for the other defense attorneys, said the four legal teams will be presenting a defense when the prosecution wraps up. Bohrer said it would be only “a wild guess” how long the defense cases will be.
Defense lawyers have been tackling their biggest mission over the past week: attempting to destroy any credibility that Howe might have with jurors. On Wednesday, Howe spent another day being asked to read various emails and answer questions about certain events and conversations that defense lawyers say tell a story of Howe trying to manipulate their clients and that no bribery scheme – as prosecutors and Howe maintain – occurred.