For a while, defense lawyers’ attacks on the star prosecution witness in a sprawling New York corruption case were the most exciting part of a trial otherwise focused on contracts, agencies and bureaucratic acronyms.
They even got the witness, Todd R. Howe, a disgraced former Albany lobbyist, thrown in jail, after the lawyers cornered him into admitting he had tried to defraud his credit card company.
But as the attacks have continued — and continued — with defense lawyers reiterating over more than 18 hours how Howe had lied, deceived and manipulated, Judge Valerie E. Caproni of U.S. District Court in Manhattan has apparently had enough. “Move on,” she has said more than once.
The trial of Joseph Percoco, a former top aide to Gov. Andrew M. Cuomo, is in its fourth week — and its sixth day of Howe’s testimony — and Caproni’s impatience with defense lawyers’ strategy is apparent. She has reprimanded them for focusing more on Howe’s crimes than on the actual charges at hand. She has pointed out that jurors seem to be falling asleep. And she has reminded them, not unkindly, that their tactic may backfire.
“You have wasted a tremendous amount of time,” she told one of the lawyers, Daniel M. Gitner, on Wednesday after his eighth hour of cross-examination. “I have lost patience. The jury has lost patience — at least four hours ago, if not eight hours ago.”
She said she was concerned that lawyers were “confusing the jury” and “distracting them from the issues that are actually relevant.”
To discredit Howe, who is cooperating with prosecutors, the defense lawyers are deploying a time-tested strategy. Howe claims to have facilitated a series of bribes between Percoco and his co-defendants, three executives with business before the state; the lawyers argue he cannot be trusted and is out to save his own skin.
To be sure, Howe has given the defense plenty of ammunition. As part of his cooperation agreement, he pleaded guilty to eight felonies, and he has admitted a long string of deceptions that range from doctoring emails to incorrectly filling out mortgage applications to lying to his dog walker. After the revelation of the attempted credit card fraud last week, prosecutors even revoked Howe’s bail, and he has been in jail ever since.
Yet at times, defense lawyers have seemed so intent on showing Howe’s dishonesty that Caproni has warned them they might be undermining their own case.
When they tried to introduce documents they said proved Howe had misled one of the executives on trial about his chances of winning a state contract, Caproni pointed out that Howe’s inflation of the likelihood of success could actually serve as evidence that the executive, Peter Galbraith Kelly, had more incentive to commit a crime.
“Doesn’t that make a bribe more likely?” she asked. (She did not allow the documents into evidence.)
Rebecca Roiphe, a former Manhattan prosecutor who teaches at New York Law School, said defense lawyers must be careful not to tip from discrediting Howe to suggesting that the prosecutors themselves are acting in bad faith.
“The jury is supposed to look at all of the evidence,” she said. “And if the jury feels like they’re being distracted from that, if it becomes clear that what the defense is trying to do is make the government look untrustworthy, then they might react by looking more at the corroborating evidence.”
But Gerald Shargel, a veteran defense lawyer, dismissed the idea that hammering at Howe’s history could hurt the defense’s case.
“They owe it to their clients to call a witness’s credibility into question,” he said, adding that the lawyers should fight to admit evidence of lying or inconsistencies “in all its glory.”
In the past few days, defense lawyers’ distrust of Howe seems to have reached a fever pitch. In addition to grilling him on the stand, they have accused him of trying to eavesdrop on their private conferences with the judge.
“Mr. Howe is apparently listening to everything we say,” Gitner said during one of those conferences on Tuesday, as Howe sat several feet away at the witness stand, head slightly bowed, looking away from where the lawyers and the judge huddled in the corner.
“I don’t think he can hear you,” Caproni replied. “That is the purpose of the white noise,” she continued, referring to the sound turned on during sidebars so that jurors cannot hear what lawyers are saying.
Nevertheless, at the next sidebar, the noise was turned louder.This article originally appeared in The New York Times.