NEW YORK — In a small victory for prosecutors, a federal judge overseeing a sprawling New York corruption case will allow the government’s key witness to wear a suit in court — rather than jail attire — after his arrest last week for a likely violation of his bail conditions.
But whether the sartorial choices of the witness, Todd R. Howe, will be enough to distract jurors from the inconvenient fact of his incarceration remains to be seen, as defense lawyers are sure to seize upon his arrest as confirmation of their arguments that Howe is unreliable, untrustworthy and out to save his own skin.
Howe is a disgraced former lobbyist who pleaded guilty to eight felonies and is cooperating with the government in the case against Joseph Percoco, once one of Gov. Andrew M. Cuomo’s top aides, and three other defendants.
Howe was arrested in Manhattan on Thursday night, after a cross-examination in court that afternoon revealed that he had attempted to defraud a credit card company after his cooperation agreement was finalized in 2016. Howe had his bail revoked and was taken into custody at his hotel room and transported to the Metropolitan Correctional Center in lower Manhattan.
In a flurry of petitions to the presiding judge after the arrest, prosecutors seemed intent on salvaging at least part of Howe’s credibility. Over the weekend, the government sent a letter to the judge, Valerie E. Caproni of U.S. District Court in Manhattan, asking that she allow Howe to continue to wear a suit for the remainder of his testimony. Caproni granted that request.
The government had also asked the judge to explain Howe’s bail revocation to the jury, rather than allowing the revelation to come out during what is sure to be a grueling cross-examination. “We are not even sure there is a basis to question him about much of this,” Janis Echenberg, a prosecutor, said Monday.
Caproni said she was “not inclined” to grant the government’s request but did not dismiss it outright, saying she would decide the matter when the trial resumes Tuesday.
To have a government witness arrested midway through cross-examination is rare. And according to both defense attorneys and former prosecutors who have worked on cases with cooperating witnesses, it is sure to pose a significant challenge to the government’s pursuit of a conviction.
“This is what defense lawyers drool for,” said Gerald Shargel, a veteran criminal defense attorney best known for winning the acquittal of Mafia boss John J. Gotti. “This goes without saying that this is a prosecutor’s worst nightmare.”
Cooperating witnesses are a mainstay of criminal prosecutions, Shargel said, and defense lawyers in turn frequently search for ways to attack those witnesses’ credibility.
But for a witness’s trustworthiness to be so dramatically undermined, Shargel continued, is rare. “Like Christmas,” he said.
It is not impossible for the government to secure a conviction, even after damaging revelations about a cooperating witness’s behavior.
In a 2016 trial in Manhattan, two Venezuelans were convicted of drug importation conspiracy even after the defense showed on cross-examination that a key witness had lied — and the prosecutor, in front of the jury, made it clear that the witness’s cooperation deal would be ripped up.
Still, one of the defense lawyers in that case, Randall W. Jackson, said Howe’s arrest “could be completely devastating to a case like that because it strikes at the credibility of the government’s entire case.”
“The question is whether the government’s other proof is substantial enough that the jury will feel like this can be disregarded, and they can still have faith in the case,” Jackson said.
James A. Cohen, a professor at the Fordham University School of Law, said that prosecutors might actually be able to use the Howe situation to their advantage, using it as an example of their devotion to the law. “I think it’s a terrific opportunity for the prosecution to say, ‘We have teeth,'” said Cohen, noting that the government could potentially void Howe’s cooperation agreement.
Howe’s testimony is undeniably central to the government’s charges that Percoco had traded more than $300,000 in payoffs — made to Percoco’s wife, Lisa, through Howe and another party — for official actions. Percoco is accused of solicitation of bribes, conspiracy and other charges; his co-defendants are executives with two companies accused of making the bribes.
During questioning from prosecutors, Howe had painted a sordid picture of his dealings with Percoco, including using the code “ziti,” a reference to the Mafia drama “The Sopranos,” for payments from the two companies.
He also repeatedly cited Percoco’s influence in Cuomo’s administration, where he once served as executive deputy secretary. “He had the governor’s ear,” Howe said last week. “So he was extremely important.” (Cuomo, a Democrat seeking a third term in November, has not been accused of any wrongdoing.)
But under cross-examination Howe, who had a long history of financial trouble and a felony conviction for theft on his record, admitted to a variety of missed payments, myriad lies and doctoring of emails, a critical element of the government’s case against Percoco.
The trial, which began three weeks ago, was further complicated over the weekend as one of the defense lawyers, Daniel M. Gitner, fell ill and asked for a two-day delay in the trial proceedings, which were to begin again on Monday.
Caproni instead granted a one-day delay, tentatively planning to allow Howe to return to the stand Tuesday afternoon — in a nice suit, presumably.