World: Defense case in Percoco trial begins with a whimper, not a bang

The defense has kicked off in the Joseph Percoco trial.

NEW YORK — After five weeks of testimony from government witnesses about how their clients had bribed and bullied their way into the halls of state power, defense lawyers in a major New York corruption trial finally got their own day in court.

Lawyers representing a former top state official, Joseph Percoco, and three executives accused of bribing him had been promising for days to mount a vigorous defense case, complete with documents, videos and more than 20 potential witnesses.

The list included several notable names, including a former top aide to the governor, Percoco’s wife and two of the defendants themselves.

But by the time the defense lawyers actually began their case, it seemed to have been scaled back significantly. Only a few brief witnesses, mostly state employees who testified largely to paperwork and procedural questions, took the stand Friday. Because of scheduling issues with other witnesses, the jury was sent home before lunch.

The judge said Monday’s proceedings would likely be abbreviated, too. Closing arguments, she said, might begin the next day — several days earlier than defense lawyers had originally predicted.

All in all, it was an anticlimactic start to what had seemed, for a time, to be a potentially revealing and explosive string of witnesses. But legal experts not involved with the trial said that what the defense lawyers did not say, and who they did not call, may reveal just as much about their approach as what and who they did.

“If the government’s case is in shambles, as it may very well be in this case, it’s not surprising that you either scale back the defense case or you simply rest,” said Benjamin Brafman, a defense lawyer who has represented clients including Martin Shkreli, Harvey Weinstein and Dominique Strauss-Kahn. “The betting money would be that you don’t push the envelope and let it fall off the table, when you may well be in a good position right now.”

Gerald Shargel, another veteran lawyer best known for winning the acquittal of the Mafia boss John Gotti, summed up his own philosophy: “Quit while you’re ahead.”

The potential weakness in the government’s case to which Brafman and Shargel were referring was the stunning midtrial arrest of Todd R. Howe, the government’s star witness. Howe, a disgraced former Albany lobbyist, was cooperating with prosecutors after pleading guilty to eight felonies, and said that he had facilitated the bribes between Percoco and his co-defendants.

Howe was arrested after admitting under cross-examination that he had tried to defraud his credit card company after he signed his cooperation agreement with the government.

But defense lawyers had also indicated other reasons for pulling back on their witness lists.

Earlier in the week, they had suggested that two of the defendants, Steven Aiello and Joseph Gerardi, executives of a Syracuse-area development company, might take the stand. But if they did, lawyers for Aiello and Gerardi insisted, prosecutors should not be allowed to cross-examine them on their involvement with the Buffalo Billion, itself the subject of an upcoming corruption trial.

The Buffalo Billion refers to the infusion of $1 billion by Gov. Andrew M. Cuomo’s administration into his signature upstate development project. But federal prosecutors have accused Alain E. Kaloyeros, former president of the State University of New York Polytechnic Institute, and Howe of rigging bids and doling out favorable treatment to certain contractors.

Milton J. Williams, a lawyer for Gerardi, said allowing questioning on that topic would get into a “whole mini-trial” that would unfairly prejudice the jury.

But prosecutors said defense lawyers had already opened the door to that line of inquiry by arguing that Aiello and Gerardi had been innocent victims of, rather than active collaborators with, Howe, when they allegedly bribed Percoco. They said they had the right to question the executives on the Buffalo Billion to show that they had been involved in sordid dealings with Howe before.

Judge Valerie E. Caproni of U.S. District Court in Manhattan seemed to agree. “Why isn’t it a fair response to your argument that your clients were duped to show that, far from being duped, your clients engaged in a different scam with Todd Howe?” she asked the lawyers.

Aiello and Gerardi did not take the stand.

Neither did Lisa Toscano-Percoco, Percoco’s wife. According to prosecutors, much of the more than $300,000 Percoco received in bribes was funneled through payments to his wife through a low-show job with Competitive Power Ventures, orchestrated by a former company executive, Peter Galbraith Kelly, who is also a defendant in the trial. And Howard Glaser, Cuomo’s former director of state operations, did not appear either.

Defense lawyers have also been cognizant of the trial’s length. Caproni has already chastised them several times for what she called repetitive questioning, and she warned them that they were trying jurors’ patience. On Wednesday, a juror sent the judge a note asking how much longer the trial would take.

Caproni turned the question on the defense lawyers. They objected, worrying that jurors eager to get home would become frustrated with them, and by extension their clients.

“Essentially, the effect is to blame defense counsel as a whole for the number of the days that we have left,” Daniel M. Gitner, Kelly’s lawyer, told the judge. “That is just not fair.”

This article originally appeared in The New York Times.

VIVIAN WANG © 2018 The New York Times

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