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Foley Square courthouse posters could prejudice jurors, ex-Cuomo aide Joe Percoco says

A letter to U.S. District Judge Valerie Caproni

A letter to U.S. District Judge Valerie Caproni complains that a series of posters in the 40 Foley Square courthouse features dozens of famous cases from the court's history that could prejudice jurors. Oct. 27, 2017. Photo Credit: Newsday / John Riley

History lessons aren’t necessarily good for criminal defendants, according to a letter filed this week on behalf of Joe Percoco, a former top aide to Gov. Andrew Cuomo, and three co-defendants in an upcoming Albany corruption trial in Manhattan federal court.

The letter to U.S. District Judge Valerie Caproni complains that a series of posters in the 40 Foley Square courthouse where they will be tried features dozens of famous cases from the court’s history that could prejudice jurors.

The problem: The display, right outside the ceremonial courtroom where the Percoco trial is likely to occur and where jurors may congregate during jury selection, highlights about 30 criminal cases, but not a single one that ended in an acquittal at trial.

“The exhibit as a whole may be interpreted by potential jurors as the Court’s celebration of criminal convictions in significant cases, and particularly cases involving allegations of public corruption,” said the letter filed by Daniel Gitner, a lawyer for former energy company executive Peter Kelly, a co-defendant.

Percoco, Kelly, and two other businessmen are scheduled to go on trial in January on charges that the ex-Cuomo aide took bribes to wield influence in the executive chamber.

The exhibit, put up in 2016 to celebrate the 125th anniversary of the 2d U.S. Circuit Court of Appeals, features 11 posters organized by subject matter — such as “Government Corruption,” “Organized Crime” and “Corporate Crime” — with pictures and text about different cases.

The defendants said it includes a description of one public corruption case — the prosecution of former Bridgeport Mayor Joseph Ganim — with an outdated summary of the law that applies to corruption cases, and want the display covered or removed before their trial starts.

“It will unfairly influence the jury and jeopardize the defendants’ rights to a fair trial,” the letter said.

Court officials said the display focused on a mix of civil and criminal cases in which the appeals court made new law, and was tilted toward convictions because appeals generally occur in a criminal case after a conviction. The motion did note that two of the appellate outcomes were “defense friendly.”

A spokesman for U.S. Attorney Joon Kim declined to comment on the request, as did 2d Circuit Executive Karen Greve Milton.

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