Federal prosecutors are pushing to force a defendant standing trial in a series of convenience store robberies to try on for the jury a hooded sweatshirt worn by the robber in surveillance video during the 2013 crime spree.
The unusual request is part of an effort by the government to identify the defendant, Abdul Howard, as the man who it alleges committed the crimes in the Las Vegas area between January and April last year.
Howard, 48, a multiple felon also known as Lesley Long, has been standing trial before Chief U.S. District Judge Gloria Navarro since May 12 on 27 robbery and firearms charges.
He also faces a series of violent crime charges in Clark County District Court stemming from the sexual assault and slaying of a 64-year-old woman and the robbery and sexual assault of a 79-year-old woman during his crime spree last year.
In court papers last week, Assistant U.S. Attorney Phillip Smith Jr. said prosecutors have submitted into evidence at the trial photographs taken from surveillance videos of the suspect wearing the red and black hooded sweatshirt at two of the convenience store robberies. They also have submitted the hooded sweatshirt that was recovered from the scene of one of the robberies.
Testimony during the trial has shown that Howard’s DNA was found on the sweatshirt, Smith said.
“The government has therefore sufficiently illustrated a connection between the item, the defendant and the robberies to warrant the instant request,” Smith wrote.
Smith wants Howard, who has been in federal custody and shackled during the trial, to put on the sweatshirt in front of the jury in the same unique fashion captured in the surveillance photos or be photographed wearing it outside the presence of the jury. Then the photo would be shown in court.
The hoodie was cinched around his face to hide his features, according to Smith.
The prosecutor said he anticipated defense lawyers would object and argue the demonstration would violate Howard’s due process rights and Fifth Amendment right against self-incrimination. But he contended case law was on his side.
Sure enough, Assistant Federal Public Defenders Rebecca Levy and Shari Kaufman filed a response objecting on the constitutional grounds.
The lawyers called the prosecution effort “subterfuge” that could jeopardize Howard’s right to a fair trial. They said it would have no value in helping the jury compare Howard’s face with the face of the suspect in the surveillance photos.
“Permitting the government to compel Mr. Howard to put on the sweatshirt in front of the jury would unduly prejudice him, violating his due process rights,” Levy and Kaufman wrote. “The sweatshirt cannot be used by the jury to identify a distinctive physical trait of Mr. Howard. The sweatshirt was not found in Mr. Howard’s home or in his possession at the time of his arrest. No eyewitness has identified Mr. Howard as the person to have worn the sweatshirt at the time of the robberies.”
The lawyers also disputed that case law favors the government.
But Smith argued in a reply that the value of letting the jury see how Howard looks wearing the hoodie outweighs any prejudice it might cause his defense.
“The government submits that it stands to reason that the defendant may very well look different with a hood cinched around his face than he does while wearing a suit and tie and glasses sitting at counsel table during the trial,” Smith wrote.
Navarro has the final word on the subject, as the trial resumes on Tuesday.
In all, Howard faces 14 felony counts of interference with commerce by robbery, 12 counts of possession of a firearm in furtherance of a crime of violence and one count of felon in possession of a firearm. The 14 armed robberies occurred across the valley.
Because of his lengthy criminal history, Howard will get a mandatory sentence of life in prison if convicted of any of the 27 federal charges. He has felony convictions in Nevada, New York and Florida dating to 1980.
Contact Jeff German at email@example.com or 702-380-8135. Find him on Twitter: @JGermanRJ.