Skakel Decision Has Legal Community Talking

, The Connecticut Law Tribune

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Michael Skakel
Michael Skakel

When Connecticut attorney Mickey Sherman was one of the nation's most high-profile defense attorneys a decade or so ago, he often went on CNN and other networks to comment on legal issues and cases.

So it seemed appropriate last week that after a judge soundly criticized Sherman's own legal work and granted a new trial for a former client, convicted killer Michael Skakel, that there was no shortage of lawyers ready to comment on the case.

Some defense attorneys defended Sherman. Others commented on the decision's impact on future habeas corpus proceedings. Skakel's own lawyer asked for his client to be freed pending a retrial. Prosecutors said they would, in fact, try Skakel again for the 1975 murder of Martha Moxley, who was bludgeoned with a golf club, a crime committed when Skakel and the victim were both 15 years old and neighbors in upscale Greenwich.

Stephan Seeger, a Stamford lawyer who helped Sherman represent Skakel in 2002, echoed the sentiments of many in the legal field who said it is extremely rare for a judge to grant a new trial after an inmate files a habeas petition claiming ineffective assistance of counsel.

"People don't realize just how rare a successful petition is," Seeger said. "Percentage-wise, we're talking digits [to the right of] a decimal point and a zero."

Seeger continued: "The court has spoken on the issue of ineffective assistance of counsel, and other irregularities in the trial, and the bottom line is that Michael [Skakel] will be given an opportunity to come home to his family forever. What we need to respect is that, by definition, he is a wrongfully convicted man. In facing a future jury, he is effectively reclothed in the presumption of innocence."

Stamford defense lawyer James Diamond sat through much of the Skakel trial, acting as a commentator for a Fairfield County TV station. Last week, Diamond said he would not be surprised if there is a cynical response to this decision from other criminal defendants. Many inmates filing habeas petitions do so on their own or with the help of public defenders.

Skakel, in contrast, was represented by Hubert Santos, one of the most well-respected attorneys in the state. Diamond said the decision could reinforce the notion that well-heeled defendants with high-priced lawyers get better results.

"My clients always complain about that and bring up O.J. Simpson as the poster child for their belief that if you have enough money you will prevail," said Diamond, a former prosecutor.

Diamond, who is on the executive committee of the Connecticut Bar Association's criminal law section, said there are already so many habeas claims by inmates that he cannot see this decision causing even more claims to be brought. However, he said, the defendants who do bring them "will be more encouraged" about their chances.

It wasn't long after Skakel's initial conviction that critics focused on Sherman's performance during the trial. Many said the Greenwich attorney was more interested in raising his media profile than providing an aggressive defense.

This past April, Skakel himself took the stand at his habeas hearing and portrayed Sherman as an overly confident lawyer basking in the media limelight while making fundamental mistakes from poor jury picks to failing to track down key witnesses.

Robert F. Kennedy Jr., a cousin of Skakel's, said on NBC's "Today" last week that the only thing that Skakel was guilty of was having "very, very poor representation. If he gets another trial, he's got good lawyers now and there's no way in the world that he will be convicted."

In a 136-page decision, Judge Thomas Bishop went into great depth about the crime, the investigation and the trial. The bottom line, he said, is that the defense in such a case requires attention to detail, an energetic investigation and a coherent plan of defense.

"Trial counsel's failures in each of these areas of representation were significant and, ultimately, fatal to a constitutionally adequate defense," Bishop wrote. "As a consequence of trial counsel's failures as stated, the state procured a judgment of conviction that lacks reliability."

Among other issues, the judge wrote that the defense could have focused more on Skakel's brother, Thomas, who was the last person seen with Martha Moxley. Had Sherman tried to persuade jurors that Thomas was a more likely suspect, "there is a reasonable probability that the outcome of the trial would have been different," the judge wrote.

Santos, Skakel's lawyer, said a motion to grant Skakel a bond, which would get him out of prison while awaiting a retrial, was filed Oct. 23.

"Michael is hoping to be vindicated," Santos told the Law Tribune. "We're obviously pleased with the ruling, and we're hoping to vindicate Michael."

Meanwhile, John Smriga, state's attorney for the Judicial District of Fairfield, is planning to appeal Bishop's decision. He said the state will contest Santos' attempt to have bond set and Skakel freed.

Interestingly, in a news release, prosecutors defended Sherman's work.

"Attorney Michael Sherman devoted four years and thousands of hours to Skakel's defense. His preparation included countless hours seeking out and interviewing witnesses, consulting with experts, researching legal issues, reviewing the enormous amount of discovery provided by the state, and using legal means to block the state's access to incriminating evidence. He prosecuted two pretrial appeals. Attorney Sherman used his judgment, developed over his more than three decades as a criminal defense attorney, to make strategic decisions," the press release stated. "Attorney Sherman presented a defense based on a three-fold strategy: attacking the state's evidence, presenting an alibi, and presenting a third party culpability defense. This strategy failed not because of any flaw in Sherman's representation but because of the strength of the state's evidence."

Prosecutors said they have confidence that the jury's guilty verdict wasn't based on any shortcomings on Sherman's part, but on Skakel's "uncontested connection to the murder weapon, strong evidence of motive, substantial evidence of consciousness of guilt, nearly a dozen incriminating admissions and three unequivocal confessions."

Defense attorneys had another view.

"The prosecution has never had a good case against Michael Skakel," said Seeger, the co-defense counsel. "This was a 25-year-old case when [the trial] began, and it rested entirely upon thin and dated circumstantial evidence. I got the impression early that the state wanted to drive home the [wealth and] privilege theme, and that this case was a little more personal than other ones. For the most part, the evidence unfolded in a way that didn't appear to favor conviction at all."

Like others, he credited a strong closing argument by prosecutor Jon Benedict with swaying the jury.

So who might have an advantage if the case goes to trial again? Prosecutor-turned-defense attorney Diamond said neither side will. Both prosecution and defense, he said, will have to deal with the spoilage of evidence and witnesses. And both sides will have the advantage of reading the transcript of the first trial.

In short, Diamond said, "both sides equally have the advantage of having gone through it once."•

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