A divided state
“Because we conclude that the petitioner’s trial counsel rendered constitutionally adequate representation, we reverse the judgment” of the lower court, a 4-3 majority of the Supreme Court wrote in a decision released Friday afternoon.
In a sharply worded dissent, Justice Richard Palmer criticized the majority’s decision, saying trial lawyer Mickey Sherman’s failure to pursue a potential alibi witness and to point blame at Skakel’s brother Thomas robbed Skakel of a fair trial. He accused the majority of endorsing the outcome of a trial “literally riddled with highly prejudicial attorney incompetence.”
Skakel was convicted in 2002 in the bludgeoning death 27 years earlier of Greenwich neighbor Martha Moxley, when she and Skakel were both 15. The case has generated headlines for four decades because of Skakel’s Kennedy connection — he is a nephew of Robert F. Kennedy’s widow, Ethel — and the window the case provided into the privileged lives of Greenwich’s monied residents.
Skakel, 56, received a sentence of 20 years to life. But his conviction was overturned in 2013 after a Superior Court judge declared that Skakel’s defense attorney had botched the case.
“The defense of a serious felony prosecution requires attention to detail, an energetic investigation and a coherent plan of defense capably executed,” Judge Thomas Bishop wrote in October 2013. “Trial counsel’s failures in each of these areas of representation were significant and, ultimately, fatal to a constitutionally adequate defense.”
A month later, Skakel was out on bail. And the state began an effort to put him back behind bars, ultimately filing a 249-page appeal rebutting Bishop’s conclusion that Skakel’s conviction was marred by ineffective assistance by Sherman. They said Bishop’s conclusions amounted to second-guessing Sherman’s reasoned defense strategy.
As an example, Skakel’s appellate attorney, Hubert Santos, had successfully argued that Sherman made a tactical error in failing to suggest that the killing might have been carried out by Skakel’s brother, who was once a suspect in the case.
Sherman did present evidence about another possible killer — a family tutor — and testified that he made a strategic decision to focus on only one alternate suspect. The state argued that while there may be differences of opinion on the best strategy, Sherman’s calculated choice couldn’t be seen as ineffective lawyering.
“At trial, they presented a defense based on a three-fold strategy: attacking the state’s evidence; presenting an alibi; and presenting a third-party culprit defense,” prosecutors wrote in their appeal. “This strategy failed not because of any fault of defense counsel, but because of the strength of the state’s case.”
A majority of the Supreme Court ruled Friday that Sherman’s decision not to focus on Thomas Skakel “was a reasonable strategic decision made after adequate investigation.”
Palmer, in a dissent joined by Andrew J. McDonald, reached the opposite conclusion, saying the lower court was “absolutely correct” in finding that by failing to pursue a third-party liability defense aimed at Thomas Skakel, “Sherman simply was not acting as the competent counsel guaranteed by the sixth amendment.”
It’s unclear when Skakel would be returned to prison. Santos said Friday he has 10 days to file a petition asking the Supreme Court to reconsider the decision. That could pose some interesting issues since Judge Peter T. Zarella, who wrote the majority opinion, is retiring and will no longer be on the bench.
If that motion fails, Santos said he will file a petition to have the case go before the U.S. Supreme Court. In addition, the legal team will move to reopen a federal lawsuit that was filed on Michael Skakel’s behalf seeking new trial. A federal judge dismissed that lawsuit when Skakel won his release in state court.
“We will petition the federal court to reopen that case and add onto our claims the issue of ineffective counsel, which was not part of our federal case when we originally filed the lawsuit,” Santos said.
In arguments before the high court last February, state prosecutors found themselves defending their former courtroom adversary, telling the justices that Sherman prevailed on a number of pretrial motions and sought the advice of top legal minds, including F. Lee Bailey and Barry Scheck.
“This was far from a slipshod defense,” Assistant State’s Attorney Susan Gill said during the hearing. “This was a well-thought-out, well-planned defense.”
Gill, who prosecuted the case in 2002 and also argued the state’s habeas case, added, “It’s been a long, long road with this case and I am very pleased with the decision. What has gotten lost is how strong our case was against Michael Skakel. The jury listened to all of evidence and made their decision and I have always been confident in their work.”
Sherman, in an interview Friday, said he did not view the court’s ruling as a vindication. “My reputation and questioned ability was a by-product of this process,” he said. “But the bottom line is Michael Skakel should have never been convicted. ... Michael Skakel simply didn’t commit this crime.”
Former Fairfield County State’s Attorney Jonathan Benedict said after all that has happened with this case he “wasn’t surprised by the ruling because at this stage with this case anything can happen and it did.”
Benedict said the ruling sends a message that you can second guess defense attorneys all you want but that doesn’t mean they aren’t doing their job.
“Mickey (Sherman) picked the best shot he thought he had and it didn’t fly with the jury and it wouldn’t have if he had tried to blame Tommy Skakel for the murder as well.”
Benedict is referring to Sherman trying to paint Kenneth Littleton as an alternative suspect for the murder rather than trying to pin it on Tommy Skakel.
Benedict said the case will be returned to the Stamford Judicial District for further action once any appeals are exhausted.
Moxley was killed the night before Halloween in 1975 in the driveway of her Greenwich home. She was hit in the head repeatedly with a golf club belonging to the Skakel family, and then stabbed in the neck with the broken-off handle. No forensic evidence ties Skakel to the crime, but more than two decades after the killing, Skakel was charged, based on incriminating statements he allegedly made to prep school classmates and inconsistencies in the alibi he gave police in the weeks after the killing.