Archive for October 25, 2007
Skakel petition denied; should he have gone straight to habeas?
Oct 25th
Judge Karazin today issued his Memorandum of Decision [pdf] denying Michael Skakel’s petition for new trial, holding that most of what Skakel based his claims on was not newly discovered evidence.
Skakel sought a new trial based on Gitano “Tony” Bryant’s claim that his two friends told him they got Moxley “caveman style.” Bryant and Skakel attended the same private school.
Karazin wrote in his ruling that Bryant’s statements were admissible, but not credible.
“The corroboration for Bryant’s claim is minimal,” he wrote. “No one has any recall of ever seeing Bryant and his companions in Belle Haven on the night of the murder.”
“The testimony of Bryant is absent any corroboration,” Karazin wrote. “It lacks credibility, and therefore would not produce a different result in a new trial.”
He also claimed that there were three newly discovered witnesses that undermined and directly contradicted the testimony of the state’s “star” witness: Gregory Coleman. Coleman had testified that Skakel confessed to him when they were in private school together. These three witnesses would have testified that Skakel did not confess.
Judge Karazin ruled, however, that these three witnesses could have been discovered prior to trial with due diligence. There’s more:
Karazin said [trial attorney Michael "Mickey"] Sherman did not ask for a ruling during the trial about [state inspector] Garr’s book deal, calling the move “either a lack of due diligence or a strategic decision.”
Skakel’s attorneys also said the state failed to hand over reports on other suspects and a sketch that they said resembled an early suspect.
But Karazin noted that the state Supreme Court found that Skakel’s defense was aware of the reports and the sketch during the trial, but failed to make a timely request for them.
So this brings me to my second thought. Judge Karazin’s description of several of the claims raised by Skakel made some habeas petitions I’ve seen seem meritorious. An appeal, probably forthcoming, seems unlikely to result in a reversal of Judge Karazin’s ruling.
On the other hand, there seems to be plenty of evidence that Mickey Sherman was pretty ineffective in representing Skakel. So why not go straight to the habeas corpus court one might wonder.
I think it might have something to do with getting yet another court to document the shortcomings of Mickey Sherman’s representation of Skakel. Clearly, it is a topic of discussion in news reports.
This strategy (if indeed it is a strategy) carries some pitfalls, though. Like yesterday’s opinion from the Appellate Court and a few lines from Judge Karazin’s decision, there is always the (great) likelihood that such a court would include throwaway statements that effectively preclude habeas relief. The appellate courts are only too happy to do that: “Cumulative”; “wouldn’t have made a difference”; “evidence was extremely strong”; “harmless error” are some examples.
Judge Karazin uses a few: “admissible but not credible”and “lack of due diligence or tactical decision”.
All in all, I think Skakel might have been better served by filing a petition for Writ of Habeas Corpus instead of the petition for new trial, but I’m just me and that’s why they pay Santos & Seeley the big bucks.
Timing is everything
Oct 25th
Woman in Black writes of one of her least favorite conversations to have with clients:
the “I know you say you did not do it, I believe you, the evidence against you is not overwhelming, but you really cannot trust a jury to free you and maybe you need to think about taking this deal instead of risking the rest of your life” conversation.
She gives several reasons for not liking this conversation and first on the list is client distrust. If you tell the client that they have a decent case, then why are you telling them to plead guilty.
That’s why timing is everything. You need to have this conversation at the appropriate moment and precede it with several other conversations: the “this is the burden on proof” conversation, the “these are the elements of the charge” conversation, the “this is the evidence the state has” conversation and the “this is what you’re facing after trial” conversation.
You need to establish a relationship with the client before you have the “I think this deal might be best for you” talk. Don’t be like those lawyers that talk to clients on the phone for the first time with an accept or reject deal on the table. The client will not trust you. Then don’t act surprised when the client calls you a public pretender or says that you work for the State.
You also don’t want to go overboard and say that there’s no way the client can get convicted and then a month later counsel them on taking a plea deal. It doesn’t work that way.
You need to explain to the client the pros and cons of taking a plea deal (remember, it is their decision) and the best way to get the client to understand what is in their best interests is if the client trusts you. It takes time to build trust, especially for clients that have been in and out of the system.
So some simple rules: Be honest with the client, don’t overstate anything, never promise anything, create a relationship, visit the client and take some time explaining the case to the client. If you do that, more often than not, the client will trust you and trust your recommendation.
Second Circuit on Crawford
Oct 25th
The Second Circuit issued an interesting decision recently. I’ll let the Second Circuit Blog do the talking here:
In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.
Obviously, [the defendant's] Confrontation Clause claim raises Bruton issues; indeed, this is the classic Bruton situation – the out-of-court statement of one defendant is used against a co-defendant. But here, the court never even got to Bruton. It held that Bobby’s out of court remarks were not “testimonial” under Crawford, and thus “our Confrontation Clause inquiry is at an end.” In other words, the court denied the Bruton claim without even mentioning Bruton.
This case, if it stands, would limit Bruton to cases where the co-defendant’s out-of-court statement was taken by the police, or is otherwise “testimonial” for some reason. The court might well be right – although only the Supremes will tell us for sure. But one would have hoped that if the court really wanted to take on such a radical and new issue (as of this writing, no other Circuit has so held), it would come out and say so directly, rather than leaving the entire bar to guess. Let’s that hope the [co-defendants] file cert petitions.
I don’t think the opinion is publicly available yet. Maybe they’re redacting something. Here it is.
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