In a mind bogglingly long opinion released earlier this week, CT’s Supreme Court upheld the denial of Kennedy cousin Michael Skakel‘s motion for new trial. There is a concurrence and a dissent as well.
The decision is long and I don’t care enough to dissect it. Except to state that despite the court shooting down all his claims, there is still hope for Skakel. And that rests entirely on the claim that Mickey Sherman, celebrity lawyer extraordinaire, rendered ineffective assistance of counsel.
Normally, our appellate courts are quick to shoot down future hypothetical claims of ineffective assistance. Not so in this case:
The trial court concluded that efforts to locate the three witnesses prior to and during trial did not satisfy due diligence. The court further concluded that these witnesses could have been located using the same methods that ultimately were used after trial to locate them. Therefore, the court concluded that the evidence was not newly discovered within the meaning of § 52-270. We agree.
It is highly significant that this evidence is not newly discovered in the sense that the petitioner did not know of the existence of these witnesses prior to trial. Coleman had identified these witnesses years before trial. Moreover, the petitioner should have known that Coleman’s testimony, if credited, could be a key piece of evidence in the state’s case.
Sherman apparently concluded, however, that cross-examination of Coleman at trial would be sufficient to discredit him, as he justified his lack of direction to Colucci about locating these witnesses by the fact that he ‘‘didn’t anticipate that . . . Coleman would be dead at the [time of] trial . . . [and] believed that the jury would see [him].’’ Sherman had James’ contact information in the spring of 2002, but could not ‘‘connect’’ with him. No effort was made to locate Simpson or Grubin prior to or during the trial. Therefore, we fully agree with the trial court’s conclusion that Sherman had failed to exercise due diligence to locate the three witnesses.
We concluded that ‘‘the trial court acted within its discretion in rejecting the [petitioner’s] claim on the ground that the [petitioner] had failed to raise it in a timely manner under Practice Book § 42-54. Even though the [petitioner] became aware of the two reports during trial, he did not raise a Brady challenge to the state’s failure to provide him with the reports until two and one-half months after the five day limitation period [for filing a motion for a new trial under] . . . § 42-54 had expired.’’ (Emphasis added.) Id., 710.
In addition to the aforementioned facts and conclusions set forth in Skakel, the trial court in the present case pointed to the following testimony. Garr had offered testimony to establish that the composite drawing had been in the state’s files, which always were accessible to the petitioner. Sherman admitted that, shortly before trial, Solomon had told him about the profile reports.
Although Sherman had filed a discovery request almost one year before trial, he acknowledged that he had not renewed this discovery request specifically to request the profile reports. In light of this testimony and this court’s conclusions in the petitioner’s previous appeal, we conclude that the trial court did not abuse its discretion in concluding that this evidence was not newly discovered.
We are mindful that we have disposed of two of the petitioner’s claims solely on the ground that the trial court did not abuse its discretion in concluding that the evidence was not newly discovered because the petitioner did not meet his burden of proving that this evidence would not have been available for use at trial if due diligence had been exercised. Because this conclusion is dispositive of those claims; Costello v. Costello, 139 Conn. 690, 695, 96 A.2d 755 (1953); Terracino v. Fairway Asset Management, Inc., supra, 75 Conn. App. 80; we express no opinion on the possible effect that this evidence could have in a new trial.
Undoubtedly, the prerequisites for obtaining a new trial at this stage are stringent. ‘‘This strict standard is meant to effectuate the underlying ‘equitable principle that once a judgment is rendered it is to be considered final,’ and should not be disturbed by posttrial motions except for a compelling reason.’’ Asherman v. State, supra, 202 Conn. 434. To the extent, however, that the petitioner believes that this evidence would have changed the outcome of his trial, habeas relief is the appropriate avenue to pursue such a claim.
Now that kind of language is certainly unprecedented. If the Court didn’t believe that the evidence would, indeed, have an effect on the outcome of the trial, it would likely have reached the issue and said so, like it does in every other damn case not involving a famous person other cases.
So the question becomes: what will Mickey Sherman do? What will a habeas court do? That’s where the real fight is, in my opinion. Expect long hearings, big pronouncements and pointed and repeated references to this decision of Skakel v. State. If, as the court seems to suggest, the fault lies with Sherman, then how difficult will it be to deny relief on ineffective assistance grounds? And then there’s that matter of the odd filing of the federal habeas. I still don’t know why that occurred.
Ultimately, though, Skakel might have the luxury of fighting the conviction “from the outside”. Because of good time laws in effect at the time of the offense, he’s eligible for parole in a few years.
Whether he is innocent or guilty, the Skakel case has already resulted in two tragedies: the death of Martha Moxley and the abomination that is the Supreme Court’s decision on direct appeal, affirming his conviction in State v. Skakel [oddly, the author of State v. Skakel, Justice Palmer, is the lone dissenter in Skakel v. State]. I’ve never seen such judicial gymnastics. If you get me drunk enough, I’ll tell you why.