Well. This is something I never thought I’d type, but Michael Skakel has just had his convictions reversed and a new trial ordered [PDF] by former Appellate Court judge Thomas Bishop, who was designated to preside over and adjudicate Skakel’s petition for writ of habeas corpus.
The allegations revolve mostly around Skakel’s representation by famed celebrity lawyer Mickey Sherman, in that Skakel alleges that Sherman did a terrible job representing him.
See, the Constitution not only requires that you have a lawyer, but that you have a lawyer who is competent and whose performance is within the norm.
And that makes sense: what good is a lawyer if the lawyer performs terribly, is asleep and incompetent and completely mucks up your case? The lawyer must be required to act in an universally acceptable way.
So Skakel alleged that Sherman did many things wrong. In support of his allegations, he presented the testimony of three very respected Connecticut lawyers, all of whom seemed to have some very choice things to say about Sherman’s performance.
In a very lengthy, detailed and thorough opinion, Judge Bishop finds in Skakel’s favor on most of the serious allegations of ineffective assistance.
In other words, Sherman did a piss poor job of representing Skakel and that piss-poor representation deprived Skakel of his Constitutionally protected right to effective assistance of counsel and there is a reasonable likelihood that his piss-poor representation led to Skakel’s conviction.
Before I go any further, some background: Skakel is some rich and politically powerful dude (“a Kennedy cousin”) who was 15 years old when his neighbor – a 15 year old girl – was found bludgeoned to death. About 23 years later, in 1998, a grand jury was convened and in 2000 Skakel was charged with the murder.
Although a juvenile at time of the murder, he was tried as an adult. But lest you think this is a case of one brand of justice for the rich and one for the poor, let me explain to you that Skakel got screwed.
They’ve fucked him at every step. 15 at the time of the murder and should legally have been in juvenile court? No worries, we’ll just rule that sure that may be but now he’s an adult so he should be tried as an adult. Easy. Oh what’s that, you say? The statute of limitations ran out 20 years ago? No problem, we’ll just create a brand new rule out of
our asses whole cloth that statutes of limitations don’t expire if the legislature changes statutes of limitations while they’re still running. Or something. Did we throw enough legal words at you so now you’re confused and have no idea what we said? Yes? Good. Go away. Don’t look here any more.
So, no. He hasn’t gotten preferential treatment from Connecticut courts. In fact, if anything, it seems to be almost the opposite.
Judge Bishop finds that Sherman was ineffective in some pretty serious ways: first, that he failed to argue to the jury that there was someone else who had committed the crime – Thomas Skakel, Michael’s brother. Judge Bishop has this to say:
Attorney Sherman’s failure to point an accusatory finger at T. Skakel was and is inexplicable. Given the evidence of T. Skakel’s culpability available to Attorney Sherman before trial, there was no reasonable basis for his failure to shine the light of culpability on T. Skakel.
He further finds that there was an independent, detached reliable alibi witness Dennis Ossorio, who would’ve testified that Skakel was at his house around the time of the murder. This was not investigated or presented to the jury.
Equally damning is the Sherman’s failure to undermine the state’s star witness: Gregory Coleman who alleged that Skakel had made some specific confessions to him about murdering Moxley. Judge Bishop found that there were several other witnesses who would’ve testified that Coleman was a liar, proud to be a liar and that some of the described encounters with Skakel never occurred.
Sherman’s handling of the trial and his attitude throughout can best be summed up by this quote of Attorney Michael Fitzpatrick, one of Skakel’s experts:
Sherman’s failure…was a significant strategic error born of an overabundance of self-satisfaction with his [performance]
Here’s something I didn’t know: after closing arguments, but before the judge instructed the jury on the law, the trial judge had to specifically instruct the jurors that several comments made by Attorney Sherman were improper and they should ignore those comments. I can tell you that I’ve never seen that happen in relation to a defense attorney’s closing argument.
The real question, of course, is whether this will survive appellate review. I think the fact that it clocks in at 136 pages already gives the ruling a strong chance of survival. Think of the work it will take to undo it. It’s possible – and if there ever was a case where it would happen, it would be this – but I think it’s somewhat unlikely. Further bolstering its chances are the other parts of the ruling where Judge Bishop finds either that Sherman did nothing wrong or that he did, but it didn’t affect the trial.
However one cannot come away without the sense that Sherman’s performance was so below par that it fundamentally affected the reliability of the outcome and called into question the fairness of the trial.
And that is something we should all be concerned about, whether the defendant is a Kennedy cousin or just your cousin.