Opinion

OPINION: Little doubt Michael Skakel was wrongfully convicted in Martha Moxley case

Michael Skakel reacts to being granted bail during his bond hearing at Stamford Superior Court, Thursday, Nov. 21, 2013, in Stamford, Conn. Skakel was granted bail Thursday and expected to be released from prison while prosecutors in Connecticut appeal a ruling giving him a new trial in the 1975 slaying of neighbor Martha Moxley. (AP Photo/The Stamford Advocate, Bob Luckey, Pool) less Michael Skakel reacts to being granted bail during his bond hearing at Stamford Superior Court, Thursday, Nov. 21, 2013, in Stamford, Conn. Skakel was granted bail Thursday and expected to be released from ... more Photo: AP Photo: AP Image 1 of / 1 Caption Close OPINION: Little doubt Michael Skakel was wrongfully convicted in Martha Moxley case 1 / 1 Back to Gallery

By David R. Cameron

On Friday, a bitterly-divided state Supreme Court reinstated Michael Skakel’s 2002 conviction for the murder on Oct. 30, 1975 of Martha Moxley. By a 4-3 vote, it concluded that Michael Sherman, Skakel’s trial attorney, did not, as a habeas judge ruled in 2013, provide him with ineffective assistance, thereby denying him of his sixth amendment right to counsel.

Martha, 15, was killed on “mischief night” – Halloween eve – as she walked up the driveway of her home on Walsh Lane in the posh Belle Haven area of Greenwich. She was hit in the head from behind several times with a golf club that had belonged to Skakel’s mother, who died in 1973. Moxley was hit so hard her skull was fractured and the club shaft broken. She was stabbed through the neck with the broken-off handle of the club, dragged 70 feet and hidden under a pine tree on the Moxley property. The Skakel boys were known to play with golf clubs in their backyard across the street.

Martha’s body wasn’t found until the next afternoon. Because the autopsy was delayed for another 24 hours, the time of death could only be estimated within a range of three to four hours, from roughly 9:30 p.m. to 1 a.m. But a forensic pathologist estimated the likely time of death around 10 p.m., which was consistent with estimates obtained by the Greenwich police and the testimony of the state’s chief medical examiner based on the autopsy conducted by his predecessor.

It was also consistent with reports of unusual noises in the neighborhood around 10 p.m. that evening. Martha’s mother, doing some touch-up painting in an upstairs bedroom at that time, reported she heard a commotion outside the house and one or more angry-sounding male youths. Stephen Skakel, the youngest of the Skakel brothers, was awakened by screams. Two dogs in nearby yards started barking in a loud, agitated and sustained manner – so much so that several neighbors went out to see what was going on.

Around 9 p.m. that evening, Martha and two friends had walked to the Skakels’ and sat with Michael, also 15, in the family’s Lincoln listening to music. Around 9:15, Michael’s brother Tommy, 17, joined them. Around 9:30, two of Michael and Tommy’s older brothers and a cousin came and took the car to go to the cousin’s home in North Greenwich to watch a Monty Python show on television. Michael told the police he went with his two brothers and cousin and returned home around 11:15 p.m. That was confirmed at the time by the brothers and cousin.

Tommy, Martha, and her two friends didn’t go to the cousin’s. Tommy told the police he and Martha talked for a few minutes and then she went home and he went inside to do a homework assignment. The police soon learned he didn’t have a homework assignment that evening. Martha’s two friends initially told the police they last saw Tommy and Martha standing in the driveway. But in a second interview a couple of months later, they said that after the brothers and cousin left, Tommy and Martha began flirting, pushing and shoving each other. When they last saw Martha, she and Tommy were falling together behind a fence near the Skakels’ swimming pool. Years later, Tommy told family investigators that he and Martha had engaged in intimate behavior for about 20 minutes before she left.

In 2013, Superior Court Judge Thomas A. Bishop ruled, in response to Skakel’s habeas petition, that Sherman had, as Skakel claimed, provided him with ineffective assistance in the 2002 trial. The judge threw out his conviction and ordered a new trial. The state appealed to the Supreme Court and Skakel was released from prison pending the Supreme Court’s decision on the appeal.

While presenting a litany of Sherman’s errors in the trial, Judge Bishop focused on three: his failure to make use of information available at the time to pursue a third-party culpability defense focused on Tommy; his failure to make use of information available at the time to support Michael’s alibi that he was elsewhere at the time of the crime; and his failure to impeach the testimony of a drug addict who claimed Michael Skakel had confessed to having killed Martha.

The judge noted there was substantial background evidence of Tommy’s “mental and emotional instability and his penchant for violent outbursts.” He cited a police affidavit that “on numerous occasions Thomas Skakel has displayed acts of violence and rage…frequent and quite sudden outbursts of severe physical violence….”

At the habeas trial, a man who was not a Skakel relative and had not testified at the original trial said he was at the cousin’s home that evening and talked with Michael and his brothers and cousin while they were watching the Monty Python show. Sherman could have easily tracked him down prior to the trial – the cousin’s sister had referred to him as her “beau” in her grand jury testimony – and called him to testify in support of Michael Skakel’s alibi, but he didn’t.

A drug addict who had been at a substance abuse residential program in Maine with Michael in the late 1970s and died of an overdose prior to the trial testified at the probable cause hearing that Michael had confessed in the presence of one or more of three others that he had killed Martha. Sherman failed to locate and call to testify the three individuals. Michael’s appellate lawyers located all three and obtained their testimony. All three said they never heard Michael confess to having killed Martha, either in the presence of Coleman or anyone else.

The U.S. Supreme Court has set a very high standard for proving ineffective assistance. In Strickland v. Washington (1984), it ruled that, in order to demonstrate that an attorney’s performance was so defective as to require reversal of a conviction, a defendant must show that the it “fell below an objective standard of reasonableness;” was deficient, meaning the attorney made errors so serious that he or she was not functioning as the counsel” guaranteed by the Sixth Amendment; and prejudiced the defense, meaning the errors were so serious as to deprive the defendant of a fair trial.

On Friday, in a lengthy decision written by Justice Peter T. Zarella and joined by three other justices, the Supreme Court ruled that Sherman had provided Skakel with “constitutionally adequate representation” and reversed the judgment of the habeas court and reinstated Skakel’s conviction. The court concluded Sherman’s decision not to pursue a defense implicating Thomas Skakel was a “reasonable strategic decision after adequate investigation,” given the lack of admissible evidence supporting that defense and the damage it might have done to Michael’s defense by suggesting a possible motive. It concluded Sherman’s decision not to call the “beau” to support Michael’s alibi defense was not constitutionally deficient and hence ineffective. And it concluded that his failure to call the three individuals the drug addict claimed were present when Michael supposedly confessed did not fall below an objective standard of reasonableness and constitute ineffective assistance.

Justice Richard N. Palmer, joined by Justice Andrew J. McDonald and, in part, by Justice Richard A. Robinson, vehemently disagreed. In his dissenting opinion, Palmer, who previously served as a U.S. Attorney and Chief State’s Attorney and who has authored many of the court’s most important criminal justice decisions over the past two decades, said “the habeas court was absolutely right in concluding that the petitioner, Michael Skakel, did not receive a fair trial.” He said Sherman’s performance “fell far below the range of competence necessary to satisfy the petitioner’s right to the effective assistance of counsel guaranteed by the sixth amendment.”

Palmer went further: Regarding the majority’s position on Sherman’s failure to seek the testimony of the “beau,” he said it “is so blatantly one-sided as to call into question the basic fairness and objectivity of the majority’s analysis and conclusion.” That analysis and conclusion represent, he said, “an unprecedented and indefensible deviation from settled sixth amendment principles.”

Palmer also objected strongly to the majority’s conclusion that the habeas court erred in finding Sherman’s representation deficient because he failed to pursue a third-party culpability defense against Thomas Skakel. He noted in particular the highly incriminating admissions Thomas made to Sherman and an associate on the eve of Michael’s trial. Sherman’s decision to concentrate the third-party culpability defense on someone else, rather than Thomas, was, he said, entirely unreasonable given the dearth of evidence connecting that other person to the crime and “the multitude of facts pointing to Thomas Skakel’s involvement,” all of which were known to Sherman before the trial.

Skakel’s attorney will probably ask the court to reconsider its decision, it will presumably refuse to do so, and the case will probably go to the U.S. Supreme Court. In the meantime, and perhaps for a very long time, Michael Skakel will return to prison to serve the remainder of his sentence of 20 years to life.

But something else should also happen. To its credit, in 2015 the Division of Criminal Justice began an effort to institute a state-wide conviction integrity process analogous in some respects to the conviction integrity units that have been created in a number of large metropolitan districts across the country. Those responsible for the process should read Justice Palmer’s opinion and then reopen the investigation of the murder of Martha Moxley. There can be little doubt that Michael Skakel was wrongfully convicted of her murder.

David R. Cameron writes from time to time on criminal justice and other matters and served for the past five years on the state’s Eyewitness Identification Task Force.