In their effort to return accused Greenwich killer Michael Skakel to prison, state prosecutors filed an exhaustive appeal Friday of the decision by a judge who freed Skakel last year after concluding his conviction was the result of an ineffective defense by his trial lawyer.
The 249-page appeal brief, brought to the state Supreme Court, is a point-by-point rebuttal of Judge Thomas Bishop's conclusion that Skakel probably would have been acquitted of bludgeoning his 15-year old neighbor Martha Moxley in 1975 if his lawyer had been more diligent and exercised better judgment.
In asking the Supreme Court to reverse Bishop and reinstate Skakel's conviction, the prosecutors have been forced into an unlikely defense of Michael Sherman, the former Skakel lawyer who opposed them at a long, sensational murder trial in 2002.
Skakel, 53 and related by marriage to the Kennedy family, was convicted at the trial – a verdict that surprised many observers – and sentenced in August 2002 to from 20 years to life in prison. He was released in November on a $1.2 million bond after Bishop's ruling.
Bishop's decision was a biting critique of Sherman's tactical decisions at trial. In their appeal brief, prosecutors try to reflect the criticism back at the judge.
Generally, the prosecutors assert that Bishop misapplied the law as it applies to defining an effective defense, to which the Constitution's sixth amendment entitles criminal defendants. In a defense of Sherman's trial strategy – including his choice of some witnesses and his efforts to locate others – the prosecutors accuse Bishop of impermissible second-guessing.
Much of the appeal brief is directed at Sherman's effort to persuade the trial jury that an alternate suspect, someone other than Skakel, killed Moxley. The Skakel and Moxley families were neighbors in a private Greenwich neighborhood.
Sherman decided to present jurors with one alternate suspect, Skakel family private tutor Kenneth Littleton. Bishop adopted an argument by Skakel's appeal lawyers, Hubert Santos and Hope Seeley, that there were multiple alternate suspects who could have been presented to jurors and that Sherman ignored the most persuasive of those suspects, Skakel's brother Thomas.
At an earlier appeal hearing over which Bishop presided, Sherman testified that he and his defense team considered all possible alternative suspects in the case. He said he decided he could most effectively persuade jurors of his client's innocence by focusing on one, Littleton.
"A careful review of the record makes clear that (Bishop's) disregard of their reasoned, strategic decision is indefensible," the prosecutors wrote.
Santos and Seeley presented Bishop with their biting critique of Sherman's trial preparation and strategy in an 11th hour defense effort at what is known as a habeas corpus hearing. Among other things, the pair made a case that Sherman neglected Skakel because he was luxuriating in the media attention associated with defending a Kennedy relation accused of a lurid murder in gated community on Connecticut's Gold Coast.
The prosecutors, quoting a Sherman associate, argue in the appeal that Sherman was commenting on legal issues for television before he was retained by Skakel. The prosecution appeal argues that, regardless of the time Sherman spent in television studies, Skakel was the beneficiary of "able and effective advocacy."
The prosecutors said Sherman hired three associates and three private investigators to help prepare the Skakel defense and engaged "legal luminaries," such as F. Lee Bailey and Barry Scheck for advice. While preparing for one of the biggest trials ever in Connecticut, the prosecutors said, Sherman was able to prevent Skakel's ex-wife from publishing a book entitled "I Married A Killer."
"Simply put, if the level of representation (Skakel) received falls short of Sixth Amendment standards," the prosecutors argue, "no Connecticut conviction can be considered reliable."
Martha Moxley's murder – she was beaten to death and stabbed with a Skakel family golf club – has long been the subject of legal dispute. Skakel wasn't charged until 2000 – 25 years after the death. Over the intervening years, police focused on other suspects. The Greenwich police sought at one point to charge Thomas Skakel, but the warrant application was rejected by prosecutors.
Michael Skakel's defense was defeated by evidence, not lack of effort, the prosecutors wrote.
"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," the prosecutors said. "This strategy failed not because of any fault of defense counsel, but because of the strength of the state's case."
Bishop's 135-page decision in October found the Skakel defense responsible for "a myriad" of failings.
"The defense of a serious felony prosecution requires attention to detail, an energetic investigation and a coherent plan of defense capably executed," Bishop wrote. "Trial counsel's failures in each of these areas of representation were significant and, ultimately, fatal to a constitutionally adequate defense."
Prosecutors have said they will retry Skakel if their appeal to the state Supreme Court fails.