By ALAINE GRIFFIN, email@example.com
The Hartford Courant
8:25 PM EDT, April 2, 2013
— A police sketch of a man walking in the area of Greenwich teenager Martha Moxley's home the night she was killed is expected to be a critical part of defense lawyers' next bid for freedom for Michael Skakel, the Kennedy cousin serving a 20-years-to-life sentence for the 1975 murder.
Skakel's lawyers said they will raise claims that the composite drawing — based on a description given to police by a private security guard at the gated Belle Haven community where both Moxley and Skakel lived — should have been used as exculpatory evidence by Skakel's trial lawyer.
Skakel, the nephew of Robert and Ethel Skakel Kennedy, was convicted of Moxley's murder in June 2002 at age 41. He was not charged with the teen's murder until 2000, when he was 39. His trial received widespread publicity because of his ties to the Kennedys.
The state Supreme Court has upheld his conviction, and the U.S. Supreme Court has declined to review the case. Last October, Skakel, now 52, pleaded his innocence before the Connecticut Board of Pardons and Paroles but was denied release from prison.
His lawyers' latest argument was outlined in a pretrial memorandum filed Tuesday at Superior Court in Rockville in anticipation of a hearing beginning April 16 on a petition Skakel has filed for a writ of habeas corpus. Such a petition is often a convict's last resort to get a verdict overturned or a prison sentence reduced.
Skakel's lawyers, Hubert J. Santos and Jessica M. Santos, say Skakel's trial lawyer, Mickey Sherman, was ineffective. Sherman is expected to testify in the hearing later this month.
Skakel's lawyers argue that it was Sherman's duty to investigate and obtain the police sketch that they say bears a strong resemblance to Kenneth Littleton, a man who did tutoring at the Skakel home. Littleton originally was a chief suspect in Martha's murder, the lawyers say.
The pretrial memo says Sherman did not specifically request a copy of the sketch, "the single most important piece of exculpatory evidence in the case. … The ability for the jury to view a sketch of a man seen near the crime scene at the relevant time that resembles Kenneth Littleton (and not 15-year-old Michael Skakel) would have materially assisted the defense."
The state Supreme Court, in unanimously upholding Skakel's conviction in 2006, noted that the state should have turned over the sketch. However, because the sketch is mentioned in two reports that Sherman had in his possession before trial, the high court deemed it a harmless error, because Sherman had notice of the existence of the sketch and did not pursue it.
In a pretrial brief filed Tuesday, a team of state's attorneys headed by Fairfield County Supervisory Assistant State's Attorney Susann E. Gill said an investigation determined that the composite sketch was of another man, not Littleton. The brief also points to findings by Judge Edward R. Karazin Jr., who presided over the trial and subsequent Superior Court hearing for a new trial, that said Skakel failed to prove the sketch resembled Littleton in 1975.
"Obviously if the sketch does not resemble Littleton, it is not even relevant to the theory constructed by [Skakel]; therefore it can not be material," the state's attorneys wrote.
Skakel's lawyers allege 10 deficiencies of Sherman at trial, including his "failure" to obtain discovery, to challenge what they claim were coerced confessions, to properly prepare defense witnesses, to challenge use of certain evidence, and to advise Skakel of his constitutional right to testify and elect trial by a three-judge panel.
They also allege Sherman's counsel was adversely affected by a conflict of interest in his fee arrangement with Skakel.
The memo filed Tuesday shows Skakel's lawyers also plan to raise questions about Sherman's handling of the trial testimony of two of Skakel's former Elan School classmates, including Gregory Coleman, a convicted felon with a history of drug addiction and mental health issues, who testified that Skakel had confessed the murder to him.
Coleman died of a drug overdose in Rochester, N.Y., in 2001, about four months after he testified at Skakel's probable cause hearing, the pretrial memo states. Elan served as a residential substance abuse center for teens.
Skakel's lawyers wrote that the prosecution's case "rested entirely on the credibility of two witnesses of dubious credibility, who came forward with their stories of confessions after twenty years and the announcement of a reward for information."
"There were no eyewitnesses to the murder of Martha Moxley," they continued. "There was no forensic evidence that linked [Skakel] to the crime. Had trial counsel acted with reasonable diligence and conducted an appropriate investigation, obtained discovery and challenged inappropriate evidence presented by the state, the result of [Skakel's] trial likely would have been different."
State's attorneys disagree, saying in their memo Tuesday that Coleman's testimony "was buttressed at trial by two witnesses."
The state says Sherman's representation did not fall below an objective standard of reasonableness, something Skakel must prove to determine ineffectiveness. Skakel "cannot carry his burden of proving" Sherman's counsel was constitutionally deficient and "that he was prejudiced," the state's attorneys wrote.
Further, the state's attorneys say claims of ineffective counsel on some of the counts are "procedurally defaulted" due to Skakel's failure to raise them in his 2005 petition for a new trial. In addition, the state's attorneys say, Karazin's findings denying Skakel a new trial "were conclusive; there was nothing tentative" about them.
"The state should not be forced to litigate these issues a second time," the state's attorneys wrote. Skakel "should not be permitted to place these issues once again in dispute in the hopes that a different judge will come to a different conclusion."
To allow Skakel to do that, "for no good reason other than his desire to keep the controversy alive and hope for a different result before a different decision maker, makes a mockery of the finality to which the state, the taxpayers, and the victims are entitled," they wrote.
Skakel and Moxley were both 15 when the crime occurred. They lived across the street from each other. Moxley's body was found beneath a tree on Halloween. She was beaten to death with part of a golf club about 10 p.m. the previous night.
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