11 States Ask Supreme Court To Hear Connecticut's Skakel Appeal

Eleven states are joining Connecticut prosecutors and asking the U.S. Supreme Court to reverse a state court and reinstate Kennedy cousin Michael Skakel’s conviction for murdering his friend Martha Moxley a half-century ago when the two were 15-year-old neighbors in Greenwich.

The states, in a friend-of-the-court brief, have adopted Connecticut’s argument that the state Supreme Court, when reversing Skakel’s 2002 conviction in May, misapplied the law in a way that could flood the courts with appeals based on unjustified claims of incompetence by criminal defense lawyers.

State Asks U.S. Supreme Court To Reinstate Kennedy Cousin Skakel's Murder Conviction »

The Connecticut Supreme Court reversed the conviction and cut short Skakel’s 20-year to life sentence in a remarkable ruling that concluded Skakel’s original defense lawyer was so ineffective Skakel was denied a fair trial. The reversal rested on one so-called error by original lawyer Michael Sherman: He ignored a credible witness who could confirm Skakel’s alibi.

The Connecticut chief state’s attorney’s office and the other 11 states argue that the Connecticut court misapplied U.S. Supreme Court guidance on what constitutes ineffective assistance by lawyers. The prosecutors argue that the state court failed — as the U.S. Supreme Court required in its landmark 1984 Strickland decision on lawyer competence — to balance Sherman’s overall performance against “a single misstep” when considering whether Skakel’s defense was effective.

They say that the nation’s high court needs to take the appeal in order to resolve disagreement among lower courts around the country about how to determine whether legal representation was ineffective.

A majority of federal circuit courts and state supreme courts follow what the prosecutors claim is the U.S. Supreme Court’s admonition to consider the overall competence of a criminal defense. The prosecutors argue that the Connecticut Supreme Court, along with the U.S. Second Circuit Court of Appeals and the Wisconsin Supreme Court, hold that a single error can amount to unconstitutional ineffectiveness, regardless of the vigor of an overall defense.

The other states – Alaska, Arizona, Indiana, Kansas, Louisiana, Maryland, Nebraska, North Carolina, South Carolina, Texas and Utah – joined in Connecticut’s petition for certiorari, which is a request that the court consider the appeal in its next session. Most such requests are rejected by the court. It could take weeks or even months for the court to decide whether to take the case.

“The Connecticut Supreme Court’s erroneous determination that this defendant was not afforded the reasonably effective assistance of counsel was a direct result of that court’s refusal to consider the defense team’s overall performance,” the Connecticut prosecutors argued in their original petition last month.

“This Court should grant the instant petition in order to resolve the dispute among lower courts as to the role counsel’s overall performance plays in determining … whether counsel’s assistance was reasonably competent and when a single error is ‘sufficiently egregious’ to render that assistance constitutionally deficient, notwithstanding counsel’s otherwise ‘active and capable advocacy.’”

Skakel has been free since 2013 when a state Superior Court judge concluded that an array of errors by his original defense lawyer prevented him from getting a fair trial. The state Supreme Court decision in May upholding that ruling turned on just one of the errors.

State prosecutors would not comment on the brief by the other states. Skakel’s appellate lawyer in Washington was not available.

The Skakel case is one of the state’s most notorious murders. It has reached the state Supreme Court four times. The state Supreme Court’s decision freeing Skakel in May reversed a decision by the same court a year and a half earlier upholding the conviction. The U.S. Supreme Court declined to take the case once before, after Skakel’s first loss at the state Supreme Court.

Somebody beat Moxley to death with a golf club on what the teens in Greenwich called “Mischief Night” — the night before Halloween — in 1975. After an investigation that focused, over decades, on two other suspects, Skakel was charged with the murder, convicted 26 years later in 2002, and sentenced to from 20 years to life in prison.

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