Opinion: Skakel Decision A Referendum On The Writ
Those skeptical about the efficacy of habeas corpus petitions in the State of Connecticut will be watching the Michael Skakel case carefully. Judge Thomas Bishop just granted the writ, a rare enough event, finding that the trial performance of Skakel's lawyer, Mickey Sherman, was deficient as a matter of law. A new trial has been ordered for Skakel.
The decision is a devastating indictment of Sherman.
"The defense of a serious felony prosecution," Judge Bishop wrote, "requires attention to detail, an energetic investigation and a coherent plan of defense capably executed. Trial counsel's failure in each of these areas of representation were significant and, ultimately, fatal to a constitutionally adequate defense."
Translated into less erudite terms, the judge concluded that Sherman's performance in the Skakel case could not be justified as a matter of lawyerly tactics. Skakel appeared at trial deprived of his right to the effective assistance of counsel. The result was an unreliable verdict.
Whatever else Sherman does in his legal career, he will always now be recalled as the guy who took $1.2 million from the Kennedy clan to defend Skakel, and then blew the trial. Forget about the year in a federal penitentiary for not paying taxes, plenty of people commit that crime. In the Skakel case, Sherman has distinguished himself in an almost unprecedented manner. His fall from grace is now complete.
But talk among criminal defense lawyers on the day the decision was released turned immediately to Skakel's prospects on appeal. The state wasted no time announcing that it intended to seek review. Will the Appellate Court find a way to salvage this conviction? Cynics are betting it will.
Consider the case of Ron Taylor and George Gould. A judge found the men actually innocent, and ordered the men released from custody after their conviction for murder. The state took an appeal. The reviewing court obliged the state, restoring the conviction, and the state then prosecuted the private investigator who worked doggedly for years on behalf of Taylor and Gould. (Full disclosure, the private investigator, Gerald O'Donnell, is a client of mine.)
The law prizes finality, even at the expense of innocent men.
Writs of habeas corpus are almost never granted in Connecticut, yet the courts are awash with them. A petitioner can file one so long as he remains in custody, that is, either behind bars or, if released, under the watchful supervision of a parole or probation officer. Connecticut appoints counsel for indigent petitioners. Hence, there is little to be risked in filing a petition; if life is a lottery, then why not wager on liberty?
The avalanche of claims filed makes participants in the system punch drunk, with so much chaff, how are we to find the wheat? And doesn't the rare winning claim just encourage the desperate to throw their writs against the courthouse wall, hoping anything can stick?
Lawyers are whispering now that the Supreme Court will find a reason, any reason at all, to reverse the Skakel decision. It's just too dangerous to let such a ruling stand. Think of all the claims this will encourage.
Skakel plans to seek release on bond. His family certainly has the means to post a substantial bond, and I suspect he will be released. That will be salt in the already never-ending wound the family of Martha Moxley, who was murdered by someone, endures.
The Supreme Court's decision in the Skakel case will serve as a referendum on the liberality of Connecticut's liberal grant of the right to file a writ of habeas corpus. Reversal of the trial court's decision that Sherman was ineffective would serve as a stake to the heart of a much-maligned writ.
There are cases in which lawyers err, and grievously so. This appears to be one of them. There's little doubt that Sherman spent more time in the make-up room primping for prime time than he did pouring over police reports prepping for trial.
All eyes now are on the Supreme Court. Does the writ of habeas corpus mean anything in Connecticut any longer? Or do we value finality of judgments against all else, even the prospect of keeping an innocent man behind bars?•