Walk the yard at any prison and poll the population. See how many really guilty people there are in the prison population. Most will tell you they were railroaded by some conspiracy among the prosecutor, the judge and most of all their lawyer. There are no guilty clients! Kennedy cousin, Michael Skakel is about to join that group.
Men and women convicted of serious crimes and sentenced to long terms of imprisonment have nothing but time on their hands. Time to reconsider the decisions they made in handling the case. Time to talk to the jailhouse lawyers that are everywhere in jails. Time to convince themselves that despite their actual guilt their shyster lawyer did them in.
That is the reality of being a criminal lawyer. When the jury rules against you and all appeals have failed then it’s time to blame the lawyers.
The Sixth Amendment requires that all accused of crime are entitled to the effective assistance of counsel throughout the adversary proceedings. This right attaches at the time of arrest and continues through the appeal stages. The United States Supreme Court established the gauge by which a lawyer’s effectiveness is to be measured to pass constitutional scrutiny.
In 1984 the Court handed down its decision in Strickland v. Washington. It isn’t important who Strickland was or why he complained. The Court recognized that an effective attorney is integral to the efficacy of the adversarial process. A two part standard was established. First, the petitioner must demonstrate that his counsel’s performance fell below an objective standard of reasonableness. Second, there must be reasonable probability that if the lawyer performed adequately the result would have been different.
The Sixth Amendment does not guarantee the best of all possible legal representation. It requires that the lawyer be held to the minimum standard that would be objectively acceptable to criminal lawyers. It is a difficult burden to establish. Rightly so. There must be finality to any litigation. The victims require it and a defendant needs to accept a final determination.
Robert Kennedy, Jr. is to be applauded for the support he has given to his cousin. Too often family ignore and forget loved ones in prison. He has made some very strong statements about the competence and character of Skakel’s trial counsel, Mickey Sherman. That Sherman was a TV celebrity was well known long before he was retained by Skakel.
The case was investigated by a one man Grand Jury, a lengthy process, long before Skakel was charged. Following his arrest Skakel made bond and the case moved slowly toward a trial. If Sherman’s representation was so constitutionally deficient and if he, as Kennedy charges, was more preoccupied with celebrity than trial preparation, then where was Kennedy and the rest of the family during all that time.
The Connecticut Supreme Court fueled the flames with critical comments in the decision that affirmed the denial of Skakel’s recent petition for new trial. The majority opinion and the dissent are longer than most murder mystery novels. Did that Court intend to establish that Sherman’s representation offended the Strickland standard? Hardly. Those comments are what are referred to in legal jargon as dicta. They are not rulings by the Court that would establish the Sixth Amendment violation about to be raised. They are legal asides and observations by those justices that have some relevance to the issue they were deciding, but will never be looked upon as binding legal conclusions that will guarantee Skakel the new trial he desperately seeks.
Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at firstname.lastname@example.org