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Skakel: Watching the Trial in the Rear View Mirror

images1The Vernon/Rockville Superior Court is host to the state’s habeas corpus trials. Each week disgruntled convicts claim that irrespective of their factual guilt, they deserve a judicial do-over because of lawyer error. This past week one of Connecticut’s more notorious inmates, Michael Skakel, is challenging the defense efforts of his trial counsel, Stamford’s Mickey Sherman. images

Habeas corpus is a civil proceeding and a collateral attack on a conviction. An appeal, in contrast, is a direct attack. The usual habeas grounds are ineffective assistance of counsel (known in habeas jargon as “IAC” claims), and occasionally, a claim of actual innocence. IAC claims are not limited to jury verdicts; inmates who have resolved their cases with a plea of guilty have also resorted to seeking hindsight justice. A recent Supreme Court decision noted that over 97% of all federal and 94% of all state prosecutions resolve with plea bargains.

Generally, the task of dissecting the efforts of prior defense counsel falls on the shoulders of the Public Defender’s Habeas Unit and a group of attorneys who accept appointments as special public defenders to investigate and prosecute these claims. Most start with an inmate filing a pro se petition and seeking the appointment of counsel. In rare cases, an inmate can afford to retain private counsel. In Skakel’s case his team consists of one of the state’s premier trial lawyers, Hubie Santos, with the apparent budget and backing of Skakel’s famous cousins.imagesH

IAC claims have a pecking order. They rarely can be raised during the first round of appeals, as they require facts that do not appear on the trial record. Following an appeal, an inmate has two possible routes; habeas, or a petition for new trial (raising the claim of newly discovered evidence). Both are civil claims, tried before a judge alone, without a jury, to establish the factual basis of the claim.

While the petition for new trial is based upon the facts developed, habeas IAC claims require, in addition, expert testimony. An experienced criminal defense lawyer is retained to review the trial record and the additional facts to be proffered at the trial, to opine whether trial counsel’s performance was deficient. In addition to proving deficiency, the habeas petitioner must show that his right to a fair trial was prejudiced by the deficiency.

If the petitioner fails in his habeas trial he can seek certification from the appeals court for a review of that decision. Failing a reversal there, some then turn to the federal court. A case claiming the denial of a federal constitutional right may be brought in the federal court, but only after the inmate exhausts his state remedies by resort to the state habeas process.

imagesMThe focus of Skakel’s IAC is gregarious defense counsel, Mickey Sherman. In three days of testimony Sherman has been excoriated by Santos, not only for his trial strategies, but, also, for his apparent infatuation with his growing celebrity. Among the criticisms are his decisions to accept a cop on the jury, and his decision to not have Skakel testify. Legal pundits can debate the propriety of both decisions, but in the last analysis those decisions are generally judgment calls. In the case of the cop-juror, who is to say that he voted for conviction simply because of his occupation. As to the Skakel testimony issue, that one is a trial judgment that will almost always be upheld, provided a defendant was adequately advised of his right to testify. Most trial judges will require a canvass of the defendant, outside the juries presence before accepting that waiver.

Even in the law, hindsight is 20/20 vision.

Rich Meehan