As the curtain descended on the latest skirmish in the Michael Skakel continuing attempt at winning a redo, a new prong was added to the attack. A last minute discovery of the sealed psychiatric evaluation of Ken Littleton, commissioned by the state raises the specter that retired State’s Attorney, Jonathan Benedict, withheld potential exculpatory evidence. Following the unsealing of the report the defense team amended the habeas petition and accused fallen celebrity, Mickey Sherman, of failing to aggressively pursue the release of the report. Sherman had remained as a spectator at the habeas corpus hearing, long after his skewering by Skakel’s new attorney, Hubert Santos. Banner headlines in the Connecticut Post detailed Santos’ dismantling of Sherman’s handling of the trial.
Retired Bridgeport State’s Attorney, Jonathan Benedict, was brought back to assist the state in the defense of the habeas claim. The central theme of the habeas has been Sherman and a myriad of claimed deficiencies in his approach to the defense. While the new focus was on Sherman, the question may be raised whether it should now be Benedict’s turn to field accusations that he failed in his affirmative obligation to provide this newly discovered piece of evidence to Sherman prior to or during the original trial. The report was apparently sealed after a pre-trial hearing by another judge at the time of the original prosecution, who reviewed the report privately (in camera). The protocol when that occurs is for the defense to at least request the appellate court to conduct an independent in camera review to determine on its own whether the sealing judge erred. The saving grace for Benedict is that he can rely on that judge’s determination that the report was not exculpatory. That would appear to absolve him of blame.
The concept of a duty to disclose exculpatory material is not novel. In 1963, the U.S. Supreme Court decided the seminal case of Brady v. Maryland. The concept has been so ingrained in our jurisprudence since that such information is interchangeably referred to as Brady material. The core concept is that evidence that is material to either guilt or punishment must be disclosed and the failure to so do implicates a defendant’s 14th Amendment right to due process of law. To secure a retrial for failure to disclose Brady material one must show that “there is a reasonable probability that [the defendant’s] conviction or sentence would have been different had these materials been disclosed.”
Connecticut has even codified Brady by statute: “Sec. 54-86c. Disclosure of exculpatory information or material. (a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney . . . shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial official discovers additional information or material which is exculpatory, he shall promptly disclose the information or material to the defendant.”
A prosecutor, in doubt about his/her Brady obligation who seeks a judicial determination of the potential exculpatory value of a piece of potential evidence has been shielded from a later claim of a due process violation or prosecutorial misconduct. The difficulty for a defense lawyer in the position that Sherman found himself is that you are arguing for the disclosure of something as potentially exculpatory without any knowledge of what that item is. Raising it on appeal would have provided some insulation for Sherman. The question now for the habeas judge is whether the newly revealed report would have really affected the outcome of the case. Even where there are clear Brady violations an appeals court can rule “no harm, no foul.”