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Skakel Habeas Ruling is the New Scarlett Letter for Sherman

This week Judge Thomas Bishop issued his 136 page ruling overturning the conviction of Michael Skakel for the 1975 murder of Martha Moxley. For Skakel the decision is the culmination of a decade of attacks on his conviction. First his appeal to the Supreme Court affirmed the conviction.  Next his new legal team filed a Petition for New Trial, a civil proceeding claiming newly discovered evidence. Again the decision went against Skakel and another appeal followed. While the ultimate appellate decision was unfavorable it set the stage for the next proceeding in its several observations that the claimed new evidence was available to his trial counsel, Mickey Sherman, and could have been readily discovered with diligent investigation.

A claim of newly discovered evidence, sufficient to justify the granting of a petition for new trial must satisfy two requisites: it must be of such a nature that it probably would have affected the outcome of the trial; and, it must not have been available prior to or during the trial. The doubts surrounding the effectiveness of Sherman’s defense were growing.

Fueled by the appellate observations and the tenacity of Attorney (now Judge) Hope Seeley and her partner, Hubert Santos, Skakel mounted a multi-faceted challenge to the efforts Sherman expended on his defense. Former presidents of the Connecticut Criminal Defense Lawyers’ Association, Michael Fitizpatrick and Ronald Murphy were retained to offer expert opinions on whether Sherman’s advocacy fell below the standard for reasonably competent criminal defense lawyers. Fitzpatrick focused on Sherman’s trial tactics and decisions. Murphy opined on whether Sherman’s now publicly known financial problems (leading to his eventual indictment and imprisonment on tax related crimes) created a potential conflict of interest with Skakel’s interests, given the substantial fund of money made available at Sherman’s discretion for the defense.

Mickey Sherman is a gregarious, experienced criminal lawyer. Known for his wit and personality, Sherman has spent the later part of his career as a TV commentator. As such his opinions were widely sought in many of the sensational cases since the original OJ Simpson trial made lawyers into TV stars. His unfortunate battle with the IRS was clearly humbling for so public a lawyer. All of that pales in contrast to the scathing criticisms laid out in the opinion by Judge Bishop.

Bishop recently left his position as a judge on our Appellate Court when age mandated that he assume the mantel of Judge Trial Referee. JTR’s retain the powers of a Superior Court judge but sit in certain limited instances by designation, and in other instances, such as criminal and civil jury trials, with the consent of both parties. Bishop’s tenure as an appellate jurist is clearly apparent in his thorough, annotated decision.

The State will surely seek certification from Judge Bishop to appeal and the case will ultimately be decided by the Supreme Court. That Court’s review of the decision will invoke its plenary powers of de novo review, since the case involves a mixed question of law and fact. In the review of a habeas court’s findings of historical facts an appellate court will defer to the trial judge unless it is shown that those findings of fact are clearly erroneous; that is there is no evidence in the record to support it. As to the ultimate question of whether the Sixth Amendment’s right to effective counsel was violated by Sherman the Supreme Court will review the entire record with the right to substitute its collective view of whether the evidence and the law rise to the level of proof of Sherman’s deficiencies and the prejudice Skakel may have suffered. In any event the impact on Sherman’s legacy as a trial lawyer has suffered greatly. Maybe the Skakel family should have looked beyond the celebrity in the choice they made. Notoriety and competency to handle a complex murder case are not coequal as Skakel has now sadly learned.

Rich Meehan