Being A Kennedy Relative Never Hurts, Especially In A Murder Case

It’s rare for judges to overturn a conviction after trial where the primary ground is ineffective assistance of counsel (IAC).  After all, judges are lawyers and lawyers often protect their own.  If there’s any way to uphold a conviction, finding a way around the lapse in the attorney’s work by, for example, calling it a strategy as opposed to a screw-up, most courts will do that.

Overturning a verdict is rare.  It costs the state or federal government additional money to retry, it might cause the criminal to go free, and it acknowledges some wrongdoing by the lower court or attorneys involved.  This is avoided wherever possible.

That’s why I was interested last week when the Connecticut Supreme Court on Friday overturned (for the second time) the murder conviction of Michael Skakel, a nephew of Ethel Kennedy, who was found guilty of killing 15-year-old Martha Moxley in 1975.

The case has more than enough to make it a blockbuster movie.  It’s already been the subject of several books because of the celebrity of the defendant, the gruesome nature of the murder, the fact that Skakel was tried for a murder 27 years after the crime, and the twists and turns of the appeal since his conviction in 2002.

At the time of the murder, victim Martha Moxley was a high-school student from Greenwich, Connecticut, the same wealthy town where Skakel lived.   On Oct. 30, 1975, Mischief Night, it’s reported she met up with Skakel, flirted and maybe even kissed him, and then the two disappeared.  Her body was found the next day under a tree in her backyard with a broken six-iron golf club (later traced to the Skakel home) lying nearby.  She’d been bludgeoned to death and stabbed with the club through the neck.

Skakel had his own rough history.  He’d allegedly been the victim of physical abuse by his father, was in and out of rehab clinics for alcohol use, and had dropped out of college.  He wasn’t arrested for the Moxley murder until 2000.  It’s alleged that prior to his arrest, he’d told a friend, “I’m going to get away with murder.  I’m a Kennedy.”

Then there were issues of how to try him — as a juvenile, the age he was at the time of the commission of the crime, or as an adult, his age when he faced the murder charges.  Ultimately, the court decided to try him as an adult.

He hired celebrity defense attorney Mickey Sherman and was found guilty in 2002.  He was sentenced to 20 years to life.  In 2013, the conviction was overturned due to what the judge wrote was the “glaring ineffectiveness” of Mickey Sherman.  Skakel was released from prison on bail. The State appealed and the conviction was reinstated in 2016, but in a habeus filed by new defense counsel before a slightly different panel of judges (one judge changed and that made all the difference), the conviction was again overturned last week.

The reason?  Ineffective assistance of counsel, a basis that rarely prevails in most appeals unless the attorney’s conduct was so egregiously bad, like snoring at counsel table or asking the jury to find the defendant guilty, that the appellate courts can’t ignore it or label it as trial strategy.

According to the decision, Mickey Sherman failed to investigate, or even know about a potential alibi witness.  Skakel said that at the time of the crime, he was in a different location watching “Monty Python’s Flying Circus” with family. While most of the alibi witnesses were family and therefore potentially biased, one attendee was a neutral acquaintance who Sherman never contacted.  Lesson One in any murder case — run down every defense possible, no matter how unlikely it appears.

Connecticut has more liberal laws about habeus petitions than many states.  They get so many that two courts have been designated just to handle these matters.  They cost big money, and that’s why a dissenting judge in the Skakel case argued that the only reason Skakel got his conviction overturned was because of his connections and the wealth behind them.

Meanwhile, Sherman’s vilification as ineffective has been confirmed by yet another court.  But he’s taking it in stride.  In a classic “fall-on-your-sword” statement, Sherman told reporters in 2013 after the conviction was first overturned, “I’m not concerned about my future career or business, what concerns me is Michael.”  (Sherman’s history was not exactly stellar.  In 2011, he spent a year and a day in federal prison for tax evasion.)

The good news for Skakel is his case might never be retried.  It’s been almost 45 years since the original crime.  Maybe the State will suggest a plea deal for Skakel, taking life off the top and offering time served.  But the bad news is, should they decide to go forward, there’s better DNA testing now than in the early 2000s, and you can bet that prosecutors will test every piece of crime-scene evidence still in their possession to see if any DNA matches Skakel’s.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.