Word of a new trial for Michael Skakel, a distant member of the Kennedy clan, spread quickly through the Connecticut bar. Some folks gloated over the fact that Mickey Sherman, his lawyer, had been so thoroughly laid to waste by Judge Thomas Bishop’s 136-page decision ordering the trial, a devastating critique that found Sherman’s representation of Skakel so throughly incompetent that it called into question the reliability of the conviction. “Icky Mickey,” some muttered.
Other lawyers, especially those on the criminal defense side of the aisle, those foxhole buddies of Sherman who stand next to the accused in open court, defending folks not just before juries, but before the world, wondered aloud whether what was really on display was the law’s unstated double-standard. Money matters in the defense of those accused of a crime. Did Skakel catch a break because he had the backing of the Kennedy fortune?
Martha Moxley, then 15, was beaten and then stabbed to death with a golf club, the six iron shattering in the course of the attack, its shaft then used as a lancing weapon, a sort of cruel metaphor reflecting that even the leisure class is capable of murder. Like Skakel, she was a resident of the Belle Haven section of Greenwich, a land of milk and honey, where children run off to eat supper at the “clubs” to which their parents belong, signing tabs instead of doing dishes after a meal. On the night of October 30, 1975, the girl was last seen alive with another member of the Skakel clan, Thomas, brother of Michael. Thomas and Martha had been flirting, and kissing. Then Martha was dead.
The case went unsolved for years. Then another member of the Kennedy clan, William Kennedy Smith, was tried, and acquitted, in a celebrated Florida rape case in 1991. Rumors swirled that he was seen at the Skakel house the night Moxley was murdered. Perhaps, some wondered, he was the killer. The investigation was reopened. In 2000, Michael Skakel was charged with the crime. He was convicted by a Stamford jury in 2002, in as high-profile a trial as any in Connecticut’s history.
Skakel was represented at that trial by Mickey Sherman, who was rumored to have been paid millions of dollars for the defense. Sherman lost the case, but not the confidence of television executives; he became a paid talking-head for one network, he’d chortle on demand with the likes of Nancy Grace on another, he’d think nothing of hopping a flight to Los Angeles to attend star-studded events, or jumping in a limousine for dinner at Elaine’s, a Manhattan trough for the rich and famous.
Sherman didn’t fare as well among members of the state’s defense bar. It was not uncommon to hear lawyers say of him after the trial: “I could have screwed that case up for half the price.” Mickey was Icarus, flying too close to the Sun. When would he crash? Or can men, too, be dumb, and charmed, bauble heads?
Skakel lost his appeal. Then he petitioned for a new trial with new lawyers, claiming newly discovered evidence suggested that someone else had committed the crime. Robert F. Kennedy Jr. wrote an article for The Atlantic suggesting a live-in tutor for the Skakel brood, Kenneth Littleton, had committed the crime. But the trial court concluded that the evidence was not newly discovered, it had been there all along. Sherman simply chose not to use it.
New trial petitions are actually civil actions. One way to get a new trial is persuade a judge that you have discovered new evidence you did not have, and could not have had, in the “exercise of due diligence” at the time of the original trial. The Skakel team offered what lawyers call “third-party culpability” evidence, a claim that some other dude did it. Enter Gitano “Tony” Bryant, a cousin of Los Angeles Laker basketball star Kobe Bryant. This murder in paradise now had a racial element: A black man testified that a friend of his said he wanted to rape Moxley on the night she was found dead.
The new trial petition was rejected. Bryant was found non-credible, and other supposed “newly discovered” evidence, the court concluded, was available to Sherman in the 2002 trial. Another appeal was filed, and this, too, ended in defeat for the Kennedy clan.
But when money is no object, the fight goes on. The defense filed a habeas corpus petition claiming that, in effect, Skakel had been deprived of his right to effective assistance of counsel at trial. The sites now turned on Sherman, the high-flying, aw-shucks, hug-me kind of guy with a disarming smile, a perpetual tan, and a pose for every camera.
We learned that he was paid $1.2 million for the defense of Skakel, and that, despite that fee, he still managed not to pay his taxes, ending up disbarred briefly and in federal prison. We also learned that he was sitting on a goldmine of information that he either ignored or misused at the Skakel trial, evidence that suggests that Thomas Skakel, and not his brother Michael, might well have been the killer.
Judge Bishop’s ruling in the habeas corpus petition about Sherman’s competence is a mortal wound that would kill most lawyers: Sherman’s performance at trial was so deficient, there is a reasonable probability that the outcome would have been different had case been better defended. Bishop repeatedly found that the explanations Sherman offered for his strategic and tactical decisions at trial were not credible, effectively calling Sherman a liar, a stunning slap in the face the cameras once loved. No make-up artist can powder over Sherman’s shame.
But is this justice?
“It’s Chappaquidick all over again,” one lawyer told me, referring to the Kennedy teflon that permitted Sen. Ted Kennedy to walk away from Mary Jo Kopechne in 1969, after driving his car off a bridge and leaving the pretty young passenger to drown.
“What black kid with no money whose 27-year-old lawyer screwed up his case gets a second bite at the apple?” another lawyer asked. “Big bucks gets you big justice; little people don’t get this,” he said.
Sadly, that’s true. Millions of dollars have been spent defending Michael Skakel against charges of which he may, or may not, be guilty. Ironically, Judge Bishop’s decision now offers the Kennedy clan a painful dilemma: Take Michael back, but give us Thomas. How many millions will the clan spend on that?
I have my doubts about whether Judge Bishop’s decision will withstand appellate scrutiny. The courts prize finality. Skakel’s success is simply going to encourage we little people to keep trying, year after year, hearing after hearing, writ after writ, to seek justice, and freedom. The system can’t afford that, even if the Kennedys can.