A conviction, but no justice

Skakel was on trial for the 1975 murder of his teenage neighbor, Martha Moxley, in a case infused with post-OJ Simpson outrage over rich defendants. And yet the suspect was hardly a football hero or aristocrat: He was a bloated middle-age man who had led a troubled life. So observers could both resent him as a son of privilege and disdain him as a loser.

Usually, trials don’t happen 27 years after the crime, and for good reason: Evidence gets lost; memories get hazy. While police and prosecutors have presumably been following the trail for decades, defense attorneys are coming in cold, only to find that key witnesses are missing or dead.

Yet Sherman confronted a case built on the flimsiest of evidence — a more than two-decade old recollection by a now-dead witness of a “confession’’ made by a teenage Skakel in a school for troubled kids — and botched it. His love of the limelight and courtship of the press (joking about having ADD when he couldn’t answer legal questions) helped make the trial a travesty.

Now, it turns out, Sherman may have had a motive for grabbing attention. A flamboyant defender needs rich clients and regular TV gigs to pay the bills, and while he was representing Skakel he was spending profligately.

He took in a taxable income of $1 million in 2001 and 2002, yet paid only a small fraction of the taxes he owed. Instead, his earnings went toward Jeeps for his children, country-club fees, and the like. Last year, he pleaded guilty to tax evasion and, in December, was sentenced to one year and a day in prison.

In a petition filed in Rockville Superior Court in Connecticut, appellate attorneys for the 50-year-old Skakel, who is serving 20 years to life, are seeking to reverse his conviction on the grounds that Sherman didn’t adequately investigate the case, in part to keep expenditures low and retain more of his fee. A competent investigation, the petition maintains, would have turned up additional witnesses to refute the prosecution’s case.

Rockville Superior Court will begin hearing motions related to Skakel’s petition this week. Sherman has stoutly defended his representation, and courts are extremely hesitant to reverse convictions for ineffective counsel — though judges are more likely to do so when trial lawyers were themselves engaged in crimes, on drugs, or otherwise unstable. Still, Skakel will have an uphill battle, given that courts have rejected ineffective-counsel claims even when lawyers did little other than serve as warm bodies sitting next to defendants.

Yet if any conviction calls out for reversal, it’s this one.

Martha Moxley was killed on Oct. 30, 1975, bludgeoned to death with a Toney Penna golf club traced to the home of industrialist Rushton Skakel, the brother of Robert Kennedy’s widow, Ethel. He wasn’t there, and his wife had died of cancer three years earlier, leaving seven children. On that day, the household was under the loose supervision of a 23-year-old tutor.

Moxley’s body was found under a tree near the Skakel house, which was beside the Moxley residence in Belle Haven, a gated section of Greenwich. Many assumed that someone from the Skakel estate killed her, but exactly who remained a mystery. Police initially focused on 17-year-old Thomas Skakel. In 1976, they went so far as to seek an arrest warrant, but didn’t have enough evidence. Years later, Thomas would tell an investigator that he and Moxley had a sexual encounter on the night she was killed.

Police then turned their attention to Ken Littleton, the tutor whose first night on the job coincided with the murder. But Littleton didn’t know Martha and had no conceivable reason to kill her. The investigation stalled. Eventually, though, pressure from celebrity writer Dominick Dunne helped revive the case.

Dunne’s daughter, an aspiring actress, had been murdered, and he cast himself as a crusader for victim’s rights. He claimed that rich defendants often got away with murder, and considered Moxley’s killer a perfect example. He authored a fictionalized version of the case in his 1993 book “A Season in Purgatory.”

Dunne initially theorized that Thomas Skakel had killed Moxley, but changed his mind after obtaining a report by an investigator hired by Rushton Skakel, which set out cases against various suspects — including Thomas and Michael, then 15. Dunne passed the report to, of all people, Mark Fuhrman, the former LA Police detective whose alleged use of racial slurs helped sour the Simpson case. Fuhrman wrote a true-crime book “Murder in Greenwich,” which fingered Michael as the likely culprit. Furhman’s theory was that Michael was infatuated with Martha and jealous of her relationship with Thomas.

Connecticut officials were apparently impressed, because they soon sought an indictment from a one-man grand jury, and Michael suddenly found himself facing a possible life sentence.

He chose Mickey Sherman to represent him, reportedly for $1.7 million. Though Sherman carried an aura of celebrity thanks to TV appearances, his greatest courtroom success had come years earlier when he defended a Vietnam veteran on a murder charge by arguing that the vet suffered from post-traumatic stress syndrome.

By the time of the trial, Michael Skakel had morphed from a skinny 15-year-old boy — whom jurors might well have doubted was capable of the crime — to an overweight divorced man in his 40s. A recovering alcoholic, he had lived alone for years in Wyndham, N.Y., where he didn’t seem to work.

Still, leading a problematic life shouldn’t be sufficient to prove murder. And even granting that some jurors probably viewed Skakel with distaste, it remains shocking that the prosecution could obtain a conviction without any physical evidence and a central witness who was dead.

Partly the answer lies in the courtroom atmosphere. Dunne’s presence helped create the sense that the trial was a test of whether a jury would side with a rich defendant. That perception was reinforced in prosecutor Jonathan Benedict’s summation, in which he called Skakel a “spoiled brat” and juxtaposed Skakel’s statements against images of Moxley’s bludgeoned corpse. The summation played into the jury’s obvious dislike of Skakel. Some jurors who appeared on TV after the verdict criticized Skakel for seemingly irrational reasons — like being the first to rise when they walked into the courtroom.

Still, a decent defense lawyer should have been able to highlight the myriad problems with the prosecution’s evidence and theories. Throughout the trial, however, Sherman appeared to be far more interested in posing for cameras than doing the hard work of tracking down witnesses, showing weaknesses in the prosecution’s theories, and making technical legal arguments.

Skakel’s appellate attorneys say in the court petition that they have uncovered material that could have gutted the heart of the prosecution’s case — statements the teenaged Skakel allegedly made while at the Elan school in Poland Springs, Maine, a dumping ground for troubled kids where he had landed in the late ’70s after leading police on a drunken high-speed chase.

One of Skakel’s former schoolmates said Skakel made a clear-cut confession of murder. That witness, Gregory Coleman, was a heroin addict who died of an overdose shortly before the case went to trial. Coleman had testified at an earlier hearing that Skakel had said “I am going to get away with murder because I am a Kennedy.”

Typically, statements by dead people are inadmissible because they violate a defendant’s constitutional right to confront witnesses against him. Given the circumstances of Skakel’s alleged confession, the long passage of years, and the sordid background of Coleman (a convicted felon who asked the state’s lead investigator for money and for help with a sentence reduction), this evidence could easily have crumpled under cross-examination.

Yet Coleman’s testimony about Skakel’s alleged confession was admitted into evidence even though Sherman wasn’t able to cross-examine Coleman in front of a jury; the judge ruled that Sherman had already had an opportunity to question Coleman at the earlier hearing.

At that time, Coleman’s shaky testimony provided lots of raw material, but Sherman apparently didn’t use it. Coleman testified, for example, that one of three other Elan residents was present for Skakel’s confession. Sherman never spoke to those witnesses, Skakel’s appellate lawyers maintain. Had he done so, those people would have said that Skakel never made any such statement when they were with Coleman, according to Skakel’s court petition.

After his conviction, Skakel sought a new trial on the ground that the three former Elan residents’ statements constituted newly discovered evidence, but the court denied that the material was truly new. Sherman, the court ruled, could have discovered their testimony with due diligence.

Separately, a former Elan student and staff member, Alice Dunn, testified for the prosecution that Skakel said at Elan that he didn’t know whether or not he killed Moxley. But she also testified to facts that should have helped the defense. Dunn described how Skakel had been pressured into making statements about the case when the school’s head ordered him into a boxing ring and allowed other students to pummel him. Fighting off their blows, Skakel initially denied killing his neighbor, but eventually equivocated, Dunn testified.

Had the police extracted statements under similar circumstances, they would certainly have been thrown out; statements made under physical duress aren’t reliable evidence. Elan students and officials, however, weren’t bound by the same rules in federal court. However, Connecticut courts sometimes hold private individuals to high standards when extracting confessions.

Sherman contended that none of Skakel’s statements made at Elan were reliable, but didn’t press the claim that they had been coerced. When Skakel argued on appeal that his Elan statements should never have been admitted because they weren’t voluntary, the Connecticut Supreme Court ruled that Sherman didn’t adequately raise that issue with the trial judge.

Other than the evidence from former Elan students, the prosecution’s case consisted of statements that weren’t confessions at all, but behavior that undoubtedly struck the jury as bizarre. For example, Skakel said that he had masturbated in a tree on his family’s estate on the night of the murder.

Michael Meredith, son of football player Don Meredith, testified that Skakel related this story in a 1987 conversation. The prosecution argued that Skakel concocted the tale because he feared DNA evidence would link him to the crime. But there was no proof that Skakel was even aware of DNA evidence in 1987 — when such testing was in its infancy. Moreover, Skakel’s cousin, Robert Kennedy Jr., wrote that Skakel had told him the story in 1983, and had told an aunt in 1979. Kennedy said he offered to testify on these points, but Sherman wasn’t interested.

It’s possible that Sherman decided not to challenge the prosecution’s witnesses because it would highlight the very testimony he wanted to downplay, says Steven Duke, a criminal law professor at Yale Law School. Yet Sherman didn’t appear to have an alternative strategy. Skakel argued that he had an alibi, but observers thought the defense was weak, plagued by witnesses with incomplete memories. Of course, after so many years hazy recollections are to be expected.

While it’s easy to Monday morning quarterback a courtroom loss, some of Sherman’s decisions baffled onlookers even before the verdict.

Before the trial even started, Sherman failed to attempt to appeal a key legal issue. In 1975, the statute of limitations for non-capital murder was five years. The state legislature changed the law in 1976, but the Connecticut Supreme Court ruled in 1983 that murders committed in 1975 were subject to the earlier rule.

Sherman unsuccessfully asked the trial judge to dismiss the case, but didn’t file an interlocutory appeal. Connecticut courts might not have accepted the appeal at that stage, but Sherman didn’t even try. That was the only time the court could have followed its prior precedent without freeing a convicted murderer on a technicality. When Skakel’s lawyers raised that argument on appeal, the Connecticut Supreme Court rejected it, but had to take the rare step of disavowing its earlier decision.

Other new evidence has emerged since the trial, from a revelation that the prosecution’s lead investigator was working on a book about the case to a New York City man claiming that two men from the Bronx were in Greenwich that night and bragged about attacking a girl – evidence that Skakel’s appeals lawyers say Sherman should have unearthed, according to the court petition.

Do these lapses justify a claim of inadequate counsel? Given the wide latitude lawyers have, and the disastrous decisions that sometimes result, probably not. If Skakel’s conviction is to be overturned, it will probably be because of some link between Sherman’s finances and his courtroom performance. But there should be little doubt that the case against Michael Skakel was weak, the trial atmosphere was hysterical, and the 27-year delay did, indeed, hamper the defense.

It’s also easy to envision the verdict going the other way with a better lawyer handling the defense. During jury selection, Sherman stunned observers by seating a police officer on the jury — violating what many defense lawyers consider a cardinal rule. While it’s possible that Sherman believed a cop could be impartial, it also was clear that the TV-friendly lawyer knew his decision would generate headlines. In fact, during jury selection Sherman told the police officer that the media would view his selection as a “man-bites-dog” story.

If only Sherman had spent as much time thinking about how to counter the prosecution’s case as how to get himself in the news, Skakel might have found justice. Instead, he sits in jail, while his new lawyers file appeal after appeal in hopes of reversing a verdict that should never have been entered.

Wendy Davis, a journalist and former trial attorney, covered the Skakel case for the Globe in 2002.