The Register Citizen (Torrington, CT)
Experts: Difficult to retry Michael Skakel
The Connecticut Supreme Court opened the possibility of a new trial for Michael Skakel for the murder of Martha Moxley when it vacated his 2002 conviction last week.
The question now in the long-running legal drama turns on whether state prosecutors will attempt to retry Skakel, 57, on a crime committed when he was 15 years old.
Legal experts who have been following the case say the state’s attorney will have a tough challenge in attempting to convince a jury that Michael Skakel committed the crime in 1975.
The possibility of a new trial is not strong, according to Steven Duke, a professor at Yale Law School, and a teacher and writer on criminal law.
“I think the Supreme Court’s decision was plainly correct,” Duke said on Monday. “I do not see the pursuit of a retrial. The case against Michael Skakel was very weak and is weaker still now. He had a couple of good defenses that weren’t used at the first trial and that would be engaged now.”
A potential alibi witness who could vouch for Skakel’s whereabouts at the apparent time of the killing, the opportunity to name one or more different suspects who were not considered at the murder trial in 2002, as well as the lengthy amount of time that has elapsed since 1975, could all work in Skakel’s favor, experts say.
“Time almost always does make it harder to do a retrial,” Duke said. “Witnesses’ memory will be more impeachable after a long period of time has passed.”
Quinnipiac University law professor William Dunlap said he assumed that the first order of business for state prosecutors would be to scrutinize the lengthy opinion by the Supreme Court, and a dissenting opinion, very closely.
On Friday, a 5-4 majority of the court ruled Skakel did not receive a fair trial due to mistakes made by his defense lawyer, Michael Sherman.
The judges noted that an alibi witness who Sherman failed to locate and call, Dennis Ossorio, could have placed Skakel far from the crime, though the exact time of the murder has never been determined with a high degree of confidence.
Ossorio has said he was watching television with Skakel and other people that evening in 1975.
“They have to read the Supreme Court’s opinion very carefully and see exactly what (the judges) think were the problems,” Dunlap said of the State’s Attorney’s legal staff. “And then ask themselves whether they can deal with the new issues. It’s fairly clear the defense would call the alibi witness (Ossorio) that Michael Sherman did not call. So they’ll have to ask, ‘What kind of alibi will that witness provide, and how much will it hurt the prosecution’s case?’ ”
Dunlap also noted the difficulty that prosecutors would have with key testimony that led to Skakel’s arrest and conviction. An acquaintance of Skakel’s, Gregory Coleman, who took part in a drug rehab program with him in the 1970s, reportedly heard him confess to the crime. Coleman later acknowledged he was on heroin when he testified in a grand jury hearing. He died of a drug overdose in 2001, and his shortcomings as witness were later made apparent.
“The case before also depended to some extent on Gregory Coleman’s testimony, who is dead,” the Quinnipiac law professor said. “They could bring in his earlier testimony, but new evidence has come out discrediting him. And also discrediting his earlier testimony — he’s changed his story about how many times Michael Skakel has confessed.”
Other suspects, who weren’t brought to the fore in the original trial, could also be a factor. A number of observers through the years have contended that Michael’s older brother, Thomas Skakel, could be a better suspect than Michael.
“The defense, the last time, did not attempt to throw suspicion on Thomas Skakel, Michael’s brother. That’s one of the criticisms leveled at Michael Sherman. If the defense does that this time, that’s one of the thing’s that could cloud the reasonable doubt issue, and make it more difficult for a jury to be persuaded,” said Dunlap.
Then there was the pair of young men from New York City that were reportedly known to frequent Greenwich and party with a group of teenagers in Belle Haven. They were highlighted as suspects in a recent book by Robert Kennedy Jr., Skakel’s cousin.
“It’s really going to complicate matters for the prosecution. It doesn’t mean they can’t do it. But it’s going to be very difficult, more difficult than it was the last time,” said Dunlap.
The passage of time would also hinder prosecutors.
“Seventeen years now since the trial? Memories fade, and jurors realize memories fade, and may be less reliable,” said Dunlap.
Meanwhile, the personal dynamics of the case may have changed. Skakel has a head of white hair, and he’s already served 11 years in prison. Since he’s been out, he’s kept a low profile in Westchester County. Advocacy and numerous television appearances by his cousin Robert Kennedy may have helped to create a more positive portrayal in the public mind, even a tragic one, of the man behind a celebrated murder case.
“I do have the impression that he is a more sympathetic character than he was,” said Dunlap, “The book by Robert Kennedy, his cousin, helped to improve Michael Skakel’s public image.”
All of those factors would have to be considered when state prosecutors review the case in.
“They might just decide it’s too steep a hill from this point,” Dunlap concluded.
Moxley was beaten to death with a golf club, which later traced to a set owned by Michael Skakel’s late mother. Moxley’s battered body was found under a tree on her family’s property in Belle Haven.
In 2002, Skakel was convicted of the murder. In 2013, A Connecticut judge granted a new trial for Skakel, ruling his attorney failed to adequately represent him when he was convicted.
The majority of the Supreme Court in 2016 ruled that Skakel did, in fact, receive a fair trial. But he was granted a stay, and a different make-up on the bench reversed that earlier ruling last week.