Oct 31, 2013
04:06 AM
The Connecticut Story

Cool Justice: Courageous Judge Writes the Book on Lawyer Incompetence

Cool Justice: Courageous Judge Writes the Book on Lawyer Incompetence

AP Photo/The Stamford Advocate, Jason Rearick, Pool, File

In a Friday, April 26, 2013 file photo, Michael Skakel, right, talks to Jessica Santos, one of his defense attorneys, during his appeal at State Superior Court in Vernon, Conn. On Wednesday, Oct. 23, 2013, Skakel's conviction in the death of Moxley was set aside and new trial ordered by a Connecticut judge, Thomas Bishop, who ruled that Sherman failed to adequately represent him when he was found guilty in 2002. Skakel's current attorney, Hubert Santos, said he expects to file a motion for bail on Thursday. If a judge approves it, Skakel could then post bond and be released from prison.

Author’s Note: Tom Bishop is a state judge who took a significant pay cut for public service. In more than a few cases Bishop has demonstrated the integrity personified by an old-fashioned Marine: Do the right thing regardless of personal consequences. Prosecutors, defense attorneys and peers are said to view him as one of the brightest judges in Connecticut.

Judge Thomas Bishop’s landmark ruling in the Michael Skakel case will survive scrutiny by any legitimate Supreme Court.

That doesn’t necessarily mean it will survive “review” by Connecticut’s Supreme Court.

After all, this is the court that in recent years ruled it’s OK to seize prescription drug records without a warrant and really pulled out the hocus pocus to try Skakel as an adult for a crime committed when he was 15 years old. Among the court’s fancier footwork: getting around the statute of limitations for juvenile crimes. Our “justices” did this by revoking the statute of limitations retroactively.

In certain cases, if the wheels of the state are turning against you, odds are high you will be run over. To an unhealthy degree, Connecticut judges and appellate courts tend to put the stamp of finality on cases in which we just don’t know what really happened. This is one of those cases.

Bishop’s 136-page ruling branding defense lawyer Mickey Sherman incompetent and granting Skakel a new trial is characterized by Hartford criminal attorney James Bergenn as “remarkably thorough” and a “heavily factually-laden opinion.”

I’ll take that a bit further. The Bishop decision has the clarity and power of a symphony with the crescendo of a conclusion that deftly admonishes prosecutors for withholding evidence. It should be published as the core of a textbook on ineffective assistance of counsel. As such, it is the worst nightmare for prosecutors and fellow judges. It leaves them virtually no way out but to follow the law as opposed to a scenario of convenience.

This is one way I see this ruling, bringing to the table my own prior knowledge of Mickey Sherman’s career: Mickey got a fat head and believed his extemporaneous stuff didn’t stink. He was winging it. It got so bad he failed in the Skakel closing to offer the jury even the basics on reasonable doubt and the burden on the prosecution for a guilty verdict. This is a guy who once convinced a jury that a man who confronted his girlfriend’s cousin in the shower and stabbed him to death was acting in self defense. Seems Mickey Sherman – in this case, anyhow – somehow forgot what made him a good lawyer.

As a judge, Bishop is pretty much unassailable. A former Army intelligence officer, Bishop left a lucrative practice as managing director of a top New London County firm to put on a robe. A Georgetown Law School graduate, he has taught at the University of Connecticut Law School for many years. He served as a state Appellate Court judge and as a member of the state’s Criminal Justice Commission, which hires and fires prosecutors. He has been an appointee of former Governors Lowell Weicker and John Rowland.

Bishop cites defense attorney Sherman for numerous errors, several of them fatal to the constitutional guarantee of a fair trial. Among them: failure to point to a more likely suspect, the last person known to see Martha Moxley alive, Michael Skakel’s brother Thomas; failure to produce a neutral alibi witness who placed Michael Skakel at another location around the time of death; and failure to produce several witnesses who completely discredited a key prosecution witness, Gregory Coleman, going far beyond Sherman’s cross-examination at a prior hearing. The new evidence was presented to Bishop by Skakel lawyers Hubert Santos and his former partner Hope Seeley, now a Superior Court judge.

The bludgeoning death of 15-year-old Martha Moxley in Greenwich on Oct. 31, 1975 stands as among the greatest law enforcement and journalistic debacles in Connecticut history. Initially timid reporting on the blunders of Greenwich cops and the local state’s attorney’s office let the case fester. Once the bungling was exposed, national pressure contributed mightily to the state’s ultimate blood lust to do something, anything to “solve” the case.

No physical evidence linking Michael Skakel to the murder? Don’t worry about it. The prosecutors had a dynamic story to tell, replete with the latest in audio-visual techniques in a courtroom remodeled for the big show.

Skakel was convicted in 2002 largely on the strength of a Hollywood quality, multimedia closing argument presented by then-Bridgeport State’s Attorney Jonathan Benedict and Chief State’s Attorney Christopher Morano. Morano flashed graphics of evidence on a screen, audio clips of Skakel expressing fear and photos of Martha Moxley alive and dead. This seemed to tie the prosecution narrative together for a grand finale. The prosecution team also benefited from a boatload of crucial hearsay evidence admitted by the trial judge, John Kavanewsky Jr.

For the rest of the story, visit Register-Citizen online.


Cool Justice: Courageous Judge Writes the Book on Lawyer Incompetence

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