In the wake of the May 4 Connecticut Supreme Court ruling to vacate the murder conviction of Michael Skakel, it’s now up to the state to decide how it will proceed with the case.
Connecticut attorneys were divided Monday as to how prosecutors might lean, but they agreed the government faced an uphill battle after the high court reversed itself—thanks to the retirement of one judge and the addition of another.
Skakel is the nephew of the late Sen. Robert F. Kennedy’s widow Ethel Kennedy. He was convicted in 2002 of beating his 15-year-old Greenwich neighbor Martha Moxley to death. He spent 11 years in prison for the murder. He has been free since October 2013, but the high court reinstated his murder conviction in 2016.
Now, with Skakel’s conviction overturned, two key obstacles could challenge prosecutors.
First, legal experts suggest the latest ruling points to a case that was too weak to begin with, with the court finding “Sherman’s deficient performance had so seriously prejudiced” Skakel’s case the outcome of the “criminal trial would have been different if the jury had heard from Ossorio.”
Another hiccup, observers say: The possibility that witnesses have forgotten key details in their account of what took place more than four decades earlier.
Attorney Susan Filan, of counsel to Cohen and Wolf in Westport, said prosecutors could appeal to the U.S. Supreme Court. The former state prosecutor and former MSNBC-TV senior legal analyst believes Skakel will likely be arrested and charged again.
“If you do not retry the case, it could be seen as an indication there is no longer a belief of the person’s culpability in the crime as charged,” Filan told the Connecticut Law Tribune on Monday. “To completely give up without trying is not generally the path most state’s attorneys take.”
If the state does retry Skakel and doesn’t reach a plea bargain, a jury would be chosen for another trial. But even that could create a new hurdle.
“It could be hard to impanel an impartial jury,” Filan said. “The usual cure is change of venue, but that can be tough because it has had national press coverage.”
Then, Filan said, the state would have to turn its attention to another part of its strategy: protecting the credibility of witnesses who might have inconsistent testimony because of memory lapses over about 43 years.
Plus the major question: Can Ossorio be impeached as a witness?
Ossorio, who Sherman never called to testify, has said Skakel was with him at a location at least 20 minutes from the crime scene when the murder took place.
“Ossorio is very important to the defense,” Filan said. “He is the independent alibi who is not a member of Skakel’s family. If your independent alibi does not hold up, you are then left with family alibis, which could be impeached for bias simply because they are family.”
Sherman did not respond to a request for comment Monday on why he did not call Ossorio to testify at the first trial.
Long-time New Haven defense attorney John Williams, of the Law Offices of John R. Williams and Associates, believes Skakel got a raw deal on a case that was “weak the first time and … will be much weaker” this time around.
Williams said he believes Skakel is innocent. He also doubts the state will continue prosecuting.
“I do not think they will retry for several reasons,” said Williams, who has been an attorney for about five decades. “First off, Skakel has already done 11 years in prison. When I was a young lawyer, it was quite common in a murder conviction with no priors to get a sentence of effectively 10 years. In addition, the case was weak the first time and it will be much weaker this time.”
Williams points to Gregory Coleman, a principal prosecution witness at the first trial.
Coleman has since died of a drug overdose. He admitted in 1998 that he injected himself with heroin before telling a jury he heard Skakel confess to killing Moxley. Coleman and Skakel knew each other because they both attended a private reform school in Maine in the late 1970s.
“Because of Coleman’s prior statements, his credibility was totally destroyed and dead,” Williams said. “His credibility has been trashed.”
Williams, who is not involved in the litigation, pointed to two more factors that might persuade the state to not retry Skakel.
Moxley’s mother, Dorothy Moxley, is now 85 years old, and appears to want the case wrapped.
“I saw Mrs. Moxley quoted in The New York Times saying it’s time for everyone to move on,” Williams said. “That is one of the things they [the state] will look at.”
The other factor: Ossorio’s testimony.
“Ossorio said Skakel could not conceivably have done it,” Williams said. “He has no motivation to lie, and I do not know how the state will get around that.”
Skakel’s defense team’s next move remained unclear Monday. His current lawyer, Hartford attorney Hubert Santos of the Law Offices of Hubert Santos, did not respond to a request for comment.
Several years ago Santos argued that Sherman did not provide an adequate defense for, among other things, not implicating Thomas Skakel, Michael’s brother, in the murder.
Connecticut Superior Court Judge Thomas Bishop, who presided over Skakel’s initial appeal, agreed in October 2013 that Sherman did not adequately defend his client.
There is no timeline in which Richard Colangelo Jr., state’s attorney for the District of Stamford-Norwalk, must decide on retrying the case. Colangelo did not respond to a request for comment Monday.