Now Skakel's appeals begin
By Lindsey Faber - Greenwich Time
The appeals process has begun for Michael Skakel, who was sentenced Thursday to 20 years to life in prison for the brutal 1975 murder of Martha Moxley.
As quickly as Skakel was sentenced in state Superior Court in Norwalk, his appellate attorney Hope Seeley filed a motion saying she would appeal the case.
As soon as her motion comes back signed by the court clerk, she will file preliminary papers, indicating the bevy of issues on which she may base her appeals, she said.
Seeley identified her three top appellate issues: whether there was a five-year statute of limitations on murder in 1975 that should have prevented the case from being prosecuted; whether Skakel, 15 at the time of the murder, should have been tried in juvenile court instead of adult court; and whether the state erred in failing to hand over a police sketch of a man spotted near the murder scene that some say closely resembled an earlier suspect.
Seeley and her partner, Hubert Santos, may also tackle other issues involving evidence, such as whether triple hearsay testimony should have been admitted by Judge John Kavanewsky Jr.; the accuracy of the judge's charge to the jurors; and whether the testimonies of a former Skakel family driver and a local barber were more prejudicial than relevant, added Skakel's trial attorney, Michael Sherman.
"I disagree that this case should have been prosecuted, and that's one of the reasons we feel so strongly bail should have been set," Seeley said, referring to the 1975 statute of limitations. "If prosecution should never have been brought, Michael Skakel should not be spending a day in jail."
The defense attorneys had argued that Skakel should be released on bail while they pursued his appeal.
Seeley added that Juvenile Court Judge Maureen Dennis' ruling to keep the case in adult court was "not supported by the facts."
"Contrary evidence was presented to her and she chose to disregard it," Seeley said.
After Seeley and Santos file their papers and once they officially receive the rest of the court transcripts from the entire case -- they still need the transcripts of juror questioning and of the preliminary hearings, Seeley said -- they have 45 days to file their 35-page appellate brief.
Skakel, meanwhile, remains in jail. A jury convicted him on June 7 of murdering then 15-year-old Moxley, his Belle Haven neighbor, with a golf club that belonged to his mother.
Most lawyers agreed the appellate issues would be difficult for the defense to win, though some issues would be easier fought than others.
"The sketch, for one thing, is going nowhere," Westport defense attorney Roy Ward said, referring to a composite resembling former suspect Kenneth Littleton drawn by a special police officer on the night of the murder. "Once you have a conviction, the standard for setting it aside on nondisclosure of evidence is very high. The appeals team is going to have to show the outcome of the trial would likely have been different if the sketch were included in the defense."
Greenwich defense attorney Tom Williams added there is no guarantee the judge would have even admitted the sketch at trial.
"The judge would have had to make a finding that it was relative and probative to the defense," Williams said. "It may turn out it's of no legal significance in terms of an appeal."
Regarding the juvenile transfer, most agreed that issue would not be overturned.
Quinnipiac University law professor William Dunlap, a criminal and constitutional law specialist, said prosecutors already effectively argued that issue and the judge agreed that the juvenile court is not designed to accommodate a nearly 42-year-old man.
"The state will win that one," he said.
Greenwich defense attorney Philip Russell said discretion over the juvenile court issue rests at the trial court level.
"I don't think that issue is likely to provide much relief because the case law is well settled," Russell said.
Dunlap said he thought the statute of limitations argument would be lost, too.
"The one that probably has the best chance of surviving is the statute of limitations because it really is unclear in the law whether that statute should apply or not," said Dunlap. "I still think they'll lose, but it's a legitimate argument."
Seeley said she had not yet decided which issues concerning evidence she would try to appeal.
"That's way down the road," she said.
Russell said evidentiary issues would be the most likely to win on appeal.
"You could argue there was triple hearsay admitted and testimony that didn't prove anything," Russell said. "Certain testimonies, you could argue, didn't really instruct us. How did they inform the jury versus how did they inflame the jury?"
Among other issues that may come up, prosecutors expect, are an appeal on the bond denial and an appeal arguing that Sherman provided ineffective assistance -- a particularly difficult burden to prove, lawyers said.
Finally, the appellate team could appeal Skakel's indictment by a one-man grand jury, a role filled by a judge. In 1975, people suspected of crimes were entitled by state law to go before a grand jury comprised of a panel of citizens.
If the team exhausts its statewide options, they could ask the United States Supreme Court to take the case.
"They have to have a federal constitutional claim to do that," said Senior Assistant State's Attorney Susann Gill, part of the prosecution team for the trial, who will argue the appeals for the state.
Gill said she did not expect the defense to raise more than five good issues in their 35-page brief.
"Any more than that, and you sort of weaken the currency of what you've raised," Gill said. "It looks like you don't have confidence if you throw more issues out there."
Nevertheless, Seeley insisted she would take the case as far as it could go.
"You'll be seeing this on the radar screen until we get a court that will listen to us and either dismiss the charges or give us a new trial," she said.