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Connecticut Supreme Court Finds IAC for Failure to Investigate Key Alibi Witness, Grants New Trial

by Dale Chappell

In a case where the defendant’s alibi was his only defense, the Supreme Court of Connecticut held that counsel’s failure to investigate a key witness who could have supported the defense and changed the outcome of the case constituted ineffective assistance of counsel (“IAC”) and affirmed the habeas court’s grant of relief.

Michael Skakel was convicted in 2002 of the 1975 murder of Martha Moxley, his neighbor and friend, when they were both 15 years old. Not for lack of trying, police initially had no solid case to bring any charges. But in 1998, former disgraced Los Angeles police detective Mark Fuhrman, who lied on the stand in the O.J. Simpson trial, published a book accusing Skakel of Moxley’s murder based on stolen files from a private investigator’s office. In his book, Fuhrman urged a grand jury to indict Skakel, which resulted in Skakel being charged with Moxley’s murder.

Skakel’s defense counsel, Michael Sherman, who was paid $2 million, came up with an alibi defense to try to prove that Skakel was not in the area at the time of the murder but was at a cousin’s house. Despite calling several of Skakel’s family members as witnesses to corroborate his alibi, the State convinced the jury that the family had concocted the story to cover for Skakel.

Without an alibi witness who was not a relative, Skakel had no chance with his defense in the highly public trial (he is the cousin of Robert F. Kennedy, Jr.). Convicted of murder, Skakel was sentenced to 20 years to life in prison in 2006.

Skakel filed a habeas petition arguing, among other issues, that Sherman was ineffective for failing to present an adequate alibi defense, because he made no effort to investigate a non-family member witness who could have changed the outcome of the trial. After a two-week hearing, the habeas court agreed and granted Skakel relief. The State appealed, however, and the Connecticut Supreme Court granted the State’s petition for certification.

In Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court reiterated that a criminal defendant has the constitutional right to the effective assistance of counsel. When counsel’s performance falls below an objective standard of reasonableness expected of attorneys, and that without counsel’s errors the outcome of the proceeding would have been different, counsel is ineffective, and the prisoner is entitled to relief.

To be effective, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” the Strickland Court instructed. This duty “requires more than simply checking out the witnesses that the client himself identifies,” but does not have to amount to finding a “needle in a haystack.”

There was a non-family alibi witness available, but Sherman missed it. At the cousin’s house was a man who knew the family and saw Skakel and his brothers there at the time of the murder. However, Sherman never attempted to contact that witness. At the habeas hearing, the witness, a boyfriend of Skakel’s cousin, said he would have testified, but nobody ever called him. The Court found that odd since the witness “lived just a few miles from Sherman’s office,” the Court said. A criminal defense expert at the hearing testified that counsel’s failure to call this key witness “absolutely prejudiced” Skakel, by depriving him of an “independent alibi witness” to refute the State’s case.

The Connecticut Supreme Court rejected the State’s argument that Sherman’s decision not to investigate the witness was simply strategy. The Court said the strength of the State’s case was not “overwhelming” to overshadow Sherman’s failure to investigate the witness. The Court noted that the murder had gone cold for more than two decades until Fuhrman’s book devised a case against Skakel “seemingly out of whole cloth” that was “highly dubious.”

The Court ruled that trial counsel’s failure to call the non-family alibi witness constituted deficient performance under Strickland that resulted in prejudice to Skakel “sufficient to undermine confidence in the outcome of his criminal trial.”

Accordingly, the Court affirmed the habeas court’s ruling that Skakel was deprived of a fair trial and is entitled to a new trial. See: Skakel v. Commissioner of Corrections, 329 Conn. 1 (2018). 

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Related legal case

Skakel v. Commissioner of Corrections, 329 Conn. 1 (2018)



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