John Breunig: Judging the judges in Skakel case
The saga of Martha Moxley’s murder has been told in newspapers and magazines, fictional novels, several true crime books (including one by a disgraced police detective), a USA cable flick, the transcript of the trial that declared Michael Skakel guilty of the crime and in Robert Kennedy Jr.’s recent book presenting an alternate narrative of events of 41 years ago.
Given the Cain-and-Abel backstory between brothers Michael and Tommy Skakel, it might as well be staged in the form of an opera.
The latest renditions are dueling narratives by seven Connecticut Supreme Court justices who delivered a decision Dec. 30 that could send Skakel back to prison after three years in purgatory leashed to a monitoring device at a relative’s home in Bedford, N.Y., free from prison but not from presumed guilt.
The real drama in this new telling is in the footnotes of the 69-page majority decision written by Judge Peter Zarella and the 61-page dissent by Judges Richard Palmer and Andrew McDonald. Though the law says Skakel should pick up in prison where he left off after 11 years in on his 20-year-to-life sentence, my read between the judges’ legalese is that he may never return to the Garner Correctional Institution in Newtown. The purpose of this process is not to determine guilt, but whether defense attorney Mickey Sherman did an adequate job of defending Skakel.
Skakel’s team requested a reconsideration of the decision Friday, as they should have. Zarella, chief architect of the ruling, delivered it just hours before leaving the court Dec. 30. The remaining judges on the panel are technically left deadlocked at 3-3.
The two sides are so entrenched in their views that they turn on each other in the paperwork, slinging insults in a verbal dodgeball game between seven judges in black robes.
“The majority expresses its displeasure with my characterization of its analysis of the alibi issue as transparently one sided and unfair,” Palmer writes.
The dissenters continue that “The majority goes to great lengths to try to rationalize Sherman’s indefensible failure” and question “the basic fairness and objectivity of the majority’s analysis and conclusion.”
The majority hold their best jabs for the footnotes, reserved by academics for a special brand of cynicism: “The dissent attempts to distract the reader ... while at the same time misstating the majority’s views.”
Given such broadsides, it’s hard to imagine any of the judges changing their vote. A tie won’t go to the felon, so Skakel’s fate could be determined by a stranger. Skakel’s team wants a reconsideration to be made after Gov. Dannel P. Malloy appoints a new judge. That will almost certainly be Eric Coleman, a popular Democratic state senator from Bloomfield who submitted his resignation last week so he would be eligible for the new post.
Justice Dennis Eveleigh was added to what had been a six-member panel back in March, eliminating the possibility of a deadlock. While the panel could deny Skakel’s request, the timing of Zarella’s stroke-of-midnight decision makes a hasty call of the new petition unlikely.
The dissenters’ 61-page argument about Sherman’s “incompetence” can be shorthanded to these two issues: His decision not to focus on Tommy Skakel instead of tutor Ken Littleton as a more likely murder suspect; and his failure to summon a witness who might have provided an alibi for Michael Skakel.
The other Skakel
The three judges use the word “compelling” to describe the argument that Tommy could have killed Martha.
They seem unable to resist the catnip to play detective as they circle around Tommy’s behavior in the days around Oct. 30, 1975. Tommy himself reportedly described leaving Martha with her pants around her knees after they engaged in sexual activity, the way her body was found on Halloween.
They also point to Tommy’s “history of mental instability and violence.”
It’s hard to blame the judges for being drawn into the mystery. Tommy, after all, started creating false alibis before Martha’s body was even found.
The dissenters ignore the Gitano Bryant premise Kennedy embraced in his book about two other men committing the murder, while the majority disregard it by simply noting “Bryant also had a reputation for deceit.”
The starring role in the dissent’s script seems to belong to Denis Ossorio, a 75-year-old former Greenwich resident and psychologist who lives just over the New York line. They deem Sherman’s decision not to track him down “baffling,” as he is the only non-member of the family by some accounts who could have placed Michael 20 minutes from the crime scene watching Monty Python on television. Ossorio has said he never came forward with the dubious explanation that he never paid much attention to the case.
On Friday, the Skakel team’s latest motion includes sarcasm of its own, opining that contacting Ossorio would have cost only “14 presses of phone buttons by Sherman.”
The tenuous timeline
The majority opinion does not obsess over Ossorio, pointing out that he would only have been able to provide a partial alibi for Michael. And a partial alibi is no alibi at all.
My issue with the alibi — as with a lot of theories about the case — is that it is based on an unreliable timeline. The state has clung to the theory that the murder occurred between 9:30-10 p.m., but the Connecticut medical examiner in 2002 testified Martha could have died as late as 5:30 the following morning.
Of course, proving Sherman was negligent is not the same as proving Skakel is innocent.
That won’t really matter in the near future. It is possible Skakel will be hustled back to prison, only to be paroled when he becomes eligible after a few months. Or another Supreme Court vote could swing the other way, starting the path to a new trial that would be another generation in the making.
The lesson for judges accustomed to getting the last word is this: There are no last words in matters related to the death of Martha Moxley.
John Breunig is editorial page editor of The Advocate and Greenwich Time. John.email@example.com; 203-964-2281; twitter.com/johnbreunig.