State, Skakel spar over make-up of court

January 21, 2017

GREENWICH — State prosecutors, looking to put Michael Skakel behind bars again for the 1975 murder of Martha Moxley, are refuting arguments that a new appointee must be named to the state Supreme Court before it can make a decision on a crucial motion from Skakel’s lawyers.

A filing this week from the office of the State’s Attorney said the Supreme Court can make a decision without any new members on the bench.

Skakel’s motion asks the high court to reconsider its recent re-instatement of his conviction. The court, in a deeply divided split of 4-3, ruled Dec. 30 that Skakel did in fact receive a fair trial when he was convicted in 2002.

But that decision has been complicated by the departure from the court of Justice Peter T. Zarella, author of the majority opinion to reinstate the conviction, who stepped down from the bench on the day the decision was released. The six remaining justices were split 3-3 on the Skakel case, and his legal team says a seventh member should be added to the court to decide the motion to reconsider.

“There are complications with a 3-3 deadlock. In a case where there’s an important issue — ineffective counsel — and in a case where it’s very close, the same rationale for having a (seven-member) review exits,” said Stephan Seeger, a defense lawyer for Skakel.

In 2013, a judge overturned Skakel’s conviction and ruled that serious mistakes by his trial lawyer, Michael Sherman, had cost Skakel a fair trial. That decision was reversed by the Supreme Court on Dec. 30.

In a legal papers submitted this week by Assistant State’s Attorney James A. Killen, the prosecutors contend that Zarella, who left the court to go into private practice, could simply return to the court to hear the motion and decide on it.

“Nothing in the law otherwise appears to preclude Justice Zarella from deliberating on the motion for reconsideration,” the prosecutor says.

In addition, the state argues the six remaining justices can make a decision on the case — there is nothing in the statutes that says what number constitutes “a full panel.” Killen’s argues: “a full panel can consist of five, six or seven justices.”

Beyond the administrative issues involved in who decides the case, the state says the motion to reconsider contained nothing new in the way of facts and went over the same ground that Skakel’s lawyers have used before to claim he was denied a fair trail.

Finally, the prosecutor’s office says there is a bad precedent in allowing every decision to be re-litigated in the Skakel case.

“If reconsideration were warranted every time an unsuccessful party disagrees with this Court’s analysis and conclusions, the appellate process would be endless,” Killen wrote.

Martha Moxley, 15, was bludgeoned by a golf club and stabbed with its broken shaft in the Belle Haven section of Greenwich on the night before Halloween. A number of suspects were considered in the case before Skakel was arrested. Sherman, his lawyer, came under criticism for not seeking out a potential alibi witness, and his financial troubles were also said to affect his professional judgment, according to Skakel’s appellate team.

Skakel has not received any orders thus far, and he remains free on bail.

“His spirituality is carrying him through these tense days, and we continue to work on potential remedies for this scenario,” said Seeger.

No timetables or deadlines are set for the Supreme Court to decide on the motion to reconsider.

A federal appeals process could also be in the works as part of Skakel’s defense strategy.