Jury selection gives strategic insight
By Kevin McCallum - Greenwich Time
Opening arguments in the trial of Michael Skakel aren't scheduled to begin until May 7.
But the first week of jury selection offered the public a glimpse at the challenges facing both the prosecution and the defense, as well as some of the strategies each side may use to overcome them.
State's Attor-ney Jonathan Benedict's questions to potential jur-ors indicated he is concerned about convincing jurors to convict someone based on circumstantial evidence. He also seemed worried about being held to a higher standard because it took 26 years to bring Skakel to trial.
Skakel has been charged with murder for the 1975 death of his Belle Haven neighbor Martha Moxley. Both were 15 at the time.
Skakel's attorney, Michael Sherman, has been guarding against jurors who either assume his client is guilty because he is on trial, or those whose "moral outrage" over Moxley's murder might sway them to convict Skakel because they think someone needs to be held responsible.
Many of the attorneys' questions to potential jurors reveal little about the underlying case or the positions the attorneys plan to take during the trial.
After all, the process called voir dire, a French expression for "speak the truth," is designed to allow attorneys to probe the biases of potential jurors, not the other way around.
But in their own ways, Benedict and Sherman have used their first interactions with potential jurors to plant seeds they hope will bear fruit when the jury begins deliberations about two months from now.
"You're in your kitchen one morning having breakfast, eating a bowl of cereal," Benedict suggested to a 28-year-old Stamford resident at state Superior Court in Norwalk.
The attorney went on to describe a situation in which the man left the room to answer the door and returned to find his bowl knocked over, cereal spilled on the table and his cat, Socks, licking milk off its whiskers.
Benedict, as well as the other two attorneys on the prosecution team, Chris Morano and Susan Gill, have repeatedly used that scenario to educate potential jurors about the difference between circumstantial and direct evidence.
Earlier, as an example of direct evidence, Benedict pointed to a Connecticut flag in the courtroom and explained that his ability to see the flag for himself gave him direct evidence that it is blue.
But circumstantial evidence, which Benedict said will make up a substantial portion of the state's case, involves putting together pieces of information to reach a logical conclusion.
"Would you have any difficulty convicting Socks of getting at your cereal?" Benedict asked.
"Well," the man hesitantly responded, "I wouldn't have any problem convicting Socks."
Before he convicted a person, however, he might like to see a little more evidence, he said.
Benedict later asked that the man be dismissed, a motion Superior Court Judge John Kavanewsky Jr. granted on the basis that the juror was related to a court marshal.
Benedict's focus on the difference between circumstantial and direct evidence indicates that he knows the circumstantial nature of his case may be the highest hurdle he has to overcome, said Robert Bello, a former prosecutor and veteran Stamford criminal defense attorney.
"Ninety percent of the public doesn't believe that circumstantial evidence is as good as direct evidence," Bello said.
Therefore, a skilled prosecutor such as Benedict will spend a good deal of time trying to educate potential jurors about the difference between the two, while emphasizing that circumstantial evidence can be given just as much weight as direct evidence, Bello said.
Benedict's questions also demonstrated that he is concerned about jurors holding the state to a higher burden of proof than beyond a reasonable doubt.
This concern was shown to be justified Friday when an international businessman said during voir dire that, given the age of the case, the evidence against Skakel would have to be "ironclad" and "bulletproof" before he would vote to convict.
The man also said he disagreed with the state law that allows someone to be prosecuted as an adult for something he or she are accused of doing at age 15.
Kavanewsky dismissed the man "for cause," finding that he would likely have held the prosecution "to a higher burden of proof than a crime of more recent vintage."
Moxley was last seen socializing at the Skakel house the night before Halloween in 1975. Her body was discovered under a tree on her family's lawn the next day. Police say she had been bludgeoned with a six-iron golf club traced to a set belonging to the Skakel family.
The prosecution has made it clear they aren't sure exactly when the crime was committed.
Skakel is only charged with causing Moxley's death between 9:30 p.m. Oct. 30 and 5:30 a.m. the next day, Benedict has explained.
"Would you want to know precisely what time the crime occurred before you could convict someone?" he asked several potential jurors.
Most said they would prefer an exact time of death, but would not require one to be able to produce a guilty verdict.
As Benedict prepared potential jurors for the information they weren't going to hear, Sherman reminded them of the certainty they should feel before convicting someone of murder.
"It's an awesome responsibility, isn't it?" Sherman asked a law librarian.
"Yes," the 30-year Stamford resident answered.
"Because you wouldn't want to make a mistake," Sherman said.
"Yes," she replied.
Sherman also pointed out how much more comfortable the woman would likely be if she had some eyewitness testimony. He used this tactic often.
Kavanewsky later said he was dismissing the "delightful lady" because of her "trepidation" regarding her responsibility as a juror.
If Benedict sounded professorial at times as he educated potential jurors about the law, Sherman seemed interested in engaging people on an emotional level, exploring their feelings about both the crime and the idea of jury duty.
The case was about an "extremely lovely young girl who was brutally murdered for no reason at all," and Sherman said he wanted to find out how that made potential jurors feel.
"Would you allow your moral outrage to fill in the blanks in their case?" Sherman asked a Darien woman who was later excused because she went to school with Skakel.
In addition, some people have very strong emotions, positive and negative, about the Kennedy family, Sherman said, and he wanted to know if anyone cared one way or another about Skakel's relationship to the family.
Skakel's aunt Ethel is the widow of the late U.S. Sen. Robert F. Kennedy.
But Sherman seemed most interested in whether potential jurors were predisposed to think of someone accused of a crime as guilty.
Was there "a voice, deep down inside" each juror, Sherman asked, that was telling them that the time, energy, expense and effort that the state expended to bring this case against Skakel meant that he was likely to be guilty?
Only one potential juror, a man who was dismissed Friday, said that he believed Skakel was probably guilty.
One of Sherman's most common questions is also deceptively simple: "Do you want to sit on this jury?"
It's probably the single most important question a defense attorney in a high-profile case can ask to weed out overeager candidates, said Joseph Colarusso, a Stamford criminal defense attorney and former prosecutor.
"You can question people for days and days and days, and you can only hope to get a glimpse of what they are truly like," Colarusso said.
But the question is the best, most direct way of weeding out those people with "ulterior motives" for being on the jury, such as writing a book about the experience, Colarusso said.
Despite all the obstacles to finding suitable jurors, many closely following the case said seating five jurors in the first week is a considerable accomplishment for such a high-profile case.
"I have to say that many people have been shocked by the speed at which the jury is being selected," Colarusso said.
Jury selection resumes tomorrow.