Experts mull sentence, appeal
By Kevin McCallum - Stamford Advocate
NORWALK -- Now that Michael Skakel has been found guilty of murder, legal analysts and others say two main questions loom.
Will the verdict withstand appeal? What prison sentence will Skakel receive?
Defense attorney Michael Sherman wasted no time Friday vowing to appeal the jury's decision, which found Skakel guilty of killing his 15-year-old Greenwich neighbor, Martha Moxley, with a golf club in 1975.
Reeling from the just-announced guilty verdict, Sherman told state Superior Court Judge John Kavanewsky Jr. there are "many issues here that may be subject to appeal."
Though he did not elaborate during court, Sherman later said the two main issues are the decision to transfer the case from juvenile to adult court and the statute of limitations.
State's Attorney Jonathan Benedict has said he believes he has an "appeal-proof case."
After police charged Skakel with the murder in January 2000, Juvenile Court Judge Maureen Dennis transferred the case to adult court, reasoning there were no juvenile facilities that could accommodate Skakel, now 41, if he were convicted.
The state Supreme Court would not hear Skakel's appeal of the decision until a verdict was reached in adult court.
"A lot of people in the legal community were surprised at (Dennis') decision because (it seemed) based not on the legal issue, but on a practicality," said Joseph Colarusso, a veteran Stamford criminal defense attorney and former prosecutor.
Sherman likely will attack the transfer immediately, perhaps in conjunction with an argument about the statute of limitations.
In 1975, when Moxley was murdered, there was a five-year statute of limitations on all crimes except capital murder.
State law was changed in 1976 to eliminate time limits for prosecuting serious felonies, including murder. Kavanewsky ruled in December that he was not convinced the statute barred prosecution, clearing the way for Skakel's trial.
After the verdict, Sherman raised another appellate issue, objecting to an aspect of the prosecutor's closing argument.
Benedict's use of a multimedia presentation that placed crime scene photos over a transcript of Skakel's words was "prejudicial" and "inflammatory" to the jury, Sherman told reporters.
The portion of the transcript of Skakel's conversation with Richard Hoffman, who Skakel wanted to ghost-write his biography, projected on the screen read: "I woke up to Mrs. Moxley saying, 'Michael, have you seen Martha?' I am, like, 'What?' and I was like still high from the night before, a little drunk, and I was, like, 'What? Oh, my God, did they see me last night?' . . . I remember having the feeling of panic, like . . . my worry of what I went to bed with."
Because Benedict's closing argument has been cited as compelling and likely influenced the jury, Sherman probably will argue the presentation was inappropriate, Colarusso said.
"The question here is, was the combination of those items of evidence, the way it was presented, simply to refresh the jury's recollection as to the evidence in the case? Or was it a combination that appealed to their sympathies, which they have all been sworn to put aside?" he said.
As Skakel's own words caused him trouble in the case, prosecutors may find themselves in a similar situation, Colarusso said.
"If I recall, (Deputy Chief State's Attorney) Chris Morano was quoted as saying, 'We got in things that we never dreamed we'd get in,' " Colarusso said. "What does that tell you about some of the rulings by the judge? At the appellate level, all of his rulings are going to come under great scrutiny."
Another appellate avenue might be to make an argument, similar to the one Sherman made at the end of the case, that the jury could not have concluded Skakel was guilty based on the evidence presented, said Chris Bujdud, a Stamford criminal defense attorney.
"It seemed to me that jury used the standard used in civil trial, a preponderance of the evidence, instead of proof beyond a reasonable doubt," Bujdud said. "I think they just said, 'Who else could have done this?' "
An appellate court would review the case and determine whether the verdict is supported by the evidence.
While Sherman vowed to fight Skakel's conviction, legal experts say he must spend time before the July 19 sentencing crafting an argument for leniency from Kavanewsky. Skakel faces 10 years to life in prison.
"Mickey's got a tough job in front of him, no doubt about it," said Emanuel Margolis, attorney for Thomas Skakel, Michael's brother.
John Moxley, the victim's brother, said after the verdict that he would like to see a sentence for Skakel of no less than 27 years -- the amount of time his sister has been dead. During the sentencing hearing, he and Dorthy Moxley, the victim's mother, will have the opportunity to address the judge.
Judges typically are most swayed toward leniency by defendants who accept responsibility for their crime and express remorse.
But Margolis said that will not happen.
"I know that Michael believes his innocence and will profess his innocence," Margolis said. "Remorse and denial of guilt are like oil and water -- they are simply not compatible."
Taking responsibility for the crime would wipe out his appellate options, Margolis said, but that does not mean Sherman has no argument for leniency.
Sherman can argue that, even if Skakel committed the crime, the judge ought to bear the mitigating circumstances in mind. Those could include that Skakel was 15 at the time of the crime, and if the prosecution's argument is to be believed, he was under the influence of alcohol and drugs, and acted in a jealous rage.
"Sherman can absolutely make that argument without adopting it," Colarusso said.
While vowing to press forward with the appeal, Sherman will have to take the attitude of "I've got to get the best deal I can for my guy, because if the appeals fail he's stuck with it," Bujdud said.
But Colarusso said he doubts it will work.
"Kavanewsky has a reputation as being a tough sentencer, and that reputation is rooted in fact," he said. "I don't think he's going to show Michael any lenience."