November 06, 2013|,
VERNON — It was not the decision Michael Skakel and his lawyers were hoping for Wednesday, but Judge Thomas Bishop did pave the way for the Kennedy cousin to eventually be released on bail.
Skakel's lawyer, Hubert J. Santos, wanted Judge Thomas Bishop to immediately release Skakel on bail, arguing that Bishop's ruling that set aside the guilty verdict against Skakel for the 1975 murder of Greenwich teen Martha Moxley required it.
Bishop ruled that Skakel's trial lawyer, Michael "Mickey" Sherman, did such a poor job with the case that Skakel did not receive "a constitutionally adequate defense."
Skakel, Santos said Wednesday, "should not be required to spend one more day in custody."
Bishop said that releasing Skakel on bail was beyond his purview, and that a judge in Stamford, where the case will be sent for a new trial, would have to make that decision.
He did, however, lift an order delaying implementation of his finding that set aside Skakel's conviction of murder. That decision, however, will not be put into force for at least 10 days so that state prosecutors can ask a higher court to determine whether Bishop exceeded his authority.
Santos said he suspects the issue of bail and Skakel's release from jail will not be resolved for several weeks. The higher court's review of the matter will likely take longer than 10 days, he said.
"We're not going to get much from the Appellate Court for at least two weeks and maybe two months," Santos said, adding that Skakel was "hopeful" of being released but that he "knows it's a long process." Skakel is 11 years into a sentence of 20 years to life.
Deputy Chief State's Attorney Len Boyle said prosecutors have not decided whether to seek a review of Bishop's decision.
"We'll review it [and] consider our options," Boyle said.
The state, in separate litigation, is appealing Bishop's decision to set aside the conviction.
Santos, during the hearing, attacked the state's evidence against Skakel and argued that the state's case was weak. Bishop, in his 135-page ruling, harshly criticized Sherman and expressed doubt about the state's case.
Sherman "was in a myriad of ways ineffective," Bishop wrote. "The defense of a serious felony prosecution requires attention to detail, an energetic investigation and a coherent plan of defense capably executed. Trial counsel's failures in each of these areas of representation were significant and, ultimately, fatal to a constitutionally adequate defense." As a consequence, Bishop wrote, the conviction "lacks reliability."
He wrote that although Sherman's performance and errors of judgment weren't the fault of prosecutors, "a defendant's constitutional right to adequate representation cannot be overshadowed by the inconvenience and financial and emotional cost of a new trial. To conclude otherwise would be to elevate expediency over the constitutional rights we cherish."
Bishop's Oct. 23 decision followed a habeas corpus proceeding, the petition for which was a final effort by Skakel's family to have him released from prison. The judge's finding that Sherman was ineffective was unusual, and followed a decade of unsuccessful appeals.
"This case was not a close call for this court," Bishop said Wednesday.
Bishop's setting aside of the guilty verdict changes Skakel's status from convicted murderer to defendant accused of murder, and makes him eligible to be released on bail.