Was Michael Skakel Framed?
When the trial of Michael Skakel for the murder of Martha Moxley took place in the summer of 2002, I deliberately tuned out. I noticed a few of the rather unusual circumstances going on around the proceedings, and I decided that something really weird was going on. For instance, the prosecutor used a one-man grand jury, he pushed to try Skakel as an adult when he said that the defendant had committed the crime as a juvenile, the state rewrote its statute of limitations rules since Skakel had been indicted 23 years after the crime. I concluded that there were sinister subterranean forces at work that I, back then, did not have the time or energy to explore.
Then, about a year or so after Skakel was convicted, I picked up a magazine at a local convenience store and read a reply by Dominick Dunne to a long essay on the case that Robert Kennedy Jr. had written for The Atlantic. I found Dunne’s reply rather weak and strained. Especially since Dunne was supposed to be the media’s authority on that case, and had been given free reign at Vanity Fair to write about it. After reading Dunne’s tepid reply, I thought, “If this is all he can come up with, maybe I should read that essay by Kennedy.”
Entitled, “A Miscarriage of Justice”, the Atlantic piece was a long, compelling critique of both the events and the legal techniques used to convict Michael Skakel. Kennedy was angry with not just Dunne, who had a prime role in the affair, but also the MSM. He felt that they had sat on the sidelines through the whole decade-long effort by Dunne and Mark Fuhrman to indict and convict his cousin Mike Skakel. Kennedy brought out many things that had been blurred and/or buried by the rather uninspired, lackadaisical, lemming-like reporting on the subject. Dunne was outraged by that essay, thus began a feud between the two men.
Kennedy has now decided to expand his essay into a book. It is titled Framed: Why Michael Skakel Spent over a Decade in Prison for a Murder He didn’t Commit. The book seems to me as good or better than his award-winning essay. And the volume shows just how much of the story about the Skakel case went unreported. And consequently, how misinformed the public was about it.
Some readers of kennedysandking.com may ask: How is the Skakel case related to what this web site is supposed to be about? Which is the assassinations of four great leaders of the Sixties. That is a fair question. Let me explain. Way back in late 1997, this reviewer wrote a two-part essay entitled, “The Posthumous Assassination of John F. Kennedy.” It appeared in the September/October and November/December issues of Probe Magazine. It is available in that format on the Probe CD, but it was also included in the anthology of Probe, entitled The Assassinations; it is also available on this site. It became one of the most famous articles Probe ever published—which is saying something. In it I attempted to lay bare the mythology that had arisen from the posthumous character assassination of President Kennedy. The essay was occasioned by the release of Sy Hersh’s hatchet job of a book The Dark Side of Camelot. In leading up to that book’s release, it was revealed that Hersh had fallen for some of the legerdemain that had been created to fulfill that circus sideshow business. In his case it was the Lex Cusack hoax about Kennedy and Marilyn Monroe. In my article I went through literally thousands of pages of this material. It was a major ordeal. But I came to two conclusions. First, most of it was pernicious junk, politically motivated. Second, I also concluded that there was no end in sight to the phenomenon, since it now appeared to be a (well-paying) part of our culture. The tabloids had led the way, and then the MSM, due to pressures from cable TV and the web, jumped into the mud-wrestling pit that has become modern media.
At the end of my article I warned that this tabloidization of the media about the Kennedys posed a real threat to our history, because it reflected a genuine danger to journalistic standards. This danger was typified by the late David Heymann, who has now been exposed as a serial confabulator on the Kennedys.
Yet even in my darkest hour writing that essay, I never thought that what I was describing could lead to putting an innocent man in jail. But it did.
Martha Moxley was a 15-year-old high school student who was killed in 1975 in the small, exclusive town of Greenwich, Connecticut. Due to some serious mishandling of key evidence —some of which was actually lost—and a small police force that was not equipped to handle a homicide case, no charges were filed as a result of the initial investigation. Moxley was killed at around 10:00 PM on Halloween eve, which is sometimes called Mischief Night or Hell Night in Greenwich. (Kennedy, p. 7) Many children and adolescents go out on the streets to party and drink and, at times, smoke pot. Therefore, there is an influx of young men and women roaming around the streets and alleyways and backyards. Martha’s body was not discovered until late the next morning. It was under a pine tree in the wooded area of the Moxley estate. She had been clubbed with a six iron golf club with such force that the club head broke off. She was then stabbed with the handle, which was protruding from her neck. (p. 12) Her body had then been dragged about 80 feet in a zigzag manner. Forensic pathologist Henry Lee said the torque of the blows projected the club head over 70 feet in the air. The zigzag pattern seemed to indicate that the person(s) who committed the crime did not know their way around the property.
Right here, there is a serious problem in the case against Skakel. At the time, Michael was about 5’ 5” and 120 lbs. And the author enters pictures into his book that certify this. He had not entered puberty at the time, and actually looks effeminate. The idea that a boy of that size could drag the body that far by himself is hard to believe. But the idea that he could strike such terrific blows that he could break the shaft of the club, sending it flying over 70 feet in the air—that is even harder to buy into. As criminal attorney Linda Kenney Baden noted, this phenomenon is just about unheard of, even with professional killers. The Mob advises its hit men to use golf clubs rather than baseball bats because golf clubs don’t break, while baseball bats do. In one case, the victim’s head was literally broken open with the club, and the cement underneath the body was cracked—but the club stayed intact. (Kennedy, pp. 216-17) She advised the defense to do stress tests on a duplicate club. These were not done. Yet, as we shall see, Baden quickly left the defense team. This ended up being a grave error. And the prosecution got around the strength problem by presenting to the jury a photo of Michael that was taken four years later, into puberty, and after hard physical training at a boot-camp type boarding school. (ibid, p. 217) As we shall see, this is one of the many instances of professional misbehavior that the defense attorney, Mickey Sherman, allowed the prosecutor to get away with.
What makes this even worse, the handle disappeared. This allowed the prosecutor to say that Skakel took it with him as a trophy. But, as Kennedy writes, three witnesses saw it: two policemen and a doctor. (p. 12)
At the time of the Moxley killing, 15-year-old Michael Skakel was at a cousin’s house watching TV. This was certified by more than one witness, and also by a police report summary. In other words, he had an alibi. (ibid, pp. 25, 122) How did the prosecutor get around this? He said that Michael’s family conveniently supplied the alibi, and then he kept the police report conclusion from the defense. Further, there was still another witness who was at the cousin’s home watching TV with Michael at the time. He was not a member of the Skakel family. His name was Dennis Osorio and he even talked to Skakel while watching TV. Unfortunately, he was not produced at the Moxley murder trial. (pp. 230-31)
In sum, there was no hard evidence in the case to convict Skakel, or anyone else. There were no matching blood samples, no DNA, no fingerprints, no eyewitnesses, no shoeprints. This, plus the mishandling of the evidence, and the failure of the local police to turn the case over to higher authorities, made it a case that was eventually going to go cold. The previous prosecutor, Donald Browne, never filed any charges. But he did allow his investigators to build investigatory cases. Their two main suspects were Ken Littleton (the Skakel family tutor), and Michael’s older brother Tom Skakel. The latter was the last person to see Martha alive and was having a sexual affair with her. (ibid, p. 19) But in Browne’s eyes, there simply was not enough of a factual case against either of them with which to file a murder charge. In other words, as Kennedy describes it, Browne was exercising prosecutorial discretion. The job of the prosecutor is not to go after someone in a high profile case because it is expedient. This typifies the win-at-any-cost standard that was exposed, for example, in Tarrant County under the supervision of DA Henry Wade and homicide chief Will Fritz.
As Kennedy described it, the win-at-all-costs mentality eventually became so dominant that the new prosecutor, Jonathan Benedict, did a cut-and-paste job on audiotapes that Michael had made when he was thinking of writing a book about his ordeal. The Benedict tape mixed words from those writing efforts and cut them out of context to make it appear Skakel was confessing to the murder. Benedict then paid a computer company $67,000 to prepare a skillful PowerPoint presentation built around the cut-and-paste. In court, he played the tapes, and put words on the screen, enlarging the most potent phrases and coloring them in red. If you can believe it, even though Michael implored his attorney to object by saying, “This is bullshit!”, he did not. (ibid, p. 33)
How did such a curious event happen? What could have caused such a failure of the legal system? How did all the checks and balances go awry? It was largely due to actors involving themselves from outside the system. How and why this occurred tells us a lot about the tabloidization of our present culture, and how that tabloidization has become weaponized.
Dominick Dunne began his career as a stage manager for television. He then became a TV producer. He later moved to Hollywood and became a movie producer. The films he produced are considered today to be fairly nondescript: Ash Wednesday with Liz Taylor, Play It as it Lays with Tuesday Weld, The Panic In Needle Park with Al Pacino, and William Friedkin’s The Boys in the Band. His marriage failed and he became a narcotics abuser. He moved to Oregon to live a quiet life and rehabilitate. Two things happened that made him a nationally known celebrity reporter. First, in 1983, Tina Brown was asked to take over the editorship of Vanity Fair magazine. One of the first things she did was to get in contact with Dominick Dunne. She was going to change the tone and attitude of the magazine. To do that, she wanted him to write about the upcoming trial of the murder of his actress daughter, Dominique.
Dominique’s estranged boyfriend, John Sweeney, had strangled the young actress. She went into a coma, and five days later was taken off life support. At the trial, due to a couple of controversial rulings by judge Burton Katz, Sweeney was not convicted of murder, but of manslaughter. He ended up serving only three and a half years in prison. Quite understandably, Dunne was outraged. This all made suitable material for what Brown was doing with Vanity Fair: she was going Hollywood celebrity. This story featured a former Hollywood producer, the father of a murdered young Hollywood actress, and a verdict that was simply unjust. Brown hired Dunne as a regular contributor for her magazine. And he now specialized in crimes among the rich and famous.
The problem with Dunne’s writing on the subject was that he was much better in describing the hauteur and accoutrements of the milieu than he was as a crime detective. In his book, Kennedy describes a couple of the more notable faux pas Dunne committed: in the Edmond Safra case, and in the Chandra Levy case. In the latter, Dunne reduced himself to a court jester in public. He said that congressman Gary Condit had killed Levy. And he had done it in one of two ways: either via assassins from Dubai, or a redneck motorcycle gang. (ibid, p. 157) He actually said this on Laura Ingraham’s radio show. Condit promptly filed an eleven million dollar libel action. During the proceedings it was discovered that Dunne had based his charges on the words of a proven con artist. He was forced to settle with Condit in 2005, and this more or less ruined his reputation. But, as the author notes, this all came too late for Michael Skakel.
As his appearance on the Ingraham show demonstrates, Dunne became an insider with the conservative broadcast network. After he met Dorthy Moxley he decided to take a look at her daughter’s case. He was then allowed to write more than one article in Vanity Fair about it. In 1991, when Dunne covered the William Kennedy Smith rape trial in Florida, he dropped a note that Smith had been in Greenwich the night Martha was killed and prosecutor Browne wanted some forensic tests done on him. (ibid, p. 159) This was utterly and completely false. And it is hard to believe that Dunne did not understand that when he wrote it. But it indicated three things: 1.) Dunne had designs to enter the Moxley case; 2.) once he did, fitting with his rich and famous bailiwick, he was going to after a Kennedy relative; and 3.) he was catering in this endeavor to his newfound friends on the right.
Dunne decided to center his appeal on this point: if the Moxley case was not solved, it was because either the police were incompetent or they were knuckling under to power and influence. Either way, it made the Greenwich authorities look pretty bad. In 1993, Dunne published a thinly disguised novel called A Season In Purgatory. Based on the Moxley case, it depicted a cover-up by the police due to a powerful family’s influence. In that book, if one can believe it, the murderer is a camouflaged John F. Kennedy, Jr. This is how much Dunne was catering to the Ingraham crowd. But because he was a high-profile reporter, he actually got a book tour to push the novel. In the TV and radio interviews he did at this time, he said he really thought the perpetrator was Tommy Skakel. (ibid) The novel was then made into a 1996 mini-series for TV. This got Dunne and the Moxley case even more exposure. But the mini-series had a catapulting effect, because it was that show, plus an unseen event by Dunne, that brought him into contact with a young man named Jamie Bryan. And there lies a huge turning point in the Moxley case. It was a calamity for Michael Skakel. One brought on by his father’s attorney.
Michael’s father, Rushton “Rucky” Skakel, was an odd person. He was a very conservative Republican who did not at all care for the Kennedys or their philosophy. He supported Richard Nixon in 1960. (ibid, p. 43) In 1964, he gave money to Republican Kenneth Keating, Bobby Kennedy’s Senate opponent in New York. (ibid) In fact, as the author shows pictorially, Rucky received a crude portrait caricature of Bobby Kennedy from Ronald Reagan at a meeting held at the Bohemian Grove. Both men were smiling during the transaction. (ibid, p. 44) At one point, he forbade the name Kennedy to be uttered in his home. Ethel Skakel, Bobby’s wife, was made the black sheep of the family.
A constant theme of Dunne’s was to depict the Skakel family as enormously wealthy, even more wealthy than the Kennedys. This was not really true at the time of Martha’s murder and beyond. George Skakel, the founder of the family business Great Lakes Carbon, had died in a plane crash in 1955. His son George Jr. then ran the business. But he died in another plane crash in 1966. Rushton then guided the company, but he did not have the talent or aptitude to keep it at its previous stature. In 1972, when his wife passed away at age 42, Rushton turned to alcohol and drugs to ease the pain. The company suffered progressively and was sold in the early nineties for pennies on the dollar. (Stamford Advocate, 1/4/2003) By this time, the family fortune had declined so much that Rucky had to sell his house and ski lodge to pay for Michael’s defense. (Kennedy, p. 149)
After Moxley’s body was discovered across the street from his home, he did something that, again, contradicts the Dunne meme of influencing the police investigation. He gave them the run of his house for about two months. Quite literally. He gave them the keys. To attain a search warrant the police usually have to go before a judge and plead their case for the search. Rushton saved the police that trouble. He signed a document giving them entry to his house. He then went beyond that and signed another document giving them access to his ski lodge. He gave them the keys for that place also. (Kennedy, p. 87) When the police interrogated Tommy Skakel at the station for hours, not only was there no lawyer there; there was no adult there. (ibid)
In 1991, Rushton’s corporate attorney Tom Sheridan offered up a truly horrendous idea to his client. (ibid, p. 96) He proposed that Rushton pay for a private detective company to run deep and lengthy inquiries on his family to see if any of them had anything to do with the Moxley murder. (As we shall see, Sheridan turned out to be a wolf in sheep’s clothing.) Sheridan hired a couple of friends of his, and from the start in 1993, he personally ran the investigation out of his Manhattan office. He rented the third floor of his brownstone to the investigating company, Sutton Associates. This made no sense, since Sutton was located in Long Island, and most of the investigative work was done in Connecticut or Massachusetts. Sheridan was making money off of doing no legwork, but he was also the keeper of the files. (p. 144) Michael Skakel had never been a suspect before this time. But, through Sheridan, he now became one. As Kennedy demonstrates, it is clear that Sheridan’s editing put spin on the Sutton reports to impute suspicion onto Michael. (ibid pp. 145-46) And again, contrary to what Dunne wrote, Rucky had agreed in advance that if anyone turned out to be undeniably guilty, the information would be forwarded to Dorthy Moxley. (p. 97)
To understand why Sheridan made this bizarre proposal, we must go back to another horrendous decision by Sheridan. In 1978, Michael was arrested for a DUI and driving without a license. He ended up crashing his car into a telephone pole. Sheridan used this incident to recommend to Rushton and the authorities that Michael be admitted to a kind of private reform school in Maine called Élan. As it turned out, Élan was really an unregulated boot camp in which the worst of the worst students ran amok and terrorized others. Michael was beaten up many times and psychologically terrorized. (For a shocking chronicle of what went on at Élan, see pp. 138-143) Michael tried to escape from that house of horrors three times. He was caught and returned each time. And each time he was physically bludgeoned. A psychologist stated that he suffers from PTSD because of this experience. On top of this, Sheridan charged Rushton $60,000 as his fee for getting Michael into this place. As Kennedy points out, it would have only cost two thousand dollars to pay the ticket. (ibid, p. 137) Élan was such an atrocity that finally, in 2011, students who had survived the ordeal got together and closed it down. (ibid, p. 138)
If the reader can believe it, the prosecution tried to say that Michael was sent there to keep him away from Connecticut authorities for suspicion in the Moxley case. In point of fact, Michael was never under suspicion at that time, or even years later. Second, the local police knew where he was and wrote reports on what was happening to him there. (ibid, p. 137)
But as far as the Moxley case goes, the important thing was that Élan was now in the Sutton investigative files. And Sheridan had instructed the company to outline worst-case scenarios—he called them “purposefully prejudicial”— for both Tommy and Michael, and two other suspects, one of them being Littleton. If those files were somehow to land in the hands of someone like Dunne, or an ambitious state investigator, it could prove a huge liability for the Skakel family.
That is what happened.
In early 1995, on the advice of Tommy’s attorney Manny Margolis, Rushton aborted Sheridan’s Sutton investigation. No one knows what the Sutton inquiry cost for sure, but Kennedy quotes a price of a million dollars. This, at a time when the Skakel fortune was declining precipitously. A few months later, local author Len Levitt got the Sutton Associates reports on Tommy and Michael Skakel from an unnamed source. The author makes a good circumstantial case that the source was Sheridan. (See Chapter 11.) What made this even worse was that Tom and Michael added things in this new inquiry that were not in police files. Since they were very young back then and their father was puritanical, the information in both cases had to do with sex. Tom said that, after he said goodnight to Martha, the couple retreated to a quiet spot and then made out. (ibid, p. 98) This brought him to being with Martha very close to the time when the forensic pathologists pegged Martha’s time of death.
In Michael’s case, he told the Sutton team about a conversation he had in 1991 with an old friend of his named Andrew Pugh. He said that after he returned that night from watching TV at his cousin’s house, he could not sleep. He then went outside and walked over to a home where he had previously seen a woman undressing through a window. She was fully clothed this night, consequently there was no opportunity to be a Peeping Tom. So he went over to the Moxley home, threw some pebbles up to a window, then climbed a tree and started calling for Martha—not realizing she was dead. Or that he had the wrong window. He then started, in his words, “spanking the monkey” or masturbating. He stopped before ejaculating, went home and crawled into bed at about 12:30. (Kennedy, p. 10)
This tree is nowhere near the tree where Martha’s body ended up. In fact, it is almost 300 feet away. And unlike what Nancy Grace insinuated, there was no DNA trace from Skakel found at the crime scene. Skakel filed suit for this false claim and won a monetary settlement and an apology from the TV hostess. (Kennedy, p. 11)
This new information surfaced when the Sutton investigative files got out. As noted above, Levitt most likely got them from Sheridan. Dominick Dunne got them from a young man named Jamie Bryan. Bryan was brought in as a final editor in the process and paid $75.00 per hour. Once the project was aborted on orders of Margolis, Bryan was gravely disappointed. In a staggering misjudgment, Bryan was never asked to sign a non-disclosure agreement before he took the job. Apparently thinking he was going to get a gig writing an article for Vanity Fair, he gave them to Dunne. Dunne then wrote the article himself . He then gave them to investigator Frank Garr. When Dunne felt he was not utilizing them enough, he turned the Sutton files over to Mark Fuhrman. (ibid, pp. 148-49)
We now enter a stage of the story where the irony warps into a dimension that is worthy of Henry James. Dunne had covered the O. J. Simpson trial in 1995. Like most observers, he was very disappointed in the result. In 1997, he wrote a novel about that case. For some reason, he became almost obsessed with the plight of Fuhrman. He decided to help the former LA detective rehabilitate himself. He and rightwing literary agent Lucianne Goldberg decided to have Fuhrman write another book on the Moxley case. Except this one would not be a novel, but allegedly a non-fiction detective story. Thus the man perceived as helping blow the Simpson case would now revive himself by solving the Moxley case. And armed with the contraband of the Sutton files, he would now go after Michael Skakel. In sum, Michael’s father paid for the investigative files Fuhrman would use in his book. How much more Jamesian can one get?
Fuhrman visited Élan and talked to several people there. This was the beginning of the so-called Skakel “confessions”. During the preliminary hearing and at the trial, two of the very worst denizens of the Élan horror show testified that Michael had told them he had killed Martha and he would get away with it since he was a Kennedy. The two who actually testified at the trial were Greg Coleman and John Higgins. To explain why neither man should have ever been called to testify in the first place, and then to explain why they had no credibility, would take about ten pages of text. Kennedy does a nice job destroying them in about 13. (pp. 188-200) The cofounder of the place, Frank Ricci, said this about the matter: “The notion of Michael’s confession is just preposterous. I was there and I would know.” He continued by saying that everyone on the faculty would have talked about it. He then would have called the lawyers and asked them for advice on how to proceed. Neither of those things happened. (ibid, p. 193) Coleman named a student, Cliff Grubin, as a corroborating witness. He was not interviewed by the defense until 2005, after the conviction. When he heard Coleman’s testimony, he said the whole thing was invented. Grubin was never in the position Coleman put him in to hear that “confession”. He labeled both Coleman and Higgins as liars. (Ibid, pp. 199-200)
As bad as these two were, there was another so-called “confession” witness who was probably even worse. But the prosecution didn’t care since their agenda with her was diabolical. Geranne Ridge was a gossipy sometime-model who told a friend that Michael Skakel had been at her home once. She claimed that he supposedly said, “Ask me why I killed my neighbor.” (ibid, p. 181) The idea that he would say this to a perfect stranger at their one and only meeting defies logic and reason. But Geranne told a friend, who told the authorities. Garr now hounded her to testify, which she did not want to do. She tried to back out of it by saying that it was likely all in jest, or that she was in and out of the conversation. She then said she was not in the room when the exchange occurred. And then she told Garr she really didn’t hear anything about the murder. (ibid, p. 183) The woman alternatively subtracted and added to her story. On the stand, she said, “I did make stuff up, trying to appear to be knowledgeable, from things I heard from [her friend] Marissa and from magazines.” (p. 185)
In reality, Skakel was never at her home. At the time she says he was, Michael was actually out of the country. (ibid) Neither the prosecutor nor Ridge could produce one corroborating witness, even though she claimed eight people were there. It became clear that the story was simply not credible. But as the examination went on, it turned out that was not the point.
I had to read what I am about to summarize twice. And even now I have a hard time comprehending how it happened in an American court of law. I also do not fully understand it in all of its bizarre nuances. But I will try and convey it as succinctly as I can. In court, the prosecutor Benedict had played a tape in which Ridge had talked about the fictional confession. On the tape, she said she revealed that she picked up a lot of her info from magazines, some of them supermarket tabloids—scandal sheets like Star, Globe and National Enquirer. These had printed every piece of wild theorizing that Dunne, Fuhrman and the prosecutor’s office had peddled. When Michael’s attorney mentioned these by name in his cross-examination, he walked into a trap set by Benedict. Because his staff had brought a copy of each to the court that day. He then asked that they be admitted into evidence, since his witness said she had read them! (ibid, p. 186) But it was even worse than that. Because the stories that Benedict wanted to enter were not directly related to what was being discussed. They were simply compendia of other Kennedy family travails, e.g., Chappaquiddick.
Surprisingly, the judge did not immediately overrule the motion. As the author writes, the Simpson case has intimidated judges in high profile cases from unilaterally ruling on admissible evidence. Instead, he asked the defense lawyer if he objected. Mickey Sherman did not jump to his feet with a specific objection and shout out, “Hearsay!” or “Potential for prejudice outweighs probative value!” He just said he objected but could not think of any grounds. It simply bothered him that such stuff would go into evidence. He sat down and the judge overruled him.
When I read this episode I realized that all the things I wrote about 20 years ago had come to fruition: namely, the tabloidization of our culture, the maniacal drive to fill the public’s collective consciousness with the worst anti-Kennedy drivel possible, and the deliberate lowering of any kind of standard of judgment in order to do so. Except now, the hidden agenda was not political. Courtesy of Dunne and Fuhrman, these forces had now been assembled into a judicial setting to enact a kind of black magic ritual for the purposes of sending a man to prison. It sent a shudder through my spine.
As I have clearly denoted throughout this review, the prosecution—both Garr and Benedict—were allowed to get away with several highly unethical and dubious practices because of the failures of Skakel’s attorney. For example, one of the ways the prosecution attacked Michael’s alibi was through Andrea Shakespeare. She was a family friend who said she was unsure whether Michael actually went to his cousin’s house the night of the murders to watch television. When she was first interviewed back in 1991, she just said she was not sure about this and Michael may not have been in the car that drove up there. (Kennedy, p. 207) Over time, after the work of Dunne began to circulate, Garr began to drill Shakespeare on this point, until her impression became a certainty: Michael Skakel had not left to watch TV. This, of course, was ridiculous, since there were several witnesses who all recalled he had. And Dennis Osorio actually watched TV with him, eleven miles from the scene of the crime.
Kennedy uses this episode for two purposes. First, to show how the prosecution seemed intent on planting the seeds of a false memory, which, as Kennedy describes, was done by Garr and by the witness reading Fuhrman’s book. Because by the time of the trial, her impression back in 1991 that Michael might not have gone to his cousin’s had now turned into a certainty. She said there was no doubt in her mind that Michael had not gone and that she had been certain about this since the night of the murder back in 1991. This, as the author shows, is simply not accurate. (Kennedy, p. 209)
The second reason is to show the procedural failures of the defense. The testimony was allowed to stand because the defense did not call Osorio to contradict it, or Elizabeth Loftus, the resident authority on the imputation of false memories. Michael’s lawyer Mickey Sherman later said he had reached out to Loftus about this issue, but eventually decided against it. This contradicts records kept by Loftus. She told Kennedy that her callbook does include a communication by Sherman, but it was way past the Skakel trial and about another case. (Kennedy, p. 210) As we have seen, Sherman did not find Osorio. He was found much later during the appeals process under a different lawyer.
Which brings us to one of the most withering chapters in the book: the author’s critique of Sherman’s defense. To understand how bad it was, we must first note that it ended up costing well over 2.5 million dollars. (ibid, p. 215) This was necessary because the combined efforts of Dunne and Fuhrman ended up infesting the prosecutor’s office. As we have noted, the previous prosecutor Donald Browne refused to file any charges in the Moxley case. In other words, he withstood Dunne’s multi-platform assault for seven years. But two months after Fuhrman published his book, Browne resigned his post. Benedict and Garr then took over the case. A month later, Benedict called for the rarely used one-man grand jury to begin hearing evidence against Fuhrman’s target, Michael Skakel. Skakel was therefore fighting a powerful array of both public and private forces.
To say the least, Sherman was not up to the job. Manny Margolis had recommended Sherman to the Skakels. He later wrote to Michael in prison, sadly admitting that the Sherman recommendation was the biggest mistake of his life. (p. 222) When Sherman was first appointed, he held a press conference at his office that announced a veritable all-star roster of distinguished east-coast defense attorneys, including Linda Kenny Baden. In just a few weeks, that roster had been depleted of all except the lower level ingénus just out of law school. According to Kennedy, Sherman saw this case as his ticket to stardom. He wanted to run the show and he wanted the primetime exposure. For those media appearances, he charged Rushton Skakel $200,000. (ibid)
Sherman did not even hire a jury selection expert. This has become of late a very important part of the process, and a good advisor in this phase is worth the cost. As a result, Sherman allowed, of all people, a local policeman to sit on the jury. But further, the policeman had been assaulted by a Sherman client! Beyond that, he was a friend of one of the original investigators of the Moxley case. (ibid, p. 218)
The litany of incompetence and sloth that Kennedy catalogues against Sherman goes on for over 20 pages. It is simply devastating. In the interest of length, I will describe just two instances.
First, Sherman did not prepare his witnesses. In a case like this, the defense calls in all witnesses and shows them the previous statements they have made to authorities. You don’t want any witness to be blindsided. And, in a case that extends over decades, you want to refresh their memories, since testimony given closer to the time of the incident is usually more reliable. If there are any discrepancies, you hash them out in the office, before the witness takes the stand. That fundamental process did not happen here. (Ibid, p. 229) Several witnesses for the defense said that Sherman never called them in to review the past record. This is startling, because it is one of the easiest things there is to do. And, as Kennedy points out, the prosecution took advantage of this failing.
Let me close with what I perceive as probably the worst failure of the defense. In doing so, I relate another episode that I can hardly believe happened in an American court of law. Again, I had to read this twice in order to fully comprehend it. Prosecutor Benedict knew that he had a problem with the time of death in this case. If Martha was dead by 10:00 PM, and Michael was watching television eleven miles away, then how could a jury convict him? Furthermore, the authorities had brought in an outside consultant, one of the most illustrious forensic pathologists in America, Joseph Jachimczyk of Houston, to certify that time. And he said this was the far end of the time frame, which began at 9:30. (ibid, p. 27) In addition, there were other pieces of evidence that corroborated this time frame. (ibid, p. 28)
To counteract all this, Benedict did something that I have never heard of before. He called the autopsist in this case, Elliot Gross; but he did not put him on the stand. The fact that he did not take the stand indicates that he would not give Benedict the information he wanted to hear. Instead, he put Wayne Carver on the stand, the current medical examiner. Carver said that, looking over the notes, the time of death could be as late as 1:30 AM. The problem was that Carver had never worked on the case. This juggling would seem to present a made-to-order opportunity for a real takedown of Benedict. One could imagine a pointed, detailed, rigorous cross-examination that would expose this as nothing but a ploy. Sherman asked one question in rebuttal: “Could the murder have occurred at 9:30 PM?” Carver replied yes. Sherman sat down. Which should have been the last thing he did. As Kennedy then writes, the obvious next question should have been: “How can you say that the time of death could happen at both 9:30 PM and 1:30 AM?” And that should have been just the beginning. (ibid, p. 28)
Michael Skakel’s lawyers appealed his case on just this basis— that Sherman had robbed his client of a proper defense. And the failings of that defense caused the resultant verdict. A very courageous judge agreed with that appeal. And he set aside the verdict. But the authorities decided to contest that decision; they did not want to give Michael a new trial, probably because with proper lawyers and the previous shenanigans out in the open, they knew they had no chance of winning. In late December, the Connecticut Supreme Court voted 4-3 to reinstate the conviction. In these post-Simpson days, it is amazing that the vote was that close. Michael’s lawyers intend to submit a motion to reconsider. But since the judge who wrote the decision has since resigned, they will only do so with a full bench intact.
In my opinion, this book had something to do with the closeness of that vote. Robert Kennedy, Jr. tried to get more than one journalist to either write an article or a book on this case. In the end, he ended up having to do both. That tells us a lot about the state of the media in this country. But this book tells us more. The vast majority of readers who read this review will likely be surprised at the facts and events described herein. That is because the MSM, led lemming like by Dunne and Fuhrman and their multitude of cable TV appearances, dominated the airwaves and polluted the information pool. This book does much to correct that imbalance. Near the end, Kennedy even offers up his view of what really did happen. And it had nothing to do with Michael Skakel. Both Sherman and Benedict ignored it. But he explored this avenue and puts it together as well as a private citizen can.
In the end, this is a troubling, disturbing, but enlightening book. It tells us much about the shallow tinsel of the culture we live in today, and how destructive to the individual that tinsel can be.