Lead Opinion
I
FACTUAL BACKGROUND AND HABEAS COURT PROCEEDINGS
The facts relating to the petitioner's criminal conviction, as the jury reasonably could have found them, are set forth in detail in this court's decision on his direct appeal. See State v. Skakel ,
A
State's Case Against the Petitioner
On October 31, 1975, the body of the fifteen year old victim was found lying face down under a large pine tree on her family's Greenwich estate. Id., at 642,
The victim had last been seen alive at about 9:30 p.m. the night before, October 30, 1975; see id., at 641,
The petitioner, who was also fifteen at the time of the murder, lived with his father and six siblings in a home across the street from the victim.
Despite their efforts in the years after the murder, including extensive investigations into whether Thomas Skakel or Littleton was involved, the police were unable to connect anyone to the murder and did not make any arrests. See id., at 639,
Nearly twenty-five years after the murder, however, the state charged the petitioner after a grand jury investigation.
The state presented testimony from witnesses who testified that the petitioner had made statements in the years after the murder implicating himself in the crime. A few years after the murder, the petitioner's family sent him to the Elan School in Maine (Elan), a residential treatment facility for troubled adolescents. See id., at 646,
With respect to motive, the state argued at trial that the petitioner had become enraged after seeing the victim flirting with his older brother, Thomas Skakel, on the night she was last seen alive. See id., at 651-52,
The state also presented evidence that the petitioner had lied to the police about his activities on the night of the murder. Several years after leaving Elan, he separately told two people that, on the night the victim was last seen alive, after returning home from watching television at the Terrien home, he had left his house, climbed a tree on the victim's property, and masturbated while watching the victim through her bedroom window, contradicting his statements to the police that he had remained inside all night and suggesting that he had seen the victim after returning from the Terrien home sometime after 11 p.m.
B
The Petitioner's Defense
The petitioner retained Attorney Michael Sherman to represent him in his criminal proceedings. At the time of the trial, Sherman had practiced in the area of criminal law for more than thirty years, both as a defense attorney and as a prosecutor. To prepare his defense, Sherman enlisted the help of at least three associate attorneys and received advice from other experienced criminal defense attorneys.
Sherman's strategy for defending the petitioner at trial was threefold: (1) establish an alibi for the time when the murder most likely occurred; (2) discredit witnesses claiming that the petitioner had made statements implicating himself in the murder; and (3) present evidence showing that another person, the live-in tutor, Littleton, might have committed the murder. See id., at 652-53,
With respect to the alibi defense, Sherman presented evidence to show that the murder most likely occurred at about 10 p.m. on October 30, 1975, when, the petitioner
To establish the petitioner's whereabouts from approximately 9:30 to 10 p.m. on October 30, 1975, Sherman called a number of witnesses who testified that, during that time frame, the petitioner was with them at the Terrien home, which was nearly a twenty minute drive from the
Sherman also sought to discredit the testimony from Elan residents who claimed that they had heard the petitioner incriminate himself. Sherman cross-examined the state's witnesses to impeach their credibility and cast doubt on their testimony, and also presented testimony from several other Elan residents who knew the petitioner while he was an Elan resident. These other residents testified to the brutal and abusive treatment of residents, including the petitioner. The witnesses explained that school staff frequently accused the petitioner of the murder and urged him to admit his involvement. When he refused to take responsibility, he was paddled, assaulted in a boxing ring, and forced to wear a sign that had written on it something to the effect of "please confront me on the murder of my friend, Martha Moxley ...." These witnesses also stated that the petitioner denied involvement in the victim's murder, and, when the abuse continued, he parried their accusations by stating that he either did not know or could not recall what happened; they never heard the petitioner confess to the crime.
Finally, Sherman sought to bolster the petitioner's defense by implicating another person in the crime. Sherman explained at the habeas trial that he did not want to use a "buffet table of alleged suspects," so he chose to focus on one person, Littleton. As we explained in our decision in the petitioner's direct appeal, "Littleton ... had been hired as a part-time tutor by the
At the conclusion of the petitioner's criminal trial, the jury found the petitioner guilty of murder. Id., at 653,
C
Habeas Petition
Nearly eight years after his conviction, and after his prior unsuccessful challenges to his conviction, the petitioner filed the habeas petition at issue in the present case. He claimed, among other things, that Sherman
After a hearing, the habeas court granted the petition. The court agreed with some of the petitioner's ineffective assistance claims, concluding that Sherman was ineffective on three grounds: (1) by failing to fully investigate and implicate the petitioner's brother, Thomas Skakel, in the murder; (2) by failing to investigate and present an additional alibi witness, Denis Ossorio, who the petitioner claims saw him at the Terrien house on the night of October 30, 1975; and (3) by failing to call three additional witnesses to impeach the credibility of Gary Coleman, who claimed that the petitioner implicated himself in the murder while he was a resident at Elan. The habeas court also concluded that Sherman had acted deficiently in certain other respects but that none of those deficiencies, when considered separately, prejudiced the petitioner. Finally, the habeas court rejected the petitioner's conflict of interest claim.
This appeal followed. Collectively, the parties have raised eleven separate issues for our resolution, each concerning whether Sherman provided effective assistance. On appeal, the respondent raises three issues, arguing that the habeas court incorrectly concluded that Sherman was ineffective by (1) failing to implicate Thomas Skakel, (2) failing to call an additional alibi witness, and (3) failing to call witnesses to impeach Coleman's testimony. For his part, the petitioner has raised seven alternative grounds for affirming the habeas court's judgment, each attacking a different aspect of Sherman's representation. Finally, the petitioner filed a cross appeal, claiming that the habeas court improperly rejected his conflict of interest claim, which we treat as an additional alternative ground for affirming the habeas court's judgment.
II
THE RESPONDENT'S CLAIMS ON APPEAL
A
Standard of Review for Claims of Ineffective Assistance of Counsel
The sixth and fourteenth amendments to the United States constitution guarantee criminal defendants the right to
Performance Component
As to Strickland 's first component, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington , supra,
Strickland directs courts assessing counsel's performance to be deferential to counsel's strategic decisions and to apply a strong presumption that such decisions are reasonable. "Because of the difficulties inherent in making [this] evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.... There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (Citation omitted; internal quotation marks omitted.) Id."Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged
This deference applies equally to claims alleging that counsel unreasonably chose not to pursue possible defenses or to present certain evidence. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, [with application of] a heavy measure of deference to counsel's judgments."
2
Prejudice Component
With respect to the second component, even if counsel performs deficiently, a defendant is entitled to relief from his conviction only if he can prove that his counsel's unreasonable errors or omissions prejudiced his defense. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.... The purpose of the [s]ixth [a]mendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial
In assessing a claim of prejudice, courts must consider the impact of counsel's errors in light of all the evidence presented at the original trial. "[A] court hearing an ineffectiveness claim must consider
The defendant has the burden to "affirmatively prove prejudice."
3
Standard of Review in Habeas Appeals
In reviewing the habeas court's decision as to an ineffective assistance claim, we defer to the habeas court's findings of historical fact concerning the representation but exercise plenary review over its conclusions about whether, based on those findings, counsel's performance was deficient and prejudicial. See, e.g., Gonzalez v. Commissioner of Correction ,
B
Failure To Implicate Thomas Skakel in the Murder
The respondent first claims that the habeas court incorrectly concluded that Sherman's performance was ineffective insofar as Sherman chose to pursue a third-party culpability defense focused on Littleton rather than on Thomas Skakel. We agree with the respondent and conclude that Sherman's decision not to pursue
1
Additional Background
We begin by reviewing the information then available to Sherman concerning his decision to raise a defense implicating Littleton and not Thomas Skakel. Sherman chose to focus the third-party defense on only one suspect. He explained during the habeas trial that he does not advocate putting out a "buffet table of alleged suspects," but, rather, prefers focusing a third-party culpability defense on only one suspect. Although he considered implicating Thomas Skakel, he ultimately chose Littleton because he did not think there was enough evidence to connect Thomas Skakel to the murder and believed that there was a greater chance of creating reasonable doubt by implicating Littleton.
Sherman detailed the evidence he intended to present about Littleton's possible involvement in a pretrial motion seeking the court's permission to raise a defense implicating Littleton. In the motion, Sherman explained that he intended to present testimony showing that physical evidence connected Littleton to the crime scene and that Littleton may have confessed to the crime. According to Henry Lee, a forensic scientist and former state criminalist, two hairs found at the crime scene were microscopically similar to head hairs from Littleton. Sherman also intended to present evidence that Littleton may have admitted his involvement in the
In the pretrial motion, Sherman explained that he also planned to show that Littleton had lied to the police in his initial statement about his activities on the night the victim was last seen alive, October 30, 1975, and later had changed his account about his activities that night on several occasions. Littleton initially told police that he had returned to the Skakel house at about 9 p.m. after having dinner with the Skakel children at the Belle Haven Club and that he had not left the house again that night. He also reported that did not see or hear anything suspicious. About two months later, however, he changed his account and acknowledged that he had not stayed inside all night but had left the house at about 9:15 or 9:30 p.m., and walked around the Skakel property. The pretrial motion noted that this was about the time police believed the victim was leaving the Skakel property and returning to her home across the street.
Finally, Sherman planned to present evidence showing that Littleton's behavior changed " 'markedly' " after the murder. According to Sherman, investigators extensively documented records and other evidence cataloguing how Littleton was convicted of committing numerous crimes and had engaged in other "uncharged misconduct" in the months and years after the murder. Sherman also intended to present evidence of a telephone conversation years
The trial court allowed Sherman to present a defense implicating Littleton, and Sherman presented evidence at trial concerning Littleton's potential involvement in the murder. See, e.g., State v. West ,
In his claim for habeas relief, the petitioner argued that Sherman was ineffective for not implicating Thomas Skakel in the murder, either instead of, or in addition to, implicating Littleton. Both Thomas Skakel and Littleton had previously been suspects in the murder and were extensively investigated by the police. The petitioner claimed that the evidence against Thomas Skakel was strong enough that, if Sherman had presented a defense implicating Thomas Skakel, a jury likely would have found the petitioner not guilty.
The habeas court agreed with the petitioner and concluded that Sherman's strategic decision not to pursue
The habeas court found that Sherman had evidence available indicating that Thomas Skakel had lied to the police about his activities on the night the victim was last seen alive. The police first interviewed Thomas Skakel in the days after the murder. He told them that, after returning from dinner at the Belle Haven Club on the night of October 30, 1975, he sat in a vehicle owned by the Skakels and parked in the Skakels' driveway with the petitioner and some friends, including the victim. At about 9:15 p.m., Thomas Skakel's older brother, Rushton Skakel, Jr., said he needed the car to take Terrien back to Terrien's house, and that Thomas Skakel and others, including the victim, exited the vehicle. Thomas Skakel told the police that, after the vehicle left, he spoke to the victim for a few moments and then went up
The habeas court also observed that Sherman could have argued that Thomas Skakel's story of his sexual encounter with the victim was consistent with some of the evidence found at the crime scene. According to testimony presented at the petitioner's criminal trial, the victim was found with her pants unbuttoned and with her pants and underwear pulled down below her knees. Testimony at the criminal trial indicated that they might have been pulled down before the assault began because blood spatter was found on the inside of the pants. The victim also had no defensive wounds or foreign DNA under her fingernails. According to the habeas court, Sherman could have used these facts to argue that the unbuttoning of her pants was consensual,
On the basis of this evidence, the habeas court explained that Sherman could have argued that "what may have started as a consensual encounter between the victim and [Thomas] Skakel may have turned terribly bad." Although there was no direct evidence to establish that Thomas Skakel had attacked the victim during their meeting, the habeas court nevertheless noted that Sherman might have been able to rely on circumstantial evidence to imply that Thomas Skakel could have become violent. The habeas court cited to evidence that Thomas Skakel had romantic feelings for the victim and that she may have rebuffed his overtures. The court also noted that Sherman had a copy of an early suspect profile report from a Houston, Texas medical examiner, prepared at the request of police investigators. That report contained an opinion that "[the] attacker was someone known to her ... who has a probable unstable personality, homosexually inclined, [and] either panicked following what may have started out as a prank, or became so angry upon being rejected that he engaged in an 'overkill.' " Finally, the habeas court found that Sherman had "substantial background evidence available
The habeas court acknowledged, however, that much of the evidence that it had identified to implicate Thomas Skakel might not have been admissible at the petitioner's criminal trial. Most of the habeas court's conclusions concerning the evidence against Thomas Skakel were based on the Sutton Report and information contained in early police reports, both of which the habeas court acknowledged would, in all likelihood, not have been admissible. Nevertheless, the habeas court explained that they provided Sherman with "an
On the basis of its review of the evidence available to Sherman, the habeas court determined that he had rendered ineffective assistance of counsel to the petitioner. With respect to the performance component of Strickland , the court concluded that Sherman's choice to pursue Littleton instead of Thomas Skakel was unreasonable and thus deficient: "[G]iven the strength of evidence regarding [Thomas] Skakel's direct involvement with the victim at the likely time of her death, consciousness of guilt evidence concerning [Thomas] Skakel's activities on the evening in question, the circumstantial evidenсe of his sexual interest in the victim, and [Thomas] Skakel's history of emotional instability, [Sherman's] failure to pursue a third-party claim against [Thomas] Skakel cannot be justified on the basis of deference to strategic decision making. If ... Sherman was, in fact, committed to the notion that only one third-party culpability defense should be asserted, a proposition [the habeas] court believes may well be within [Sherman's] informed discretion, he unreasonably chose a third party against whom there was scant evidence and ignored a third party against whom there was a plethora of evidence."
2
Analysis
We take as the starting point of our analysis the "strong presumption" that counsel's strategic decisions-including whether to pursue a third-party culpability defense-are an "exercise of reasonable professional judgment." Strickland v. Washington , supra,
Applying these principles to the present case, we conclude that Sherman's decision to implicate Littleton instead of Thomas Skakel was reasonable and, therefore, not constitutionally deficient for at least two reasons.
Lack of Admissible Evidence Implicating Thomas Skakel
First, we agree with the respondent that Sherman did not have admissible evidence available to him to present a third-party defense implicating Thomas Skakel. To raise a third-party culpability defense, defense counsel must be able to present evidence at trial that directly links the third party suspect to the crime alleged. E.g., State v. Hernandez ,
The record before the habeas court fails to demonstrate that Sherman had access to admissible evidence to prove these details at the petitioner's criminal trial. The details about Thomas Skakel's encounter with the victim, as the habeas court relayed them, come from the Sutton Report, which describes an interview during which Thomas Skakel allegedly discussed the encounter. The habeas court acknowledged, however, that the Sutton Report likely would not have been admissible at the petitioner's trial; indeed, the report itself would have constituted double hearsay and possibly have been privileged. Sherman also could not have introduced the details of the encounter through Thomas Skakel because his counsel told Sherman before trial that, if called as a witness, Thomas Skakel would assert his privilege against self-incrimination and decline to testify. Thomas Skakel was not called as a witness at either the criminal trial or the habeas trial, and, thus, the record is devoid of proof that Thomas Skakel would have testified at the criminal trial and, if he did, what the substance of his testimony would have been.
The habeas court found that counsel could have presented evidence about the encounter through one of the petitioner's attorneys, but this finding is not supported by the record. Evidence presented at the habeas trial shows that, just one week before the beginning of the petitioner's criminal trial, Sherman and Jason Throne, another attorney representing the petitioner, met with Thomas Skakel and his attorney. The habeas court found that, at this meeting, Thomas Skakel recounted the specifics of his sexual encounter with the victim to Sherman and Throne. Based on this determination, the habeas court concluded that Throne could have withdrawn as the petitioner's counsel-just days
This finding is unsupported by the evidence in the record, however, because Throne testified at the habeas trial that he had no recollection of any
Thus, there is no reasonable basis to conclude that Sherman had admissible evidence available to him concerning the details of Thomas Skakel's alleged sexual contact with the victim.
ii
Sherman Reasonably Could Have Chosen Not To Implicate Thomas Skakel
Second, even if we were to assume, for the sake of argument, that Sherman had access to admissible evidence detailing Thomas Skakel's alleged sexual encounter with the victim, we nevertheless would conclude that Sherman reasonably could have chosen to forgo a defense implicating Thomas Skakel because of a lack of stronger evidence to tie him to the crime, especially in light of the possible risks associated with
The evidence available to Sherman, as reviewed by the habeas court, might place Thomas Skakel with the victim around the time the petitioner claims she was murdered, but it does not establish that their meeting turned violent. Witnesses who saw Thomas Skakel with the victim shortly before the alleged sexual encounter took place characterized Thomas Skakel's interactions with the victim as "playful" and "flirtatious ...." Perhaps Sherman might have tried to cast doubt on Thomas Skakel's claim of an entirely consensual encounter by referring to evidence that the victim had previously rebuffed his flirtatious advances, or could have argued that Thomas Skakel had something to hide given that he had concealed from the police his story of a sexual encounter with the victim. But to connect Thomas Skakel to the murder, one would have to speculate that, despite evidence that the victim was openly and playfully flirting with him, and might even have allowed him to unbutton her pants, he nevertheless became so enraged that he retrieved a golf club and beat her to death.
This concern appears all the more reasonable in light of the significant risks associated with implicating Thomas Skakel. See, e.g., Crocker v. Commissioner of Correction ,
The state's theory of motive centered on evidence that the petitioner had been infatuated with the victim and implied that he had become upset with her relationship with Thomas Skakel, leading him to attack her in a jealous rage. See State v. Skakel , supra,
Presenting evidence that Thomas Skakel had admitted to engaging in a consensual sexual encounter with the victim would have significantly bolstered the state's evidence of motive and added credibility to the state's case by corroborating evidence of the petitioner's own incriminating statements. Without admissible evidence of Thomas Skakel's supposed statements, the state did not have evidence to confirm a sexual encounter between Thomas Skakel and the victim on the night of October 30, 1975. The state thus had to rely on the petitioner's self-incriminatory statements, together with evidence from eyewitnesses who had seen Thomas
In concluding that Sherman provided inadequate representation for not implicating Thomas Skakel, the habeas court did not examine the possible risks of doing so; it focused instead on the potential arguments counsel might have made to implicate Thomas Skakel and the potential benefits of such a defense. But tactical decisions of this kind require consideration of both the potential benefits and the potential risks of pursuing a particular strategy. Strickland requires "that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland v. Washington , supra,
C
Failure To Identify and Call Additional Alibi Witness
The respondent next claims that the habeas court incorrectly concluded that Sherman's representation
1
Additional Background
The petitioner's claim of an alibi was strongly contested by the state at his criminal trial. At trial, the petitioner argued that the murder likely occurred between 9:30 and 10 p.m. on October 30, 1975, at a time when he claimed to be at Terrien's home. The habeas court described the trial evidence concerning the petitioner's alibi as follows. On the evening of October 30, "the petitioner, with his siblings Rushton [Skakel], Jr., Thomas [Skakel], John [Skakel], Julie [Skakel], David [Skakel] and Stephen [Skakel], their cousin ... Terrien ... [Julie Skakel's] friend Andrea Shakespeare, and the family tutor ... Littleton, left the Skakel residence in [the Greenwich neighborhood of] Belle Haven for dinner at the Belle Haven Club at approximately 6:15 p.m. and returned to the Skakel home shortly before 9 p.m. ... [Meanwhile, before] 9 p.m., the victim had been out with her friend, Helen Ix, in the neighborhood enjoying the activities of 'mischief night.' Shortly after the group returned from the Belle Haven Club, the
"The contest regarding whether the petitioner had left the area in the [car] continued with the testimony of Terrien, Rushton [Skakel], Jr., and Georgeann Dowdle, Terrien's sister. While Terrien and Rushton [Skakel], Jr., testified that the petitioner was present in the Terrien home, Dowdle could only say that she heard the Skakel cousins' voices because she was in a different room and only within hearing range. She did say, however, that she had earlier told the police that the petitioner was there that evening.... Dowdle [also] testified before the grand jury in 1998 that she had been in the company of her 'beau' at the Terrien residence when the Skakel cousins were there."
In his habeas petition, the petitioner claimed that Sherman was deficient insofar as he did not identify
The habeas court found that "Ossorio was a disinterested and credible witness with a clear recollection of seeing the petitioner at the Terrien home on the evening in question. He testified credibly that not only was he present in the home with Dowdle and that he saw the petitioner there, but that he lived in the area throughout the time of the trial and would have readily been available to testify if asked. He indicated that, while he was aware of the general parameters of the state's claim against the petitioner, he did not pay close attention to
The habeas court concluded that Sherman's performance was deficient insofar as he did not identify Ossorio and present Ossorio's testimony at the petitioner's criminal trial. According to the habeas court, "[e]ven though ... Sherman testified at the habeas [trial] that the petitioner had never informed him of Ossorio's presence and, indeed ... had never heard Ossorio's name until shortly before the habeas [trial], he was on notice from Dowdle's grand jury testimony that she was in the company of another person at the Terrien home, and she had identified this person as her 'beau.' ... Had ... Sherman read and
The habeas court also concluded that Sherman's failure to present Ossorio's testimony prejudiced the petitioner's alibi defense because there was a reasonable probability that, if the jury had heard his testimony together with the petitioner's other evidence suggesting that the victim may have been killed when the petitioner was allegedly present at the Terrien home, it would have found the petitioner not guilty.
The respondent argues that Sherman's performance should not be deemed deficient because of Sherman's failure to attribute significance to a passing reference to Dowdle's "beau" in a transcript in light of the information known to Sherman at the time. Specifically, the respondent argues that the information Sherman learned of during his investigation indicated that Rushton Skakel, Jr., John Skakel, and their cousin Terrien were the only people who claimed to have watched television with the petitioner at the Terrien home and who could verify his presence there, and, despite Sherman's repeated inquires, none of them indicated to Sherman that anyone else was with them or could verify the petitioner's presence at the Terrien home that evening. The respondent also argues that, even if Sherman's performance was deficient insofar as he failed to investigate and to call Ossorio as a witness, the petitioner has failed to show prejudice because Ossorio's testimony, even if credible, provides only a partial alibi. According to the respondent, the physical evidence indicates that the victim may have been murdered after the time when the petitioner would have returned from the Terrien home, that some of the petitioner's own incriminating statements indicate that he saw her later in the evening, and that the petitioner's evidence of a commotion in the neighborhood is hardly persuasive given that it was mischief night and teenagers were out around the neighborhood.
2
Analysis
The petitioner's claim is one of inadequate investigation. The petitioner asserts that Sherman's performance was deficient because he unreasonably failed to investigate the identity of Dowdle's "beau" and consequently did not learn of his potentially exculpatory testimony and call him as a witness. To establish deficiency for failure to identify and call a witness in support of a defense, a petitioner generally must show that his attorney was informed of the existence of the witness, the substance of the testimony the witness might have to offer, and that the testimony would likely be helpful. See, e.g., State v. Talton ,
As a result, the only way Sherman could possibly have discovered Ossorio was through the singular reference in the grand jury transcript to Dowdle's "beau." When Dowdle was asked during the grand jury proceedings whether she recalled seeing her brother, Terrien, on the night of October 30, 1975, she responded: "I'm not sure that I saw him. I think I heard him. I was in my mother's library, which [is] off the living room, and I was in there with my beau at the time, and I didn't really venture out." She said nothing else about him to the grand jury. She also testified, however, that she heard voices of the Skakel brothers, but could not be sure who the voices belonged to and could not recall who was there, apparently because she had not left the library. Dowdle's passing reference is the only reference to her "beau" in the materials that were available to Sherman before trial. The petitioner has not identified any other mention of her "beau" during the grand jury proceedings or in any of the hundreds of pages of materials disclosed by the state to the
Sherman was not present during the grand jury proceedings but had access to the transcripts and testified at the habeas trial that he had reviewed them. Sherman testified at the habeas trial that, in light of Dowdle's grand jury testimony and the information from the petitioner,
Sherman did not act unreasonably in failing to attribute significance to or to further investigate this singular reference. Dowdle's single mention of her "beau" itself cast doubt on the likelihood that he might have seen who was at the Terrien home that night. Her testimony strongly suggested that, because she was together with her "beau" in the library and did not venture out or see Terrien or the Skakels, neither did her "beau."
The reasonableness of this conclusion is reinforced by the fact that neither the petitioner nor anyone else who was watching television at the Terrien home that night had ever mentioned the "beau" as being present, either to police investigators or to Sherman. Sherman's conclusion that Dowdle's "beau" had not seen the petitioner at the Terrien home that night was not speculation; it was the conclusion most consistent with information provided to Sherman by the petitioner, Terrien, Rushton Skakel, Jr., and John Skakel. Considered together with all of the information availаble to Sherman before trial, Dowdle's reference to her "beau"
In these circumstances, we conclude that it was not unreasonable for Sherman either to overlook or disregard any potential significance of this singular reference in the grand jury transcripts in light of the information Sherman had learned from the
Our conclusion is consistent with the decisions of several federal courts that an attorney's performance
The Eighth Circuit Court of Appeals reached the same conclusion in Battle v. Delo ,
Like the defendants or the petitioners in these federal cases, the petitioner in the present case and his family members not only failed to provide Sherman with Ossorio's name, but never suggested that they saw Dowdle's unnamed "beau" at the Terrien home or that the unnamed "beau" could provide testimony that would have corroborated his alibi. See, e.g., Toccaline v. Commissioner of Correction ,
Correspondingly, in cases in which courts have determined that counsel's performance was deficient for failing to investigate a potential alibi witness, counsel had been provided with the witness' identity
In sum, given the strong presumption that counsel has rendered adequate assistance, and relying on the
D
Failure To Call Witnesses To Impeach Gregory Coleman's Testimony
The habeas court also faulted Sherman for failing to locate, investigate, and call three witnesses who might have impeached the testimony of Coleman concerning one of the petitioner's confessions. The respondent argues that this conclusion was incorrect because Sherman's performance did not fall below an objective standard of reasonableness. We agree with the respondent that Sherman's performance was not deficient and therefore not ineffective. Although Coleman provided evidence that the petitioner had confessed to murdering the victim, Sherman acted reasonably in concluding that he could sufficiently attack Coleman's credibility directly through cross-examination and without the need to pursue additional witnesses.
1
Additional Background
Coleman testified for the state at a number of pretrial hearings in the petitioner's criminal case, including before the grand jury, at the petitioner's juvenile transfer hearing, and again for two days at the petitioner's
At the probable cause hearing, Coleman testified that he had been a resident at
Sherman cross-examined Coleman at the probable cause hearing and obtained a number of admissions from Coleman that raised questions concerning the truthfulness of his testimony about the petitioner's confession and his credibility as a witness generally.
Coleman admitted under questioning that his testimony at the probable cause hearing was different from his testimony at prior hearings and that his recollection
Coleman blamed the changes in his story on a "[l]apse of memory." Under questioning, Coleman acknowledged that his recollection was "questionable" at times because his conversation with the petitioner had occurred more than twenty years before and because he had heavily abused illegal drugs for many years in the interim. He admitted that he was high on heroin when he testified before the grand jury, having injected
Sherman also questioned Coleman about his delay in coming forward with the petitioner's confession. Although Coleman claimed that the petitioner confessed sometime in 1978, Coleman said he did not remember telling anyone about the confession until twenty years later. Coleman explained that, sometime in 1998, he was with his wife watching a "tabloid" television show about the murder when he remembered the petitioner's confession from twenty years before and told his wife about it. He did not call the police after remembering but, instead, called a national television network after seeing yet another television program about the case, and, when he did not reach anyone at the network, he called a local television station. Coleman was interviewed by the local station about his role in the case before he gave his probable cause testimony. He also testified that he had watched three separate television programs about the case before testifying at the probable cause hearing and admitted that he could not be sure that his memory was unaffected by the content of the programs. When Sherman asked if anyone else could verify his claims about a confession, Coleman said that someone else had guarded the petitioner with him when the petitioner confessed. He gave the names of three individuals who might have been the other person there-John Simpson, Alton Everette James, or Cliff Grubin-although Coleman said that he could not remember who was there and did not know
With respect to Coleman's character for truthfulness, generally, Sherman elicited admissions from Coleman that he was a frequent user of illicit drugs, had been convicted of committing multiple crimes, and had even served prison time in New York. Coleman also acknowledged that, after investigators for the state contacted him about his story, he asked them to help with criminal charges he had in New York and for financial assistance from the state, although he said he never received either.
The petitioner's counsel elicited testimony during the habeas trial that Sherman, in preparing for the petitioner's criminal trial, directed his investigator to look for Simpson, James, and Grubin, but the investigator was not able to locate or contact them before the criminal trial, and thus Sherman did not learn the content of any testimony they might have been able to provide. Neither the petitioner nor the respondent asked the investigator at the habeas trial about the extent of the efforts he used to find these witnesses; the investigator testified only that he was directed to locate them, he made efforts to do so, was unable to find them, and that no further efforts were made after that. Despite not finding the witnesses, Sherman testified during the habeas trial that he did not believe that their testimony would have made a difference, even if it would have been favorable to the petitioner. According to the habeas court, Sherman felt that "he so completely destroyed Coleman's credibility on cross-examination that he believed no reasonable jury would credit [Coleman's] tale."
At the petitioner's criminal trial, the court allowed Coleman's probable cause hearing testimony, including Sherman's cross-examination of Coleman, to be read into the record before the jury. Sherman relied on his
Also, during the criminal trial, another witness came forward for the first time and claimed that Coleman told her about the petitioner's confession sometime in 1979. The state called her as a rebuttal witness. The witness testified that, while she and Coleman were both residents at Elan, Coleman told her that another resident, the petitioner, told Coleman he was related to the Kennedy family and had murdered a girl with a golf club. She also testified that she thought Coleman was one of the "good people" at Elan, that she had shared secrets with him, and that, to her knowledge, he had kept those secrets in confidence. She also testified that it was common knowledge among Elan residents that the petitioner was there because he had murdered someone.
In his habeas petition, the petitioner claimed that Sherman's representation was ineffective insofar as he failed to locate, interview, and call as witnesses the three individuals named by Coleman-Simpson, James, and Grubin. According to the petitioner, Sherman unreasonably relied on his cross-examination to discredit Coleman's testimony, and he argued that Sherman was required to call these three individuals as
In support of his claim, the petitioner presented testimony from the three individuals, which had been given during an earlier posttrial hearing. Each had testified that they had not heard the petitioner ever confess to the murder.
Notably, Simpson recalled having guarded the petitioner with Coleman one evening but disputed Coleman's claim that the petitioner had confessed while being guarded. Simpson explained that, while guarding the petitioner that night, he was busy drafting reports while Coleman watched the petitioner. At some point during the evening, Coleman exclaimed that the petitioner admitted to having killed a girl. Simpson asked the petitioner if it was true, but the petitioner denied it. Simpson asked Coleman why he thought the petitioner had confessed. Coleman explained that he had asked the petitioner if he killed a girl, apparently in response to rumors about the petitioner's involvement in a murder, but the petitioner did not deny responsibility and had smiled with a "shit eating grin ...." When Simpson pressed Coleman about his claim that the petitioner confessed, Coleman said that was the petitioner's "reaction, the fact that he didn't say no" in response to Coleman's question. Simpson acknowledged, however, that he had not paid attention to any of Coleman's conversation with the petitioner until Coleman exclaimed that the petitioner confessed. He also testified that he is deaf in his left ear and that Coleman and the petitioner had been to his left.
The habeas court agreed with the petitioner and concluded that Sherman's representation was ineffective in that he failed to find and call as witnesses the three people who Coleman thought might have been with him when the petitioner confessed. Although the habeas court acknowledged the strength of Sherman's cross-examination, it nevertheless concluded that "Sherman's decision not to pursue Simpson, James, and Grubin reflected a significant and impactful lack of judgment." The habeas court also concluded that Sherman's deficient performance prejudiced the petitioner's defense: "Sherman's failure to investigate and present the testimony of [the three individuals] left the core of Coleman's testimony only tangentially challenged.... With [their] testimony ... there is a reasonable likelihood that Coleman's testimony would have been discredited, substantially weakening the state's prosecution. In the absence of credible testimony from Coleman tying the petitioner to the murder, there is a reasonable likelihood that the outcome of the trial would have been different."
2
Analysis
Sherman did not succeed in locating the three potential witnesses named by Coleman, and so he used his cross-examination of Coleman from the probable cause hearing as the means of impeaching Coleman's testimony. The petitioner has, however, failed to prove that Sherman's efforts to locate the three individuals were
The law governing ineffective assistance of counsel claims gives counsel substantial discretion to decide how to present a defense; this discretion includes determining which evidence to present and which witnesses to call to support the defense. See, e.g., Bryant v. Commissioner of Correction , supra,
In the present case, the petitioner and the habeas court faulted Sherman for proceeding to trial without first locating any of the witnesses named by Coleman. The evidence presented at the habeas trial indicates, however, that Sherman did try to find them. Sherman,
The petitioner had the burden to present evidence demonstrating that Sherman's investigation was constitutionally inadequate. In the absence of this evidence, we must presume that Sherman performed competently. See
Under questioning by Sherman, Coleman admitted that he changed his story about what the petitioner had told him in several respects: that his memory was questionable and might have been affected by drug use; that he had been under the
In addition, Sherman also would have known that, because of Coleman's death, his cross-examination would be presented to the jury as it happened at the probable cause hearing, without the state having any additional opportunity to alter its examination of Coleman to blunt the impact of his admissions or to block certain testimony through new objections to Sherman's questions. We also note that, unlike in other cases, in which we have found ineffectiveness for failure to present witnesses, Sherman's inability to locate the potential witnesses prior to trial did not prevent him from challenging Coleman's testimony. In cases in which we have found ineffectiveness, counsel's failure to locate or call certain witnesses has been deemed deficient when counsel's failure left a petitioner without the means to present certain defenses. For example, in Bryant v. Commissioner of Correction , supra,
On the basis of the evidence in the habeas record, the petitioner has failed to prove that Sherman's inability to locate the potential witnesses was the result of professional
III
THE PETITIONER'S ALTERNATIVE GROUNDS FOR AFFIRMING THE HABEAS COURT'S JUDGMENT
We have determined that the habeas court incorrectly concluded that Sherman's representation was ineffective for the three reasons identified previously. Consequently, we next must consider whether the habeas court's judgment may be affirmed on one of the alternative grounds urged by the petitioner. The petitioner has offered seven alternative grounds, claiming that Sherman rendered ineffective assistance for reasons in addition to those that we have already discussed. He has also
A
Alternative Grounds Relating to Third-Party Culpability Defense
The first alternative ground offered by the petitioner relates to his third-party culpability defense. The petitioner claims that, even if Sherman was not constitutionally required to implicate Thomas Skakel, Sherman should have done a better job in implicating Littleton and also should have implicated two other individuals. We reject these arguments.
Sherman's Handling of the Defense Implicating Littleton
The petitioner claims that Sherman mishandled the defense implicating Littleton. His claim is based on a composite drawing created in the days after the murder and used at trial. The petitioner argues that the drawing depicts a person seen about one block away from the crime scene around 10 p.m. on October 30, 1975, at or around the time when the petitioner claims the murder likely occurred. According to the petitioner, the person depicted in the drawing resembles Littleton. Although the drawing was referenced in police reports that Sherman reviewed before trial, he did not specifically ask the state to produce it. The petitioner argues that Sherman should have obtained a copy of the drawing from the state before trial and used it to bolster his defense implicating Littleton by arguing that Littleton was spotted near the crime scene at about 10 p.m. that night, contradicting Littleton's claim that he was inside watching television at that time. Sherman's failure to do so, the petitioner contends, was constitutionally deficient performance that prejudiced his defense.
The habeas court rejected the petitioner's claim. It determined that Sherman's performance was deficient but concluded that any deficiency did not cause any prejudice to the petitioner. According to the habeas court, the issue raised concerning the drawing was "somewhat of a nonstarter" because the drawing does not depict the person seen later at 10 p.m. but depicts someone seen earlier in the evening who had been cleared by the police of any involvement in the murder. Because the drawing was not of the person seen at 10 p.m., the habeas court concluded that it would be of no help in determining whether Littleton was the person seen walking in the area of the crime scene that night.
2
Sherman's Failure To Investigate Additional Third-Party Suspects
The petitioner also raised a claim that Sherman's performance was ineffective insofar as he failed to investigate a tip received before trial that someone named Gitano "Tony" Bryant might have known who killed the victim. The information from Bryant also formed the basis of a claim the petitioner made in his new trial petition. See
At the habeas trial, the petitioner contradicted his earlier position, claiming instead that Bryant's story was not new information but was known to Sherman before the petitioner's criminal trial. According to testimony presented for the first time at the habeas trial, one of the victim's childhood friends, Marjorie Walker Hauer, called Sherman in the weeks before the criminal trial and alerted him to something she had heard from her brother, who was a friend of Bryant's. Hauer explained that her brother had told her that Bryant claimed to have been in Greenwich on the evening of October 30, 1975, with two friends, and that his friends admitted to Bryant that they killed the victim. Hauer testified that Sherman responded that he was aware of the story and that it was not credible, although Sherman could not recall this conversation when he testified at the habeas trial.
The habeas court credited Hauer's testimony and found that Sherman knew of the tip and performed deficiently when he failed to investigate it. Nevertheless, the habeas court concluded that Sherman's lapse did not prejudice the petitioner because, even if he had
Assuming without deciding that the habeas court correctly concluded that Sherman's representation was deficient, we agree with the habeas court that the petitioner failed to prove prejudice for the reasons given by that court. In addition to those reasons, we also observe that Bryant's statement to the petitioner's investigators likely would not have been admissible at trial, let alone sufficient to form the basis for a third-party culpability claim. See Skakel v. State , supra,
Sherman's Handling of the Evidence About Why the Petitioner Was Placed at Elan
For his next alternative ground for affirmance, the petitioner claims that Sherman's representation was ineffective insofar as he failed to rebut the state's argument that the petitioner's family sent him to Elan because they thought he might be responsible for the victim's murder and thus wanted to keep him out of the Greenwich area and away from investigators. The petitioner claims that he was sent to Elan, not because of anything to do with the murder, but because of his poor grades in school and because he was charged with driving under the influence in New York. The petitioner argues that Sherman should have objected to the admission of evidence about why he was sent to Elan or, alternatively, presented evidence showing that he was sent to Elan for reasons entirely unrelated to the victim's murder. He argues that Sherman's failure to do either was unreasonable and prejudicial. We disagree.
The petitioner enrolled at Elan in 1978, about three years after the murder, when the petitioner was about seventeen or eighteen years old. It was at Elan that the petitioner purportedly made a number of inculpatory statements about the victim's murder, including his statement to Coleman that he had drove the victim's skull in with a golf club because she had spurned his advances.
At the petitioner's criminal trial, the state presented evidence about why the petitioner had been sent to Elan. The state first asked the petitioner's father, Rushton Skakel, Sr., about his placement there. Sherman objected to the state's question on the ground that it sought irrelevant information and inadmissible misconduct evidence, but the trial court overruled the objection. Nevertheless, Rushton Skakel, Sr., who was
For his part, Sherman elicited testimony from the petitioner's sister, Julie Skakel, that the petitioner was enrolled at Elan because of problems he had in other schools that he attended. She explained that the petitioner had been diagnosed with dyslexia, had trouble listening in school, and that his inability to pay attention was perceived as a behavioral problem. She further testified that the petitioner had a "turbulent" relationship with their father at the time, and was abusing alcohol and illegal drugs, and had been dismissed from several other schools before going to Elan.
In its closing argument, the state acknowledged that the petitioner's behavior and substance abuse problems might have contributed to his enrollment at Elan, but the state also offered an additional reason. It argued that the petitioner's own statements to Rogers and Coleman established that he might have been sent there in part because of his role in the murder, providing additional evidence of his guilt.
The petitioner claims that Sherman's representation was ineffective in that he failed to defend against the state's evidence on this issue. The petitioner first argues that Sherman should have objected to the state's offering of evidence about why the petitioner was sent to
The habeas court determined that Sherman's failure to object to or to use the police reports constituted deficient performance but concluded that Sherman's deficient performance did not prejudice the petitioner because the reasons for the petitioner's placement at Elan were, at best, tangential to the question of the petitioner's guilt.
C
Sherman's Failure To Use Expert Testimony Regarding the Coercive Environment at Elan
The petitioner next claims that Sherman unreasonably failed to present
According to the petitioner, Sherman should have called an expert witness to explain to the jury that the psychological pressure and physical punishment imposed by the Elan staff forced the petitioner to adopt a compromise strategy, whereby he gave up denying involvement and instead claimed to have no memory of the murder, as a means to stop his adverse treatment by Elan staff and other residents. The petitioner also argues that Sherman should have presented expert testimony to cast doubt on the reliability of the testimony from Elan residents who claimed that the petitioner admitted his involvement in the murder.
To support his claim, the petitioner presented testimony from an expert at the habeas trial, Richard Ofshe, a psychologist, who testified that the coercive treatment at Elan likely forced the petitioner to stop denying involvement in the murder when he was confronted about it in group sessions as a means to avoid further punishment. Ofshe acknowledged, however, that his theory about the effect of Elan's coercive methods on the truthfulness of the petitioner's statements in group
The habeas court concluded that Sherman's representation was deficient insofar as he failed to present expert testimony on these topics but found that the petitioner was not prejudiced by Sherman's omissions. The habeas court determined that Ofshe's testimony might have helped explain why the petitioner claimed a lack of memory about the victim's murder in group settings but that his testimony would not have meaningfully assisted the jury in assessing the reliability of the testimony concerning the petitioner's inculpatory statements made in private settings.
After considering the arguments of the parties and reviewing the relevant portions of the record, we agree, on the basis of the reasons given by the habeas court, with its determination that any expert testimony about the coercive nature of Elan's treatment of the petitioner would not have meaningfully assisted the petitioner's defense at trial. Certainly, there are situations in which expert testimony might be required to present a constitutionally adequate defense; see, e.g., Michael T. v. Commissioner of Correction , supra,
In addition, the importance of the evidence concerning the petitioner's statements during group sessions was limited, at best. During those sessions, the petitioner, while being psychologically and physically abused, did not confess to the murder but said only that he could not remember what had happened. Even the state acknowledged during closing argument that "it is perfectly clear [that] the [petitioner] admitted nothing in that awful general meeting." The more important evidence against the petitioner was the testimony that he had privately confessed to other residents. And we agree with the habeas court's conclusion that Ofshe's testimony "would not have been of particular use" in attacking the credibility of other Elan residents, including Coleman, who testified that the petitioner had made inculpatory statements to them in private settings rather than in coercive group settings. Indeed, hearing from an expert that the petitioner's private admissions were not consistent with the expert's coercion theory might have hurt the petitioner's defense. We therefore conclude that the habeas court correctly determined that the petitioner failed to prove prejudice, and we do not consider whether Sherman's performance in this regard was deficient.
D
Sherman's Performance During Jury Selection
The petitioner argues that Sherman also rendered ineffective assistance by not challenging a potentially biased juror who served on the jury at the petitioner's criminal trial. The petitioner claims that Sherman should have challenged the selection of a certain juror,
The habeas court determined that Sherman's representation was deficient insofar as he did not challenge B.W. for cause or, if that failed, for not using a preemptory challenge, because no reasonably competent defense attorney would have accepted B.W. as a juror. Nevertheless, the habeas court concluded that the petitioner failed
We disagree with the habeas court's determination that Sherman's failure to challenge B.W. as a juror was constitutionally deficient. Counsel's choice in selecting jurors is a strategic decision entitled to great deference under Strickland . See, e.g.,
The petitioner has not overcome this presumption. Just as any competent defense counsel would do, Sherman questioned B.W. at length about potential indicators of bias. Although there were certainly aspects of B.W.'s answers that might lead some defense attorneys to assert a challenge, his answers to Sherman's questions provided a valid basis for Sherman to conclude that B.W. would nevertheless judge the case impartially.
When Sherman asked about whether B.W.'s profession as a police officer would impact his judgment, B.W. responded that he would be fair and consider all the evidence. He acknowledged that some defense attorneys might be hesitant to select a police officer but explained that his experience in law enforcement had taught him that there are "always two sides to a story" and that, when responding to a report of a crime, one must listen to "both sides ...." He also stated that he understood that both the state and defendants make mistakes. Moreover, he explained that he would find the petitioner not guilty if the state did not prove the
With respect to his familiarity with Detective Lunney, B.W. stated that he had known Lunney for about five years and that they met because they were members of the same motorcycle club. According to B.W., Lunney never discussed the investigation or any of the evidence in the case with him. B.W. represented that he would evaluate Lunney's testimony just as any other witness' testimony and denied that knowing Lunney would impact his decision.
Likewise, with Lee, although B.W. thought his reputation "carries some weight," he agreed that he would evaluate Lee's testimony based on its content rather than on Lee's reputation. He had never dealt with Lee in connection with a case but might have seen him give a lecture once. He agreed that the state's decision to
Finally, with respect to B.W.'s prior encounters with Sherman, B.W. acknowledged that he had known Sherman for about ten or eleven years, ever since Sherman represented a client charged with assaulting B.W. He recalled that Sherman helped his client get accelerated rehabilitation; B.W. acknowledged, however, that he had no bad feelings toward Sherman as a result of the case. B.W. also recalled that Sherman had cross-examined his wife and that she had been nervous about possibly being "intimated" or "grilled" because Sherman was a good attorney. B.W. explained, however, that his wife was neither intimidated nor upset with
Sherman's performance was not objectively unreasonable by virtue of his failure to challenge B.W. as a juror. Sherman questioned B.W. about potential grounds for bias, and B.W.'s candid responses indicated a thoughtful understanding of the role of a juror and the importance of impartially considering all the evidence presented in court before returning a verdict. Sherman was familiar with B.W. and had an opportunity to observe his demeanor in court. Certainly, some defense attorneys would have challenged B.W. as a juror, but we do not think that Sherman was constitutionally required to do so. Even the habeas court acknowledged that B.W.'s answers indicated a lack of any actual bias. Although it relied on that conclusion to determine that the petitioner failed to prove any prejudice, we think this conclusion also demonstrates that Sherman's decision not to challenge B.W. as a juror was not without a reasonable basis. Simply put, counsel's performance should not be deemed constitutionally deficient when he accepted a juror he reasonably believed would be unbiased. See, e.g., Beverly v. Commissioner of Correction , supra,
In any event, it is clear that the petitioner also cannot prevail on this alternative ground because he has presented no evidence of prejudice. The petitioner argues
E
Sherman's Closing Argument
The petitioner next argues that Sherman's closing argument was constitutionally deficient and prejudiced his defense. The habeas court agreed that Sherman's closing argument was deficient, concluding that it was "disjointed, unfocused," that Sherman did not respond to certain aspects of the state's case, and that Sherman unreasonably made arguments that drew objections from the state. The habeas court nevertheless concluded that any deficiency in the closing argument did not prejudice the petitioner because the trial court had instructed the jury that it was obligated to focus on the evidence when deciding guilt, and the habeas court
Courts must be highly deferential when reviewing a claim that a closing argument was constitutionally ineffective. "[C]ounsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should sharpen and clarify the issues for resolution by the trier of fact ... but which issues to sharpen and how best to clarify them are questions with many reasonable answers." (Citation omitted; internal quotation marks omitted.) Yarborough v. Gentry , supra,
Our review of Sherman's closing argument convinces us that it did not fall outside of the broad range of permissible arguments that counsel might make. Sherman was allotted ninety minutes of argument to cover fifteen days of testimony and evidence. In addition, because the state had given its closing statement immediately before Sherman, he could not simply give a scripted argument but needed to work in a rebuttal to the state's argument with no additional time to prepare it. Despite these constraints, Sherman's closing argument amply covered the evidence concerning the key issues in the case.
Sherman began his argument by summarizing the essence of the defense, emphasizing that the petitioner
Sherman then turned to a critique of the physical and forensic evidence presented. He began by noting that the state had not presented any forensic or physical evidence to tie the petitioner to the murder. He reminded the jury that Lee acknowledged that there was no direct evidence to connect the petitioner to the crime, even though the killer would have been in close contact with the victim and likely would have been covered in blood after the assault. Sherman also recounted testimony demonstrating that the state was still testing forensic evidence just days before the trial began, and he argued that the state was apparently still trying to determine who was responsible for the crime, even though it already had put the petitioner on trial. Sherman candidly added that, although he did not know who committed the murder, the state's continued last minute forensic testing demonstrated that the state still did not know either. He noted that, although there was no physical evidence connecting the petitioner to the crime, Lee had explained that two hairs were found that potentially connected Littleton to the crime scene. With respect to the golf club used in the attack, which came from a set of golf clubs in the Skakel home, Sherman
Sherman next addressed the state's argument that the petitioner had a motive to murder the victim. He attacked the state's theory that the petitioner murdered the victim after she rebuffed his romantic advances, pointing out that entries in the victim's diary and witnesses who knew the petitioner and the victim at the time established that the petitioner's feelings for the victim were that of an ordinary teenager, not a jealous murderer. Sherman also criticized the state for pulling its motive argument from theories pushed by a celebrity book written about the case for money and by tabloid magazines.
Sherman next pivoted to Littleton. Sherman acknowledged he did not know whether Littleton had committed the crime but used uncertain evidence about whether Littleton had ever confessed to show that "a confession ain't always a confession" and that the evidence against the petitioner was no better than that against Littleton. He recounted evidence that the state had spent significant time trying to pin the crime on Littleton and argued that the state's attempts to secure a confession from Littleton laid bare the lengths to which the state would go to "get somebody to say, 'I did it.' " He also compared Littleton's uncertain confession to those that the petitioner supposedly made, arguing that Littleton's alleged confessions were no "less compelling" and no "less persuasive" than the "garbage" presented against the petitioner from Coleman and other witnesses who claimed the petitioner had made incriminating statements.
Sherman then attacked the state's evidence with respect to the time of death. He criticized the state's experts for being unable to pin down a more narrow time frame for the victim's death and reviewed testimony from a number of witnesses,
Tying the defense theory of the time of death to the petitioner's alibi, Sherman next reviewed the testimony establishing that the petitioner had gone to the Terrien home at about 9:30 p.m. and did not return until around 11 p.m., placing him out of the neighborhood during the time period he claimed that the murder had occurred. Sherman gave the jury reasons to credit the petitioner's alibi witnesses and explained why witnesses who thought that the petitioner had not gone to the Terrien home were mistaken in their recollection.
Sherman turned to attacking the state's theory that the Skakel family and possibly its attorneys had tried to cover up the petitioner's involvement in the murder and invent an alibi. The weekend following the murder, Littleton had taken many of the Skakel siblings to the family's vacation home in New York. The state argued that the purpose was to remove the petitioner from the investigation and insinuated that, during that trip, the
Turning to the subject of the petitioner's confessions, Sherman went through each, detailing at length the reasons that each was not credible. For example, he noted that many of the witnesses had delayed decades in reporting the confessions, that some of the details they claimed the petitioner relayed to them were inconsistent with the evidence, that one witness recanted, that one admitted his recollection was questionable, and that many of them had questionable motives for coming forward, including the potential of receiving reward money. He recounted Coleman's history of drug use, including his drug use at the time he testified, as well as his criminal history. And he reminded the jury of the cruelty that the petitioner experienced at Elan to demonstrate why anything the petitioner said while he was there was wholly unreliable. Sherman also noted that, despite the harsh treatment of the petitioner at Elan, witnesses who were with the petitioner at Elan testified that he had continually denied any involvement in the murder.
On the subject of the petitioner's statements about his activities later on the night of October 30, 1975, including his claim of masturbating in a tree, Sherman rebutted the state's argument that the petitioner had changed his story about the tree in which he was sitting
Sherman concluded by reminding the jury that the state had believed that other suspects committed the murder and spent years trying to build cases against them, and that the state finally settled on the petitioner, despite having no physical evidence to tie the petitioner to the crime. Sherman stressed that the state's case consisted solely of questionable claims that the petitioner had confessed. He characterized the state's evidence as "not acceptable" for supporting a conviction because there were simply "too many questions" still surrounding the case. He cautioned the jurors that there were few times they would ever make a decision as consequential as deciding the petitioner's guilt and that they should not find the petitioner guilty on the basis of such little reliable evidence.
Sherman might not have had time to review all of the evidence presented in his closing argument, but he succeeded in addressing the critical evidence supporting his defense and responded to the key arguments raised by the state. The habeas court, in concluding that Sherman's argument was professionally incompetent, acknowledged that counsel is afforded substantial deference
The habeas court characterized Sherman's closing argument as "disjointed" and "unfocused," but we do not share that view. To the contrary, Sherman organized his discussion of the evidence around the central topics of the petitioner's defense, focusing on his alibi, the competing evidence against Littleton, and the lack of credibility of the confession witnesses. Sherman also addressed other aspects of the state's case, including its theory of a family cover-up and the petitioner's alleged motive.
The habeas court faulted Sherman for his "failure to provide the jury a road map to an understanding of the state's burden of proof" and the concept of reasonable doubt, but we disagree that Sherman was incompetent in this regard. There is no requirement that defense counsel explain these concepts during closing argument. And counsel might reasonably conclude that doing so would be a poor use of limited argument time considering that the court provides its own detailed instructions about the concept of reasonable doubt to the jury. See Yarborough v. Gentry , supra,
The habeas court also determined that Sherman's representation was ineffective insofar as he "fail[ed]
The habeas court criticized Sherman for admitting that he did not know whether Littleton murdered the victim and for expressing some sympathy for Littleton, but such a tactic hardly bespeaks incompetence. Given the uncertainty surrounding Littleton's confession, counsel reasonably could have decided that blaming and degrading Littleton might have caused the jury to discredit the defense. Sherman did not act unreasonably in deciding that the better course was to candidly acknowledge the uncertainty surrounding Littleton's guilt and then to argue that the same uncertainty clouded the evidence against the petitioner. See
The habeas court next observed that Sherman did not directly address the state's argument that the petitioner's family sent him to Elan to remove him from the police investigation. Although this determination is supported by the record, we disagree that it amounts to incompetence. Sherman can hardly be faulted for not spending valuable argument time addressing an issue that even the habeas court separately had concluded was "tangential to the main issues in the case." And Sherman indirectly addressed this throughout his closing argument when he argued that the state's theory of a Skakel family cover-up, which involved the purported invention of an alibi and concealment of evidence, simрly was not supported by the testimony in the case.
Finally, the habeas court faulted Sherman for making improper comments during closing argument that caused the trial court to caution the jury to disregard the comments. For example, during his closing argument, the trial court twice interposed that the jury should disregard certain remarks Sherman had made. In addition, the state filed a motion after closing arguments, asking for additional curative instructions, which the trial court granted. According to the trial court, Sherman had stated that he did not know who murdered the victim, and the trial court instructed the jury to disregard that remark because it represented
We disagree with the habeas court that these comments, which were made during a long and detailed closing argument, amount to professional incompetence. Although drawing objections of this type during a closing argument might not get counsel an "A" for trial advocacy, our task is not to "grade counsel's performance" but to determine whether counsel's actions fell below the acceptable range of professional performance. Strickland v. Washington , supra,
F
Sherman's Failure To Attempt To Suppress an Audio Recording of the Petitioner's Statements to His Ghost Writer
At the petitioner's criminal trial, the state entered into evidence an audio recording of the petitioner narrating
The petitioner claimed in his habeas petition that Sherman should have tried to have the audio recordings suppressed because they were the product of an illegal seizure. According to the petitioner, Hoffman and the petitioner had signed an agreement making the recordings the sole property of the petitioner and preventing
The habeas court agreed that Sherman should have tried to suppress the recordings but concluded that the petitioner had failed to prove prejudice. The court determined that Garr's seizure of the recordings was unlawful because he had "intimidated and coerced Hoffman" into surrendering the recordings immediately. The habeas court also concluded that, even though the recordings were seized from Hoffman, the petitioner would have had standing to challenge their seizure because of the confidentiality and ownership agreement giving the petitioner sole ownership of them. Nevertheless, because the petitioner had not shown that the recordings would, in fact, have been suppressed, the habeas court found no prejudice. The habeas court determined that neither the petitioner's confidentiality agreement nor Garr's unlawful seizure would have prevented the grand jury from obtaining the recordings through its subpoena power, which would have led to their discovery and use by the state.
We do not address whether Sherman's representation was deficient insofar as he did not seek to suppress the recordings because we agree with the habeas court that, even if Sherman had sought their suppression, the petitioner has not demonstrated that Sherman's effort would have succeeded, and, therefore, the petitioner
CONFLICT OF INTEREST CLAIM
Finally, we address the petitioner's separate claim that he was denied his
The habeas court found the following facts relevant to this claim. The petitioner originally agreed to pay Sherman an hourly rate for his services and to cover all expenses incurred for the defense. Several years after Sherman began representing the petitioner, and about five months before trial, the petitioner and Sherman changed their billing agreement to a flat fee arrangement. In entering into this arrangement, the petitioner was represented by different counsel. Under the arrangement, Sherman was paid a flat fee to cover all
The habeas court determined that the flat fee agreement and Sherman's handling of the funds created a "substantial risk" that Sherman would be burdened by a conflict of interest. First, the habeas court determined that the possibility that the IRS could seize the funds might prevent Sherman from paying defense expenses. Second, the habeas court determined that the up-front payment to Sherman created an incentive for him to minimize defense expenses, including expenses for expert witnesses and investigations, so that he could retain more of the funds to help pay his tax debt. Nevertheless, the habeas court determined that the petitioner could not prevail on his conflict of interest claim because he had not presented any evidence to demonstrate that the potential conflicts had any adverse impact on his defense.
After considering the briefs, the record, and the habeas court's decision, we conclude that the petitioner's claim must be rejected because, irrespective of whether Sherman was burdened by a potential conflict of interest, the habeas court correctly determined that the petitioner presented no evidence to establish prejudice.
The judgment is reversed and the case is remanded with direction to render judgment denying the habeas petition.
In this opinion EVELEIGH, ESPINOSA and VERTEFEUILLE, Js., concurred.
Notes
The dissent reaches a contrary conclusion. Not comfortable relying on the facts as presented during the habeas trial, or the law governing ineffective assistance of counsel claims, the dissent attempts to distract the reader from both by characterizing the majority's analysis as "so blatantly one-sided as to call into question the basic fairness and objectivity of [that] analysis and [the majority's] conclusion," while at the same time misstating the majority's views. We will not rely on similar tactics.
The victim's mother acknowledged that it was possible that the victim came home for a little while at about 9:30 p.m. on October 30, 1975, and then left again that night without her mother realizing that she had been in the house, although the victim's mother could not recall whether the victim had done that previously.
The petitioner's mother was deceased at the time.
James Terrien also went by the name of James Dowdle. After being adopted by his stepfather, George Terrien, he used his stepfather's last name during his youth. Thus, throughout the criminal trial, most witnesses who had known him during that time referred to him as Jimmy Terrien, even though he was using his birth name of Dowdle by the time of the criminal trial and testified under the name of James Dowdle. We hereinafter refer to him as James Terrien, as the habeas court did.
There was also evidence presented at the petitioner's criminal trial that one of the petitioner's brothers, John Skakel, heard someone in the mudroom of the Skakel home at about 11:30 p.m. on October 30, 1975. During their investigation, police investigators found other golf clubs from the set to which the murder weapon belonged in a barrel in the Skakel mudroom.
The attorneys with whom Sherman consulted included, among others, F. Lee Bailey, William F. Dow III, Richard Emanuel, David S. Golub, David T. Grudberg, and Barry Scheck.
Another one of the petitioner's brothers, John Skakel, testified that he had also gone to the Terrien home that night but that he could not recall many details about the evening when he testified at the criminal trial, including who exactly had gone to the Terrien home from the Skakel home. The court admitted into evidence, as a record of past recollection, a statement that John Skakel had given to the police in 1975, in which he explained that the petitioner had also gone to the Terrien home.
The right to the effective assistance of counsel is also guaranteed by article first, § 8, of the Connecticut constitution. This section provides the same protection as the federal constitution, and the federal standard for judging effective assistance claims applies to any such claims under the state constitution. See, e.g., State v. Arroyo,
The jury must have discredited evidence that Littleton might have confessed. At the petitioner's criminal trial, Littleton testified during cross-examination by Sherman that Littleton had previously told his former wife, Mary Baker, that he had stabbed the victim in the neck. The state, however, presented evidence through Baker that Littleton had never actually confessed to her that he committed the crime. She testified that she had been cooperating with investigators and had told Littleton that he had confessed to her during a drunken blackout in an attempt to elicit incriminating statements from him while investigators recorded the conversation between them.
The habeas court made no findings about whether Sherman was aware before trial of Baker's claim that she had made up Littleton's admissions. Notably, however, even Littleton did not know until after the petitioner's criminal trial had started that Baker apparently invented Littleton's supposed admissions or that his conversations with her were recorded.
We are hard-pressed to understand what the "plethora" of evidence was in light of the habeas court's concession that the evidence presented to implicate Thomas Skakel would not have been admissible at the petitioner's criminal trial but would simply have provided "an investigative gateway" to possibly discovering admissible evidence. The admissible evidence that Sherman supposedly could have found was not presented at the habeas trial.
Although the petitioner relied on this time of death during his criminal trial, the state argued at the trial that the time of death could have been later. Among other evidence, the state relied on testimony from the medical examiner indicating that the time of death could have been as late as 5 a.m. on October 31, 1975, and that a time of death of 1 a.m. would be just as consistent with the medical evidence as a time of death at 10 p.m. on October 30.
Of course, even if Sherman had evidence of these details, it is far from certain that the trial court would have allowed Sherman to raise a third-party defense, or that Sherman could be faulted for failing to pursue it, given that there is no evidence that their encounter, if it occurred, was anything but consensual. Cf. Mukhtaar v. Commissioner of Correction,
Sherman testified at the habeas trial that Thomas Skakel mentioned having sexual contact with the victim but that he did not provide any specific details of the encounter, and Sherman could not recall any mention of the time it allegedly took place. For example, Sherman testified that Thomas Skakel had "basically repeated" the information in the Sutton Report during their meeting, but, when Sherman was asked whether Thomas Skakel had told Sherman "that [Thomas Skakel and the victim] engage[d] in sexual conduct, as reflected in the Sutton Report," Sherman answered, "I don't think he was as specific as [the Sutton Report], only that there was some sexual conduct." Even if we assume that Sherman's memory is more accurate than Throne's, the most that Sherman or Throne could have testified to was that Thomas Skakel admitted to having sexual contact with the victim on October 30, 1975, but without any details about when, where, or how it unfolded-details that, as we have mentioned, would have been necessary to establish the tenuous link, which the habeas court observed, between Thomas Skakel's statements in the Sutton Report and the crime scene evidence.
Nevertheless, Sherman's testimony about his own memory of an event that occurred eleven years beforehand cannot, itself, be used as proof of what Throne would have known and recalled about that event, or what the substance of Throne's testimony concerning that event would have been if Throne had been called as a witness at the petitioner's criminal trial. The petitioner does not argue that Sherman should have withdrawn from representing the petitioner one week before his criminal trial so that Sherman could testify about his meeting with Thomas Skakel.
At the habeas trial, the petitioner's habeas counsel asked Throne whether Thomas Skakel had discussed his alleged sexual encounter with the victim during Sherman and Throne's meeting with Thomas Skakel. Throne replied: "I don't recall during that meeting talking about the, you know, the [sexual] contact. I am aware, obviously, from other reports of what, you know, had taken place, but I don't recall as I sit here today actually discussing that in detail when we were with [Thomas Skakel] at that time." When asked to clarify what other reports he was speaking of, Throne explained: "The information-or I believe, you know, it was reported that-I think they described it as mutual masturbation, so I believe we were aware of that information, but I can't recall ... discussing that specifically with [Thomas Skakel] at that time at that meeting."
Sherman testified at the habeas trial that Throne had taken notes during their meeting with Thomas Skakel and that he believed that Throne may still have had the notes, but no such notes were entered into evidence at the habeas trial; nor did the petitioner's habeas counsel ask Throne whether he had taken notes during that meeting, whether he still had them, or whether they might refresh his recollection.
The habeas court briefly surmised that one of the investigators for Sutton Associates might have been able to testify about the details of Thomas Skakel's encounter with the victim on the basis of the interview between Thomas Skakel and Sutton Associates, but this assumption is nothing more than speculation.
Prior to trial, Sutton Associates invoked the attorney-client privilege and attorney work product privilege, thereby declining to testify about the content of its communications with Thomas Skakel. Even if we assume that Sherman could somehow have defeated a claim of privilege by Sutton Associates, the record is silent about the content of the testimony that a Sutton Associates investigator might have provided. No one from Sutton Associates testified about the content of Thomas Skakel's communications with Sutton Associates in any proceeding in this case.
Without additional evidence, we cannot assume that someone who interviewed Thomas Skakel would have been available to testify at the petitioner's criminal trial and that they would have testified in pure conformity with the alleged content of the Sutton Report. That report was not authenticated by anyone from Sutton Associates and was apparently drafted several years before the petitioner's criminal trial. See, e.g., Johnson v. Commissioner of Correction,
The dissent suggests that Sherman also could have called Emanuel Margolis, Thomas Skakel's attorney, who was also present at the meeting with Thomas Skakel, Sherman, and Throne, to testify about what Thomas Skakel had said during that meeting. This is entirely speculative. The petitioner did not present any evidence of what Margolis might have testified to if he had been called as a witness at the petitioner's criminal trial-Margolis passed away before the habeas trial-and the habeas court made no findings about whether Margolis would have been available or willing to testify, or what the substance of his testimony might have been. There is, therefore, no basis in the record for concluding that Margolis could have testified about the details of Thomas Skakel's encounter with the victim if Margolis had been called to testify at the petitioner's criminal trial. See, e.g., Johnson v. Commissioner of Correction, supra,
The habeas court itself also surmised that Sherman could have argued that Thomas Skakel suffered from psychological problems and had a violent temper, but, as the habeas court acknowledged, the petitioner did not present any evidence to support these assertions at the habeas trial that would have been admissible at the petitioner's criminal trial. Any reliance on this evidence would similarly be speculative. See, e.g., Lewis v. Commissioner of Correction,
Moreover, Littleton told the police during their investigation, and later testified at the petitioner's criminal trial, that he watched television with Thomas Skakel on the night of October 30, 1975, beginning at about 10:15 p.m., within twenty to thirty minutes after the time the petitioner now asserts that Thomas Skakel might have killed the victim. Littleton was clear, however, that, when he saw Thomas Skakel at about 10:15 p.m., Thomas Skakel was wearing the same clothes he had on earlier that evening, there was nothing suspicious about him, and there was no blood on his clothing. This information renders the petitioner's claim implicating Thomas Skakel, which rests on the assertion that he committed the murder between approximately 9:45 and 10 p.m. that night, all the more speculative.
The notion that the petitioner might have murdered the victim after discovering that she had engaged in sexual activity with Thomas Skakel had also been raised in the media after the Sutton Report was leaked to media sources several years before the grand jury had convened to investigate the murder.
For example, before the grand jury convened in 1998 to investigate the victim's murder, retired Los Angeles Police Detective Mark Fuhrman published a book about the crime and implicated the petitioner. Sherman testified at the habeas trial that he had read this book before the petitioner's criminal trial.
In the book, Fuhrman argues that the petitioner most likely killed the victim after discovering a sexual encounter between the victim and Thomas Skakel. M. Furhman, Murder in Greenwich (1998) pp. 197, 215. In support, the book includes the following quote, which it attributes to the Sutton Report: "We have found considerable evidence to show [that the petitioner] had been involved in a relationship with [the victim]. According to one source, [the petitioner] and [Thomas Skakel] even fought over her. Along the blurry lines of teenage romance, [the petitioner] was even known to be [the victim's] boyfriend for some time. Coupled with our extensive knowledge of just how vehemently they fought with each other, this information suggests [that the petitioner] had more than ample reason to [be] extremely upset when [Thomas Skakel] was carrying on with [the victim] by the side of the house just before 9:30 p.m." (Internal quotation marks omitted.) Id., p. 215. The book further quotes the Sutton Report as stating: "We know practically nothing of how [the petitioner] reacted to all this, and it is a glaring omission. For certainly, he had a reaction, and it may have been extreme." (Internal quotation marks omitted.) Id., p. 216.
The petitioner argues that the testimony concerning his self-incriminating statements lacked credibility. Given the jury's verdict, however, the jury likely found them credible. Providing the jury with additional evidence corroborating these statements would have further bolstered their credibility to the jury.
The state had argued at the petitioner's criminal trial, and the trial court instructed the jury, that it could find the petitioner guilty of the murder, even if it found that he went to the Terrien home, if it credited the state's evidence concerning the time of death rather than the defendant's.
In addition to attempting to identify witnesses who were with the petitioner at the Terrien home, Sherman also identified and ultimately presented evidence at the criminal trial aimed at showing that the victim was murdered when the petitioner was allegedly at the Terrien home. That evidence included expert testimony from a forensic pathologist and testimony from witnesses who heard dogs barking and voices in the neighborhood sometime between 9:30 and 10 p.m. on October 30, 1975. See, e.g., State v. Skakel, supra,
The petitioner testified at the habeas trial that he gave Sherman the names of two persons, Ossorio and Ian Kean, who purportedly were boyfriends of Dowdle and could verify the petitioner's presence at the Terrien residence on the night of the murder, but the habeas court rejected this testimony when it referred in its memorandum of decision to the "failure of the petitioner to bring [Ossorio] to ... Sherman's attention." The habeas court thus appears to have believed Sherman's testimony that he had asked the petitioner "[o]n many occasions" who else was at the Terrien house watching television and that he did not recall the petitioner ever telling him that Ossorio was there. The petitioner has not challenged the habeas court's conclusion as clearly erroneous on appeal. In addition, the petitioner did not call Terrien, Rushton Skakel, Jr., or John Skakel to testify at the habeas trial about whether they had recalled whether Ossorio was at the Terrien home, or whether they had ever had told Sherman that Ossorio might have been there that night.
Sherman's associate, Throne, also testified at the habeas trial that neither the petitioner nor anyone else who claimed to have been with the petitioner at the Terrien house that night had mentioned the presence of Ossorio or any other nonfamily member at the Terrien home.
The record indicates that the Terrien home was "a large estate" and that the library of the home was "in another section of the house" from where Terrien was watching television that night.
The petitioner argues generally in an introductory section of his brief that counsel has a duty to investigate. He also argues that counsel's duty to investigate is not governed solely by the information provided by a client because counsel has an independent duty to explore potential defenses and favorable witnesses. In this regard, the petitioner cites Rompilla v. Beard,
The club used in the murder was not a driver.
Sherman's investigator testified at the habeas trial that he had been told by the investigator who found the witnesses after trial that it was one of the most difficult assignments he had ever conducted. One of the witnesses was out of the country during the relevant time period and another had the same name as thousands of individuals.
In its memorandum of decision, the habeas court appears to have presumed that Sherman did not make any effort to pursue the witnesses that Coleman named, but that presumption is unsupported by the record at the habeas trial; the evidence is in fact to the contrary. The only evidence in the habeas record relating to whether Sherman pursued these witnesses indicates that he did make efforts to look for them, although we do not know what those efforts were. Even if the habeas court had discredited this tеstimony, it was not at liberty to reach an opposite finding without some evidence from the petitioner to show that Sherman had, in fact, decided not to look for them. See State v. Hart,
The habeas court also noted that Sherman could have used police reports to rebut another aspect of the state's argument at trial. According to the habeas court, the state argued at the petitioner's criminal trial that Elan staff members must have learned about the petitioner's potential involvement in the murder through the petitioner or his family because the police never had contact with Elan staff. The habeas court noted that some of the police reports indicate that investigators had spoken with Elan staff about the petitioner's presence there and determined that Sherman should have used these reports to rebut the state's argument that these contacts never occurred. We disagree, however, because the state did not argue that the police had no contact with Elan staff. Instead, the state argued that the police did not disclose any details about the investigation or the petitioner's potential involvement to Elan staff. This argument was supported by testimony from one of the police investigators, who testified that the police had not shared any details of their investigation with Elan staff and that the petitioner was not considered a suspect at the time he was at Elan.
There were no questions posed to Sherman concerning the police report referencing the DUI charge, likely because the petitioner did not include a claim in his habeas petition about Sherman's handling of the evidence concerning why the petitioner was sent to Elan. During the habeas trial, habeas counsel nevertheless asked Sherman why he had not presented testimony from other witnesses to rebut the state's evidence that the petitioner was sent to Elan because of the murder, but did not specifically ask him about why he chose not to present evidence concerning the DUI charge. The respondent's counsel asked follow-up questions about witnesses that Sherman could have called, but also did not discuss the police report. After the habeas trial, the habeas court found the police report referencing the DUI charge when reviewing documents in the record and inquired of counsel whether it related to any of the claims in the habeas petition. The court ultimately determined that the petitioner had failed to plead a claim concerning Sherman's handling of evidence relating to the petitioner's enrollment at Elan but that the issue was properly before the court because both the petitioner's counsel and the respondent's counsel had asked questions on this issue during the habeas trial.
To protect the identities and privacy interests of jurors, we refer to B.W. by his first and last initials. See, e.g., State v. Peeler,
We do note, however, that the habeas court's determination that the petitioner failed to show that Sherman could have successfully suppressed the recordings calls into question the habeas court's determination that Sherman nevertheless was required to seek suppression of them in the first place. If the efforts were unlikely to succeed, then Sherman might reasonably have determined that attempting to suppress the recordings was not worth the resources that would have been expended in doing so.
Courts have questioned whether the government can rely on a subpoena to establish the inevitable discovery exception to the exclusionary rule when, unlike in the present case, the subpoena was issued after the illegal police activity occurred and may have been based on information discovered through the illegal activity. See, e.g., United States v. Vilar,
In seeking a new trial on the basis of Sherman's purportedly deficient performance, the petitioner also asserts that, even if any one of his claims of prejudice alone is not sufficient to meet his burden, we should aggregate the harm caused by Sherman's errors to find that those errors, considered together, prejudiced the petitioner. We do not consider this argument, however, because, even if we did recognize the cumulative error theory, as the petitioner asserts-a question that we have not previously addressed directly-the petitioner still cannot prevail on his claims.
With respect to most of the petitioner's ineffectiveness assistance claims, we have determined that the petitioner failed to prove the first element of the Strickland standard, namely, that Sherman performed deficiently. See parts II B and C, and III B, D and E of this opinion. Because the petitioner did not prove that Sherman committed any error in the context of these claims, the claims necessarily must be rejected, and there is no need to address whether the alleged errors, considered together, caused the petitioner prejudice.
With respect to the other ineffectiveness assistance claims presented by the petitioner, we have not considered Sherman's performance because it was evident from the record and the habeas court's decision that, even if Sherman had performed deficiently, any alleged error caused no harm to the petitioner's defense. See parts III A, C and F of this opinion. Accordingly, there is no harm to aggregate when considering prejudice for these claims.
For example, the petitioner claimed that Sherman should have located and used a drawing of someone allegedly seen in the neighborhood of the crime scene on the night of October 30, 1975. But the habeas court determined that the drawing would have been of "no use" to the petitioner in implicating Littleton because police reports established that the drawing almost certainly depicted a local resident who had been seen in the neighborhood much earlier in the evening and who had nothing to do with the victim's murder. The petitioner also claimed that Sherman should have implicated two other individuals in the murder on the basis of information conveyed by Bryant, but the habeas court determined that the trial court would not have permitted the petitioner to raise a defense at trial based on Bryant's information, so the jury would never have heard this evidence. With respect to the petitioner's claim that Sherman should have presented expert testimony about the coercive nature of Elan's group meetings, the habeas court determined that this testimony "would not have been of particular use" in assessing the credibility of the evidence of the petitioner's private confessions to other residents of Elan, and the state conceded that the petitioner never confessed during any of the group meetings. Finally, with respect to the recordings seized from Hoffman, the habeas court concluded that the trial court would not have suppressed them, meaning that they would have been admitted into evidence at trial regardless of whether Sherman had sought to exсlude them. Because each of these alleged errors had no impact on the outcome of the trial, there is no harm to aggregate when considering the prejudice stemming from these alleged errors.
The petitioner raised this claim in his cross appeal, but we instead treat it as an alternative ground for affirmance because the petitioner was not aggrieved by the decision of the habeas court. The habeas court vacated his conviction and ordered a new trial on other grounds, and that is precisely the same relief he seeks in connection with his conflict of interest claim. See Sekor v. Board of Education,
We doubt that the petitioner established the existence of a conflict of interest sufficient to demonstrate a sixth amendment violation, substantially for the reasons advanced by the respondent's expert witness, Attorney Mark Dubois, during the habeas trial. As we explained, the IRS did not seize any of the funds that might have been needed for defense expenses, so no conflict ever materialized on that basis. With respect to the petitioner's claim that the flat fee agreement encouraged Sherman to avoid investing in the defense, the petitioner has provided no authority holding that this potential incentive amounts to a conflict of interest. Indeed, every billing arrangement between counsel and a client has some potential to create diverging interests between them. The petitioner presented no evidence to demonstrate that Sherman was actually conflicted because of this potential incentive not to spend funds on the defense. Nevertheless, we need not decide whether Sherman was burdened by a conflict because, even if he was, it is clear that the petitioner has not shown any prejudice.
The respondent argues that the habeas court applied an incorrect standard for determining prejudice in connection with a conflict of interest claim of this kind in light of the United States Supreme Court's decision in Mickens v. Taylor,
Concurrence in Part
I agree with the majority's conclusion, in part II B of its opinion, that the habeas court improperly concluded that Michael Sherman, the attorney who represented the petitioner, Michael Skakel, at his criminal trial, rendered ineffective assistance of counsel by failing to raise a third-party culpability defense against Thomas Skakel. I also agree, however, with Justice Palmer's conclusion in part I of his comprehensive and thoughtful dissenting opinion that the habeas court properly concluded that Sherman rendered ineffective assistance of counsel by failing to locate and investigate the possible testimony of Denis Ossorio, the "beau" of the petitioner's cousin, Georgeann Dowdle. Because I agree with Justice Palmer's conclusion that this critical failure by counsel constituted the ineffective assistance of counsel that entitled the petitioner to a new trial under Strickland v. Washington ,
First, as to the third-party culpability issue, I think that it was a reasonable, strategic decision for Sherman to make Kenneth Littleton the subject of this defense,
My agreement with the majority does not, however, extend to the alibi witness issue. I agree with Justice Palmer's assessment of the question of whether it was objectively reasonable for Sherman not to speak with Ossorio, a disinterested witness, in order to determine whether he recalled events from the night of the murder or might have information helpful to the petitioner's alibi. This requires us to "directly assess" Sherman's "decision not to investigate" further "for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."
At the habeas trial, Sherman admitted that he had been aware of Dowdle's "beau," but chose not even to attempt to contact Ossorio because he did not believe that Ossorio would recall the events from more than twenty years prior, and that, because Dowdle testified that she remained in a separate part of the home on the night in question and did not see whether the petitioner was there, similarly, Ossorio must also have remained in a separate part of the home. I believe that, rather than rely on these speculative assumptions, Sherman should have made further inquiry into Ossorio, a potential disinterested alibi witness who would have been critical for the defense. In my view, the circumstances quite clearly demonstrate that Sherman's performance did not meet Strickland 's objective standard of reasonableness, thus amounting to ineffective assistance of counsel. I fully agree with Justice Palmer that this omission was prejudicial under Strickland because "there is a reasonable probability" that, had Sherman adequately investigated Ossorio and presented his testimony at the
Because I would affirm the judgment of the habeas court ordering a new trial for the petitioner, I respectfully concur in part and dissent in part.
PALMER, J., with whom McDONALD, J., joins, dissenting.
Before commencing that review, however, I wish to underscore one aspect of the majority opinion, pertaining to the alibi issue, that is so blatantly one-sided as to call into question the basic fairness and objectivity of the majority's analysis and conclusion. As I discuss more fully hereinafter, the majority concludes that Sherman's decision to forgo any inquiry into Ossorio in furtherance of the petitioner's alibi defense was reasonable because the facts supported Sherman's belief that any further investigation probably would not be productive. See part II C of the majority opinion. Even though the case law is perfectly clear that all of the relevant facts and circumstances are to be considered in evaluating
I
SHERMAN'S FAILURE TO LOCATE AND INTERVIEW A CRITICAL ALIBI WITNESS CONSTITUTED DEFICIENT REPRESENTATION UNDER THE SIXTH AMENDMENT
I could not disagree more with the majority's conclusion rejecting the habeas court's decision that Sherman
As I explain hereinafter, there are a number of serious errors in the majority's analysis that lead to its palpably wrong
Second, as I mentioned previously, the majority considers only those factors that support its conclusion justifying Sherman's failure to follow up on Dowdle's testimony, and chooses to ignore all of the compelling considerations that militate in favor of the habeas court's determination that Sherman had a clear duty to undertake a further inquiry into Dowdle's "beau." By any fair measure, Sherman's decision to simply disregard Dowdle's grand jury testimony and to make no effort to find Ossorio was particularly unreasonable and professionally irresponsible under the facts and circumstances that the majority simply ignores. The charge that the petitioner faced-murder, which carried a maximum sentence of life imprisonment-could not be more serious, and the importance of corroborative alibi testimony-from an independent, nonfamily member witness like Ossorio-cannot be overstated. Sherman reasonably could not have ruled out the possibility that Ossorio would be able to provide such testimony, and he would have confirmed that Ossorio could, in fact, do so merely by asking Dowdle to identify her "beau," who, at that time, lived within miles of Sherman's law office, and then by contacting Ossorio, who was ready, willing and able to testify-credibly, as the habeas court found-on the petitioner's behalf. As the United States Supreme Court has observed in a case involving this very issue, "[w]hen viewed in this light, the '[reasonable] dеcision' the [majority and the state both] invoke to justify counsel's [failure to pursue] mitigating evidence resembles more a post hoc rationalization of counsel's conduct than an accurate description of their deliberations prior to [trial]." Wiggins v. Smith ,
It is perplexing, to say the least, that the majority endorses an investigative approach that reflects such a gross lack of attention and effort, one that created such a serious and needless risk that the petitioner's case would be severely prejudiced because of counsel's cavalier refusal to pursue a potentially critical lead. In fact, I cannot fathom why the majority sets the bar so low, or why it employs such a skewed and one-sided analysis in doing so.
A
The Facts
The relevant facts and procedural history pertaining to this issue are largely undisputed. Within hours of the discovery of the victim's body around 12:30 p.m. on October 31, 1975, the police began interviewing those persons who might be able to provide useful information about the events surrounding the victim's murder. In one of those interviews, Thomas Skakel informed the police that he had been with the victim until approximately 9:30 p.m. on October 30, at which time both of them departed for their respective homes. Thomas
Shortly after the murder, the prime suspect in the victim's death was Thomas Skakel, for whom the Greenwich police sought permission from the Office of the State's Attorney to apply for an arrest warrant. Permission was denied because the state's attorney did not believe that the evidence set forth in the warrant application and affidavit constituted probable cause to believe that Thomas Skakel had committed the murder. Although the investigation into the victim's death continued
Apparently prompted by information gleaned from a report prepared by Sutton Associates, a private security firm, sometime in the mid-1990s,
In connection with that renewed investigation, a grand jury was empaneled at the state's request for the purpose of acquiring additional evidence about the murder and, in particular, evidence linking the petitioner thereto. Numerous people were called to appear before the grand jury, one of whom was Dowdle. On
Following completion of the grand jury investigation, in January, 2000, the petitioner was charged with the victim's murder, and the petitioner's criminal trial commenced in early May, 2002. In their trial testimony in support of the petitioner's alibi defense, Rushton Skakel, Jr., and Terrien explained, consistent with their grand jury testimony and the statements that they had given to the police some twenty-seven years earlier, that they and the petitioner, along with John Skakel, had driven to the Terrien residence at around 9:30 p.m. on October 30, 1975, remained there until about 11 p.m., and then returned home. John Skakel also testified at trial but stated that he could not recall whether the petitioner had gone to the Terrien home that evening. When asked, however, whether the statement he had given to the police soon after the murder accurately reflected what he knew at the time-that is, that the petitioner was at the Terrien home with other family members that evening-John Skakel responded in the affirmative. Finally, Dowdle's trial
Benedict sought to rebut the petitioner's alibi defense with the testimony of three witnesses, Helen Ix, Andrea Shakespeare, and Julie Skakel, all of whom were present at the Skakel residence from approximately 9 to 9:30 p.m. on October 30, 1975. Ix and the victim, Ix' close friend, had gone to the Skakel home together, arriving shortly after 9 p.m. Ix remained there until approximately 9:30 p.m., when she left and went home. On direct examination, Ix testified that she was uncertain whether the petitioner was in the car when it headed for the Terrien residence; on cross-examination, however, she indicated that she thought that he was in the car, but she was not sure in light of the passage of timе.
Shakespeare, a good friend of Julie Skakel's, had been with the Skakel family at dinner that evening and returned with the family members to the Skakel residence at about 9 p.m. Initially, on direct examination by the state, Shakespeare asserted that the petitioner had remained at home when the Skakel brothers left for the Terrien residence. Thereafter, however, upon being recalled to testify by the Sherman, she acknowledged that she had given a tape-recorded statement to the police in 1991, the relevant portion of which was played for the jury, in which she stated that she did not see the car when it left for the Terrien residence and that she therefore did not see whether the petitioner was in the car. She further told the police that, although she
Finally, Julie Skakel, the petitioner's sister, testified that she was uncertain about the events of that evening. In light of that testimony, the state was permitted to introduce a statement that she had made in a prior proceeding in which she stated that, at around 9:20 p.m. on October 30, 1975, she saw an unidentified person run by, just outside a window in the Skakel residence, and that she called out, "Michael, come back here." The significance of this testimony was to demonstrate that, at least at that moment in time, Julie Skakel believed that the figure she observed through the window was the petitioner.
At the conclusion of the evidence, Benedict, in his closing argument to the jury, acknowledged that the petitioner's proffered alibi was the "cornerstone of the defense ...." In fact, according to Benedict, the alibi was the key component of a scheme, hatched by the petitioner's father, Rushton Skakel, Sr., and furthered by the entire Skakel family, all of whom, Benedict alleged, siblings and cousins alike, knew that the petitioner had murdered the victim, to shield the petitioner from the consequences of his heinous crime. Benedict argued that the family plot to protect the petitioner commenced "on October 30, 1975, with the disappearance ... [and] disposal" of incriminating evidence, including "the golf club, the shaft and any other evidence of the crime" within "thirty-six hours" of its commission. The cover-up continued the day after the murder, when Littleton was "ordered" to take the petitioner,
Thereafter, following an unsuccessful appeal from the judgment of conviction; see
The petitioner elicited testimony from Ossorio, a psychologist who was seventy-two years old at the time of the habeas trial, that he was visiting Dowdle at the Terrien residence during the evening of October 30, 1975, and until around midnight on October 31, and that the petitioner and several others also were there that evening, watching television in the library. Ossorio testified that, although he was visiting Dowdle, who was caring for her child, he "was in and out" of the room in which the petitioner and the others who were there that evening were watching television. Ossorio, who further testified that he resided in Greenwich at the time of the petitioner's criminal trial, stated that neither the police nor the defense had ever sought to interview him regarding his presence at the Terrien residence on that date, and that he had never come forward because he did not pay close enough attention
The petitioner also presented the testimony of Michael Fitzpatrick, a prominent Connecticut attorney and past president of the Connecticut Criminal Defense Lawyers Association who specializes in criminal defense and civil litigation. Fitzpatrick testified that he had spent more than 200 hours reviewing all of the
Throne, an associate in Sherman's office who served as cocounsel for the petitioner along with Sherman, also was a witness at the habeas trial. Among other subjects, Throne testified about the petitioner's alibi, explaining that it was "extremely important" to the petitioner's overall defense of the charge against him. When asked if the petitioner's trial counsel were "eager to find anyone who could corroborate [the alibi]," Throne responded, "[a]bsolutely, without question." Throne further stated that, "even more importantly," the petitioner's counsel were "especially eager to find
Finally, Sherman testified at the habeas trial. When asked whether the alibi was the petitioner's "principal defense" at his criminal trial, Sherman responded, "[a]bsolutely," and, thereafter, characterized the alibi defense as "our mainframe." He also stated that it would have been "very important" to have an alibi witness who was not related to the petitioner and that, if he had located one, he would have had him testify in support of the petitioner's alibi,
B
The Applicable Law
As the majority notes, the sixth amendment guarantees criminal defendants the effective assistance of counsel; Strickland v. Washington , supra,
These general principles are no less applicable to the investigative stage of a criminal case than they are to the trial phase. Indeed, the United States Supreme Court has explained that the foregoing "standards require no special amplification in order to define counsel's duty to investigate .... [Simply stated], strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."
Although the reasonableness of any particular investigation necessarily depends on the unique facts of any given case; see, e.g., Strickland v. Washington , supra,
Of course, "the duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste." Rompilla v. Beard , supra,
Similarly, a decision by counsel to forgo an investigation into the possible testimony of a potentially significant
As I previously indicated, in determining whether counsel's pretrial investigation satisfied existing professional norms, we consider the nature and extent of the investigation in light of all relevant circumstances. Strickland v. Washington , supra,
Finally, with specific regard to the duty to investigate a defendant's alibi defense, counsel is obligated to make all reasonable efforts to identify and interview potential alibi witnesses. See, e.g., Towns v. Smith , supra,
Furthermore, the failure to conduct a thorough investigation of an alibi defense is perhaps most damaging
In light of these general principles, it is readily apparent that Sherman's decision to disregard Dowdle's grand jury testimony about her "beau"-a decision based solely on Sherman's belief that any inquiry into that subject matter would not have been fruitful-was profoundly unreasonable under the circumstances. As a result, Sherman failed by a wide margin to satisfy Strickland 's requirement that a decision to forgo or truncate a particular pretrial investigation must flow from an informed professional judgment.
Accordingly, the habeas court properly reached the only conclusion that the facts and law support: Sherman could not reasonably have elected simply to ignore Dowdle's grand jury testimony and do nothing to contact her former "beau," because all of the other alibi witnesses were close relatives of the petitioner, and Sherman knew both that the state would argue that those witnesses were all lying tо protect the petitioner and that an independent
The Flaws in the Majority's Conclusion That the Habeas Court Incorrectly Concluded That Sherman Rendered Ineffective Assistance in His Handling of the Petitioner's Alibi Defense
The habeas court's memorandum of decision is meticulous and thoughtful, and that court's conclusion is fully supported by the facts and the law governing claims alleging ineffective assistance of counsel. Unfortunately for the petitioner-and, more generally, for the interests of justice-the same cannot be said of the majority opinion.
That majority identifies four reasons for rejecting the habeas court's conclusion that Sherman's handling of the petitioner's alibi defense did not satisfy constitutional standards. First, the majority asserts that Sherman reasonably could have believed that, despite Dowdle's testimony to the contrary, her unnamed "beau" was not, in fact, at the Terrien home on the evening of October 30, 1975, because neither the petitioner nor any of his alibi witnesses had told Sherman about the presence of Dowdle's "beau" at the Terrien home that evening. The majority next claims that it was not unreasonable for Sherman either to have "overlook[ed] or disregard[ed]" Dowdle's testimony about her "beau" because there was no reference to any such person in any of the interview reports and other materials that had been turned over to Sherman in discovery, and Dowdle's reference to her "beau" was therefore aberrational. Third, even if Dowdle's "beau" was at the Terrien home that evening, it was reasonable for Sherman to infer that, like Dowdle herself, he more or less stayed in the library, where he, Dowdle and her child were located, and, consequently, it also was reasonable for Sherman to assume that the "beau" did not
As I explain hereinafter, these considerations fall far short of justifying Sherman's failure to take even the most preliminary investigative steps to ascertain whether Dowdle's "beau" could offer valuable alibi evidence. But, before doing do, I first explain the majority's use of an improper standard to determine whether Sherman was constitutionally required to make a reasonable inquiry into what, if anything, Dowdle's "beau" knew about the petitioner's whereabouts on the evening of October 30, 1975. I then discuss the multiple, compelling reasons why no competent attorney would have failed to conduct such an obvious and simple investigation in the present case. Thereafter, I return to the four reasons on which the majority relies to support its conclusion that Sherman acted reasonably in doing nothing to follow up on Dowdle's testimony about her "beau."
1
The Majority Employs the Wrong Legal Standard
The standard that the majority uses for determining whether Sherman performed
Accordingly, even if the reasons proffered by the majority support a reasonable inference that Ossorio might well not have been able to assist the petitioner's defense, that inference would not remotely justify Sherman's failure to ascertain Ossorio's identity from Dowdle and to learn, from Ossorio himself, whether he saw the petitioner at the Terrien residence on the evening of October 30, 1975. As long as the facts and circumstances known to Sherman gave rise to a reasonable possibility that Ossorio might be able to provide valuable testimony, Sherman inarguably had an obligation to make a reasonable effort to find Ossorio and to ask him. As
The reasonable inference or belief standard that the majority adopts has no legal precedent and is entirely inadequate to protect the sixth amendment rights of an accused. Under that standard, a defense attorney would be free to refuse to initiate a reasonable investigation into the possible testimony of a potentially important witness, even in cases in which there remains a reasonable prospect that the witness will be able to provide vital defense evidence. Indeed, under the majority's standard, defense counsel could abdicate any duty to investigate eyewitness testimony whenever conditions render it reasonably likely that the witness' ability to observe or recall could have been impaired-for example, due to darkness, the consumption of alcohol, or the like. That simply cannot be the standard contemplated by the sixth amendment, as it would give defense attorneys far too much leeway to decline to investigate potential witnesses when there is still a reasonable chance that the witness will be able to provide valuable testimony. Due to the significance of the pretrial investigation stage of a criminal case, the right to the effective assistance of counsel must include the right to have counsel conduct a reasonable investigation into any potentially important witness unless defense counsel can rule out any reasonable likelihood that the witness may be able to provide favorable testimony. That standard, in stark contrast to the majority's
The sixth amendment does not mandate perfect counsel, of course, but it does require more of counsel during the pretrial investigation stage of the case than merely picking the lowest hanging fruit. Consequently, even if the reasons proffered by the majority justified the belief that Ossorio more than likely would not have been able to provide evidence favorable to the petitioner, that inference does not justify Sherman's failure to make reasonable efforts to find out whether Ossorio was in a position to do so. This is hardly a case in which additional investigation would have been an exercise in futility or a waste of time. On the contrary, this is a case "in which the [petitioner's] attorneys failed to act while potentially powerful mitigating evidence was staring them in the face ...." (Citations omitted.) Bobby v. Van Hook ,
Under the Proper Standard, Why There Are Compelling Reasons Why Sherman Was Required To Make Reasonable Efforts To Locate Ossorio
The reasonableness of Sherman's decision not to investigate whether Dowdle's "beau" could provide testimony favorable to the petitioner turns on the facts of the case and the circumstances pertaining to the witness. As I previously indicated, there are several compelling reasons why it was absolutely necessary for Sherman to have made reasonable efforts to find out whether Ossorio could corroborate the petitioner's alibi, all of which the majority ignores. These reasons include (1) the firsthand nature of the source of the information to be investigated, (2) the importance of the petitioner's alibi defense, (3) the significance of Ossorio's testimony to that defense, (4) the import of Ossorio's testimony to rebut the state's claim of a longstanding family cover-up, (5) the ease with which Sherman could have discovered that Ossorio clearly remembered that the petitioner was at the Terrien home on the evening at issue, and (6) the gravity of the criminal charges and the magnitude of the sentence that the petitioner faced. In light of these considerations, it was inexcusable for Sherman to do nothing to ascertain Ossorio's identity, locate him, and then, upon doing so, either rule him out as an
Before I address these considerations, it bears emphasis that the habeas court reviewed them, along with the reasons proffered by the respondent, the Commissioner of Correction, for concluding that Sherman was not unreasonable in failing to follow up on Dowdle's grand jury testimony, and found, quite properly, that they outweigh the countervailing factors advanced
The first such consideration is the firsthand nature of the information provided by Dowdle in her grand jury testimony. Although Dowdle gave no indication one way or the other in that testimony whether Ossorio knew of the petitioner's presence at the Terrien home on the evening of October 30, 1975, Dowdle did have direct knowledge that another identifiable and presumably independent person, Ossorio, was there that evening. Thus, Dowdle's information about Ossorio's presence was not based on hearsay or speculation; she had personal knowledge that Ossorio was at the Terrien home that evening.
Second, the petitioner's alibi was his primary defense to the state's case against him. Although the state contended
The importance of the petitioner's alibi defense is also reflected in how vigorously the state opposed it. State's Attorney Benedict claimed that it had been concocted by the Skakel family and founded on the perjurious testimony of the petitioner's alibi witnesses. Benedict spent a considerable amount of time, both in adducing testimony from the state's witnesses and in cross-examining the petitioner's witnesses, as well as during closing argument, attempting
Next, the testimony that Ossorio could have provided was unquestionably essential to the petitioner's alibi defense. That testimony, which the habeas court expressly credited, placed the petitioner at the Terrien
In addition, as I discussed previously, the state adduced testimony from Ix, Shakespeare, and Julie Skakel
Along the same lines, Ossorio's testimony also would have refuted Benedict's claim that the alibi was an integral part of a broader Skakel family scheme to cover up for the petitioner. According to Benedict, this scheme was hatched immediately after the victim's murder and began with the disposal of incriminating evidence and the trip to Windham, New York, continued with the petitioner's enrollment at the Elan School in Maine, and, thereafter, was
Yet another consideration that the majority fails to consider is the ease with which Sherman could have ascertained that Ossorio had critical alibi testimony to offer, such that even the most rudimentary of inquiries would have led Sherman directly and immediately to Ossorio. See, e.g., Rompilla v. Beard , supra,
Consequently, this is not a case that required Sherman to devise a plan "to balance limited resources in accord with effective trial tactics and strategies." Harrington v. Richter , supra,
Finally, as a general matter, an adequate pretrial investigation is required in all criminal cases. But common sense dictates that, when the stakes are highest-
The Majority Cannot Justify Sherman's Grossly Inadequate Handling of the Petitioner's Alibi Defense
The majority goes to great lengths in trying to rationalize Sherman's indefensible failure to follow up on Dowdle's grand jury testimony, which identified her "beau" as a potential, independent alibi witness. The majority's attempt to justify Sherman's decision to forgo even the most rudimentary and self-evident steps to find out if Ossorio could corroborate the petitioner's alibi-steps that, if taken, would have put Sherman in touch with Ossorio immediately-is both unavailing and troubling.
The majority first argues that it was reasonable for Sherman to believe, in spite of Dowdle's testimony to the contrary, that her unnamed "beau" actually was not present with her at the Terrien residence on the evening of October 30, 1975, because neither the petitioner nor his alibi witnesses had mentioned anything to Sherman about Dowdle's "beau." Even if this argument was predicated on an accurate rendition of the facts,
It is undisputed that the petitioner was never considered a suspect in the victim's murder before the mid-1990s; rather, he was considered only a potential witness before that time. Indeed, State's Attorney Benedict acknowledged this fact at trial, noting that, until the 1990s, no witness had
Accordingly, and contrary to the assertion of the majority, the existence of a potential, independent alibi witness for the petitioner was revealed as soon as the petitioner became a suspect in the murder , by the only person who was likely to recall after so many years that such a person even existed. Given the belated development of the case against the petitioner, Sherman
The majority also contends that, despite Dowdle's reference to her "beau" in her grand jury testimony, Sherman reasonably could have believed that Ossorio was not at the Terrien home on the evening of October 30, 1975, because he had never been named in the many police reports that were generated after the murder. The majority asserts that the absence of Ossorio from these reports rendered Dowdle's reference to him as aberrational and, therefore, somehow insignificant. This contention, too, is baseless, and for much the same reason. Because the petitioner did not become a suspect until more than twenty years after the murder, police investigators simply were not concerned about the petitioner's whereabouts during the twenty year period in which the vast majority of the police interviews were conducted. Until the petitioner became a suspect, there was never any reason for the police to seek a complete accounting of all individuals present at the Terrien home on the evening of October 30, 1975. Thus, the majority is unable to cite a single report in which Ossorio likely would have been identified in the course of the interview. In fact, there is no such report because, as Benedict expressly acknowledged at trial, until the 1990s, witnesses had never been asked to account for the petitioner's whereabouts on the night of the murder for the simple reason that no one who indicated being at the Terrien home on the evening of October 30, including the petitioner, ever was a suspect before that time. In other words, the majority's suggestion that Dowdle's reference to her "beau" is aberrational assumes without any evidentiary support that there was a context in which Ossorio's name-or the name of
In this respect, the present case is governed by the principles announced in Rompilla v. Beard , supra,
The majority also asserts that Sherman reasonably could have believed that Ossorio likely would not be able to recall what occurred on the evening of October 30, 1975, because Sherman could not have interviewed him until Sherman was retained in 1998, some twenty-three years after the relevant events. To buttress this argument, the majority observes that Ossorio had not been questioned or otherwise come forward in those twenty-three years, lending support to the inference that he would not be able to remember who was present at the Terrien home that evening. Again, although Ossorio might not have remembered whether the petitioner was at the Terrien home on October 30, he well might have. And, indeed, he did. Sherman obviously could not rule out that possibility, and he made no effort to do so-if he had, he would have learned that Ossorio did, in fact, see the petitioner there that evening. Under the
Finally, from my perspective, the majority's attempt to rehabilitate Sherman's representation of the petitioner misses the point altogether. As I discussed previously, when a defense attorney represents a defendant in a murder case involving an alibi,
4
The Majority's Position Has No Support in Applicable Precedent
In support of its argument that, under all the facts and circumstances, it was reasonable for Sherman to "overlook or disregard" Dowdle's "singular reference" to her "beau" in her grand jury testimony, the majority suggests that courts have not found counsel ineffective for failing to interview an alibi witness when the defendant did not bring that witness to the attention of counsel. The majority is entirely mistaken both in its ultimate conclusion and in its reading of the relevant case law.
As the majority appears to concede, it is generally not reasonable for counsel to fail to investigate potential alibi witnesses identified by a client. See, e.g., Mosley v. Atchison ,
The majority cites Gaines v. Commissioner of Correction , supra,
Gaines , therefore, hardly stands for the proposition that counsel need not investigate witnesses who have not been identified by the client. To the contrary, Gaines clearly illustrates why Sherman was manifestly ineffective insofar as he failed to look into Dowdle's "beau." First, in Gaines , we noted how easy it would have been to contact the potential witnesses. See id., at 685-86,
In fact, the majority's unsupported contention to the contrary notwithstanding, courts have consistently recognized that effective counsel cannot limit his investigation to those leads presented by the client himself, but, rather, counsel has an independent duty to investigate potential alibi witnesses not suggested by the client. In Bigelow v. Haviland , supra,
The facts of this case illustrate the need for just such an independent duty. By the late 1990s, it is entirely unsurprising that the petitioner failed to recall the transitory presence of his older cousin's boyfriend nearly twenty-five years earlier. In such a situation, counsel must probe harder-to seek to fill in the gaps when the foibles of memory are likely to interfere with a defendant's full recollection of the past. See Bigelow v. Haviland , supra,
Thus, there is no question that Sherman's performance was not rendered effective
In fact, courts have often criticized attorneys who fail to investigate potential witnesses on the basis of flawed assumptions about their usefulness. See United States v. Best ,
In the present case, it is readily apparent that the potential value of Ossorio's testimony was far too high for Sherman to dismiss Dowdle's reference-even a single reference-without reasonable investigative effort.
In reaching a contrary conclusion, the majority relies on cases involving facts that bear no resemblance to the present case. It suggests, first, that, as in United States v. Farr , supra,
The majority also refers to two Eighth Circuit cases to illustrate the significance of the petitioner's failure to precisely identify Ossorio or to help Sherman locate him. But, once again, the majority fails to ascribe any value to identifiability , focusing narrowly on the formality of whether the defendant has fully identified the witness for the benefit of counsel. What these cases stand for, in fact, is the proposition that counsel is not required to conjure up a witness of uncertain value
This failure to investigate, as I explained, was not the product of strategic thinking; it was the result of unfounded and unsupportable assumptions about the value of a potentially critical alibi witness in a murder case. However sparse the references to Ossorio, this is
D
Conclusion
When Sherman learned from Dowdle's sworn grand jury testimony that another person, subsequently identified as Ossorio, was present at the Terrien home on the evening of October 30, 1975, Sherman simply elected to disregard that testimony. He did so, even though he did not know
II
SHERMAN'S FAILURE TO RAISE A THIRD-PARTY CULPABILITY DEFENSE AGAINST THOMAS SKAKEL
I also must register my strong objection to the majority's determination that the habeas court incorrectly concluded that Sherman's representation was constitutionally deficient insofar as he failed to pursue a third-party culpability defense
The majority concludes that Sherman's decision to implicate Littleton rather than Thomas Skakel was objectively reasonable, but not because the evidence implicating Littleton was strong. It was not. In fact, it was nonexistent. The majority concludes, rather, that the evidence adduced at the habeas trial did not support the habeas court's finding that Thomas Skakel discussed his sexual encounter with the victim when he met with Sherman and Throne in 2002 and, therefore, that the evidence did not support the habeas court's finding that Sherman could have called Throne to the stand to testify about Thomas Skakel's admissions. The majority also concludes that the habeas court's finding that Throne could have testified about the admissions was "entirely speculative" in light of Throne's inability, at the petitioner's 2013 habeas trial, to remember the specifics of what was discussed at the 2002 meeting, apart from the fact that Thomas Skakel admitted to having lied to the police about when he last saw the victim. The majority finally concludes that, even if Thomas
It is also clear that Sherman's decision prejudiced the petitioner beсause it deprived him of the opportunity to demonstrate to the jury that someone other than he had the motive, means and opportunity to kill the victim, the raison d'être of a third-party culpability defense. No such argument could be made against Littleton, and Sherman's meager attempt to do so was justifiably excoriated-even ridiculed-by the state. And with good reason: as the habeas court observed, "Sherman essentially abandoned any third-party culpability claim in his jury argument," whereas the halfhearted argument that he did make "actually harmed the defense" because it communicated to the jury that Sherman himself put no stock in it.
The Kenneth Littleton Evidence
At the time of the victim's murder, Littleton, a then twenty-four year old graduate of Williams College with no known history of mental illness or violence, was completing his second month of teaching and coaching at the Brunswick School (Brunswick), a private school in Greenwich. Shortly after his arrival at Brunswick, the headmaster informed him that the petitioner's father, Rushton Skakel, Sr., was in need of a live-in tutor for his children. Littleton accepted the position and, as fate would have it, spent his first night in residence at the Skakel home on October 30, 1975, the night of the murder, arriving there at approximately 4:30 p.m. Because Rushton Skakel, Sr., was out of town at the time, Littleton's duties included babysitting for the younger Skakel children, nine year old Stephen Skakel and twelve year old David Skakel, until their father's return. There is no evidence that Littleton, who had just moved to Greenwich to teach, had ever been to the Skakels' neighborhood prior to the evening of
The Greenwich police followed numerous leads in the months and years following the murder. In 1976,
At the most basic level, therefore, Littleton made for an unlikely target, and, for a long period of time, he was treated as such. In 1991, however, the Office of the State's Attorney reopened the investigation, and suspicion soon fell on Littleton, who, in the intervening years, had developed a severe alcohol addiction and had been diagnosed with bipolar disorder, which caused him to act erratically at times. In 1991, Detective Frank Garr and Inspector John F. Solomon traveled to Canada to interview Littleton's former wife, Mary Baker, in the hope that she might be able to shed light on the investigation. Baker agreed to assist Garr and Solomon because she "thought it was the right thing to do," even though she did not believe Littleton had anything to do with the victim's murder. Initially, Baker simply recorded her telephone conversations with Littleton, during which she would ask him questions about the murder. According to Garr, he and Solomon "guided [Baker with respect to] how to proceed with these conversations between her and her [former] husband in the attempt to get him to open up and discuss the crime and possibly his complicity in it." Specifically, Garr and Solomon "suggested to her" what to say "to see what type of a response" it would elicit from Littleton. According to Garr, this approach never elicited a single incriminating response.
In December, 1991, Baker agreed to go to Boston, Massachusetts, and meet with Littleton in person, at a
Littleton, who wanted very much to reunite with Baker, agreed to the meeting. A transcript of their conversation, which was secretly recorded by the police, was provided to Sherman prior to trial. As planned, Baker began the conversation by telling Littleton about his so-called admissions. Shocked by the news, Littleton strenuously denied any involvement in the victim's murder, insisting that he never laid eyes on her "that night or ever ...." Littleton also told Baker that he was willing to do whatever it took to convince her of his innocence, including submitting to a "sodium pentothal" test administered by
After his meeting with Baker, Littleton agreed to meet with Kathy Morall, a forensic psychiatrist retained by the Greenwich police to evaluate him as a possible suspect. At the time of their meeting, Littleton was unaware of the ruse that the police and Baker had
Convinced beyond any conceivable doubt that Littleton had absolutely nothing to do with the murder, the state granted him full immunity-effectively exonerating him in the eyes of the jury-and, at trial, completely discredited Sherman's unpersuasive attempt to depict Littleton as a suspect. The state's task was not a difficult one in light of Baker's testimony, corroborated by Garr and Solomon, that everything she had told Littleton was part of a ruse, as State's Attorney Benedict put it, "to
By the end of the petitioner's criminal trial, Sherman himself effectively conceded that his attempts to inculpate Littleton were not merely fruitless for his client but fundamentally baseless as a strategic matter, as evidenced by his assertion that he had "no clue, no clue" whether Littleton was responsible for the victim's murder. Moreover, Sherman stated, in referring to Littleton's so-called "confession," "[a]t the very least, what we learned from ... Littleton is, you know, a confession ain't always
B
The Thomas Skakel Evidence
At the time of her death, the victim had been acquainted with Thomas Skakel and the petitioner for
The victim's mother telephoned the Greenwich police at 3:48 a.m. on October 31, 1975, to report the victim missing. During that telephone call, she reported that the victim had been "expected home at 9:30 p.m." and "had never been late like this before." She also reported that she had called several of the victim's friends before calling the police and had been told by one to "check with the ... Skakels ...." The victim's mother reported that she then "called the Skakel residence ... and spoke to Thomas [Skakel]," who told
The police interviewed Thomas Skakel following the discovery of the victim's body, and he told them that, on the night of the murder, at approximately 9:15 p.m., he went outside to his father's Lincoln Continental to get an audio cassette. When he got to the car, the petitioner, Ix, Byrne, and the victim were sitting inside the car, talking, and he decided to join them. After a few minutes, his brothers John Skakel, Rushton Skakel, Jr., and his cousin, Terrien, approached the car and told them that they were going to take Terrien home. Consistent with Ix' statement to the police, Thomas Skakel reported that he, Ix, Byrne, and the victim got out of the car and that John Skakel, Rushton Skakel, Jr., and Terrien got into the car with the petitioner and departed for Terrien's house. Thomas Skakel further stated that after he, Ix, Byrne, and the victim got out of the car, Ix and Byrne went home, leaving Thomas Skakel and the victim alone in the driveway. Thomas Skakel reported that "he talked to [the victim] for a few minutes, said goodnight, and entered [his] house [through] the side door." Thomas Skakel's sister, Julie Skakel, reported to the police that she observed Thomas Skakel enter the side kitchen door at approximately 9:25 to 9:30 p.m., as she was leaving to take her friend Shakespeare home. According to Thomas Skakel, he then went to his bedroom to complete a homework assignment on Lincoln Log cabins. Thomas Skakel further stated that, at approximately 10:15 p.m., he went to his father's bedroom and watched television with Littleton for approximately fifteen minutes. When confronted with the fact that Ix and Byrne had seen him push the victim into the bushes, Thomas initially denied
Thomas Skakel became the prime suspect in the victim's murder after the police learned from his teachers that he had lied about his homework assignment, and learned from Littleton that Thomas Skakel was not in his bedroom at 10 p.m. In the course of their investigation, the police also learned from a number of witnesses that Thomas Skakel was an emotionally unstable teenager who was prone to "frequent and quite sudden outbursts of severe physical violence," the apparent result of a traumatic head injury, which made him "impulsive and [susceptible] to precipitous outbursts of anger. He would rant and rave, be extremely noisy, and, on one occasion, [he] put his fist through a door." (Internal quotation marks omitted.) On other occasions, he reportedly "stabbed his brother in the head with a fork," ripped a telephone out of a wall, and "beat the crap" out of an opponent during a soccer game. Witnesses also informed the police that Thomas Skakel frequently walked around the neighborhood carrying a golf club
Entries in the victim's diary further revealed that, in the weeks preceding her murder, Thomas Skakel had
The timeline of the murder established by the Greenwich police was also highly incriminating with respect to Thomas Skakel. The police believed that the victim was attacked on her way home from the Skakel driveway sometime between 9:30 and 10 p.m., a conclusion based on forensic analysis of the victim's body,
In 1994, after Rushton Skakel, Sr., hired Sutton Associates to investigate the victim's murder; see footnote 6 of this opinion; Thomas Skakel admitted to the Sutton investigators that he had lied to the police in 1975. Although he had originally told the police that he last saw the victim in his driveway at 9:30 p.m., Thomas Skakel now confessed that, after his brothers left to take Terrien home, he went inside the house briefly and then rejoined the victim for a sexual encounter in his backyard that lasted until 9:50 or 9:55 p.m., during which he ejaculated. When first interviewed by the investigators, Thomas Skakel stated that the victim initially
Of course, Thomas Skakel's admissions to the Sutton investigators, later repeated to Sherman and Throne, placed him with the victim after the neighborhood dog began its frantic and violent barking a few feet from the crime scene. See footnote 23 of this opinion. Although State's Attorney Benedict, at trial, tried to minimize the import of the dog's behavior relative to the timing of the victim's murder, its significance was not lost on the Greenwich police or on any of the forensic investigators who advised them in their investigation; all of them believed that the dog's aberrant behavior corresponded with the time of the attack. Sherman also considered it a crucial piece of evidence because he argued to the jury that the dog's violent barking at 9:45 p.m. "time stamps when this crime occurred." According to the defense's own theory of how the crime unfolded, therefore, Thomas Skakel's admissions to the Sutton investigators placed him with the victim at the time of the attack.
In the course of their investigation, Sutton investigators interviewed Thomas Skakel's sister, Julie Skakel, whose account of the evening further cast doubt on Thomas Skakel's innocence. She reported that, on the night of the murder, at approximately 1:30 a.m., she received the first of several telephone calls from the victim's mother, who was trying to locate the victim. According to Julie Skakel, she went to Thomas Skakel's room to ask him if he knew where the victim might be so that she could report back to the victim's mother. Julie Skakel stated that Thomas Skakel told her that the victim had left at 9:30 p.m. and that he had to "study for a test" that night. In their suspect profile of Thomas
Sherman also had firsthand knowledge of Thomas Skakel's admissions because he and Throne met with Thomas Skakel and his attorney, Emanuel Margolis, on the eve of the petitioner's criminal trial. At that time, according to Sherman's habeas trial testimony, Margolis "allowed [Sherman and Thorne] to speak to [Thomas Skakel] about anything [they] wanted ...." Both Sherman and Throne testified at the habeas trial that they had read the Sutton Report prior to their meeting with Thomas Skakel and were aware of the information contained in it relative to him. Sherman specifically acknowledged that he was aware that, "[o]n October 7, 1994, Thomas [Skakel] broke down in tears and informed [the] Sutton [i]nvestigators that he had, in fact, spent at least an additional twenty minutes with [the victim] behind his house.... They began an extended ... twenty [minute] kissing and fondling session, which include[d] mutual fondling ... and ... concluded when both masturbate[d] [the other] to orgasm. At [that] point, approximately 9:50 p.m., both
Throne also testified at the petitioner's habeas trial about his and Sherman's 2002 meeting with Thomas Skakel. Although he could not remember the specifics of what was said at the meeting, he did recall that it made a "significant impression" on him because Thomas Skakel admitted to having lied to the police about when he last saw the victim. In particular, Throne remembered that Thomas Skakel told them that he and the victim were together after the time that the police believed that they had parted ways.
At the habeas trial, the petitioner's habeas counsel asked Sherman why, in light of the litany of evidence implicating Thomas Skakel in the victim's murder, he did not pursue a third-party culpability claim against him, particularly given the defense's theory that the victim was attacked at 9:45 p.m. Sherman responded that Thomas Skakel "was going to invoke the fifth amendment [privilege] no matter what we did, and I [did not think] ethically I could put him on the stand knowing that he was going to invoke the fifth amendment privilege." Sherman further testified: "I told [Thomas Skakel's attorney], I'm calling him as a witness. [Thomas Skakel's attorney] told me in no uncertain
But it was there. As the habeas court concluded, Thomas Skakel's statements against penal interest could have been presented to the jury through Throne, who readily could have been called to testify about them.
It is apparent, therefore, that Sherman could have put Thomas Skakel's highly incriminating admissions before the jury, either through Throne or Margolis, and that he wanted to do so as a key component of a third-party culpability defense built around Thomas Skakel. But he was unaware that the law permitted him to do so; he thought that the only way that he could make the jury aware of those admissions was through Thomas Skakel's direct testimony. It is well established that the influence of a mistake of law on an attorney's decision making cannot be characterized as a matter of trial strategy under Strickland . See, e.g., Hinton v. Alabama , --- U.S. ----,
The importance of Thomas Skakel's admissions to the defense was great. The great weight of the trial evidence established that the victim was attacked at approximately 9:45 p.m. Unlike Thomas Skakel, who could not account for his whereabouts between 9:30 and 10:20 p.m., the petitioner had a strong alibi for that time frame, which is why the state took the bold position that the petitioner's alibi witnesses were all lying to protect him. If the defense had offered the jury a plausible third-party culpability suspect, however, the jury would have viewed the state's speculative argument concerning the petitioner's alibi in a far different light.
As the habeas court noted: "[Sherman's] task ... would not have been to convince the jury that [Thomas] Skakel committed the murder; rather, he needed only to argue that the direct and circumstantial evidence regarding [Thomas] Skakel's potential culpability should, at least, create a reasonable doubt in the minds of the [jurors] as to the petitioner's guilt. As presented, [Sherman's] defense deprived the petitioner of an opportunity for the jury to hear [Thomas] Skakel's admission of a sexual encounter with the victim, and for ... Sherman to point out the compatibility of some aspects of this story with the physical crime scene findings regarding the victim's [state of undress].... Sherman deprived the petitioner of an opportunity to
The habeas court further noted: "At trial, the jury heard only that when the Lincoln [Continental] left the Skakel property, [Thomas] Skakel and the victim were standing together in the driveway. Significantly, the jury heard nothing regarding a sexual encounter between [Thomas] Skakel and the victim. However, it is reasonable to conclude that, in a competently presented third-party culpability claim regarding [Thomas] Skakel, a jury would have heard testimony that [Thomas] Skakel claimed that he had been engaged with the victim in a consensual sexual encounter to the rear of the Skakel property [until 9:50 p.m.] on October 30, 1975, during which he unfastened her [pants] and partially lowered [them] while [they both] engaged in mutual masturbation; that no living person could account for [Thomas] Skakel's whereabouts between 9:15 p.m. and approximately 10:17 p.m., when [Thomas Skakel] joined Littleton to watch [television]; that [Thomas] Skakel initially had lied to the Greenwich police about his whereabouts and activities after approximately 9:15 p.m. that evening; and [that] he had lied to [the police and] Littleton about having worked on a homework assignment in his father's room. The jury would also have heard that no one ever reported seeing the victim alive after she and [Thomas] Skakel were seen together in the Skakel driveway as the Lincoln [Continental] left for the Terrien home at approximately 9:15 p.m. Based on the availability of this evidence to ... Sherman, [there is] little doubt that the trial court would have permitted the petitioner to assert a third-party culpability claim regarding [Thomas] Skakel." (Footnote omitted.)
Finally, and perhaps most important, Sherman could have argued to the jury that this scenario required no more speculation-indeed, I would argue that it required considerably less speculation-than the state's argument with respect to the petitioner, namely, that all of his alibi witnesses were lying and that the petitioner must have jumped out of the Lincoln Continental after it left the driveway, found a golf club lying about in the dark, waited for the victim near her house, and then bludgeoned her as she entered the driveway, all because he had seen her "carrying on" with Thomas Skakel, as Benedict characterized Thomas Skakel's conduct. In short, in stark contrast to Sherman's claim that Littleton may have murdered the victim-a claim for which there was absolutely no support in the evidence-the evidence against Thomas Skakel provided an
C
The Majority's Conclusions
The majority rejects the habeas court's determination that Sherman's failure to implicate Thomas Skakel in the victim's murder was objectively unreasonable, but not for any of the reasons that Sherman gave at the petitioner's habeas trial. Rather, because, in the majority's view, the evidence did not support the habeas court's finding that Thomas Skakel discussed "the details" of his sexual encounter with the victim when he met with Sherman and Throne in 2002, the habeas court incorrectly concluded that Sherman could have put Throne on the stand to testify about Thomas Skakel's admissions. The majority also concludes that the habeas court's finding that Throne could have testified about the admissions was "entirely speculative" in light of Throne's inability, at the petitioner's 2013 habeas trial, to remember the specifics of what was discussed at the 2002 meeting, apart from the fact that Thomas Skakel admitted to having lied to the police about when
First, it is abundantly clear that Thomas Skakel did discuss the details of his sexual encounter with the victim. After the petitioner's habeas counsel read aloud from the portion of the Sutton Report describing when, where and how the sexual encounter unfolded, Sherman stated that Thomas Skakel "basically repeated ... the version of events as you recited or read [from] the Sutton Report ...." Sherman later confirmed that "his ... discussion with [him] was consistent with what was in the Sutton Report." Sherman also testified that Thomas Skakel "recounted" his sexual encounter with the victim at the meeting. At another point, Sherman testified that it was not his impression from talking to Thomas Skakel that the encounter involved sexual intercourse, only "sexual play," something of the nature of "touching, masturbation, mutual masturbation, that kind of stuff." Sherman further testified that the encounter occurred "ten minutes before ... 10 p.m."
The majority does not explain what additional details about the sexual encounter were required for Sherman to assert a strong third-party culpability claim against Thomas Skakel. The fact is that Sherman had all of the information he needed. Indeed, it was not the precise nature of Thomas Skakel's purported sexual encounter with the victim that mattered. It was the fact that he had one at all that mattered because it allowed Sherman to argue to the jury that Thomas Skakel had lied to
Accordingly, Throne's inability to recall in 2013 the specifics of what was discussed at the 2002 meeting is simply irrelevant. The only issue that matters is whether he would have remembered what was discussed immediately following the meeting. That is when the petitioner claims that Sherman's representation was ineffective insofar as he failed to call Throne as a witness to repeat Thomas Skakel's admissions. The habeas court was absolutely correct that, under Strickland and
The majority finally contends that, even if Throne could have testified as to Thomas Skakel's admissions, Sherman reasonably could have decided to forgo implicating Thomas Skakel in the victim's murder because there was no evidence that his sexual encounter with the victim turned violent, or because implicating Thomas Skakel ran the risk of strengthening the state's theory that the petitioner murdered the victim in a jealous rage. The majority thus suggests that "defense counsel in Sherman's position reasonably could have concluded that it was better to pursue a suspect [Littleton] who had at least arguably implicated himself in the crime." Again, neither of these contentions holds water.
First, Littleton inarguably did not implicate himself in the victim's murder, a fact that, as Benedict argued at the petitioner's criminal trial, would not have been lost on a child much less on a jury of twelve adults. Indeed, even Sherman could not make a straight-faced argument tying Littleton to the murder.
Moreover, the facts simply do not support the majority's low estimation of the strength of the evidence implicating Thomas Skakel. Indeed, one is hard-pressed to find a Connecticut case-or a case from
Second, it is simply absurd for the majority to suggest that Sherman reasonably could have decided against
The only other evidence that the respondent cites in support of the theory regarding the petitioner's motive is the trial testimony of Elizabeth Arnold, who stated that, in 1978, while she and the petitioner were enrolled at Elan School,
Fuhrman's book, an entirely speculative account of how the murder could have unfolded, appears to have refreshed the recollections of many witnesses for the prosecution, several of whom came forward only after reading it, or after reading or watching a news story about it. One key witness, Shakespeare, completely altered her account of the night of the murder after reading it.
III
PREJUDICE
There can be little doubt that the petitioner was severely prejudiced by Sherman's deficient performance in his presentation of the petitioner's alibi and third-party culpability defenses. To satisfy the prejudice prong of Strickland , "[the petitioner] must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Janulawicz v. Commissioner of Correction ,
In the present case, as the habeas court observed, "[i]t would be an understatement to say that the state did not possess overwhelming evidence of the petitioner's guilt. An unsolved crime for more than two decades, there was evidence that initially the Greenwich police sought the arrest of [Thomas] Skakel without success and then focused on Littleton to no avail before finally turning to the petitioner. The evidence adduced at trial was entirely circumstantial, consisting ... [primarily] of testimony from witnesses of assailable credibility who asserted that, at one time or another and in one form or another, the petitioner made inculpatory statements. The state also adduced, as consciousness of guilt evidence, testimony that the petitioner changed his initial account to the police of his movements on the evening of the murder."
Not only was there no physical evidence connecting the petitioner to the crime and no eyewitnesses, few
In the intervening years since the petitioner's conviction, unsettling questions have also arisen over the veracity of core tenets of the state's central thesis relative to the petitioner's guilt, weakening what was to begin with a less than persuasive case. As the habeas court explained in connection with the petitioner's claim that Sherman's representation was ineffective insofar as he failed to challenge one such fundamental aspect of the state's case against him, information contained in the state's own investigative file and available to Sherman before trial revealed that the state's argument was baseless, and, yet, it went unchallenged by the defense.
Sherman's deficient performance resulting from his failure to present a powerful third-party culpability defense predicated on evidence that the victim was killed by the petitioner's brother, Thomas Skakel, a
IV
CONCLUSION
Under our constitution and system of laws, a defendant is presumed innocent until he has been found guilty beyond a reasonable doubt after a fair trial. A critical component of a defendant's right to a fair trial is the right to the effective assistance of counsel. As the habeas court aptly observed, counsel's "defense of a serious felony prosecution requires attention to detail, an energetic investigation and a coherent plan of defense capably executed." When counsel has not performed
In recognition of these core principles, more than fifty years ago, the United States Supreme Court stated that, "if the right to counsel guaranteed by the [c]onstitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and ... judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts." McMann v. Richardson ,
This right is made applicable to state prosecutions through the due process clause of the fourteenth amendment. E.g., Davis v. Commissioner of Correction,
With respect to the other seven areas in which Sherman was found to have represented the petitioner incompetently, the habeas court was unable to conclude that the prejudice flowing from that inadequate representation was so great as to warrant a new trial. In his cross appeal, the petitioner contends that the habeas court incorrectly concluded that he was not sufficiently harmed by those seven areas of deficient performance to warrant a new trial. In view of my conclusion that the petitioner is otherwise entitled to a new trial, I need not address the claims that the petitioner raises in his cross appeal.
The majority expresses its displeasure with my characterization of its analysis of the alibi issue as transparently one-sided and unfair, and also accuses me more generally of misstating its views. See footnote 1 of the majority opinion. With respect to the former, there is no euphemistic way to describe the majority's analysis: it completely ignores the countervailing considerations that the habeas court found to be decisive and provides no reason or justification for doing so. With respect to the latter, the majority does not identify any of the views that it claims I have misstated, and I know of none.
Testimony established that the Terrien home is about a twenty minute car ride from the Skakel home.
For example, at one point, Littleton was a suspect, but he ultimately was cleared of any possible involvement in the murder. Indeed, prior to the petitioner's criminal trial, Littleton was given immunity from prosecution by the Office of the State's Attorney, presumably so that he would be willing to testify at the petitioner's criminal trial to rebut the petitioner's contention that he, Littleton, might have killed the victim. See part II of this opinion.
The petitioner's father, Rushton Skakel, Sr., who is now deceased, hired Sutton Associates to investigate the victim's murder in the apparent hope of exonerating his family members. According to Leonard Levitt, a journalist who has written extensively about the case, Rushton Skakel, Sr., gave those investigators free rein to pursue the investigation wherever it led them, purportedly assuring them that, if it turned out that a member of his family was responsible for the victim's murder, the family would publicly acknowledge it. In 1994, an employee of Sutton Associates stole the firm's files on the case, including detailed suspect profiles of Thomas Skakel and the petitioner, and gave them to Levitt and Dominick Dunne, an author, who, in turn, gave them to Mark Fuhrman, the former detective famous for perjurious testimony in the Orenthal James (O.J.) Simpson murder trial. In 1998, Fuhrman published a book in which he purported to solve the long unsolved murder of the victim by accusing the petitioner based on one of several theories of the murder posited by Sutton Associates investigators and contained in the stolen files, namely, that the petitioner may have had a relationship with the victim and become jealous upon seeing her and Thomas Skakel "carrying on" in the Skakel driveway.
Although Benedict observed in closing argument, more or less in passing, that the jury was not required to reject the petitioner's alibi defense in order to find him guilty-because the forensic evidence indicated that she conceivably could have been alive as late as 5:30 a.m. on October 31, 1975-he made no effort to explain where the victim conceivably could have been after 9:30 p.m. on October 30, when she was due home. Indeed, not one of the hundreds of persons interviewed by the police since the crime was committed ever saw the victim after 9:30 p.m., when she was last seen with Thomas Skakel. Neither did Benedict proffer a credible explanation as to why several people, including the victim's mother, heard dogs barking agitatedly and other unusual noises between 9:30 and 10 p.m. on October 30. Moreover, although Benedict asserted that the victim could have been alive after 10 p.m., Benedict himself acknowledged that there is no reasonable likelihood that the victim was alive after 1 a.m. on October 31. In any event, if the petitioner could have demonstrated to the satisfaction of the jury that he was not anywhere near the scene of the crime between 9:30 and 10 p.m. on October 30-indeed, if he could have raised a reasonable doubt in the jurors' minds as to his whereabouts at that time-it is highly unlikely that he would have been found guilty of the victim's murder.
See also Heard v. Addison,
With respect to the factual premise of the respondent's argument, I disagree with the majority's assertion that the habeas court credited Sherman's testimony that the petitioner had not told him about Ossorio's presence at the Terrien residence on the evening of October 30, 1975, and discredited the petitioner's contrary testimony that he had, in fact, brought that fact to Sherman's attention. The habeas court made no such finding, explaining, instead, that it made no difference whether the petitioner had informed Sherman about Ossorio because Sherman was on notice, by virtue of Dowdle's grand jury testimony, that her "beau" was, in fact, at the Terrien residence. In essence, the habeas court simply assumed that the petitioner had not told Sherman about Ossorio and then proceeded to explain why Dowdle's grand jury testimony was more than sufficient to place Sherman on notice of Ossorio as a potential independent alibi witness. I fully agree with the habeas court that, in light of Dowdle's grand jury testimony, it matters not whether the petitioner told Sherman about Ossorio. If, however, it truly matters to the majority, I would urge the majority to obtain an articulation from the habeas court on this issue because I firmly believe that the majority is mistaken in its reading of the habeas court's decision. Because, however, the majority proceeds оn the premise that the petitioner did not apprise Sherman about Ossorio, and because it makes no difference for purposes of my analysis, I assume that such was the case.
The majority makes much of the fact that, according to Sherman's testimony at the habeas trial, none of the petitioner's alibi witnesses ever told him that Ossorio or anyone else was present at the Terrien home on the evening of October 30, 1975. The majority's reliance on this testimony is misplaced. First, the habeas court never made any findings with respect to the credibility of that testimony, and so the majority has no basis to treat it as accurate. Second, the issue is not whether the witnesses volunteered information about Ossorio to Sherman because, as I have explained, there are many reasons why they would not have known that Ossorio was a potentially important witness. Indeed, the fact that Dowdle was unaware of Ossorio's importance is reflected in her matter-of-fact grand jury and trial testimony about Ossorio. Third, Sherman was questioned at the habeas trial whether he had asked the family alibi witnesses about the presence of anyone else at the Terrien residence on the evening of October 30. With respect to Rushton Skakel, Jr., and John Skakel, Sherman could say only, "[p]robably." When asked the same question about Terrien and Dowdle, Sherman answered, "I would assume I did." In fact, Sherman's "assum[ption]" that he had questioned Dowdle on the issue was patently incorrect; the habeas court expressly found that, if Sherman had asked Dowdle about her "beau," she would have identified him as Ossorio. Sherman, however, never did inquire about Dowdle's beau.
The majority tries to distinguish Rompilla from the present case on the ground that Rompilla did not involve an alibi defense. The majority's argument presents a classic example of a distinction without a difference. The fact that Rompilla is not an alibi case is completely irrelevant, and the majority provides no explanation for its contrary assertion. Rompilla is highly relevant to the present case because it underscores the fact that counsel has an obligation to make reasonable inquiry into facts in mitigation or other red flags when reviewing discovery materials, even when those facts or red flags are unexpected. Dowdle's testimony concerning her "beau" is precisely the kind of red flag that competent counsel would have recognized and pursued further.
Ease of access, rather than whether the petitioner supplied the name of the witness, was the focus of the court's analysis in Gaines. Given our previous recognition that counsel may be required to investigate leads not supplied by a client; see Siemon v. Stoughton,
To do otherwise when reviewing testimony pertaining directly to the petitioner's alibi in a case relying largely on an alibi defense would itself clearly amount to ineffective assistance of counsel, and the majority does not contend otherwise. On the contrary, the majority sets forth the reasons why, in its view, Sherman's conscious decision not to pursue the Ossorio lead was reasonable.
I again underscore the minimal effort that would have been required of Sherman to locate Ossorio, as well as the potentially great reward of a disinterested alibi witness. See, e.g., Montgomery v. Petersen,
Moreover, as the Third Circuit has explained, incomplete knowledge of a witness' name does not render the witness unidentifiable. See Gregg v. Rockview,
Toccaline v. Commissioner of Correction,
As the majority explains, to put forth a third-party culpability defense, the defendant "must ... present evidence that directly connects a third party to the crime with which the defendant has been charged.... It is not enough to show that another had the motive to commit the crime ... nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused." (Citations omitted; internal quotation marks omitted.) State v. Hernandez,
The majority intimates that Sherman was unaware of the futility of a third-party culpability defense predicated on Littleton's commission of the murder, observing that the habeas court made no finding that Sherman was aware before the petitioner's criminal trial that the core of his third-party culpability defense against Littleton-Littleton's purported admissions-was the result of a ruse that had been played on him by state and local investigators. No such finding was required, however, because the record establishes that Sherman was made aware of this fact by the state's pretrial motion to preclude him from raising a third-party culpability defense against Littleton on the ground that there was no evidence connecting Littleton to the murder.
In light of the complete absence of evidence suggesting that Littleton had played a role in the victim's murder, it is difficult to understand why the trial court permitted Sherman to raise a third-party culpability defense predicated on Littleton's commission of the murder. Perhaps it is because before the Littleton evidence actually was presented in open court to the jury, it appeared to the court that Littleton might have made some potentially incriminating statements to Baker or Morall. As the real story emerged, however, it became crystal clear that Littleton never did any such thing. By that point, of course, Sherman was stuck with his ill-advised decision to present the Littleton third-party culpability defense.
Sherman also sought to implicate Littleton on the basis of certain additional facts, but none of these facts would have created the slightest doubt in the minds of the jurors as to the wisdom of the state's decision to grant Littleton immunity from prosecution. Indeed, none of them even connected Littleton to the murder. For example, the majority states that Sherman presented the testimony of state criminalist, Henry Lee, that "two hairs found at the crime scene were microscopically similar to head hairs from Littleton." Contrary to the majority's assertion, however, the hairs in question were not found at the crime scene but, rather, on sheets that were brought to the crime scene, by responding officers, who used them to cover the victim's body for transport to the morgue. As a result, it could not be determined whether the hairs were present during the commission of the crime or whether they were brought to the crime scene with the sheets. Sherman was also aware before the petitioner's criminal trial that mitochondrial DNA testing of one of the hairs had conclusively eliminated Littleton as the source of that hair. Although insufficient DNA material was obtained from the second hair to permit similar testing, all of the trial experts agreed that the hair showed both similarities and dissimilarities to Littleton's hair such that the most that could be gleaned from a comparison of the two was that Littleton could not be excluded from the class of potential donors.
Sherman also introduced evidence of Littleton's erratic behavior in the years following the murder, the apparent result of alcoholism and an untreated bipolar disorder. But he utterly failed to present an intelligible connection between that behavior, which occurred many years after the murder, and any possible involvement by Littleton in the murder. In one incident, for example, which took place in the 1990s, Littleton was arrested for drunk and disorderly conduct after climbing a tower in Florida and delivering President John F. Kennedy's "Iich bin ein Berliner" speech. During his arrest, Littleton identified himself as "Kenny Kennedy, the black sheep of the Kennedy family." On the basis of this evidence, Sherman argued that Littleton once identified himself as "Kenny Kennedy because [John F. Kennedy] was his hero. He painted himself as the black sheep of the Kennedy family. How does that figure in here? I don't know." It is unlikely the jury knew either. The majority also notes that Sherman, in the petitioner's pretrial motion for permission to present a third-party culpability defense, indicated that he "planned to show that Littleton had lied to the police in his initial statement about his activities on the night [of the victim's murder] ... and later had changed his account about his activities that night on several occasions." Sherman appeared to abandon this argument at the petitioner's criminal trial, however, as there is no mention of it in his closing argument; nor does there appear to be any evidence to support it.
The Skakel family chauffeur, Franz Wittine, reported to the police that, "on several occasions he observed Thomas [Skakel] leave his house to take a walk, carrying a golf club. He also reported that he had observed Thomas [Skakel] in outbreaks of rage." Another witness, "Jackie Wetenhall, one of [the victim's] close friends ... observed Thomas [Skakel] ... walking ... at night, carrying a golf club."
Joseph Jachimczyk, a physician and then Chief Medical Examiner for Harris County, Texas, assisted the Greenwich police in their investigation and determined that the time of the victim's death was 10 p.m., which determination was based, in part, on the contents of her stomach and the extent of rigor mortis that had set in by the time her body was discovered. Harold Wayne Carver II, the state Chief Medical Examiner in 2002, testified that, although the victim could have died as late as 5:30 a.m. on October 31, 1975, in his opinion, she died "closer to 9:30 p.m." on October 30.
The record establishes that, at approximately 9:45 p.m., a dog belonging to the Ix family became extremely agitated at the foot of the family's driveway, directly across the street from the entrance to the victim's driveway. It was later determined, on the basis of blood spatter found at the scene, that the victim was initially assaulted at that location. Ix reported to the police that, when she returned from the Skakel driveway at 9:30 p.m., she immediately telephoned a friend. Ix reported that, while she was talking on the telephone, at approximately 9:45 p.m., her dog began to bark incessantly and "violently" in the direction of the victim's driveway. Ix went outside to call the dog, but the dog refused to come even though it always came when she called him. Ix testified that the dog "was kind of frozen in the road like he didn't [want to] go any closer," and that she had never seen him so "scared" or agitated. After about twenty or twenty-five minutes of constant barking, the family's housekeeper had to go out and force the dog inside. Another of the victim's neighbors, Robert Bjork, reported that, although he did not appreciate the significance of his dog's behavior at the time, he observed his dog, at approximately 10 p.m., run back and forth between where the victim's blood was found on the driveway and the tree where the victim's body was discovered.
One might think that Thomas Skakel's admissions, or statements against penal interest, would have been admissible through a witness from Sutton Associates. Issues relating to the attorney-client and work product privileges, however, ultimately prevented any such use of the Sutton Report or its authors.
Throne testified that he was "fresh out of law school," with no prior experience in the area of criminal law, when Sherman hired him to work on the petitioner's case. Sherman's son, Mark Sherman, was second chair.
I also note that Sherman did not request a jury instruction on the petitioner's third-party culpability defense, and the trial court did not give one. Nor did Sherman undertake to explain the legal significance of the defense in closing argument. As this court determined in State v. Arroyo,
The petitioner was sent to Elan School, an alcohol and drug rehabilitation facility for troubled adolescents in Poland, Maine, in 1978, as part of a plea agreement after the petitioner was charged with driving under the influence in New York.
The majority also relies on Fuhrman's book to support its conclusion that Sherman reasonably could have decided to forgo implicating Thomas Skakel out of fear that it might bolster the state's theory as to the petitioner's motive. See footnote 18 of the majority opinion. Such reliance only reflects the thin reed on which the majority's argument rests.
It is unfortunate that the majority has seen fit to rely on Fuhrman's speculative account of a relationship between the victim and the petitioner as a basis for reversing the habeas court's judgment. Although the possibility of such a relationship was one of several theories posited by the Sutton investigators in the mid-1990s, no credible evidence was adduced at the petitioner's 2002 criminal trial in furtherance of it.
The aspect of the case identified by the habeas court pertains to State's Attorney Benedict's argument at trial that the petitioner was sent to Elan School as part of the Skakel family's broader cover-up to hide him from the police, who were kept in the dark regarding his whereabouts. This contention is belied by police investigative reports, which make clear that the police knew full well that the petitioner was at Elan School and had been in direct contact with the school. This point is important because Benedict also argued at trial that administrators at Elan School, who repeatedly accused the petitioner of having murdered the victim, learned of the petitioner's involvement in the murder from the petitioner's own family, and not from the police.