Thursday, October 24, 2013

Visual Advocacy Skills and Adversarial Imbalance: Thoughts on the Michael Skakel Re-Trial Order

Last night a Connecticut Superior Court judge granted Michael Skakel’s habeus petition for a new trial, on the basis that Michael Sherman, his trial defense lawyer, failed to  provide effective assistance of counsel.  At a 2002 trial, Mr. Skakel was convicted of murdering his neighbor Martha Moxley, in 1975.  Because Mr. Skakel was a remote member of the Kennedy family, the case became a media spectacle, involving journalist Dominick Dunne, who wrote a fictionalized novel detailing Mr. Skakel’s role in the murder and O.J. impresario Mark Furhman, who also wrote a book about the case. 

The Connecticut Superior Court noted that three defense errors rose to the level of a Sixth Amendment deprivation: the failure to argue third party culpability for Skakel’s brother; the failure to locate an independent alibi witness who would have testified that Skakel was several miles away during the time of the murder; and the failure to contest and rebut testimony from the State’s key witness who claimed to have heard petitioner make admissions regarding the crime.  

 There were numerous other errors that the court commented on that, by themselves, did not rise to the level of constitutional magnitude, but in the aggregate, could have impacted Mr. Skakel’s Sixth Amendment rights.

Among these errors were Sherman’s (1) failure to present a compelling closing argument and (2) failure to argue, on Fourth Amendment grounds, to exclude audio-tapes of Mr. Skakel speaking about the night of the Moxley murder.  From an advocacy standpoint, the court was right to point out the magnitude of these two errors. Skakel’s defense attorney mounted little to no opposition to a rigorous and robust advocacy, in one of the first high-profile cases to utilize new media technology.

In its rebuttal closing argument (another strategic error may have been Sherman’s allowance of the prosecution to have this last word), the prosecution used Mr. Skakel’s audio testimony along with projected photographs of Ms. Moxley’s corpse to create a powerful, but conflated, visual inference.  The prosecution played a portion of the audio-tapes where Mr. Skakel expressed his fear that someone saw him outside of his home that night.  He was verbalizing fear that his strict Catholic father would find out that he climbed a tree in his yard to masturbate that night, not any fear about his role in Moxley’s death. 

On the other side, the Connecticut Superior Court characterized Sherman’s closing argument as “disjointed, unfocussed, and, at times, improper.”  Sherman failed to “provide the jury a road map to an understanding of the state’s burden of proof and the absence of a corollary burden in the defendant.” 

As I wrote in 2009, there was a tremendous advocacy imbalance in this trial, exacerbated by the prosecution’s unilateral use of visual argumentation.  Visual argumentation is powerful and can lead decision-makers to make rapid and emotional decisions without the benefit of logo-centric deliberation.  If one side uses this rhetoric tool with no answer from the other side, injustice can result.  We saw a similar issue with the Amanda Knox trial in Italy, where lenient evidentiary rules allowed prosecutors to show jurors an animated video presenting their fanciful theory of the case. Americans recoiled with a sense of injustice there, but with the Michael Skakel trial, a similar injustice may have been done, but produced by adversarial imbalance rather than evidentiary controls.  Hopefully, during Mr. Skakel’s new trial, the two sides will be more equalized in their advocacy approaches.

(Lucy Jewel, guest blogger)

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