Thursday, October 24, 2013

If Skakel Case Is The Standard, Charlie White's Ineffective Counsel Argument Is A Slam Dunk

Michael Skakel is the 52-year old nephew of Robert Kennedy's widow, Ethel Kennedy, who was belatedly tried and convicted  a little more than ten years ago for the killing of Martha Moxley, a Greenwich, Connecticut neighbor found bludgeoned to death by a golf club in 1975. Skakel was represented by high-profile criminal defense attorney Mickey Sherman, who basked in the limelight of the trial's non-stop coverage at the time on cable TV news. Yesterday, Judge Thomas Bishop found that Skakel had been denied a fair trial due to ineffective counsel in a scathing 135-page decision and ordered a new trial. Skakel is likely to be released from jail on bail after serving more than ten years in prison.

Skakel's older brother, Thomas, and a live-in tutor, Kenneth Littleton, had also long been suspects of police in the killing. The case had remained unsolved until 25 years later when then 39-year old Michael was charged with committing the brutal crime. During a hearing where Skakel's new attorneys examined Sherman, they portrayed him as "a money-hungry lawyer with financial woes who spent time in the media spotlight and at 'A-list' parties instead of on Skakel's defense strategy." Skakel's lawyers also hammered away at Sherman's failure to call key witnesses on behalf of his client, including a witness who would have provided an alibi of his whereabouts at the time the crime was committed. Because this witness was a non-family member, it carried more weight than the family member alibi witnesses called by Sherman at trial.

Despite there being strong evidence linking Skakel's 17-year old brother to the crime, Michael's attorneys complained that Sherman failed to press that angle. Judge Bishop wrote in his opinion, "Sherman's failure to point an accusatory finger at T. Skakel was and is inexplicable." "Given the evidence of T. Skakel's culpability available to Attorney Sherman before trial, there was no reasonable basis for his failure to shine the light of culpability on T. Skakel," he continued. Judge Bishop said that Sherman wasn't required to prove that Thomas killed Moxley; rather, he needed only argue direct and circumstantial evidence of his potential culpability.

Former Secretary of State Charlie White has been in the news as of late with his hearing for post-conviction relief in which he is arguing that he received ineffective counsel from former Marion Co. Prosecutor Carl Brizzi, who federal prosecutors confirmed this week had been under investigation for accepting bribes at the time he represented White in his 2012 trial. Like Sherman, Brizzi basked in the media limelight White's widely covered  trial received but did little to prepare for his case according to his new lawyer. Unlike Sherman, Brizzi failed to call any witnesses who could prove that White lived at his ex-wife's home, not the new condominium he purchased during that short several month period in 2010 when he was accused of casting a single vote in one election in a precinct in which he did not reside. Family members who had testified in his defense during the civil case challenging his eligibility to hold office had expected to be called until Brizzi's last-minute decision not to put on a defense. Brizzi refused to even call an expert witness whose testimony using the GPS data on White's cell phone would have placed his whereabouts at his ex-wife's home on many nights during the time in question, which would have destroyed the testimony of the state's expert.

Brizzi defended his decision not to call his client or members of his family to testify because of credibility problems he found with their testimony, notwithstanding the fact that their testimony had proven credible during the civil case against him where the state's Recount Commission found in his favor. He also questioned the credibility of the expert witness he blamed White and his father for hiring, who he believed had credibility problems due to concerns Brizzi had about his ethics in a former job after he received a phone call from the special prosecutor leveling personal charges against White's expert witness. Family members complained that Brizzi never prepared them to testify before trial. Brizzi claimed that he met with White's wife late at night after the trial had already started and decided based on one of the answers she provided to him that her testimony might not be truthful if he offered it. White's wife denied the witness prepping incident had occurred. In a stunning admission, Brizzi admitted that he mistakenly believed that documentary evidence that had been stipulated prior to trial that would have supported White's contention that he resided at his ex-wife's home had been entered into evidence when in fact he had forgotten to formerly tender the evidence during trial.

White's attorneys also pointed to evidence of Brizzi's own health problems and serious health problems his now-deceased mother was having at the time of the trial that distracted him from the case. Brizzi was hospitalized the week following White's trial for heart-related problems. It is also curious that the U.S. Attorney's Office waited until after White's post-conviction hearing had been concluded before releasing information about the closure of his office's three-year investigation of bribery charges against Brizzi. The U.S. Attorney's office had been very tight-lipped about whether Brizzi was a target of the investigation, even after it announced charges and a plea agreement with his former chief deputy. If Brizzi knew at the time of White's trial that he was the target of a federal investigation, it obviously could have weighed heavily on him at the time.

White and another client of Brizzi, former Hancock County Coroner Tamara Vangundy, are both suing him for malpractice. Vangundy argues that she received ineffective counsel from Brizzi when he told her to accept a plea agreement that he assured her would allow her to keep her office when in fact the plea agreement she signed forced her to give up her county office. Hamilton Superior Court Judge Daniel Pfleging will rule on White's ineffective counsel argument after attorneys for both sides present their proposed findings of fact and conclusions of law. White also intends to appeal the six felony convictions against him on separate legal grounds.

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