Skakel trial weak on evidence, strong on testimony

With no physical evidence or eyewitnesses, and despite a 27-year gap that blurred memories, prosecutors in the murder trial of Michael Skakel prevailed in a case that some legal experts initially thought would be a fiasco.

The key to the trial, said University of California law professor Susan Estrich, was the parade of witnesses – 12 in all – who testified that Skakel had incriminated himself in the 1975 murder of 15-year-old neighbor Martha Moxley in Greenwich, Conn.

“For all our fascination with forensics, for all the absolutes of science, confessions count, witnesses count,” Estrich said. “In many respects, the time lag made it an old-fashioned trial, a question of who – not what – do you believe.”

Compared to their counterparts in the O.J. Simpson trial, the Skakel prosecutors started with a seemingly weak arsenal of evidence, said Todd D. Fernow, professor at the University of Connecticut School of Law.

But even during the prolonged pretrial proceedings, the prosecution incrementally gathered new bits of information, Fernow said. “You look back, and now you have three times as much evidence, and it gives you the illusion of substance.”

Fernow also suggested that jurors may have gone out of their way to resolve the long-simmering case, not wishing to end with a hung jury.

“The jurors are thinking, ‘The state of Connecticut wouldn’t have brought the charges 27 years later if they didn’t think they have the right guy. We’ll give them the benefit of the doubt,”‘ Fernow said.

Steven Duke, a professor of criminal law at Yale Law School, was among the experts who initially thought the prosecution of Skakel would flounder.

“It looked like an embarrassment,” Duke said. “I was quoted as saying they must have more than these incriminating statements, and it turned out they didn’t.”

How did the prosecution win? Duke suggested that Skakel’s alibi evidence – provided by relatives – may have seemed shaky to the jurors. Duke also expressed surprise that the defense did not do more to challenge the testimony about Skakel’s self-incriminating remarks.

“The defense had explanations for many of them; it didn’t have explanations for all of them,” Duke said. “I was surprised they didn’t call an expert to say there are many instances in which people have become falsely convinced that they committed a crime.”

James Cohen, a Fordham University law professor who specializes in criminal defense, said the lapse of 27 years was both a plus and minus for the prosecution.

“Over that period of time so much happened, Skakel made so many different statements, there were so many inconsistencies that the prosecution was able to bring forward,” Cohen said. “On the other hand, memories fade.”

Cohen said prosecutors successfully depicted the murder – Moxley was bludgeoned and stabbed with a golf club – as particularly violent.

“Then they succeeded in presenting Skakel as someone over the years who was quite troubled,” he said. “The jury put two and two together.”

During the deliberations, jurors asked to rehear some of prosecutor Jonathan Benedict’s closing arguments – a likely indication his comments were effective.

“The argument may have sounded powerful, but I had a very receptive audience,” Benedict said after Friday’s verdict. “I think everybody, or 90 percent of the people in the courtroom, wanted to see me connect the dots, wanted to hear what I had to say.”

Alternate juror Anne Layton said she was leaning heavily toward conviction, but described Benedict’s closing argument as the clincher.

“I think he did an incredible job,” she said.

Defense attorney Michael Sherman, who vowed to appeal the verdict, complained about the multimedia presentation that ended the closing arguments – a projected photo of a smiling Martha Moxley that dissolved into a grim crime scene photo.

“I think that had the effect of inflaming the jury,” Sherman said.

Skakel’s status as a cousin of the Kennedy family may have deterred some investigators in 1975, but probably did not help his chances with the jury, Cohen said.

“It’s very different time now than 1975,” he said. “The Kennedy name had much more resonance then than it does today.”

Fernow said the Kennedy connection may have mattered less to the jury than the constant presence in the courtroom of Dorthy Moxley, the victim’s mother.

“She’s the one person in all of this that everybody feels sympathy for,” Fernow said. “The prosecution played that particular card pretty well, putting her on the stand.”