Solomon believed that the Skakel tutor, Kenny Littleton, had murdered Martha. But despite Solomon’s best efforts over seven years to build the case against Littleton, Browne again put his foot down in 1998, ignoring public pressure to make an arrest that did not meet the standards of probable cause.
That same year, Mark Fuhrman published Murder in Greenwich from which the public first heard the theory that 15-year-old Michael was the murderer. Michael had never even been a suspect. Despite the fact that just a few years before he’d publicly accused Tommy, Dunne wrote a gushing foreword for Fuhrman’s book, now taking credit himself for solving the crime. Using sleight of hand, he substituted Michael’s name where Tommy’s had been in his earlier statements. “The spotlight was on it again,” Dunne wrote of his book’s effect on the case. “Nothing happened. But the name Skakel was spoken in louder and louder tones. Tommy Skakel. Michael Skakel.”
Fuhrman now invoked a populist theme to summon public outrage over the O.J. Simpson acquittal. On the book’s back cover, superimposed over Fuhrman’s picture, Fuhrman asked, “Are there two systems of justice in this country—one for the rich, and another for the rest of us?” The book is a diatribe against the corruption in the Greenwich Police, who Fuhrman accuses of coddling the Skakels—and the Kennedys.
The book would prove an embarrassment for Browne, and for every State investigator and Greenwich cop who’d ever touched the case file. In Greentown, another book about the Moxley murder released that year, author Timothy Dumas chimed in on Dunne’s catchy theme: that powerful dark forces, and deep Skakel pockets, explained police reticence. “Some journalists on this story have wondered,” he wrote, critically, “whether Browne has been ‘paid off.’”
In the face of this amplifying staccato, Browne finally capitulated. To his great credit, he kept his integrity. Rather than make an arrest he deemed unconstitutional, he quit. He deeded the problem to his successor, Jonathan Benedict. A month after Fuhrman published his book, and less than a month after he assumed the lead role as State’s Attorney, Benedict bowed to an inflamed media and sent the case against Michael to a one-man grand jury.
As someone who grew up revering the American justice system as nearly infallible, I share Dunne’s indignation that a skilled defense lawyer, in the service of a wealthy client, can get a guilty defendant acquitted. However, it is even more dismaying that, as every district attorney knows, a skilled prosecutor can persuade a jury to convict an innocent man. Juries make mistakes. As a former New York City prosecutor, I know that media lynch mobs can turn notorious crimes into easy convictions. When the fierce winds of public opinion batter them, weak-willed or opportunistic prosecutors find it simple, even formulaic, to convict innocent defendants.
For this reason, the American justice system entrusts the prosecutor with the special power known as “Prosecutorial Discretion.” That doctrine, a bedrock principle of American justice, both allows and requires prosecutors to refuse even a winnable case if they believe that injustice may result. The prosecutor’s job is not to win at any cost, but to “see that justice is done.” The prosecutor is a buffer against police enthusiasm or corruption, and against the storms of public passion and media goading. Browne honorably performed his duty when he resisted police requests and public clamor to indict Tommy Skakel and then Kenny Littleton. But sometimes political heat prompts prosecutors with weak spines or powerful ambitions to proceed with a case when prudence says to take a pass.
“Notorious crimes have to be very carefully prosecuted,” Michael Baden, New York’s former chief medical examiner, told me. “With so-called ‘notorious’ or ‘infamous’ crimes, it’s so easy to get a conviction without physical evidence. This is the very time to be more cautious, not less cautious, so that a bad decision isn’t made because of an inflamed public. Look at the five kids in the Central Park jogger case. There was not a trace of evidence—but with notorious cases, jurors can find you guilty anyway.”
The Innocence Project, co-founded by my friend Barry Scheck, has freed 333 wrongfully imprisoned convicts, using exculpatory DNA tests. Many of those had resulted from shoddy, crooked, or overenthusiastic police work. A full 25 percent of those freed had provided a confession to cops, often under duress. Fifteen percent had been victims of a corrupt police informant system, whereby prosecutors compensate criminals with perks such as shortened or suspended jail terms in exchange for incriminating testimony against others. (So called “testimony with benefits” proved a useful tool in Benedict’s case against Michael.)
The Innocence Project cites studies suggesting that up to 5 percent of all incarcerated people in America are wrongfully imprisoned. Most of them are in prison because a prosecutor failed his ethical duty to make the right call.
Benedict, unlike his predecessor, failed to make the right call. Under pressure, he brought a weak claim to trial. And since he was new to the case when he sent it to a grand jury, he had to give great latitude to the man who professed to know the case inside and out: Frank Garr, a cop whose fingerprints are visible in every stage of Michael’s wrongful conviction.
Feeble as the case was, the one-man grand jury’s indictment committed the new prosecutor to bring Michael to trial. Benedict had bought Garr’s ticket; now he had to take the ride. The slight, courtly 57-year-old with a full head of straight white hair appeared mild-mannered, and unassuming, but he was also tough and ambitious. A Vietnam vet and triathlete, Benedict had been in the State’s Attorney’s office since 1976, following two years laboring alongside his father in his small Fairfield law firm.
Benedict came to the Skakel case exhausted from a bruising and humiliating loss in Connecticut v. Adrian Peeler, wherein he charged Peeler with gunning down an 8-year-old and his mother in Bridgeport to prevent the boy from testifying in the trial of Peeler’s drug-dealing brother. In a preview of Michael’s case, Benedict’s star eyewitness was Josephine Lee, a crack-addled prostitute who suffered hallucinations and who repudiated her own testimony prior to trial. Lee sent a letter confessing that she’d “lied” to police about her role as lookout in the hit. Lee wrote, “I was scared when the police came to the house to get me so I told them that I had something to do with the murder. But I do not know anything.” A jury acquitted Peeler on the first-degree murder charge. “There wasn’t enough evidence,” the jury foreman told the press.
Benedict’s failure in the Peeler case must have weighed heavily when he rose from his desk on June 3, 2002, to deliver his summation to Michael’s jury. He never had much faith in the Skakel case and was now on his way to losing it. The State had already spent $25 million in its zeal to convict Michael. Benedict had deployed all of the strategies that enable prosecutors to apply their thumbs to the scales of justice, including basing his case almost entirely on three perjuring confession witnesses and—as we shall see—illegally withholding reams of exculpatory evidence from the defense team. Yet, like in the Peeler case, Benedict found himself with a deranged drug addict as his star witness: Greg Coleman, a lowlife junkie with an encyclopedic rap sheet, a reputation for lying, and wildly vacillating testimony concerning the circumstances and content of Michael’s supposed confession. Inconveniently, Coleman had recently died from a heroin overdose and would need to be miraculously resurrected to testify if Benedict were to have a prayer of convicting Michael. Worse still, Benedict had to grant full immunity to Kenny Littleton, the State’s primary suspect for the previous 25 years, in order to get him to testify.
The prosecution had so little faith in its underlying case that Benedict made a last-minute attempt to add a manslaughter count to the charges, carrying the possibility of no jail time for Michael. The State’s prospects of success seemed so hopeless that the prosecutors sent Dorthy Moxley to the parking lot waving a recently increased $100,000 reward to entice new witnesses. But that was all before Benedict’s brilliant summation.
“His case was never tied up,” says Stephan Seeger, a young lawyer on Michael’s defense team, whom Sherman hi
red three years out of law school to assist on writing motions. “I don’t think the jury had enough to piece anything together. It wasn’t a winning case until his misleading, fabricated closing argument. I thought the jury would have been able to see right through it. I guess not.”
Len Levitt concurred. He quotes Dorthy Moxley on the cover of his book Conviction for the proposition that he and his partner Detective Frank Garr “more than any other two people are responsible for solving Martha’s murder.” Yet Levitt apparently never believed that Benedict had proven his case. “I never thought Michael would be convicted,” he reveals in the opening passage of his hagiography of Garr. “I only hoped for Frank’s sake the jury would deliberate longer than the few hours it had in the O.J. Simpson case. That way, Frank wouldn’t be embarrassed.”
Benedict began his summation by cunningly lowering the jury’s expectations and preparing them for the prosecutorial dirty pool that would follow. “While I am sure Mr. Sherman is going to take a great deal of issue with what I am going to say here,” Benedict said, “I am going to present to you what I submit is the most reasonable construction of the evidence in this case. Does that mean that the evidence answers every question that could arise? Certainly not. Does that mean that every fact has been proven beyond a reasonable doubt? Of course not.”
Then Benedict introduced a motive for the murder: jealousy. Following the theory Mark Fuhrman had first advanced in his book, Benedict argued that Michael killed Martha in a jealous rage after seeing his brother kiss her. “Martha Moxley,” he told the jurors, was a “pretty, athletic, flirtatious 15-year-old kid … just beginning to come into womanhood. She was … clearly drawing the attention of boys. Unfortunately as we learned … she was also drawn into the vortex of the competing hormones of two of the young boys who lived across Walsh Lane”—my cousins Michael and Tommy Skakel.
Benedict theatrically pointed his finger at Michael and announced in a stentorian voice, “He murdered Martha Moxley beyond every reasonable doubt.” The trouble, Benedict asserted, all began in the Lincoln Continental. Michael had been in love with Martha and he finally found an opportunity for intimacy in the car’s dark front seat. “This was the defendant’s big moment. Unfortunately,” Benedict said, “they were joined by brother Thomas, Michael’s nemesis, who wound up with the girl that night, at least for a little while.”
Benedict’s big problem was Michael’s gold-plated alibi: At trial, four witnesses testified that Michael had left for Sursum Corda in the Lincoln at 9:30 p.m., and returned at 11:20 p.m. This meant that Michael would not have been at the Skakels’ house to see Tommy kiss Martha (between 9:30 and 9:50 p.m.), nor could he have been in Belle Haven to murder Martha at her 10:00 p.m. time of death. There was simply no way he could have killed Martha.
Even at the brink of the trial, prosecutors apparently had not settled on a theory of the case that could explain how Michael could have committed the crime. During a break in the jury selection at the Norwalk Courthouse, the Moxleys’ neighbor Cissie Ix pulled aside Benedict’s assistant prosecutor, Susan Gill. Cissie’s daughter, Helen, Martha’s close friend and a witness in the upcoming trial, had been in the Lincoln with Martha and the two Skakel brothers. She had watched Michael drive off in the Lincoln at 9:30 p.m. After the Lincoln left, she had seen Tommy and Martha beginning to flirt with each other, which had caused her to leave the Skakel driveway in embarrassment. The Lincoln did not return until 11:20 p.m. By that time, Martha had been dead for an hour and twenty minutes. Cissie Ix told Gill she was bewildered as to how the State could believe Michael had committed the 10:00 p.m. crime from 11 miles’ distance on the other side of Greenwich. “I told Susan Gill, ‘Helen was in the driveway when Michael drove away in the car to the Terriens’ with his brothers. How could he possibly have committed the crime?’ Susan Gill told me, ‘He could have driven around the corner, jumped out, killed Martha, and then jumped back in the car with his brothers and driven to the Terriens.’ When I heard that, I thought, ‘Oh, Michael’s going to win this case, easily!’” Eighteen days later, both sides had rested, and Benedict still hadn’t made up his mind about how Michael could have been in Belle Haven to kill Martha.
“Benedict had only the phony confessions,” says Seeger. “But he had none of the choreography. There was nothing in evidence to explain the mechanics of how Michael could have been in Belle Haven to commit the murder.”
Benedict had two half-baked theories for how Michael killed Martha. Neither of them was supported by evidence, and both were so farfetched even the prosecution couldn’t settle on which of these two contradictory hypotheticals to present to the jury. Instead, Benedict went with both of them. He presented a jumble of conflicting evidence during trial, and then offered the two scenarios in closing argument and left it to the jurors to decide how Michael could possibly have accomplished the feat.
It was a daring gambit. The only way to win was to lobotomize the jurors with so much hatred for Michael that they would ignore the huge holes in both of Benedict’s theories. He was betting, correctly, that he could poison their judgment and distract them enough to forget about reasonable doubt. Let’s look at Benedict’s two contradictory theories of the case:
Benedict’s Scenario A: Michael never went to Sursum Corda. Having stayed home, he witnessed the assignation between Tommy and Martha from some hidden vantage point, and then killed Martha after she parted from Tommy.
This scenario solved both problems of motive and opportunity by putting Michael in Belle Haven at 9:45 p.m. to witness his brother making out with Martha and also at her 10:00 p.m. time of death. However, it has fatal defects. For Michael to have skipped Sursum Corda, and then covered up that fact, would have required the organization of a monumental conspiracy involving, for starters, Michael, Tommy, John, Rush Jr., Jimmy, Georgeann Dowdle, and her beau, Dennis Ossorio. The cover-up and conspiracy would have had to begin a few hours after Martha’s death and then remain flawlessly orchestrated and airtight for three decades. In the hours and days after Martha’s murder, Jimmy, Rush Jr., John, and Michael all attested, under repeated police questioning, that they left for the Terriens’ house at 9:30 p.m., when Martha was still alive, and returned at 11:20 p.m. John passed a polygraph that the police felt covered all four boys who went to Sursum Corda. Michael also confirmed his recounting to police and in subsequent polygraph and truth serum interviews, administered by Dr. Stanley Lesse at New York Presbyterian Hospital, in the presence of Monsignor (later Bishop) William McCormack, and in interviews with the veteran FBI and homicide detectives at Sutton Associates. Georgeann Dowdle, Michael’s cousin, consistently said that Michael had arrived with her brother, Jimmy, in the Lincoln, and watched Monty Python at Sursum Corda. Ossorio testified during Michael’s habeas corpus appeal that he was also watching TV and talking with Michael at the Terrien house at 10:00 p.m.
Any conspiracy would necessarily have to involve not only the five people who saw Michael at Sursum Corda, but also all those witnesses who remained in Belle Haven. On the day after the murder, Tommy told police that Michael left with his brothers in the Lincoln at 9:30 p.m. He confirmed that story over and over to police throughout the next two months during nine hours of intense grilling, without a lawyer present, and during two separate police-administered polygraphs. He repeated the story during two sodium amytal interviews also with Dr. Stanley Lesse at New York Presbyterian in 1976 and in subsequent interviews in 1992 with Sutton Associates. Kenny Littleton, a man with a compelling incentive to inculpate a Skakel, would also had to have been complicit in the conspiracy. Littleton told police that Rush Jr. had checked in with him, minutes before leaving, to let Kenny know that he was driving Jimmy back to Sursum Corda, and Michael was coming along.
After Michael left in the Lincoln, Tommy, David, Stephen, Julie, and Kenny were in the house, up and down the stairs and in and out of the doors, according to their various statements. Julie’s friend Andrea Shakespeare told police in 1975 that she went out to the driveway
at 9:30 p.m., just after the boys left in the Lincoln. When she dashed back to the house to fetch the station wagon keys, Tommy, Kenny, and Stephen met her at the front door and handed her the keys. (Tommy immediately went back out the mudroom door to rendezvous with Martha behind the toolshed.) Nanny Sweeney and Franz Wittine were also in the house all night. None of them saw Michael after the Lincoln left at 9:30 p.m.
In advancing his fanciful narrative, Benedict never even tried to explain how Michael possibly could have stayed invisible to the eight people who remained in Belle Haven. Furthermore, Benedict never offered any evidence suggesting that Michael would have any reason to hide. He would not have known that Tommy and Martha were going to make out since they started kissing 10 minutes after the Lincoln left. Benedict offered no evidence of any flirtation occurring between the two love birds until after the Lincoln departed.
The veteran homicide detectives at Sutton Associates, hired by Rucky Skakel Sr. to reinvestigate the Moxley murder in 1992, never doubted that Michael went with his brothers to Sursum Corda. Sutton founder and former FBI G-man Jim Murphy told me, “I don’t have any reason to think otherwise. He wasn’t around. Nobody ever sees him anyplace else around the house.”
All five people at Sursum Corda saw Michael there. Not one of the eight people who stayed saw Michael in Belle Haven.
Most damning to the prosecution, in order to cobble together this particular conspiracy theory, Benedict had to commit a grave and unlawful act of prosecutorial misconduct. He had to illegally conceal from the defense a 1975 police report, in which homicide investigators unambiguously stated, “It is known and believed that as that vehicle departed from the driveway, occupied by the Skakel boys (Rushton, Michael, and John) along with their cousin, James Terrien, that both Helen Ix and Geoff Byrne began to walk to their homes, leaving only Thomas Skakel and Martha Moxley standing in the driveway.” If the jury had seen that report, they could never have found beyond a reasonable doubt that Michael had somehow ducked out of the departing Lincoln.
Framed: Why Michael Skakel Spent Over a Decade in Prison For a Murder He Didn't Commit Page 6
