This document would have exploded Benedict’s entire Scenario A theory. The law requires that prosecutors disclose all exculpatory evidence to the defense. During Michael’s 2013 habeas corpus trial, Garr acknowledged that Benedict had this memo in his possession. Garr, who was Benedict’s evidence manager for the case, acknowledged under oath that it should have been disclosed. He told the court that he was ordered to not disclose it to the defense team. When Michael’s counsel Hubie Santos asked Garr who gave him the order, he replied “Mr. Benedict.” In 2007, North Carolina State’s Attorney Mike Nifong was removed from office, disbarred, and jailed for equivalent misconduct in the Duke Lacrosse rape case.
Benedict’s only evidence that Michael didn’t go to Sursum Corda was the unsubstantiated hunch of Julie’s friend Andrea, who testified that she felt Michael never left in the Lincoln. “Andrea Shakespeare Renna is unshakable in her conviction that the defendant remained behind,” he told the jury. But, in fact, Andrea testified that she never saw Michael in the house and she didn’t see who was in the Lincoln. She testified that she was “only under the impression” that Michael didn’t go in the Lincoln. As we shall see, Shakespeare’s testimony contradicted her historical statements to police and investigators during her myriad interviews over 30 years. Shakespeare consistently maintained that she never saw the Lincoln leave the driveway, had no clue who was in it, and never saw Michael in the house or anywhere on the property after the Lincoln departed. Andrea’s “feeling,” I will show, was what experts characterize as a “false memory,” artfully implanted by Frank Garr.
For Benedict to prevail with his Scenario A theory, he needed to persuade the jury that the six Skakel siblings, their cousins Jimmy and Georgeann Dowdle, and Kenny Littleton had all perjured themselves when they testified that Michael went to Sursum Corda. Prosecutors adopted Fuhrman and Dunne’s view that Rucky masterminded a coordinated 30-year cover-up. Both writers proposed that all the Skakels knew from the outset that Michael had committed the murder and immediately circled the wagons. Using Fuhrman’s blueprint, Benedict suggested that Rucky had whisked the children up to the family ski lodge before police had a chance to interview them and before concrete hardened on their stories. “Someone has the bright idea to get them out of town,” Benedict told the jury. Following Fuhrman, Benedict hypothesized that in Windham the family concocted the entire yarn about Sursum Corda and Monty Python and then stuck with it for three decades.
“Why else would the family have traveled to their ski house in Windham, New York, on Saturday, November 1, 1975, if not to reconcile their stories, to rehearse an alibi that put Michael at Sursum Corda at the time of the murder? … Not until their return from Windham did the alibi begin to come up.” Benedict’s statement went unchallenged by Michael’s lawyer, Mickey Sherman, even though it was unsupported by any evidence.
First, the Sursum Corda alibi was not hatched for the first time in Windham, as Benedict told the jury. Littleton himself had told the police, before departing for Windham, that Michael had gone in the Lincoln to Sursum Corda. Michael, Tommy, and John had all given consistent statements to police about the Sursum Corda trip, prior to leaving for Windham.
Second, at trial, Littleton testified that the trip to Windham was his idea, not that of any Skakel. Littleton said he wanted to get the children away from the press and police and the morbid conditions at Belle Haven. In truth, the Skakel boys would have gone to Windham anyway. They travelled to the Catskills every autumn and winter weekend to hunt, fish, and ski. Inexplicably, Littleton wanted to drive his own car that weekend. Therefore, Tommy drove his little brothers Michael and John in the station wagon.
Benedict said that all the Skakel family, as well as Jimmy and Georgeann Dowdle, were parties to the Windham trip. However, Rucky Skakel, the so-called mastermind of the Windham conspiracy, did not even go to Windham that weekend. Also not present was Rush Jr., who left for a long-planned Georgetown University Homecoming in the Revcon motor home on Halloween morning, not even knowing that Martha was dead. Twelve-year-old David and 9-year-old Stephen stayed home with Julie, who had little interest in fishing and hunting. Jimmy and Georgeann Dowdle were not there either. In fact, Georgeann Dowdle never visited Windham in her life.
This was a shorthanded conspiracy indeed! The only adult present was 23-year-old Littleton, who would spend the next two decades fending off accusations that he was Martha’s killer. Benedict never ventured to speculate how Littleton’s interests were advanced by participating in a conspiracy to protect the Skakels, whom he had met for the first time the previous day. To the contrary, it would have been very much in his interest to expose a Skakel conspiracy, had one existed. After Littleton, the next oldest “conspirator” was 17-year-old Tommy, who had begun a romance with the victim the previous night and was now supposedly helping his 15-year-old brother—his despised “nemesis,” according to Benedict—to thwart justice.
Benedict presented no evidence of a Skakel conspiracy, only wildly speculative assertions. Unfortunately for Michael, Benedict and the media had by then primed the jury into believing almost anything. Benedict had the jury teed up to convict no matter how flimsy the evidence of guilt.
Finally, if Benedict had evidence of a conspiracy, he surely would have charged other Skakel family members and friends as co-conspirators. He did not. In fact, he showed no documents, no admissions, no conversations or acts to further the conspiracy theory—no evidence whatsoever. He simply told the jury it was so—and they bought it. That is the power of a prosecutor when trying notorious crimes.
Benedict’s Scenario B: Michael went to Sursum Corda and then murdered Martha after returning to Belle Haven after 11:20 p.m.
As he approached the finale of his summation, Benedict made an astonishing pivot that should have signaled to the jury his extreme lack of confidence in his entire case. Benedict shattered that fundamental strategic rule—that litigators should always pick a single “Theory of the Case” and stick to it. In a bold gamble, he offered the jury a hedge: Michael, he posited, could have gone to Sursum Corda, and then returned with his brothers at 11:20 p.m. and killed Martha any time before morning.
Scenario B had even greater problems than the conspiracy theory. For starters, it deprived Michael of motive. In that sense, it obliterated Benedict’s entire case. If Michael left for Sursum Corda at 9:30 p.m., he would have never seen Tommy and Martha smooching. (In fact, Michael didn’t even know about Tommy’s romance with Martha until 1998, when he heard about it on TV.) Michael therefore would have had no jealous rage and no reason to kill Martha. This is a gaping hole in Benedict’s theory and yet, astonishingly, Benedict never even bothered to offer the jury a way around it.
Benedict’s second problem with Scenario B was opportunity: if Michael got home at 11:20 p.m., he could not have killed Martha at 10:00 p.m.
In 1975, Connecticut law-enforcement officials consulted the nation’s preeminent forensic pathologist, Houston, Texas, medical examiner Joseph Jachimczyk, who established the time of Martha’s death as between 9:30 p.m. and 10:00 p.m. Jachimczyk based his conclusion on the condition of Martha’s bladder and the contents of her stomach. Martha had eaten a grilled cheese sandwich at about 6:00 p.m., Dorthy Moxley told police. She ate ice cream at the Moukads’ shortly after 7:00 p.m. The autopsy found no undigested food in her stomach, only three ounces of liquid—probably a Coca-Cola that she drank when she went inside at the Skakels’. The stomach normally clears most food in two to three hours and liquid within 30 minutes. The Connecticut police also consulted Detroit’s medical examiner, Werner Spitz, and New York City deputy chief medical examiners Michael Baden and John Devlin. They all generally concurred with Jachimczyk.
Police also relied on non-medical indicators: the barking dogs, Martha’s curfew, her appointment to call Margie at 9:30 p.m., and Dorthy Moxley’s testimony that she heard Martha cry out and the “excited” voices of men around 10:00 p.m. For 25 years the police operated under the assumption that the mu
rder occurred around 10:00 p.m. In fact, interview records show that when police questioned witnesses and suspects in the aftermath of the murder, they specifically asked about the person’s activities and whereabouts between 9:30 p.m. and 10:30 p.m.
Benedict, therefore, had to fudge the time of death. “For Michael’s accusers to be correct, the time of death had to be moved back,” says Michael Baden, who later served as the chief medical examiner for New York City. While consulting with the Connecticut Police in the Moxley case, Baden had become friendly with the Moxley family. At Dorthy Moxley’s request, he acted as a liaison between the Greenwich Police and Mark Fuhrman, who despised each other, while Fuhrman was researching Murder in Greenwich.
At the trial, Benedict summonsed Connecticut’s former chief medical examiner, Elliot Gross, who had performed Martha’s autopsy. But then Benedict did something very telling. He never put Gross on the stand. His decision to subpoena Gross and then not to call him was certainly a tactical maneuver. Clearly Gross was either unwilling or unable to support Benedict’s theory that the murder occurred after 10:00 p.m. While the original chief medical examiner cooled his heels in a back office, Benedict called Connecticut’s current chief medical examiner, Wayne Carver, to serve as his expert witness. Carver, who had never worked on the Moxley case, evinced a pliancy that Benedict found handy. Based on his reading of Gross’s autopsy report, Carver testified that the murder might have occurred as late as 1:30 a.m. Mickey Sherman’s cross-examination was reliably languid and stunningly brief. He asked Carver a single question: “Could the murder have occurred at 9:30 p.m.?” Carver answered, “Yes,” and Sherman sat down. When Baden read the transcript, he told me, “I was very surprised. He never asked Carver the key question: ‘What was the basis of his opinion that the time of death could be both 9:30 p.m. and 1:30 a.m.?’”
And what of the barking dogs? “Frankly,” Benedict told the jurors defensively, “the barking dog evidence I think seems silly. Dogs bark,” Benedict said. “They bark more on Mischief Night.”
The third major problem with Benedict’s Scenario B—and it’s a mind-boggler—is how Michael might have found Martha after 11:20 p.m. in order to kill her. Let’s look at the hurdles 15-year-old Michael would need to overcome.
Benedict himself stated during trial that Tommy “was fast asleep” when the boys returned from Sursum Corda at 11:20 p.m. So, where was Martha hanging out between 9:50 p.m., when Tommy last saw her heading home, and 11:20 p.m.? Why did she decide to violate her curfew? Why was she not seen by anyone during this period? It was freezing outside; none of Martha’s friends reported seeing her; she wasn’t eating—the only content in her stomach was approximately 3 ounces of unabsorbed liquid. The grilled cheese sandwich had already vacated her stomach. As Martha’s diary attests, she was an avid drinker and pot smoker. But toxicology reports showed that she did not have alcohol, marijuana, or any other drugs in her system when she died. And she died with her hymen intact, so she wasn’t somewhere in the neighborhood getting high or having sex. Where exactly did Benedict imagine Martha to be? Perhaps she was at home, and Michael somehow coaxed her out—and then murdered her? Benedict never says. But is it plausible that Martha went home and somehow sneaked past her worried mother who was already frantic about her failure to return at curfew? Is it possible that Michael somehow snuck her out again, past her anxious mother and her protective older brother, John, who had returned home at 11:20 p.m. and was still awake? And, after luring her out, is it likely that small, prepubescent Michael, with no apparent motive, beat Martha to death, stabbed her through the neck, and then dragged her body toward, not away from, the Moxley house, all within a few yards of her mother and brother?
Benedict didn’t speculate how Michael might have found Martha to accomplish this marvel. He simply pronounced that that mystery was “one of the controversies of the trial. But, as you will see, it is not one that the State necessarily has to resolve in order to convict.”
Benedict was perfectly comfortable leaving these questions unanswered. Michael, after all, Benedict averred, had confessed to the crime on three occasions (more about these dubious confessions later). Other than Andrea Shakespeare’s strained testimony that she had an “assumption” that Michael may have stayed home from Sursum Corda, and Benedict’s unsupported speculation that the figure seen by Julie Skakel running past the kitchen window around 9:30 p.m. may have been Michael, Benedict had offered no evidence whatsoever to support either of his theories. Any of these questions should have constituted reasonable doubt to a jury.
The prosecution seemed to be saying: “Hell, who cares how he did it?” The important thing was that Michael was guilty; how he did it was unimportant. Benedict simply turned over the mystery to the jurors. And he urged them not to be too rigorous about sorting out all the nettlesome details. “As regards time, you must be unanimous that the crime occurred during the time set in the information, 9:30 p.m. to 5:30 a.m. And that’s all. For that matter, if half of you were to buy into Zock the dog and figured the crime happened early and not accept the alibi and the other half of you were to accept the alibi and conclude the defendant … came by later at night and did it, nevertheless if you all agree beyond a reasonable doubt that the defendant murdered Martha Moxley, you must convict.”
Instead of proposing a solid theory and presenting the jury with evidence that established it as true beyond reasonable doubt, Benedict’s strategy was to skip quickly ahead to the murder itself and then to hope the jurors’ horror over its gruesome details would patch over the yawning gaps in his narrative.
With all his double-talk about those pesky chronologies behind him, Benedict transports Michael and Martha to a patch of grass in the middle of the Moxleys’ circular driveway—never explaining how they got there, and before anyone can say “reasonable doubt,” Michael strikes Martha with the golf club. “She wasn’t knocked unconscious there because we learned that she was somehow able to travel from here to here,” Benedict said, indicating with his pointer on a crime scene diagram how Martha staggers 42 feet toward the Hammonds’ (a neighbor) house, before Michael belts her again with the six iron. He followed this blow, Benedict theorized, with several others creating a four-foot diameter pool of blood. “At that point,” Benedict said, “she was beaten at the blood scene mercilessly. Clearly the first blow or at most the second blow rendered her permanently unable to move.” Michael, he said, walloped her so hard, so many times that the club shaft weakened, and then snapped, sending the head of the club flying 100 feet north back to the location of the initial assault, on the grass inside the circular driveway. At this point, Benedict told the jury, Michael stood over Martha in the dark holding only a hollow piece of golf club shaft. “And as a continuation, but not a final step of the hate and humiliation, she was stabbed through and through and through with a piece of broken golf club shaft,” Benedict said.
Puny Michael then supposedly hauled Martha’s body almost a hundred feet, again toward the Hammond house, then for some reason stopped and took a sharp southeasterly turn back toward the Moxley house. He then dragged the body to the spot under the large pine tree where Sheila McGuire found her. At this point, or some other point—Benedict’s not specific—Benedict has Michael pull down Martha’s pants and panties. Apparently seconds—at most, minutes—after beating Martha to death, Michael is horny. With two bloody hands, he parts her legs. Benedict projected a crime scene photo onto the courtroom movie screen. The jury saw a red stripe visible on Martha’s left inner thigh. “That’s not a bruise,” he said. “It’s not any other kind of injury. Rather it’s a smear, as Dr. Henry Lee testified. This is evidence that somewhere in the bloody assault scene, somewhere during the drag episode, but most likely underneath the tree, he administered the sickest of humiliations.” Having just murdered his friend and next-door neighbor, Michael purportedly stands triumphantly in the middle of Martha’s yard, downs his own pants, masturbates, and ejaculates on Martha’s body. Benedict, who lifted this masturb
ation scene directly from Fuhrman’s book, never tried to explain away the fact that the coroner found no ejaculate on Martha’s body. But Benedict found Fuhrman’s scene too deliciously gruesome to omit. It would, after all, galvanize the jurors’ fury and put them beyond the reach of rational thought.
It’s now either 10 o’clock or midnight—Benedict gets necessarily vague here—as Michael, in the freezing cold, stands masturbating, while Zock, less than 100 yards away across Walsh Lane, barks furiously. To Benedict, the dog’s reaction proved his case (or not). “Of all the players in this case, who was the one that most tormented Zock?” Benedict asked. “Who was the one that Zock hated? Who was the one that would cause Zock to become most agitated in that neighborhood? Michael Skakel.” There was no evidence during trial that Michael had ever tormented Zock. Benedict, undeterred, as usual, by Sherman, was on another flight of fancy. (Michael is a dog lover. Children and dogs gravitate toward him. Helen Ix testified at trial that “Zock barked at everybody.”)
And then, according to Benedict, Michael disappeared into the night, carrying the golf club handle. The disposal of the murder weapon, he postulated, represented the first step in the 30-year-long family conspiracy to hide Michael’s link to the murder. The handle, Benedict said, would be embossed, like some of its sister clubs with “Mrs. R.W. Skakel, Greenwich, CT.” The very fact that police never found it at the crime scene, or anywhere else, pointed the finger, he suggested, directly at the Skakels. “The piece that is missing has significance only to somebody named Skakel.” Ignoring the science of fingerprint identification, Benedict reasoned, “Now, you want to think about this for a minute? Is there any reason why a stranger … would have any reason to hide that label? No. Such a person would have all the reason in the world to simply leave that identifying label right next to the body” (unless, of course, their fingerprints were on it). In fact, Benedict knew that the golf club handle actually had been recovered, then lost, by police. The first two officers on scene reported finding the club’s handle, with its leatherette grip, protruding from Martha’s neck. The Moxley family’s physician subsequently saw the handle lying next to Martha’s body. Characteristically, Mickey Sherman never pursued that lead.
Framed: Why Michael Skakel Spent Over a Decade in Prison For a Murder He Didn't Commit Page 7
