Recall that the Lincoln pulled out of the driveway around 9:25 p.m. Julie and Andrea didn’t emerge from the house until 9:30 p.m. Helen, who stayed in the Skakel yard a few minutes after the Lincoln departed, never recalled even seeing Andrea that night. Until emerging from the house, Andrea was essentially in an information dead zone. Even though she didn’t see any of it, 16 years later she suddenly had a weird feeling, a hunch, an impression, that Michael was one of four people in the backyard when the Lincoln left. She naturally would have heard over the years that there were four people in the yard, because there were: Helen, Martha, Tommy, and Geoff, whose very presence apparently remained unknown to Andrea for 16 years.
This interview would not become noteworthy for another four years, when Garr returned to talk to her. By then, Dunne and Fuhrman had transformed the Sutton reports into the Rosetta stone of the case. And Garr was looking to pin the crime on Michael. At this point, Garr began drilling Andrea, and in the process, clearly implanting false memories in her brain. “I must have talked to her 165 times between that day and the last time I saw her in court 11 years later,” Garr told Levitt. “Each time, I would say to her, ‘Andrea, just tell me why you are so sure that Michael didn’t go.’”
Garr’s staccato questioning on that single point is a perfect example of the “misinformation effect,” according to one of the world’s preeminent experts on memory, Dr. Elizabeth Loftus of the University of California-Irvine. “What happens is people get feedback after they give an initial recollection and that feedback can artificially inflate their confidence,” she says. “I study how post-event information can contaminate people’s memories. If somebody comes along and either tells you somebody else’s version of the events or insinuates something to be true, many people will pick up on it and adopt it as their own memory.”
This is not junk science. Loftus, a Stanford psychology PhD, is a giant in her field. Since she began studying memory in the 1970s, she and her students have performed more than 200 experiments involving over 20,000 people, definitively proving how exposure to misinformation can induce memory distortion. In one study, she showed participants a simulated car accident at an intersection with a stop sign. Afterward, half of the participants received a suggestion that there had been a yield sign at the junction. The recipients of the suggestion tended to “remember” seeing a yield sign. Those who had not received the bogus information were much more accurate in their recollection of the stop sign. In one study, people “recalled” a large barn in a bucolic scene that contained no buildings at all. In another, by simply including a paragraph describing a fabricated childhood memory among a written description of other actual memories—getting lost in a mall at age 5, crying, being aided by an elderly woman, and finally reuniting with family—she successfully induced 29 percent of study participants to “remember” an event that never happened.
A decade after saying she didn’t know why she thought Michael had stayed behind and that she hadn’t seen Michael in the house, Andrea’s memory had improved immeasurably. Not only had she absorbed Garr’s drumbeat interrogations, she admitted having read Fuhrman’s book, which reintroduced and fortified Garr’s suggestions. At trial, Assistant State’s Attorney Susan Gill led her through her recollections of the Lincoln and its occupants.
GILL: And at some point earlier that evening, was there a Skakel car parked in that side driveway?
SHAKESPEARE: Yes.
GILL: And after that car left, you left, correct?
SHAKESPEARE: I left after the car left, yes.
GILL: Was Michael Skakel in the house after that car left?
SHAKESPEARE: Yes.
GILL: And have you ever had any doubt in your mind about the fact that Michael Skakel was home after that car left from the side driveway?
SHAKESPEARE: No.
GILL: From 1975 to today, have you been certain that Michael was home after that car left?
SHAKESPEARE: Yes.
Under Sherman’s cross-examination, she went even further. In 1991, she’d had no idea that Martha and the boys had even been sitting in the car listening to music in the moments just before the Lincoln left. Now, in 2002, she remembered seeing the car.
SHERMAN: Did you indicate to Inspector Garr that you believed that only Rushton and John Skakel drove Mr. Terrien home but you’re not sure if you saw them leave?
SHAKESPEARE: I saw them leave.
SHERMAN: Are you sure about that?
SHAKESPEARE: Yes.
Sherman handed her a transcript of the 1991 interview, but when confronting proof of her contrary recollections, Shakespeare insisted her new memories were more accurate.
SHERMAN: Does that document refresh your recollection as to whether or not you told Inspector Garr in 1991 that you are not sure if you saw them leave?
SHAKESPEARE: Yes, that’s what the document says.
SHERMAN: And, in fact, did you tell Inspector Garr in 1991 that you were not sure if you saw them leave?
SHAKESPEARE: Yes.
SHERMAN: Is that different from your testimony today?
SHAKESPEARE: No.
SHERMAN: So you are saying all along that you are not sure if you saw them leave.
SHAKESPEARE: No, I am sure that I saw them leave.
Though testimony like this makes it a challenge, I’ll continue to give her the benefit of the doubt that she didn’t intentionally perjure herself. (I called Andrea to discuss her testimony, but she didn’t call back.) “I am so shocked at Andrea Shakespeare,” says her former best friend, Julie. “I’m just in a tizzy about her testimony that Michael did not go to the Terriens. There’s no way that she knew that. She didn’t even know that the boys had left.”
Higgins, Coleman, and Andrea were undeniably the big three prosecution witnesses in Michael’s trial. No other witnesses came close to inflicting the kind of damage they did. There was, of course, ample evidence and experts available for Michael’s defense to counter every claim these witnesses made. Unfortunately for Michael, the jury heard almost none of this evidence. There’s a simple explanation for this: Mickey Sherman.
Sherman proved inept in countering Andrea’s ambiguous testimony that she was “under the impression” that Michael was in the Skakel house when she left. A competent lawyer would have objected to Andrea’s testimony because it was speculation not based on personal knowledge. A skilled lawyer adept at destructive cross-examination would have destroyed Andrea’s claims as a recent fabrication.
During Michael’s habeas corpus hearings, Sherman testified that he had reached out to memory expert Elizabeth Loftus but opted not to call her to testify, because he thought she would be of no help. Sherman was lying. Loftus looked through her detailed work notes for me and did find that she’d indeed once consulted with Sherman on a case, but not until 2004, when he was defending Mark Mangelsdorf, a Harvard Business School graduate and corporate executive accused of a 22-year-old murder in Kansas. “He consulted with me on the Kansas case but I don’t see anything about Skakel,” she says. “I don’t see any notes or anything.” Loftus says she would have been able to contextualize Shakespeare’s testimony recounting details from an evening 27 years earlier, especially given Garr’s “165” interviews with her. “The weaker the memory, the easier it is to contaminate,” Loftus says. “If I want to contaminate somebody’s memory I just let some time pass so it can fade and it becomes more and more malleable.”
Even with a crooked cop willing to suborn perjury, manufacture a confession, conceal exculpatory evidence, leak grand jury testimony, and illegally seize evidence; even with an unscrupulous prosecutor, a skillfully manipulated press corps clamoring like a lynch mob for his conviction; even with a bitter and venal family lawyer nurturing a secret vendetta and manufacturing evidence to hang him, Michael still shouldn’t have lost the case. Unfortunately, Michael’s family hired Mickey Sherman to defend him—possibly the worst lawyer in Connecticut.
PART VI
The Lawyer
CHAPTER 20
The Clown
A good trial lawyer, no matter what the case, no matter what the court, thinks about that case to the exclusion of everything else for whatever time is available to prepare that case. I know trial lawyers who if they have six months to try the case, will stop reading the newspaper for those six months. They don’t open the mail, because it’s distracting. Your mind is focused upon that trial to a degree of concentration unknown to practitioners in any other branch of the profession, and unknown to any other kind of professional. You think of nothing else! You live, sleep and breathe that trial.
—Professor Irving Younger, The Ten Commandments of Cross-Examination
A great lawyer is someone who can at least appear to give a damn.
—Mickey Sherman, How Can You Defend Those People?
Initially, it appeared that Mickey Sherman would be providing the kind of gold-plated defense that would justify the staggering $2.2 million that the Skakel family scraped together to pay him. (They paid another $498,000 to lawyers subcontracted by Sherman.) On April 4, 2000, there was barely room to shoehorn all the lawyers and paralegals into Sherman’s office at Sherman & Richichi. Sherman’s workplace hardly reflected the glitz and glamour he invested in his suits, cars, restaurants, and ostentatious jet-set celebrity friendships. In contrast to the flashy accessories of his public persona, Sherman’s law office was an unassuming, two-story colonial in a blue-collar Stamford neighborhood. With no conference room to accommodate the crowd, participants dragged chairs into Sherman’s first-floor office and squeezed around his desk. Taking his cue from the successful O.J. Simpson defense, Sherman had assembled a “Dream Team” of world-class criminal trial lawyers, including celebrated defense attorney Linda Kenney Baden; prominent New Haven criminal lawyer David Grudberg; and Tara Knight, the skilled, pretty, blonde Court TV litigator, whom Mickey was dating at the time. Also in the room were three green legal assistants in their 20s whom Sherman had tapped for the grunt work: his son Mark Sherman, who was admitted to the bar two years earlier and had no criminal law experience; Stephan Seeger, aged 33, who passed the bar three years earlier; and 26-year-old Jason Throne, freshly graduated from the University of Florida law school and who had yet to pass the bar. Manny Margolis, Tommy’s lawyer, was also present. (Margolis had recommended Sherman to the Skakel family.)
A self-described “Jersey girl” with a fondness for high-stakes poker and chunky turquoise jewelry, Linda Kenney Baden is one of America’s top-shelf criminal defense attorneys. Point by point, in Sherman’s office, she outlined the gaping holes in the prosecution’s case against Michael Skakel and the evidence the defense would need to assemble in order to exploit each weakness. She had come to the meeting loaded for bear.
“We must find Theresa Tirado,” Kenney Baden read from a three-inch thick notebook that contained her itemized inventory of tasks the defense would need to check off before declaring “trial ready.” Locating and re-interviewing Theresa Tirado was at the top of the list. Tirado, the Moxleys’ housekeeper, had reported finding a bloody handprint in the Moxley home the day after Martha’s murder. Tirado’s statements, combined with suspicious inconsistencies in John Moxley’s alibis, his reputation for violence, and a string of odd behaviors, all added up to a winning third-party culpability defense. Kenney Baden considered it imperative to reach Tirado and confirm her story. Sherman nodded, as though taking it all in.
Michael’s trial team needed to find an exact replica of the Toney Penna six-iron that killed Martha and subject it to stress-testing, Kenney Baden continued. She suggested Sherman assign his investigators to locate its twin on eBay. She was confident that testing would prove it was impossible that a boy of about 120 pounds could have broken that club. In his illustrious and storied 40-plus-year career, Kenney Baden’s husband, world-renowned forensic pathologist Michael Baden, had seen many murders by golf club. However, he had never seen a club shaft snap during an attack. When two beefy mobsters wielding golf clubs beat Mafioso capo Vincent “Jimmy Sinatra” Craparotta into a state of liquefaction, on the floor of his New Jersey car dealership in 1984, the golf clubs were unscathed. “Craparotta’s head broke and the cement floor cracked and chipped but the golf clubs stayed intact,” Kenney Baden recounted. In testimony before a 1993 grand jury, Lucchese mob informant Philip Leonetti explained, “Marty [Taccetta] told me it’s better to use golf clubs than baseball bats, because baseball bats break. … Golf clubs, they do a lot of damage and they don’t break.” To shatter the golf club, Martha’s killer would have had to be a colossus with Herculean strength.
Kenney Baden continued: The Dream Team needed to collect a slide show of contemporaneous Skakel family photos. The jurors must repeatedly see how tiny Michael was at the time of the crime. No one would believe that a kid that small would have the strength to commit the savage assault and then drag Martha’s body 78 feet.
Sherman would need to retain a first-class jury consultant, Kenney Baden insisted. Jury selection is a science that ought only to be entrusted to trained experts.
Sherman would need to re-interview Elliot Gross, the medical examiner. Kenney Baden read from a long list of unanswered questions she had constructed by critically dissecting his autopsy report: the inexcusable sloppiness of record keeping, the absence of autopsy photos, the lost vaginal and anal swabs and slides, and the botched handling of the hair evidence. If presented properly, these defects alone would be sufficient to raise the reasonable doubt necessary for acquittal.
I was curious to know how many items from Kenney Baden’s to-do list Sherman checked off during the more than two years between the Dream Team’s Stamford meeting and Michael’s trial, and what Sherman had unearthed. Vito Colucci, Sherman’s primary investigator, told me that the name Theresa Tirado didn’t ring a bell. He explained that he took all his marching orders from Sherman and his son, Mark. Neither one of them ever mentioned Tirado. In fact, Sherman never asked Colucci to do anything related to John Moxley.
Sherman never commissioned any scientific tests on the golf clubs. He never introduced a photo of Michael at age 15 to jurors, while allowing Benedict to introduce one of the family photos seized from Richard Hoffman’s apartment that showed a big, bulked-up Michael at age 19. A prosecution witness falsely claimed it looked to be from the approximate time of the crime. Sherman didn’t object.
Dr. Elliot Gross told my investigator that Sherman made no effort to re-interview him.
Most disastrously, Sherman elected to skimp on jury selection. Michael repeatedly asked Sherman to hire a jury consultant. Sherman told Michael, “We don’t need one. Too expensive.” Sherman fancied himself a sharp jury-picker. In his book, he advises defense attorneys to use preemptory challenges to remove any juror who is predisposed toward the prosecution. As an example, he recommends that defense attorneys avoid seating a juror who admits to regularly watching Nancy Grace. “No offense to Nancy—she’s a good friend, and I’m a fan of hers. It just sends the message that they are probably pro prosecution.” He penned that wisdom six years after Michael’s trial. (Michael successfully sued Sherman’s “friend” Nancy Grace for her wildly biased reporting about him.) “Why should I begin this race from a quarter mile behind the starting block?” Sherman asks.
So, it’s mystifying why Sherman would not use one of his peremptory challenges to prevent Brian Wood, a Darien cop, from sitting on Michael’s jury. Most defense lawyers would deem it malpractice to allow a cop to sit on a jury in a criminal case; police understandably have a predilection to convict and the capacity to influence other jurors with inside knowledge. Furthermore, Wood had a personal beef against Sherman; one of Sherman’s clients had assaulted him. Wood rode motorcycles with Lunney, the Greenwich cop who had been the original lead investigator on the Moxley homicide and who had harassed Tommy for years, and believed that one of the Skakel boys was guilty. During voir dire, Sherman asked Wood if, in Sherman’s shoes, he would pick himself. “No,” Wood replied pointedly. Sherman picked hi
m anyway. Sherman also picked 39 year-old Laura Copeland from Stamford, who admitted during voir dire that her friend’s mother was close to Dorthy Moxley. “That was stupid,” says Seeger, who wasn’t in court during much of jury selection. “Leaving Mickey alone with Jason Throne at that jury selection always scared the shit out of me,” he says. “It was like, ‘What are these two nitwits going to do up there?’”
Sherman was aware that he was tempting fate. “I’m sure the jury experts are lining up to roast me tonight,” he wisecracked to the press, as he left the courtroom after impaneling the cop. That night, Colucci got calls from two Darien police officers he knew: “What on earth was Mickey thinking by allowing Lunney’s friend on the jury?” Colucci called Sherman at 1:00 a.m. “Mick, what did you do today?” Colucci asked him, gravely. Sherman knew exactly what he was talking about. “Don’t worry, guy. Don’t worry,” he reassured his investigator. “I know what I’m doing. You don’t understand. This’ll show we really won this case. Vito, I’m going to put a cop on the jury and I’m still going to win.” Colucci shakes his head at Sherman’s hubris. “Mickey liked pushing the envelope,” Colucci said. “I was mortified when I heard about some of his selections,” Seeger said. “It was swagger … machismo. He thought he was going to win no matter what. From a lot of people’s standpoints it was a case that could not be lost. But we really overestimated Mickey.”
One lawyer had no illusions about what was in store for Michael. Sherman disbanded the Dream Team shortly after that Stamford huddle in his office. The first to go was Linda Kenney Baden and her nettlesome list. It wasn’t her fee that irked Sherman; Rucky had committed to paying her separately. High standards and expertise were her downfall. Sherman retained only the greenhorns: his son, Seeger, and Throne. They were cheap, but, more important, they were less likely to second-guess Sherman’s seemingly odd judgments or compete with him for camera time. Sherman cautioned the rookies that he alone would deal with the press. “I was just out of law school and had never worked on a major trial,” said Throne. “Mickey kept everything close to the chest. He didn’t share his strategy with any of us.” Media-savvy Kenney Baden, an experienced capital crime litigator, undoubtedly threatened his primacy.
Framed: Why Michael Skakel Spent Over a Decade in Prison For a Murder He Didn't Commit Page 32
