The Skakels were appalled by Sherman’s obsequious relationships with Dunne and Fuhrman. During the trial breaks, Sherman clowned and mugged for photographs with Michael’s two archenemies. He partied at Dunne’s house and arrived at the Norwalk courthouse with Dunne in a shared white stretch limo. His shenanigans with Dunne and Fuhrman were devastating to his client’s morale. I called Sherman to complain, even though I had no authority from his client. “I can’t help it,” he told me. “I’m a suck up.”
The day after the conviction, Sherman told me that he was going to a Court TV party for Dunne. When I questioned the propriety of his attending, he said, “We’re friends. What can I say? I’m a kiss-ass.” Following Michael’s conviction, Sherman startled CNN staffers with an unscheduled greenroom appearance to visit Dominick Dunne and Dorthy Moxley as the three awaited separate Larry King Live interviews. He told Moxley that he was “happy” for her. Dunne instantly reported the remark. At Michael’s sentencing, Sherman, quoting a probation report, said that Michael was “an entirely different person today than he was at 15.” Both statements left public doubt that Sherman believed in his client’s innocence—although Sherman protests that this was not his intent. He told me repeatedly that he was certain that Michael is innocent.
On one of the final days of trial, Sherman picked up a pen camera he kept stashed at the defense table. While court was in session, he took selfies of himself and Michael with me in the background. Wearing a goofy grin, he next snapped photos of the jury and everyone in the courtroom. It was all a big party for Sherman.
MICHAEL BECAME increasingly skeptical and critical of his attorney’s erratic behavior—particularly after Sherman lost his laptop. “During the trial, Mickey’s laptop was stolen from his office,” Colucci remembers, by Sherman’s client. According to Colucci, Sherman’s erectile dysfunction thwarted his burgeoning sexual relationship with her. Embarrassed, Sherman stopped returning his jilted client’s phone calls, prompting her to steal his computer. She fled with the laptop to New York. The hard drive housed Michael’s trial files and strategies. As Sherman’s staff searched frantically for her across two states, she goaded them by phone. “She would kid around saying, ‘Oh, I made a copy of everything.’ Who knows? But I never saw Mickey so crazy before.”
From his prison cell, Michael wondered if the hard drive might have ended up in the wrong hands: the Skakel trial message boards lit up with anonymous but detailed and plausible-sounding accounts from people claiming to know the woman. They swore that she’d accessed Sherman’s trial notes for the prosecution team. Michael fretted that Sherman himself might have been compromised. He wonders if incriminating personal information on the computer could have been used against Sherman. Michael believes his attorney deliberately threw the trial. His theory is not farfetched. Losing the case required an almighty effort.
Still, I don’t believe Sherman deliberately threw the trial. I think he crashed in the deep end after a high flight on booze, parties, and self-will run riot. Stephen says that when the family gathered each morning at Julie’s house in Darien for the trip to the courthouse, a ragged Sherman often arrived seemingly directly from the previous evening’s debauchery.
By the time the Skakels realized they should have moved on from Sherman and his wild behavior, they felt it was too late to change lawyers. Julie told me, “We’d already paid Sherman a million dollars, and at that point it was too much.” It wasn’t until they consulted with a new lawyer post-verdict that they realized how catastrophic his representation had been.
Here’s a far-from-comprehensive list of the things that Sherman failed to do, in addition to ignoring all the recommendations from Kenney Baden:
1. Even before the trial began, Sherman failed to make an interlocutory appeal based on Michael’s strongest legal argument—that the court no longer had jurisdiction to hear a case against anyone who was accused of a murder that took place in 1975. At that time, Connecticut’s statute of limitations for second-degree murder was five years. Sherman claimed that he thought the right time for such an appeal was after the final judgment. This makes no sense. “The whole point of an interlocutory appeal,” Hope Seeley, the lawyer in charge of Michael’s appeal, explained, “is not to have to wait for a final judgment—or endure the expense and emotion of a lengthy trial.” Monumental self-interest is the only reason that Sherman failed to file the appeal. An early victory in such an appeal would have deprived Sherman of the visibility and money he would earn at a nationally publicized trial.
The defense seemed foolproof. The lead case was Paradise v. Connecticut. Seventeen-year-old Wilmer Paradise stabbed a woman to death in 1974 and wasn’t charged until 1992. The State Supreme Court reversed Paradise’s conviction, declaring that the statute of limitations had expired. Former Solicitor General Theodore “Ted” Olsen, acting as Michael’s consulting attorney on that appeal, told Michael that it was a surefire ticket to freedom. “There is no way that the State of Connecticut can hold you on a criminal charge for which the statute has expired—after all, it’s the Constitution State!” As he awaited the court’s decision on the post-verdict motion, Michael met Wilmer Paradise, now the leader of a biker gang, in prison on another murder charge. “You are free, man,” the former teen killer told him. “I paved the road for you—just wait.” Both the biker and Ted Olsen underestimated the political pressure on the Connecticut Supreme Court to uphold Michael’s conviction. After a three-week jury trial, with all its attendant national publicity, three days of deliberations, and $25 million invested in Michael’s conviction, an acquittal based on a “technicality” became a political hot potato too dicey for the justices to dish up. It became less perilous for them to change the Constitution; the same Supreme Court that freed Wilmer Paradise reversed years of precedence and declared that the five-year statute of limitations no longer applied.
2. At least a year before the trial, Vito Colucci located Kaseman and Gerbino, the two Rochester cops who offered to testify that Coleman was a junkie with a long criminal record and a committed and habitual liar. Colucci recalls that “as soon as I got off the phone, I ran right down to Mickey’s office and said ‘Mick, you gotta call these guys. These guys know Coleman better than anybody.’ Every couple of weeks I said, ‘Mickey, did you call the cops from Rochester?’ Mickey’d say, ‘Yeah, yeah, I’ll get them.’ Then when we came to trial, I said, ‘Did you ever call those cops from Rochester?’ He said, ‘Don’t worry about it. We don’t need them.’” After David Letterman joked on The Late Show that he wanted to sit on the Skakel jury, Sherman found time to write up, for a newspaper, a “top 10” list of why he would pick David Letterman for the jury. Preoccupied with such self-indulgent frivolities, he never found the time to call Kaseman and Gerbino, and failed to impeach Greg Coleman’s devastating testimony.
3. Sherman also failed to get a copy of the so-called Morganti sketch. The sketch, based on Belle Haven security guard Charles Morganti’s recollections of a figure seen twice near the crime scene on the night of Martha’s murder, is strikingly similar to Kenny Littleton. The sketch would certainly have bolstered Michael’s third-party culpability defense. Benedict and Garr are guilty of prosecutorial misconduct for not turning over the sketch in discovery. However, Sherman also is guilty of malpractice for not requesting it. Police reports specifically mentioned the sketch, but Sherman apparently never read the police reports. After the trial, Stephen took possession of Sherman’s three boxes of police files. One box contained dog-eared papers with notations in the margins. He was horrified when he opened the two other boxes. The papers inside were pristine, straight, and unwrinkled, as if they’d just been picked up from a copy center. “It was clear from their condition that nobody had ever read them,” he said.
4. Perhaps in recognition of Dunne’s solicitude toward Littleton, Sherman refused to allow Julie or the other Skakels to testify about the strong evidence against Littleton. When I asked Sherman during the trial why he was not aggressively questioning
Littleton, he said, “He’s a pathetic creature. I don’t want to look like I’m beating up on him.” When Sherman called Jack Solomon to the stand, Solomon appeared with a three-ring binder containing nearly three decades’ worth of police information about Littleton and Tommy and a summary of the State’s cases against them. The binder included evidence that linked Littleton to over a dozen serial murders. That information was vital to Michael’s defense. During his cross-examination of Solomon, Sherman asked for the documents. Judge Kavanewsky chided him for his timing. “Not right now,” Kavanewsky told him. “You are talking about examining the witness.” Sherman never renewed this request. Sherman apparently forgot to have the binder marked as an exhibit or placed in evidence. At Michael’s 2013 habeas hearing, Sherman claimed that Judge Kavanewsky had looked angry at his request and that he didn’t renew it out of fear of further provoking him. Sherman loved to be loved and that craving was ruinous to his client.
5. Solomon’s binder also contained a report, co-authored by Garr, that stated unconditionally that the police knew Michael was at Sursum Corda at 10:00 p.m. This one sentence in the report could have saved Michael: “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 GEOFFREY BYRNE began to walk to their homes, leaving only THOMAS SKAKEL and MARTHA MOXLEY standing in the driveway.”
This statement by Garr and Solomon would have provided the “independent observation, independent conclusion” about the Sursum Corda trip that Benedict argued persuasively did not exist. Sherman understood the critical importance of this statement. He explained to the Skakels that it “married” Garr and Solomon to the defense case. Then he forgot to move it into evidence. Sherman’s failure to get this document before Michael’s jury was, by itself, a glaring act of malpractice.
6. Sherman didn’t prep his witnesses. He never provided my cousins with copies of their statements to police before they testified. It’s nearly inconceivable that Sherman could have whiffed on this one. As a law professor who has taught trial practice for 30 years, I can attest that every textbook on trial advocacy stresses the critical importance for witnesses to review every prior interview, deposition, and statement before testifying. It’s an essential part of witness preparation. In a case like this, where decades had passed and memories had dimmed since the witnesses made their original statements, review was particularly crucial. Since Michael was never a suspect, the trip to Sursum Corda was an inconsequential footnote that no one had any reason to recall with any clarity. With Michael’s indictment, that trip suddenly became immensely consequential. All the witnesses should have pored over those early statements with Michael’s attorney. It never happened. There was virtually no witness preparation. I spoke to John, Rush, Julie, and Jimmy, all of whom testified at trial. All independently told me that Sherman had never provided them with the 25-year-old police reports, statements, or interview transcripts to review. “Mickey never talked to any of us,” Julie said. “The only time I went to Mickey’s office was to tell him to shut his f-ing mouth and stop putting himself in the news. I told him his job was not to get Michael Skakel in the news every other day.” According to Stephen, “A couple of us did ask to go over the testimony and Mickey told us, ‘Don’t worry about it.’ Mickey said, ‘Just tell the truth.’ This is how Benedict was able to make such a big deal about Johnny’s testimony.” In 1998, my cousin John walked into his grand jury testimony blind. Sherman never showed him a scrap of paper. Michael paid dearly for that. In 1998, the one-man grand juror, Thim, had asked John what he remembered of a drunken, stoned night 23 years earlier. Understandably, John recalled virtually nothing. As he sat in the witness stand, Benedict provided him with his very first look at a transcript of his November 14, 1975, interview with police. John acknowledged that, while he had no specific recollection of any of it, his memory had probably been better two weeks after the crime. At trial, Benedict simply had John confirm his earlier testimony.
BENEDICT: Do you recall testifying to the grand jury that about the best you could recall about October 30, 1975, was being part of a group that had gone to Terriens’?
JOHN: Not specifically. I know that like here, I was presented with my testimony which I hadn’t seen since—I had never seen before actually.
Had Sherman done his job, a review of his earlier statements would have reflected his recollection that his brother was in the car. Instead, Benedict made John look like he was dissembling—a fumbling performance bound to underwhelm the jury.
BENEDICT: Is that your testimony today, that based on your recall here in the year 2002 and nothing else, that you just don’t recall whether your brother, Michael, was in the car that went up to the Terriens?
JOHN: That’s right. I would love nothing more than to have clearer memory, but that’s the way it is.
By not preparing his witness, Sherman provided an opening for Benedict to claim, as he did in his closing, that John was feigning lack of recall to avoid perjury. “Brother John missed the nail head completely when he testified … he somehow really can’t remember everything or can’t get the facts together anymore,” Benedict told the jurors. “Ladies and gentlemen, for all people there are things in life that you are compelled to remember, that you have a need to keep forever straight in your mind no matter how far in the past they are, things that become indelible. When your cousin or brother is a suspect in a horrendous crime and you happened to have been involved with that person on the night of that crime, common sense tells us that you will retain the events of that night as though they were on videotape.” Sherman’s screw-up provided legs for Benedict’s wild conspiracy theory that my cousins’ initial statements to police were contrived in a family meeting in Windham in 1975, to alibi Michael. “What the evidence says the Skakels and Terriens have done … is intentionally suppress their memories and claim a lack of recall,” Benedict said. “They spoke to the police in 1975. They were not under oath at the time. Certainly they were a lot more malleable then as 16- and 17-year-olds as they are now as adults. Certainly they are today a lot more aware of the consequences of lying.”
7. Sherman careened through the trial like a drunk driver late for a guilty verdict. One of Sherman’s most abysmal blunders was his failure to produce a non-family alibi witness to corroborate that Michael was at Sursum Corda on the night of the murder. Benedict exploited that gaffe as evidence of a family conspiracy. “Consider who the alibi witnesses are, all siblings or first cousins, not one single independent alibi witness.” In my cousin Georgeann Dowdle’s grand jury testimony four years earlier, she testified that on October 30, 1975, she was at home with her “beau,” by whom she meant local restaurateur Dennis Ossorio. Sherman failed to follow up on this crucial lead. Ossorio was now a widely respected 72-year-old psychologist, whose short relationship with Georgeann Dowdle ended decades before the trial. He had no conceivable reason to lie. Ossorio testified during Michael’s habeas appeals, and repeated to me personally, that he came into the room and watched Monty Python’s Flying Circus at Sursum Corda. Ossorio explained that while Georgeann was putting her daughter (from an early-life marriage) to bed, he spent time talking to Michael. Ossorio’s testimony was convincing proof that Michael was miles away from Belle Haven between 9:30 p.m. and 11:30 p.m., the period during which overwhelming evidence demonstrated the crime occurred. Had Ossorio testified, jurors would have been much more likely to acquit Michael.
8. Sherman’s third-party culpability defense was pathetic. Sherman was aware of the many suspects besides Kenny Littleton who could have committed the crime. He simply failed to follow any of the leads. “The theme of trial should have been all the people that are suspects here,” Kenney Baden said. “There was a lot of possible suspects that simply weren’t pointed out.” These included John Moxley, Ed Hammond, Peter Ziluca, and Franz Wittine, none of whom were properly vetted by police. And then there was Tommy. The long pol
ice preoccupation with Tommy provided Michael with a powerful third-party culpability defense. Law enforcement’s conviction that Tommy was the last person known to have seen Martha alive, combined with Tommy’s lies about his whereabouts that evening, certainly could pose a source of reasonable doubt as to Michael’s guilt. The Skakel family never asked Sherman to lay off Tommy. “I just told Mickey, ‘Do what you gotta do,’” Michael told me. An attorney’s duty is to vigorously pursue his client’s acquittal. But Sherman never brought up Tommy at trial. He now says that he decided not to because he thought Tommy and Littleton provided each other bulletproof alibis, because of their time watching television together. If Sherman’s choice was really the product of considered judgment, it would be a first.
9. Sherman could have called experts in memory manipulation and false confessions to obliterate the validity of any of Michael’s Élan “confessions” and impeach Andrea Shakespeare’s testimony. Michael relentlessly hammered this point to Sherman. Without expert testimony, he argued, people simply wouldn’t understand the complex dynamics of Élan. After hearing that Michael was convicted based on things he said at Élan, therapeutic cult expert Richard Ofshe couldn’t believe that Sherman hadn’t called him. “At the risk of sounding immodest, I was the person in the country to go to on this,” Ofshe says. “It would have been impossible not to get to me.” Following Michael’s conviction, Ofshe approached Sherman at the premiere of a TV movie based on a case Ofshe had worked on—the false confession and exoneration of Michael Crowe, the 14-year-old San Diego teen accused of murdering his younger sister in 1998. “I told Mickey I thought it was ridiculous that he did not have someone who could speak with authority about what these environments are like,” Ofshe says. “Without independent proof, you absolutely cannot put any stock in something that someone says in a setting like that. People would have confessed to anything there.”
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