The Unforgiving

Michael Skakel arrives at the Superior Courthouse in Norwalk, Connecticut, June 4, 2002 as the jury begins its first day of deliberations in his murder trial. Skakel, a Kennedy family relative who is now 41 years old, could face life in prison if convicted in the 1975 beating death of 15 year old Martha Moxley in Greenwich, Connecticut. REUTERS/Brian Snyder REUTERS

Andrew Cohen analyzes key cases and rulings for CBSNews.com and CBS News.

There was no physical or scientific evidence presented against Michael Skakel. No eyewitnesses came forward to identify him as the person seen killing Martha Moxley on the night of October 30, 1975. The police went through other suspects in the intervening decades before finally settling on Skakel. And even the "confessions" prosecutors used to build their circumstantial case against the defendant were filled with ambiguity and doubt.

So how could a jury of Skakel's peers convict him of Moxley's murder? The answer is both easy and difficult. The easy answer is that prosecutors were able to prove beyond a reasonable doubt that Skakel had both the motive and the opportunity to kill the 15-year-old -- motive because she was seeing his brother; opportunity because he was at or near the scene of the crime around the time it was committed. And they were able to string together enough confidence in Skakel's so-called confessions to assure jurors that no innocent person would have said the things Skakel said to various people in various contexts over the past 25 years.

The more difficult answer has less to do with the specifics of this case as it does with the general atmosphere in which juries deliberate these days around the country. Since the terror attacks in New York and Washington, jurors everywhere don't seem interested in excuses or explanations or fancy legal defenses. They aren't going out of their way to find complicated scenarios that would lead to acquittals or mistrials. "Reasonable doubt" always has meant different things to different people; now it means to just about everyone "reasonable doubt in a less forgiving world" and that's great news for prosecutors and bad news to defendants everywhere.

Pick any high-profile case since September 11th and then show me sympathy offered to a defendant. I suspect you can't. Andrea Yates' jury came back in about three hours with a guilty verdict after a parade of experts testified that she was grossly pyschotic when she committed the insane act of drowning her five children in the bathtub of their home. Yates got life and not death only because prosecutors took pity on her and practically begged jurors to go easy on sentencing.

Meanwhile, Marjorie Knoller, the owner of two big mean dogs, was convicted of second-degree murder when those dogs mauled neighbor Diane Whipple in San Francisco last year. Whipple's death was horrific but Knoller now faces a life sentence for not reining in her dogs quickly enough. Ditto for Bobby Frank Cherry, the now-convicted Birmingham church bomber, who got life in prison a few weeks ago without any direct evidence linking him to the crime.

The Skakel conviction fits neatly into this pattern of unforgiving juries. We'll never know if Skakel would have been convicted had this trial occurred one year ago, before the Twin Towers fell. But I would not have bet on it. This was not a strong prosecution case; in fact, it was one of the weakest prosecution cases I think I've ever seen, a case where there was no strong link and plenty of weak links in the chain of evidence and proof. The fact that a jury of Skakel's peers -- and they truly were his peers -- would convict him in these circumstances tells me that they weren't interested in the nuances of how his "confessions" came about or whom else the police had looked at after the crime. And they clearly didn't buy the various alibis Skakel had offered in various forms since 1975.

Skakel was convicted because he clearly was involved in something fishy that night in October 1975 and because his explanations never sufficiently explained away his conduct. It's not supposed to be that way in a criminal case -- the defendant is not supposed to have to prove his innocence -- but in large part that was Skakel's burden throughout this trial. Prosecutors barely stitched together a circumstantial case and then relied upon the jury's lack of confidence in Skakel's side of the story to get their conviction. It didn't help Skakel, incidentally, that he was not a model citizen in court during the trial or a particularly well-behaved one at the time of Moxley's murder. Young men who masturbate in trees in front of windows of young, murdered girls don't exactly make for wholesome, sympathetic defendants, even decades later.

Next is sentencing -- on July 19 -- and there almost certainly will be a huge fight over which set of statutes apply to Skakel. The defense will argue that the sentencing range is 10-60 years based upon the sentencing statute as it was back in 1975. The prosecution will argue that the range is more narrow; 25-60 years, based upon the sentencing statute in Connecticut now. Ultimately the judge will have to decide a specific sentence but don't be surprised if Skakel gets more than 25 years. Maybe the law will bind the judge to a greater range under 1975 precedent but that doesn't mean he has to or will give Skakel a break near the lower end of the range. This is 2002, remember, an unforgiving time when convicted murderers get the book thrown at them.

Then there will be an appeal of the conviction but don't bet on a reversal. First, there is the issue of jurisdiction since Skakel was a juvenile when the crime was committed. Connecticut judges already have ruled that it was appropriate to try Skakel in adult court so it's unlikely the defense would get very far in that direction. The defense also will appeal some of the key evidentiary rulings at trial, including a few rulings which permitted hearsay evidence (about Skakel's so-called confessions) to reach the jury box. But, again, appeals judges generally don't like to second-guess trial judges about the nuts and bolts of courtroom tactics.

Fair or not, accurate or not, just or not, it took 26 years for the law to get to Michael Skakel. And because he's now a convicted murderer, he may end up spending the next 26 years of his life in prison wondering how and why it all went so terribly wrong.
  • Bootie Cosgrove-Mather

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