Thirty-eight years after 15-year-old Martha Moxley was beaten to death with a golf club on the edge of her Greenwich property on Oct. 30, 1975, we are back to the original suspect, Tommy Skakel, as her likely killer.
That appears to be the back story [if not the actual belief] of a Connecticut judge's startling decision last week to order a retrial of Tommy's younger brother Michael, who was convicted of Martha's murder in 2002 and who has spent the past 11 years in jail for the crime.
In the latest installment of what is arguably the nation's longest-running criminal soap opera, Connecticut Superior Court Judge Thomas Bishop seems to have conducted his own investigation into what has been called the "Kennedy cousin" murder.
Bishop's view of the killer seems reflected in his ruling that Michael's Skakel's attorney, Mickey Sherman, failed to adequately represent Michael because Sherman did not accuse Michael's hated rival and older brother Tommy of what is known as "third party culpability."
Connecticut may be a great state in many respects. This does not include -- as reflected in the flawed Moxley investigation by the Greenwich Police and the initially flawed investigation by Fairfield County State's Attorney's office -- its criminal justice system.
Nor does it include, as reflected in Bishop's ruling, the Connecticut Judiciary.
His ruling implicitly criticizes Superior Court Judge John Kavanewsky, who presided over Michael's trial; Superior Court Judge Edward Karazin, who rejected the first of Michael's appeals; and the majority of the state's Supreme Court, which upheld both those judges' decisions.
In the interests of full disclosure, Bishop's ruling also criticizes a book by this reporter on the case -- [Conviction: Solving the Moxley Murder, Harper Collins, 2004] -- which Bishop termed "a paean" to Chief State's Investigator Frank Garr "and his steadfast pursuit of the petitioner [Michael] in the face of resistance from others in the State's Attorney's office." The book won the Mystery Writers Association of America's first Edgar award for fact-based crime.
At the heart of his ruling, Bishop faults Michael's attorney for failing to pin Martha's murder on Tommy.
"Attorney Sherman's failure to point an accusatory finger at T. Skakel was and is inexplicable," Bishop writes. "Given the evidence of T. Skakel's culpability available to Attorney Sherman before trial, there was no reasonable basis for his failure to shine the light of culpability on T. Skakel."
Bishop added that "given the strength of evidence regarding T. Skakel's direct involvement with the victim at the likely time of her death, consciousness of guilty evidence concerning T. Skakel's activities on the evening in question, the circumstantial evidence of his sexual interest in the victim and T.'s history of emotional instability, counsel's failure to pursue a third party claim against T. Skakel cannot be justified..."
Bishop then lays out his evidence implicating Tommy as Martha's killer. He begins with Tommy's statement to Greenwich police in 1975: that on the night Martha was murdered, he left her at about 9:30 and returned home to write a school report on Abraham Lincoln -- a report that teachers at the Brunswick School that he attended denied had ever been assigned. Tommy also told police he never left the house again that night.
Eighteen years later, Tommy told a different story to private investigators, hired by his father Rushton after this reporter's article in the Stamford Advocate and Greenwich Time described the flaws in the Greenwich police's investigation. Although written in 1982, the article was held from publication for nine years by top executives at the paper for reasons that have never been fully explained. Three months after the article was published in 1991, the state announced it had reopened the long-dormant investigation.
Rushton Skakel -- whose sister is Ethel Kennedy and whose family fortune was once considered the second largest in America [after that of the Henry Ford family] -- said in 1991 that he hired his own investigators "to clear the Skakel family name."
Translation: to pin the murder on someone else.
That unfortunate soul was Kenneth Littleton, a tutor hired by Rushton in 1975 to teach his two academically failing sons, Tommy and Michael, ages 17 and 15, respectively. Littleton moved into the Skakel home the night Martha was murdered. So eager were the Skakel investigators to blame Littleton for Martha's murder that they told anyone who would listen, including this reporter, that he may have been a serial killer.
That theory had been developed by the state's longtime chief investigator Jack Solomon. So strongly did Solomon believe in Littleton's guilt that in another of the case's bizarre developments, he testified as a defense witness for Michael.
A year after Michael's conviction, his cousin, Robert Kennedy Jr., wrote a 15,000-word article in the Atlantic Monthly magazine, also naming Littleton as Martha's probable killer.
Meanwhile, Kennedy began pushing the preposterous theory that Martha, then 15-years-old, had been killed by two black men who had gone "caveman" on her. How two black men could have run around the Belle Haven section of Greenwich, one of the nation's wealthiest communities with its own private police force guarding its entrances, without a single person noticing them, remains unclear.
Judge Bishop also criticized Sherman for failing to pursue that theory.
Then, on Oct. 7, 1993, Tommy told Skakel investigator Willis [Billy] Krebs, a former NYPD lieutenant, that he had lied to Greenwich police about his whereabouts the night of the murder. Tommy told Krebs that after leaving Martha and going home at 9:30, he returned outside, where Martha waited for him. He said he spent the next 20 minutes with her, engaging in mutual masturbation to orgasm. He returned home, he said, shortly before ten o'clock, which is the time the Greenwich police believed Martha had been murdered.
As Tommy spoke, he broke into tears. Tommy's attorney, Emanuel Margolis, who was present at the interview, stopped the questioning.
Rushton's Skakel had assured Krebs' boss, Jim Murphy, a former FBI supervisor, that the family would take public responsibility and seek psychiatric treatment for his sons if either were implicated in Martha's murder. Instead after Tommy's interview, he fired Murphy and Krebs.
Bishop also cited Tommy's "mental and emotional instability and his penchant for violent outbursts." This stemmed, according to police reports that Bishop said were available to Sherman, from Tommy's falling out of a moving car and at age 6 and "fracturing his head."
"In this court's view, Bishop wrote, "there is no reasonable justification... for Attorney Sherman not to have asserted a third party culpability defense centered on T. Skakel. Had he done so, there is a reasonable probability that the jury would have entertained a reasonable doubt as to the petitioner's [Michael's] guilt with the result that he likely would have been acquitted."
So where do we go from here? The state says it will appeal Bishop's decision to a higher court.
Ironically, it is the state prosecutors who convicted Michael that are now defending Sherman.
In a post-trial brief, Supervisory Assistant State's Attorney Susan Gill refuted many of Bishop's claims about Sherman by disputing Bishop's evidence that Tommy likely killed Martha.
"There is no indication in the evidence to suggest that anything happened between Martha and Tommy that would have caused him to lose his temper," Gill wrote. Rather in her brief, she suggests that since the two had already engaged in sex of some kind, Tommy had no motive to kill her.
This same evidence, she wrote, "would have been highly damaging" to Michael because it corroborated motive as well as what other witnesses said Michael had told them: that he had seen Tommy having a sexual encounter with Martha that night.
Those other witnesses, wrote Gill, stated that Michael was so "violent" and "screwed up" that when he found out about it, he hit her with a golf club. Therefore, Gill concluded, there is no evidence "that Sherman was ineffective in not offering this damaging evidence."
In his 135-page decision, Bishop accepts without equivocation that Martha was killed at around 10 o'clock, ignoring the state's alternative theory, held by Solomon's successor Garr, that Martha was murdered after midnight.
Nor does Bishop mention in his ruling that Michael admitted to Skakel investigators that he, too, lied to the Greenwich police about his whereabouts the night of the murder.
Whereas he told police in 1975 that he had gone to the home of his cousin Jim Terrien and returned home around 11 o'clock and gone straight to bed, he told Krebs on Aug 4, 1992, that around midnight he went to Martha's house, climbed a tree outside her window, yelled, "Martha, Martha," and masturbated in the tree. He said he then ran past what turned out to be the crime scene and said he could feel someone's presence in the very place her body would be discovered the next day.
Finally, Bishop fails to note that Sherman had been hired to defend Michael by Margolis, who was not only Tommy's attorney but the Skakel family's attorney as well. Margolis had refused to allow Skakel family members, Tommy included, to be interviewed by law enforcement authorities. Before Michael's trial, he announced that Tommy would refuse to testify.
Was there a deal between Margolis and Sherman not to focus on Tommy as Martha's killer but on Littleton? Sherman has denied this, saying it was his decision. Is he speaking truthfully?
State's attorney John Smriga said in a news release that Bishop's ruling "does not rest on newly discovered evidence or any finding that Skakel is actually innocent of Moxley's murder, but rather on a conclusion ... that Sherman provided inadequate representation at trial."
He added:
The State will challenge this conclusion as based on a misapplication of the law and a misconstruction of the facts. The state's case relied on Michael Skakel's uncontested connection to the murder weapon, strong evidence of motive, substantial evidence of consciousness of guilt, nearly a dozen incriminating admissions and three unequivocal confessions.
Of course, the state has no choice but to challenge Bishop's ruling. Otherwise, half the Connecticut prison population could be flocking to court, claiming their lawyers did not adequately represent them.