“He knows it’s a long process,” Mr. Skakel’s lawyer, Hubert J. Santos, told reporters moments after his client was led out of the courtroom.
By overturning the conviction last month, Judge Thomas A. Bishop broke with several courts that had affirmed the verdict.
Judge Bishop ruled that Mr. Skakel had been deprived of his right to a fair trial because of the ineffective counsel he received from his first lawyer, Michael Sherman. Multiple failures, including the decision not to cast more suspicion in the direction of Mr. Skakel’s older brother, Thomas, led to a “conviction that lacks reliability,” the judge ruled.
That blistering 136-page decision, dated Oct. 23, was automatically stayed, however, while the judge asked both sides if he had the authority to set bail and lift the automatic stay, which was keeping Mr. Skakel, now 53, behind bars while the state pursued an appeal.
After hearing the responses of Mr. Santos and Susann E. Gill, a prosecutor at the 2002 trial who continues to represent the Fairfield judicial district, on Wednesday, Judge Bishop decided to lift that stay but declined to set bail. He said the question of whether to grant bail to Mr. Skakel as a potential pretrial defendant properly belonged with the criminal court in Stamford that would handle the case, should the state decide to retry him. Mr. Santos urged the judge to reconsider on the grounds that prosecutors might engage in “delaying tactics.” But the judge resisted.
Judge Bishop explained his decision to lift the stay of his ruling. Recognizing, the judge said, that “it is not a common everyday occurrence and well, it should not be,” to have a judge find that a defendant’s rights were violated because of ineffective counsel, he said that “this case was not a close case” and that he did not expect his ruling to be overturned on appeal.
The judge noted that the decision on Wednesday would itself be subject to an automatic 10-day stay. That gives state prosecutors time to seek appellate review on whether he had abused his discretion in lifting the stay.
Judge Bishop’s decision to reverse the 2002 conviction, increasing the possibility that Mr. Skakel may yet go free, inflamed some supporters of the Moxley family who felt that the judicial system had waited too long — 27 years since the murder — to bring Mr. Skakel to trial and that his powerful family was able to secure him a retrial.
Judge Bishop acknowledged the backlash before announcing his two-part ruling on Wednesday, saying in court, “I don’t believe the public interest is synonymous with popularity.”
In the need to balance society’s dual interests in having its verdicts be final and knowing that innocent people are not wrongly detained, he said “the balance of equities” was on the side of individuals’ civil rights, and “lifting the stay is warranted.”
As for the state’s objection that it was unfair to expect it to have to appeal the decision of the habeas court while retrying Mr. Skakel in the lower court, Judge Bishop explained that Mr. Skakel could solve that problem by waiving his right to a speedy trial. That way, the state could pursue an orderly appeal or simply retry him, or wait until the appeal is over to retry him.
No sooner had the judge proposed the idea than Mr. Santos announced that Mr. Skakel would readily agree. Satisfied that Mr. Skakel had been well represented by his current counsel, Judge Bishop accepted the waiver into evidence and lifted the stay.
Yahoo Local News – New York Times
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