VERNON, Conn. — An attorney for Kennedy cousin Michael Skakel sharply challenged the lawyer who represented him at his 2002 murder trial on why he didn't do more to prevent prosecutors from introducing an audio tape of Skakel saying he masturbated in a tree on the victim's property on the night of the murder.
The defense contended in an earlier appeal the panic Skakel spoke of on the tape had to do with his guilty feelings about masturbating – not, defense attorney Hubert Santos said, the admission of guilt prosecutors portrayed it as at the trial's end.
"You knew up to that point the general consensus was you were going to get an acquittal," Santos said to Skakel's trial attorney, Michael Sherman. "You knew at that point you were in trouble."
Sherman disagreed. He said there was some benefit to getting Skakel's account admitted without having him cross examined, saying he had a temper and didn't want to put him on the stand.
The tape was played Thursday in Rockville Superior Court, where Sherman has been on the witness stand for three days in Skakel's latest challenge to his conviction that argues he was deprived of effective legal representation. Skakel is serving 20 years to life for the 1975 golf club bludgeoning of Greenwich neighbor Martha Moxley when they were 15.
Skakel maintains his innocence.
Santos contends Sherman should have argued authorities illegally seized Skakel's tape from an author who planned to write a book with Skakel. Sherman objected to the tape at trial, but Santos says further legal steps were available.
The author, Richard Hoffman, testified Thursday that the lead investigator for the case, Frank Garr, showed up at his house in Massachusetts determined to get the tape.
"He said we can do this the easy way or the hard way," Hoffman said, adding that Garr also told him, "I'm not returning to Connecticut without what I came for."
Garr said he had a subpoena detailing evidence he was there to collect. Santos pressed him on whether Hoffman was supposed to come to Connecticut for a hearing on whether he should be compelled to turn over the materials, but Garr said he couldn't recall. Santos also pressed Sherman on why he didn't focus more on Skakel's brother, Thomas, an early suspect in the case because he was the last person seen with Moxley. Santos said Thomas Skakel admitted to a private investigative firm hired by Skakel's family in the 1990s that he had sexual contact with Moxley the night of the murder.
Santos repeatedly said Thomas Skakel's encounter with Martha could have occurred as little as 10 minutes before one estimate of the time of the crime, though another medical examiner said the crime could have occurred later.
Sherman said there was a lack of evidence to focus on Thomas Skakel and that he had a better case against another early suspect that formed a key part of his defense.
Santos also took Sherman to task for not calling Dennis Ossorio, who on Thursday backed up Skakel's alibi that he was at his cousin's house in another part of Greenwich the night of the murder. Ossorio, a boyfriend of Skakel's cousin at the time, would have been the only non-relative to back his alibi.
Sherman responded that he was not aware of Ossorio's story and Skakel and his siblings never mentioned him.
Santos said Skakel wanted to testify at his trial, but Sherman said Skakel agreed he probably shouldn't testify.
Sherman said Skakel is intelligent, "but he does have a temper and he does get excited." Sherman said he wasn't worried Skakel would "blow up," but he was concerned he could show anger and he wanted the jury to see him as "sedate."
Sherman also disclosed that Skakel's ex-wife had planned to write a book saying she had married a killer, but he thwarted that proposal.
Sherman said "whatever she had was so unbelievable and distorted," but he was concerned about public perceptions and the impact on the jury pool.
"It would be very damning," Sherman said. "Somehow we were able to stop that."
A prosecutor brought up the book as an example to try to show Sherman was effective in representing Skakel.