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Criminal defense attack on conviction, new trial ordered

If a criminal defendant is convicted at trial, he or she has the right to file an appeal and if that fails, there is usually one more appeal, to the state's highest appellate court. In Connecticut and everywhere else, there are post-conviction remedies available even if the judgment is affirmed by the state's highest court. The assertion of a criminal defense after all direct appeals have been rejected can be done by filing what is called a collateral attack on the judgment of conviction.

Generally, a collateral attack commonly claims ineffective assistance of counsel before and during trial. It can also raise basic constitutional defects in the trial. The collateral attack is also often called a petition or motion for habeas corpus. Most states have a post-conviction statute that provides the procedures and rules for asserting a collateral attack.

In the famous case of convicted murderer Michael Skakel, a nephew of Robert Kennedy, a Connecticut trial judge recently vacated the judgment of conviction and ordered a new trial. The basis was that Skakel received ineffective assistance of counsel from his attorney, Mickey Sherman. Skakel was convicted of the slaying of Martha Moxley, when both were 15-year-old teens living near each other in Belle Haven.

The ruling holds that Sherman was preoccupied with publicity and media appearances, and conducted an inferior factual investigation of the criminal charges. Sometimes a decision like this about attorney incompetence is accompanied by suspicions that the defendant may in fact be innocent, or at least it may appear that the evidence is not overwhelmingly decisive. In any event, a reversal based on incompetency of counsel claims a constitutional denial of the individual's right to the effective assistance of counsel guaranteed under the Sixth Amendment to the U.S. Constitution.

Although the homicide took place in 1975, Skakel was not arrested until 2000, when police apparently felt prepared to move forward. Under those unusual circumstances, the immediate question is whether he will be released on bond under Connecticut law as he again prepares his criminal defense. According to some legal experts, that prospect is a good one, since he did surrender voluntarily in the past and because the presumption of innocence has been restored to him when the judgment of conviction was reversed.

Source: Connecticut Post, Freedom tantalizingly close for Skakel, Neil Vigdor, Nov. 16, 2013

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