Trial is an imperfect vehicle for finding the truth. We all know that. Juries and judges make mistakes. We permit clients to seek a new trial when a judge commits legal error. Why don’t we permit defendants to ask for a new trial when they believe juries make factual mistakes?
In the United States, a jury’s decision about guilt or innocence is almost impossible to challenge. We assume that jurors get it right, even when we know better.
The Italians seem to be more sensible about human frailty and failings. In the land of opera, a defendant can appeal, and, in effect, be granted a re-trial before a new collection of judges and jurors, as happened in the case of Amanda Knox, the young American exchange student convicted by her first jury, then acquitted by her second jury, for the murder of a housemate in Perugia. (The acquittal has been reversed by Italy’s highest court, potentially sending her back to trial for a third time.)
Given the number of convictions overturned as a result of the Innocence Project’s work with DNA, and the growing recognition that eyewitness testimony is not all it’s cracked up to be, one would expect the court system to embrace a means of fact-checking the work of juries. More than 225 prisoners wrongfully convicted have been freed due to the work of the Innocence Project alone.
On the federal level, strict filing deadlines limit the efforts an inmate can make to obtain post-conviction relief. Connecticut, on the other hand, takes a perverse pride in permitting virtually unlimited habeas corpus petitions to be filed, so long as an inmate remains in custody. The result are claims that never cease. It is not uncommon for lawyers to be hailed into a courtroom a decade or more after a trial and to be asked to give an account of the tactical decisions made long ago.
In the case of Michael Skakel, for example, evidence is underway challenging the effectiveness of Mr. Skakel’s lawyer, Mickey Sherman, in a trial that resulted in a guilty verdict for the murder of Martha Moxley. The murder took place in 1972. Skakel was convicted in 2002. What took 13-years for the Skakel case to make it into a courtroom?
I don’t know whether Sherman was ineffective in the Skakel case. Hubey Santos, representing Sherman now, makes a good case that Sherman was distracted by financial woes that ripened into tax evasion charges and a bid in federal prison. Press accounts make it obvious that there was a valid third-party culpability defense essentially left in the file by Sherman. It is hard to be confident in the guilty verdict.
But to win the right to a new trial, Skakel must prove that his lawyer’s performance was so bad that it constituted no lawyering at all. That’s a tall order. Even if Sherman was hamming it up for the cameras, he’s no fool, and he knows his way around a courtroom. It’s not enough to prove that Sherman had his eccentricities.
This was the case that was going to make Sherman famous from one coast to the other – he was already playing to the press before the jury even had the case. What’s more, he was reportedly paid a small fortune by the Kennedy family. More than one wit among defense lawyers have muttered, upon learning that the fee exceeded one million dollars: "I could have lost the case for half as much."
I propose that defendants be given a choice after conviction by a jury: Let those who think the jury simply got it wrong elect a new trial by jury. Once these trials are concluded, let the defendant take an appeal. But after the appeal, limit habeas corpus relief to claims that can be brought promptly. Let’s end the perpetual rhythm of petitions without end.
We lawyers like to draw a distinction between matters of fact and matters of law. We say judges decide the legal issues; in a jury trial, decisions about the facts belong to the jury. It’s a facile distinction easily blurred by the third category of issues lawyers recognize: mixed questions of law and fact. Ask a judge sometime just what such a mixed question is, and odds are you won’t get a very satisfying answer.
It might well be the case that the Skakel jury got it wrong, just as at least one of Amanda Knox’s juries did. Can’t we admit that and simply do the just thing by giving to defendants a right to have the case retried? It works in Italy.