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July 16, 2007: Post-Trial Brief Filed in the Superior Court for The CV-05-4006524 : SUPERIOR COURT MICHAEL C. SKAKEL : JUDICIAL DISTRICT OF STAMFORD V. : AT STAMFORD STATE OF CONNECTICUT : JULY 16, 2007 STATE’S POST-TRIAL BRIEF Pursuant to P. B. § 5-1, the State of Connecticut hereby submits this post-trial brief regarding the Petition for New Trial filed by Michael Skakel. For reasons discussed herein, the State respectfully urges this court to deny the relief requested. For the convenience of the Court, the State has prepared the following Table of Contents. TABLE OF CONTENTS PAGE Procedural History ....................................................... 1 Evidence from Petitioner’s Criminal Trial ...................................... 1 a. Events Surrounding the Murder .................................. 1 b. Crime Scene and Autopsy Evidence ............................... 6 c. The 1975 Alibi ................................................ 7 d. The Demise of the Alibi......................................... 8 e. The Petitioner’s Admissions .................................... 10 i. 1975 - 1978 ........................................... 10 ii. Statements/Admissions made at Elan, 1978-1980 .............. 11 iii. 1981 - 1997 ........................................... 15 ARGUMENT........................................................... 18 I. STANDARDS GOVERNING A PETITION FOR NEW TRIAL........... 18 II. PETITIONER HAS FAILED TO PRODUCE ANY CREDIBLE OR ADMISSIBLE EVIDENCE UNDER COUNT ONE WHICH WOULD ENTITLE HIM TO A NEW TRIAL ................................ 20 a. Evidence Relating to Bryant’s Allegations .................... 20 b. Bryant’s Statements And Those Attributed to Hasbrouck and Tinsley Should be Stricken or Disregarded as Unreliable Hearsay . 34 i. Petitioner Has Failed to Establish That Either Bryant’s Statements or Those Attributed to Hasbrouck and Tinsley Are Admissible under the Declaration Against Penal Interest Exception to the Hearsay Rule................. 36 1. Time and Party .............................. 36 2. Lack of Corroborating Evidence ................. 41 3. The Extent to Which The Statements are Against Penal Interest ............................... 47 4. Availability of Declarant as a Witness ............. 49 ii. Petitioner Has Failed to Establish That Either Bryant’s Statements or Those Attributed to Hasbrouck and Tinsley Fall Within the Residual Exception to the Hearsay Rule .... 49 c. Even If Petitioner Can Surmount His Hearsay Problems, the Bryant Evidence Would Not Warrant a New Trial Because it Does Not Qualify as Third Party Culpability Evidence ................ 51 d. If Considered, the Bryant Evidence Is So Lacking in Credibility it Does Not Meet the Shabazz Threshold; This Court Should Find it of So Little Value That it Is Unlikely to Result in a Different Verdict on Retrial ............................................. 53 Proposed Findings of Fact and Conclusions of Law for Section II ................................................ 56 III. PETITIONER HAS FAILED TO PROVE HE IS ENTITLED TO A NEW TRIAL UNDER COUNT TWO ................................... 58 a) Petitioner Has Failed to Prove That the “Newly Discovered Evidence” Relating to Greg Coleman Could Not Have Been Produced Prior to Trial with Due Diligence .................... 58 i. Facts Relating to Lack of Diligence .................... 58 ii. Petitioner Has Failed to Prove That He Could Not Have Found Simpson, Grubin and James Prior to Trial by the Exercise of Due Diligence ........................... 60 b) Petitioner Has Failed to Prove That the “Newly Discovered Evidence” Relating to Greg Coleman Is Material, Noncumulative, and Likely to Result in a Different Verdict on Retrial ............. 63 i. Facts relating to Simpson, Grubin and James ............ 63 A. Alton Everett James, III........................ 63 B. Cliff Grubin ................................. 64 C. John Simpson ............................... 65 ii. Petitioner Has Failed to Establish That Any Evidence Offered to Impeach Coleman Warrants a New Trial ....... 68 Proposed Findings of Fact and Conclusions of Law for Section III................................................ 74 IV. PETITIONER HAS NOT ESTABLISHED THAT THE PROFILE REPORT OF LITTLETON IS NEWLY DISCOVERED, MATERIAL, OR LIKELY TO PRODUCE AN ACQUITTAL ON RETRIAL ...................... 76 a) It Is Undisputed That Petitioner’s Trial Counsel Knew of the Profile Reports Yet Failed to Request a Copy of Them in a Timely Manner. This Evidence Is Therefore Not “Newly Discovered” ........................................... 76 b) Facts Relating to the Profile Reports ........................ 78 c) The Only Information Sherman Identified as “New” Within the Profile Reports Was the Opinion and Conclusions of the Author; as Such it Would Be Inadmissible or of Little Value on Retrial ....... 81 Proposed Findings of Fact and Conclusions of Law for Section IV................................................ 83 V. NONE OF THE EVIDENCE OFFERED BY PETITIONER WHICH DOES NOT RELATE TO THE SPECIFIC ALLEGATIONS IN COUNTS ONE, TWO, OR SIX OF HIS AMENDED PETITION SHOULD FORM THE BASIS FOR RELIEF .......................................... 85 Proposed Findings of Fact and Conclusions of Law for Section V................................................ 92 VI. PETITIONER HAS NOT PROVEN THAT ANY EVIDENCE OFFERED UNDER COUNT NINE IS “NEWLY DISCOVERED” OR MATERIAL AND LIKELY TO LEAD TO AN ACQUITTAL ON RETRIAL ................ 94 a. Petitioner Has Not Proven That Any Evidence Relating to Garr, Levitt or the Writing of Conviction Is “Newly Discovered” or Material and Likely to Lead to an Acquittal on Retrial ................... 95 i. Facts ........................................... 95 A. Pre-trial and Trial (2002) ....................... 95 B. The Petition Hearing.......................... 96 ii. Petitioner Has Not Established That Any Evidence Relating to Garr and Levitt Is “Newly Discovered” ............... 100 iii. Petitioner Has Not Established That Any Evidence Regarding Garr and Levitt Is Material and Likely to Result in an Acquittal on Retrial ........................... 101 b. Petitioner Has Not Proven That Any Evidence Related to the Composite Sketch Is “Newly Discovered” or Material and Likely to Lead to an Acquittal .................................. 103 i. Facts .......................................... 103 ii. Because the Composite Sketch Was Known to Petitioner Prior to Trial, it Is Not Newly Discovered and Cannot be Considered Part of a “Pattern of Non-Disclosure”.................................. 107 iii. Petitioner Has Not Shown That the Composite Sketch Is Material and Likely to Lead to an Acquittal on Retrial ..... 110 c. Petitioner Has Not Proven That Any Evidence Related to the Tommy Skakel Affidavit Is “Newly Discovered” or Material and Likely to Lead to an Acquittal on Retrial ..................... 112 i. Facts.......................................... 113 ii. It Is Undisputed That the Tommy Skakel Affidavit Was Provided Petitioner During Trial. Therefore, it Was Not Suppressed, Is Not “Newly Discovered,” and Cannot Be Considered Part of a “Pattern of Nondisclosure” ...... 118 iii. Petitioner Has Not Proven That the Tommy Skakel Affidavit Is Material and Likely to Lead to an Acquittal on Retrial....................................... 119 Proposed Findings of Fact and Conclusions of Law for Section VI............................................... 121 VII. PETITIONER IS NOT ENTITLED TO AN ADVERSE INFERENCE FROM THE FIFTH AMENDMENT INVOCATION OF HASBROUCK, TINSELY, AND BRYANT. IF ANYTHING, RESPONDENT IS ENTITLED TO AN ADVERSE INFERENCE AGAINST PETITIONER FROM BRYANT’S INVOCATION .............................................. 125 Proposed Findings of Fact and Conclusions of Law for Section VII.............................................. 131 VIII. THIS COURT ERRED IN HOLDING THAT PETITIONER WAS ENTITLED TO A FIFTH AMENDMENT PRIVILEGE IN THESE PROCEEDINGS. AT THE LEAST, THE STATE IS ENTITLED TO AN ADVERSE INFERENCE AGAINST PETITIONER ............ 132 a. Facts................................................ 132 b. Because His Conviction Has Become Final, Petitioner Has No Fifth Amendment Privilege Regarding Crimes for Which He Is Already Convicted, in This, a Collateral Proceeding ............ 134 c. To the Extent Petitioner Retains a Privilege, the State’s Offer of Use Immunity Was Sufficient to Compel His Testimony......... 135 d. The State Is Entitled to an Adverse Inference Against Petitioner . 135 Proposed Findings of Fact and Conclusions of Law for Section VIII.............................................. 138 CONCLUSION........................................................ 139 Procedural History On February 8, 2000, following a Grand Jury investigation, the state charged the petitioner, Michael Skakel, with murder pursuant to General Statutes §53a-54a (Rev. to 1975) for the October 30-31, 1975 death of Martha Moxley. The charge was originally brought to the juvenile division of Superior Court. After a hearing, the Juvenile Court (Dennis, J.) ordered the prosecution transferred to the criminal division of Superior Court. The petitioner appealed the decision transferring his prosecution to criminal court. After briefing and argument, our Supreme Court held that the transfer order was not a final judgment and dismissed petitioner’s appeal. In re: Michael S., 258 Conn. 621, 784 A.2d 317 (2001). Following a trial before the Honorable John F. Kavanewsky, Jr. and a jury of twelve, the petitioner was found guilty. On August 29, 2002, the court sentenced the petitioner pursuant
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