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Skakelvcommissionerreplybrief REDACTED SUPREME COURT OF THE State ofConnecticut JUDICIAL DISTRICT OF TOLLAND S.C.19251 SX. 19251 XOl MICHAEL SKAKEL V. COMMISSIONER OF CORRECTION REPLY BRIEF OF THE COMMISSIONER OF CORRECTION-APPELLANT WITH ATTACHED APPENDDC To BeArguedBy: SUSANN E. GILL Supervisory Assistant State's Attorney Fairfleld Judicial District Post Conviction Unit 1061 Main Street Bridgeport, CT 06604 Telephone: (203) 579-6506 Facsimile: (203) 382-8401 Juris Number 409671 Email: j.fairtield|[email protected]: [email protected] TABLE OF CONTENTS COUNTERSTATEMENT OF THE ISSUES REFERENCE GUIDE TABLE OF AUTHORITIES. ARGUMENT THE HABEAS COURT ERRED IN OVERRIDING THE REASONABLE STRATEGIC DECISION OF COUNSEL AS TO HOW MANY AND WHICH THIRD PARTY CLAIMS TO RAISE AND FURTHER ERRED IN FINDING PREJUDICE WHERE THE PETITIONER FAILED TO PRESENT ANY EVIDENCE IN SUPPORT THEREOF Petitioner failed to prove admissible evidence of Tonnmy's alleged volatility was available to counsel in 2002 Petitioner failed to prove admissible evidence of Tommy's alleged statements to Sutton Associates was available to counsel in 2002 Petitioner failed to prove evidence of Tommy's alleged statement of an alleged sexual encounter with Moxley was available and admissible through Throne in 2002 Petitioner failed to prove evidence of Tommy's alleged statements regarding his homework was admissible and available in 2002 or that any such evidence would have helped establish a third party claim Even if petitioner had proven admissible evidence was available to counsel in 2002, and that it was sufficient to establish a third party defense, he nevertheless failed to prove counsel was constitutionally ineffective in choosing a different tack THE HABEAS COURT ERRED IN FINDING DEFICIENT PERFORMANCE AND PREJUDICE WITH RESPECT TO DENIS OSSORIO'S HABEAS TESTIMONY A. Petitioner Failed To Prove Deficient Performance; The Habeas Court Erred In Concluding Otherwise Petitioner Failed To Prove Prejudice And The Habeas Court Erred In Finding Otherwise 1. The forensic evidence does not favor the time of the partial alibi over a much broader time period Although the jury did not have to resolve the issue of w^hether petitioner went to the Terrien's, the trial evidence provided the jury with an ample basis on which to conclude the murder occurred after the time of petitioner's partial alibi PETITIONER FAILED TO CARRY HIS BURDEN OF PROVING INEFFECTIVE ASSISTANCE OR PREJUDICE WITH REGARD TO THE 2007 NEW TRIAL TESTIMONY OF GRUBIN, SIMPSON, AND JAMES A. The Habeas Court's Determination Of Deficient Performance Is Clearly Erroneous B. The habeas court erred in finding prejudice The habeas court erred in contradicting Judge Karazin's assessment of the identical testimony Petitioner failed to carry his burden of proving prejudice; the habeas court erred in finding otherwise THE HABEAS COURT ERRED IN FINDING PETITIONER'S DEFENSE TEAM DEFICIENT IN FAILING TO PURSUE THE MORGANTI SKETCH AS PART OF ITS THIRD PARTY CULPABILITY DEFENSE BASED ON KENNETH LITTLETON A. The Habeas Court Erroneously Reasoned That This Court Already Conclusively Determined That The Defense Team Was Deficient, Under The First Strickland Prong, In Failing To Obtain The Morganti Sketch B. The Petitioner Failed To Satisfy Either Strickland Prong With Respect To His Claim That Counsel Was Ineffective In Failing To Obtain The Morganti Sketch THE HABEAS COURT ERRED IN FINDING THE DEFENSE TEAM DEFICIENT FOR NOT PRESENTING A THIRD PARTY DEFENSE BASED UPON TONY BRYANT'S ALLEGATIONS BUT PROPERLY FOUND NO PREJUDICE The Habeas Court Erred In Allowing The Petitioner To Relitigate The Factual Issue Of When The Defense Team First Became Aware Of The Tony Bryant Allegations Even Assuming That Trial Counsel Was On Notice Of The Bryant Allegations, The Petitioner Failed To Demonstrate That Trial Counsel Was Ineffective In Failing To Pursue A Third Party Culpability Defense Based Upon Those Allegations THE HABEAS COURT ERRED IN FINDING THE DEFENSE TEAM DEFICIENT FOR FAILING TO UTILIZE CERTAIN STATEMENTS IN POLICE REPORTS TO REBUT ASPECTS OF THE STATE'S CASE BUT PROPERLY FOUND NO PREJUDICE The Habeas Court Erred In Ruling On A Claim Not Raised In The Amended Petition, But Rather Raised And Argued For The First Time By The Habeas Judge Himself The Petitioner Failed To Demonstrate Either Incompetence Or Prejudice On The Basis Of Attorney Sherman's Failure To Utilize The Greenwich Police Reports The Petitioner Makes No Effort To Rebut The Respondent's Arguments That The Habeas Court Erred In Finding Trial Counsel Incompetent For Failing To Object To Testimony As To Why The Petitioner Believed He Was Sent To Elan And Further Erred In Finding That The State Claimed There Was No Contact Between Elan Officials And Greenwich Police THE HABEAS COURT ERRED IN FINDING THAT COUNSEL'S FAILURE TO PRESENT EXPERT TESTIMONY FROM RICHARD OFSHE ON COERCED CONFESSIONS FELL BELOW THE STANDARD OF REASONABLE COMPETENCE BUT PROPERLY FOUND NO PREJUDICE... The Habeas Erred In Finding Counsel Incompetent. There is no evidence that every reasonably competent criminal defense attorney practicing in Connecticut in 2002 would have known of Richard Ofshe's alleged expertise in rebutting statements made at institutions such as Elan, let alone necessarily would have called him to testify The petitioner overstates the significance of Ofshe's testimony 3. The petitioner fails to give proper deference to trial counsel's explanation as to why Ofshe's testimony would not have been strategically beneficial in this case 96 a. Opening the door 97 b. Inconsistent theories 98 c. War of experts 99 B. The Habeas Court Correctly Found No Prejudice 99 Vlli. THE HABEAS COURT ERRED IN FINDING THAT COUNSEL'S DECISION TO ACCEPT B.W. AS A JUROR FELL BELOW THE STANDARD OF REASONABLE COMPETENCE BUT PROPERLY FOUND NO PREJUDICE 101 A. The Habeas Court Erred In Finding Trial Counsel Incompetent On The Basis Of His Decision To Accept B.W. As A Juror 101 B. The Petitioner Failed To Demonstrate Prejudice 103 IX. THE HABEAS COURT ERRED IN FINDING THAT COUNSEL'S CLOSING ARGUMENT FELL BELOW THE STANDARD OF REASONABLE COMPETENCE BUT CORRECTLY FOUND NO PREJUDICE 105 A. The Habeas Court Erred In Finding Trial Counsel Incompetent With Respect To Closing Argument 105 1. Reasonable doubt 106 2. Third party culpability 107 3. The tree masturbation stories 108 4. Reasons why petitioner was sent to Elan 110 5. Comments objected to by the state and/or stricken by the court 110 B. Although The Habeas Court's Reasoning Is Suspect. Its Conclusion That The Petitioner Failed To Demonstrate Prejudice Is Correct 111 X. THE HABEAS COURT ERRED IN FINDING TRIAL COUNSEL DEFICIENT IN FAILING TO MOVE TO SUPPRESS THE HOFFMAN TAPES BUT PROPERLY FOUND NO PREJUDICE 114 A. The Habeas Court Clearly Erred In Finding That "It Did Not Even Occur To" Counsel To Move To Suppress The Tapes 114 B. In This Appeal, The Petitioner Improperly Changes His Theory Of Ineffectiveness Relative To The Grounds Upon Which Trial Counsel Should Have Sought Suppression, Grounds That Should Not Be Considered By This Court But, In Any Event, Are Equally Meritless 115 1. The petitioner's newly-crafted claim of ineffectiveness is based on a theory of suppression never argued below 117 2. The petitioner failed to establish that either Garr or the grand jury knew, or reasonably should have known, of the written agreement between Hoffman and the petitioner that allegedly would have made it unlawful for Hoffman to have surrendered the tapes 118 3. The petitioner failed to demonstrate that trial counsel would have succeeded on a motion to suppress by claiming that the private business agreement he and Hoffman had superceded the authority of the grand jury subpoena 119 C. Even If Trial Counsel Could Have Successfully Suppressed The Tapes Under Either Theory, The Petitioner Nevertheless Has Failed To Demonstrate That The Outcome Of The Criminal Trial Would Have Been Different 121 XI. THE PETITIONER IS NOT ENTITLED TO RELIEF UNDER A "CUMULATIVE ERROR" THEORY OF PREJUDICE 122 CROSS APPEAL 127 PETITIONER FAILED TO CARRY HIS BURDEN OF PROVING EITHER AN ACTUAL CONFLICT OR PREJUDICE AS A RESULT OF THE FEE ARRANGEMENT HE NEGOTIATED, THROUGH COUNSEL. WITH HIS DEFENSE TEAM 127 A. Facts Pertaining To This Claim 128 1. Habeas testimony of Attorneys Sherman and Throne 128 2. Expert testimony 132 3. The habeas court's resolution of this claim 135 B. Petitioner Failed To Establish Either A Conflict Of Interest Or Prejudice Resulting Therefrom 135 1. Petitioner failed to carry his burden of proving a conflict 135 Even if the fee agreement created a conflict, petitioner failed to establish prejudice under either Strickland or Sullivan 141 a. The Habeas Court erred in evaluating prejudice under the Sullivan standard rather than under Strickland 141 b. Petitioner failed to prove prejudice under either Strickland or Sullivan 145 CONCLUSION COUNTERSTATEMENT OF THE ISSUES WHETHER THE HABEAS COURT ERRED IN OVERRIDING THE REASONABLE STRATEGIC DECISION OF COUNSEL AS TO HOW MANY AND WHICH THIRD PARTY CLAIMS TO RAISE AND FURTHER ERRED IN FINDING PREJUDICE WHERE THE PETITIONER FAILED TO PRESENT ANY EVIDENCE IN SUPPORT THEREOF? WHETHER THE HABEAS COURT ERRED IN FINDING DEFICIENT PERFORMANCE AND PREJUDICE WITH RESPECT TO DENIS OSSORIO'S HABEAS TESTIMONY? WHETHER PETITIONER FAILED TO CARRY HIS BURDEN OF PROVING INEFFECTIVE ASSISTANCE OR PREJUDICE WITH REGARD TO THE 2007 NEW TRIAL TESTIMONY OF GRUBIN. SIMPSON. AND JAMES? WHETHER THE HABEAS COURT ERRED IN FINDING PETITIONER'S DEFENSE TEAM DEFICIENT IN FAILING TO
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