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September|October 2002
A Penny Saved By John Swansburg
Effective Command By Susan Benesch
The Disobedient Dozen By Josh Saunders
After the Rainbow By Megan Twohey
Go Dutch By Tom Geoghegan
The O.J. Effect By Wendy Davis

The O.J. Effect

Since the Simpson trial, juries have been reluctant to acquit celebrities. Michael Skakel found out the hard way that the burden of proof has shifted.

By Wendy Davis

At the Connecticut trial of Michael Skakel this past June, the closing argument by his lawyer, Mickey Sherman, began like this: "He didn't do it. He didn't do it. He doesn't know who did." It was a forceful pitch but, unfortunately for his client, not the one Sherman felt he could rely on at trial. Why did Sherman think he needed to present a defense for Skakel? The answer lies in the not-guilty verdict of O.J. Simpson seven years earlier.

Skakel, who is Ethel Kennedy's nephew, was charged with using a golf club to bludgeon to death his former neighbor, Martha Moxley, in 1975, when they were both 15 and living in Greenwich. With no forensic evidence or eyewitnesses to the crime, the prosecution's case consisted mostly of several alleged confessions by Skakel.

The prosecution seemed to doubt itself. Several days before the case went to the jury, the state requested that the jurors be allowed to consider the lesser charge of manslaughter. The prosecutor, Jonathan C. Benedict, withdrew the request before a ruling came down from Superior Court Judge John F. Kavanewsky Jr., but the move was widely seen as showing the government's insecurity.

The jury felt otherwise and announced that Skakel was guilty of murder. Sherman blamed the verdict on the jurors' sympathy for the victim's mother. Others suggested that Sherman was at fault for trying to present an alibi defense. The tactic fell flat when Skakel's witnesses, nearly all of them his relatives, remembered next to nothing about the night of Moxley's death, other than the convenient fact that Skakel was at a cousin's home at the apparent time of the murder.

Conventional wisdom among defense attorneys is that a weak defense is worse than none at all, because the jury is more likely to decide the case by weighing the prosecution's claims against those of the defense rather than focus on what the law requires, which is whether the prosecution has proved its case beyond a reasonable doubt. At least one juror confirmed that this sort of balancing occurred in the Skakel trial. "At the end of the prosecution's case, if the defense had rested, I don't know where I would have been," Bill Smith, a corporate lawyer from Stamford, told The New York Times after the verdict.

Smith's comment can be read another way as well. In the Skakel trial, as in other criminal cases involving celebrity defendants since the Simpson verdict, the burden of proof seems to have shifted from the prosecution to the defense. The shift represents a new chapter in the history of runaway juries in the United States, with jurors asserting their independence against media magnets in a way that can deny them justice.

If it hadn't been for Simpson's "Trial of the Century," the Skakel prosecution wouldn't have happened. Dominick Dunne, the author and self-styled crusader, became obsessed with homicide after the murder of his daughter by her ex-boyfriend in 1982. Dunne took a prominent interest in the Simpson trial and met detective Mark Fuhrman there. Dunne also followed the unsolved Moxley murder, fictionalizing the killing in a 1993 novel, A Season in Purgatory. When Dunne came across new information about Skakel in 1995, he passed it along to Fuhrman with encouragement to open a private investigation. Had he not done so, the Moxley case would have remained at the dead end it reached in the 1990s, when police in Greenwich were still investigating Kenneth Littleton, a live-in tutor for the Skakel family whose first night on the job was the night Moxley was killed. Fuhrman's sleuthing and subsequent 1998 true-crime book, Murder in Greenwich, proclaimed Skakel the likely killer. It prompted the prosecutor and a rare one-man grand jury to reopen the case.

Fuhrman and Dunne attended the Skakel trial, but the Brentwood murder would have been on the jurors' minds even if the pair hadn't been in the audience. Sherman said that the Simpson verdict cast a cloud over defense attorneys as a group. No one selected for the Skakel jury who was asked about Simpson said they believed he was innocent.

No criminal verdict in recent history has been ridiculed as much as the Simpson acquittal, despite cogent arguments by respected legal scholars like Harvard's Randall Kennedy and Columbia's Patricia Williams that the Simpson jurors had grounds for reasonable doubt. And no jurors have been pilloried as much in the press. The Simpson jury is criticized even by jurors hearing civil cases that have nothing to do with Simpson-like issues. Neil Vidmar, a professor at Duke University School of Law, has videotaped jury deliberations in 50 civil trials in Arizona in the past four years as part of a project to assess how juries make decisions. Jurors continue to bring up the infamous Los Angeles trial. "Most people," Vidmar says, "think he got away with murder."

Along with Simpson, the American Criminal Law Review's list of big-name defendants of the 1990s who got off in spite of strong evidence includes Marion Barry, Oliver North, Lorena Bobbitt, the Menendez brothers, and the police officers who beat up Rodney King. By the time Simpson walked out of court a free man, the public, it could be argued, had had enough.

While juries have always had the power to nullify—to acquit despite evidence that strongly supports a conviction—the phrase "jury nullification" gained fresh currency after the Simpson trial. Most references don't compliment happy-to-acquit juries, who find themselves accused of either going wild or being swayed by a high-priced defense lawyer.

These examples are anecdotal—six acquittals out of thousands of cases—but they were invoked so often in the national press that the phenomenon became a cultural touchstone.

Concern about making that error has apparently influenced jurors ever since. Since the Simpson verdict, juries have repeatedly defied the predictions of legal observers by throwing the book at high-profile defendants: Andrea Yates, the mentally ill Texas woman who drowned her five children; Louise Woodward, the Boston nanny convicted in 1997 of killing the baby in her charge; and Marjorie Knoller and Robert Noel in the San Francisco mauling-dog case. When the Menendez brothers were retried after Simpson, they were convicted of first-degree murder. These convictions amount to the opposite of conventional jury nullification, but they are a related form of defiance.

In two of the post-Simpson convictions—the mauling-dog and Boston nanny cases—the verdict was widely viewed as being wrong as a matter of law. The trial judges in each case took the rare step of reducing murder convictions to man-slaughter, citing a lack of evidence.

To the public, however, a jury that errs on the side of wrongly convicting a defendant is less troublesome than a jury that has wrongly let someone walk. No one condemned the jurors in the mauling-dog or the Woodward cases—only the judges have come in for criticism. And jurors are never accused of acting like vigilantes when they convict a defendant, no matter how weak the evidence. Sophisticated jurors today know that even if they convict, a court can fix the mistake later. On the other hand, an acquittal can never be undone. The Skakel jurors—most of whom are college-educated, white-collar, and prosperous—knew the spotlight would be on them after the verdict came in. They weren't going to embarrass themselves by acquitting unless they were convinced of Skakel's innocence—the opposite of how the burden of proof is supposed to work.

The jurors aren't likely to admit they made that mistake, but their actions say as much. Even their first vote during deliberations, when eight members voted for a guilty verdict and four said they were "undecided," shows their reluctance to say the words "not guilty" unless they believed the defendant innocent, never mind reasonable doubt.

So Sherman tried the case as if he had to prove Skakel innocent. He focused on the ill-fated alibi defense and not on the easier task of taking apart the state's case—"if it doesn't fit, you must acquit"—which meant that he overlooked glaring weaknesses. In a case where the evidence was more than a quarter of a century old, witnesses' memories frequently faltered, yet Sherman presented no expert testimony to explain how the passage of time affects memory. The evidence also pointed to Skakel's older brother Thomas, but Sherman didn't seek to cast blame on him during the trial. The prosecution couldn't pinpoint the time of death, but Sherman didn't use this fact to Michael's advantage, to show that Thomas or Littleton could have killed Moxley.

The publicity, the defendant's Kennedy tie, and the O.J. factor all carried the jury toward a guilty verdict. The momentum shifted the burden of proof to the defense. Ultimately, it convicted Skakel for who he was as much as what he might have done.

Wendy Davis is a writer living in New York who practiced law at the Legal Aid Society.

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