The Skakel Opinion Ctd.–What Will The Supreme Court Do?

With the State of Connecticut having indicated its intent to appeal the trial court decision that Michael Skakel’s attorney, Michael (“Mickey”) Sherman, failed to provide a constitutionally adequate defense for his client, many are now speculating about what the Appellate Court or, more likely, the state Supreme Court will do with the appeal.  Will the Court affirm Judge Bishop’s decision, or will it reverse?

I don’t know.  But I do know that there is considerable confusion about the role of an appellate court in reviewing a trial court’s determination that a defendant was deprived of his Sixth Amendment right to effective assistance of counsel.  The purpose of this post is to clear up some of that confusion.

The most important difference between trial and appellate courts is that trial courts find facts while appellate courts generally review errors of law.   When an appellate court reviews a trial court’s factual findings, it must give great deference to the trial court, which heard the evidence first hand and was in a position to judge the credibility of witnesses whose testimony conflicted.  Thus, when a party files an appeal and argues that the trial court’s factual findings are wrong, the appellate court is precluded from disturbing those findings unless they are “clearly erroneous.”  Basically that means that an appellate court will not overrule a trial court’s factual findings unless no reasonable person considering the evidence could make the finding that the trial court did.

By contrast, when an appellate court reviews a trial court’s legal conclusion, including a trial court’s application of a legal standard to a particular set of facts, it is not required to defer to the trial court in the least.  Instead, the appellate judges review the legal conclusions under what lawyers call a “de novo” or plenary standard of review.  Under this standard, the appellate court accords no deference at all to the trial court’s conclusions.

Given the different standards of review that apply to factual findings versus legal conclusions, lawyers handling appeals think very hard about whether the error they believe a trial court made was an error in the finding of fact or an error in a conclusion of law.   All things being equal, lawyers representing appellants prefer to raises errors involving conclusions of law.

Back to the Skakel case.  Judge Bishop made numerous factual findings about what Mickey Sherman did and did not do during the course of representing Michael Skakel.  Based on those findings, he then ruled that Mickey Sherman did not provide a constitutionally adequate defense.  Is that later ruling also a factual finding to which an appellate court must accord great deference, or is it a legal conclusion that is entitled to no deference?  The answer to this question is fairly clear: it is a legal conclusion that the Supreme Court will review de novo.

Read any appellate court decision involving an ineffective assistance of counsel claim and you will find the following language:

Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. 

Plenary = de novo = the Supreme Court is not required to show any deference to Judge Bishop’s legal conclusion that Mickey Sherman did not satisfy the Sixth Amendment effective assistance of counsel standard in his representation of Michael Skakel.

Does this mean that the Supreme Court is likely to reverse Judge Bishop’s decision? No. But it does mean that the seven justices on the Supreme Court will each get to decide for themselves whether the facts found by Judge Bishop establish a constitutional violation of Skakel’s Sixth Amendment rights. If at least four of the justices (i.e., a majority of the Court) reach the same legal conclusion Judge Bishop did based on his factual findings, Skakel will get a new trial. If less then four justices share Judge Bishop’s conclusion, Skakel will stay in jail.



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