The Unspoken Question About The Skakel Habeas Case

As any conscious person knows, Michael Skakel was recently released from prison on bail.  His release follows Superior Court judge Tom Bishop’s decision that Skakel’s defense lawyer did not provide a constitutionally adequate defense during Skakel’s trial for the murder of Martha Moxley.

Much of the conversation in the media and the blogosphere has focused on whether the trial court’s decision is likely to be upheld on appeal.  I’ve posted on this subject before.

In talking to a number of lawyers and judges about the Skakel case, however, there is another question that is on many of their minds (although they may not admit it publicly)–and which will probably be on the minds of the state Appellate or Supreme Court justices who will eventually hear the State’s appeal of the habeas decision:  How is it that of the tens of thousands of unsuccessful habeas corpus petitions filed every year by prisoners, over two-thirds to three-quarters of whom are black or hispanic, the one petition that is successful was filed by a rich white guy who is a cousin of the Kennedys?

Before I go any further, let me be absolutely clear about what I am not saying or suggesting.  I am not saying or suggesting that the trial judge who rendered the decision in the Skakel habeas case is racist or improperly biased in any way.  Judge Bishop is a highly respected member of the state judiciary.  I have absolutely no doubt that he reached the conclusion that he did because he genuinely believed, after hearing all of the evidence presented at the habeas trial, that Skakel’s defense lawyer was woefully inadequate and did not meet constitutional standards.  Period.  End of story.   An appellate court may agree or disagree with his decision, but if it disagrees it won’t be because Judge Bishop was influenced by some hidden racial bias.

Nor am I saying or suggesting that members of the Skakel or Kennedy families did anything even remotely improper to influence Judge Bishop’s decision.  Judge Bishop’s decision was not the product of any corrupt influence.

So what is my point?    I’m saying that from an appearance stand point, public confidence in our legal system–particularly among minorities–is sorely tested when that system routinely rejects the many thousands of habeas petitions filed each year by black and hispanic prisoners, but grants the petition filed by a Michael Skakel.

Should this appearance issue matter when the Appellate or Supreme Court considers the appeal in the habeas case?  Absolutely not.  If Michael Skakel was deprived of his constitutional right to effective assistance of counsel, no appellate court should overturn that ruling merely because affirming the decision might “look bad.”

As a society, however, we should be very concerned about a criminal justice system that puts so many black and hispanic men in prison and too often appears to give relatively favorable treatment to white men with money.

In short, individual cases should never be decided based on concerns about “appearances.”  But an entire legal system that appears racially biased does not instill public confidence.   The answer is not to deny habeas petitions filed by rich white men.  Nor is the answer to grant meritless petitions filed by black or hispanic prisoners.  The answer is to fix the system.  How to accomplish that goal, however, is a post–a very long, long post–for another day.



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