Constructing a compelling narrative for the 1975 death of Martha Moxley, the Skakel prosecution successfully used new media technology and polished rhetoric to obtain a guilty conviction in a highly circumstantial case. Skakel's defense attorney, Michael Sherman, did not show up for the game, resulting in an ugly, lopsided rout. The order granting Michael Skakel a retrial is a 136 page primer on what not to do as an advocate. As I wrote earlier today over on the legal skills blog, new media/visual rhetoric may have played a large role in securing Skakel’s conviction. Now that Skakel will receive a new trial because his defense was constitutionally ineffective, I hope the two sides are more equally situated in terms of their advocacy and rhetoric.
One of the Skakel issues of interest to this blog is whether Sherman's mishandling of client funds violated Skakel's Sixth Amendment right to effective assistance of counsel. In 2001, after paying Mr. Sherman 1.2 million dollars in fees, the Skakels paid Sherman another $450,000, to cover past expenses and all future expenses and fees. Sherman deposited this money in his personal bank account and did not separate out any of the money into a client funds account. During this time period, the I.R.S was investigating Sherman for tax evasion and was in the process of placing liens on his property totalling $700,000. Mr. Sherman would later plead guilty for evading taxes for the years 2001 and 2002.
The court held that Sherman violated rule 1.7 when he placed these funds in his personal bank account (rather than in a client fund not subject to garnishment), because, if the I.R.S. garnished the funds, he would be unable to pay future expenses for the Skakels. While this was not a prototypical commingling of funds problem, the failure to separately account for and earmark client expenses, particularly when the attorney’s personal property is subject to liens, created competing interests. Although the court found that this was a bona fide concurrent conflict, the conflict, standing alone, did not deprive Skakel of effective assistance of counsel. However, when aggregated with the defense attorney’s other missteps in the case, it could be viewed as rising to the level of a Sixth Amendment violation.
Sadly, at this point in the court’s opinion (p. 120), we begin to understand that Mr. Sherman’s poor trial performance might have been due to stress brought about by personal problems, not just a paucity of advocacy skills.