Skakel v. Commissioner of Correction

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SKAKEL v. COMMISSIONER OF CORRECTION—DISSENT
PALMER, J., with whom McDONALD, J., joins, dis-
senting. In the more than forty years since fifteen year
old Martha Moxley (victim) was brutally murdered near
her home in Greenwich, this tragic case has given rise to
numerous investigations, suspects, petitions, hearings,
appeals—as well as many articles, books, documenta-
ries, and movies—and, of course, the trial that is the
subject of this appeal. Unfortunately, none has brought
any real closure or clarity to the case. One thing, how-
ever, is perfectly clear: the habeas court was absolutely
right in concluding that the petitioner, Michael Skakel,
did not receive a fair trial because, in numerous
respects, the representation that he received from his
chief trial counsel, Michael Sherman, fell far below the
range of competence necessary to satisfy the petition-
er’s right to the effective assistance of counsel guaran-
teed by the sixth amendment to the United States
constitution.1 In fact, in its thorough and well reasoned
decision, the habeas court identified ten separate and
distinct areas in which Sherman’s performance did not
meet professional standards. With respect to three of
them, the court found that Sherman’s deficient perfor-
mance was so prejudicial as to undermine confidence
in the verdict and, therefore, require a new trial.2 I agree
with each and every one of those determinations, which
are fully borne out by the record.
I address only two of them here, however, namely,
Sherman’s manifestly incompetent and prejudicial han-
dling of the petitioner’s alibi defense and the petitioner’s
third-party culpability defense. The former, of course,
involves Sherman’s failure to follow up on the grand jury
testimony of Georgeann Dowdle, one of the petitioner’s
alibi witnesses, that her ‘‘beau,’’ subsequently identified
as Denis Ossorio, was with her and the petitioner at
her home on the evening of the murder. If Sherman had
taken the trouble simply to ask Dowdle about Ossorio,
Sherman would have learned that Ossorio could provide
critical, credible and independent testimony corrobo-
rating the petitioner’s alibi, which otherwise was predi-
cated on the testimony of only Skakel family members.
The second issue involves Sherman’s decision to pre-
sent a third-party culpability defense centered around
Kenneth Littleton, even though there was no evidence—
none—linking Littleton to the murder, and even though
a third-party culpability defense implicating the peti-
tioner’s brother, Thomas Skakel, in the murder, would
have been truly compelling. I limit my analysis to these
two areas of deficient performance because, in my view,
it could hardly be more apparent that each one of them
deprived the petitioner of a fair trial.
Before commencing that review, however, I wish to
underscore one aspect of the majority opinion, per-
taining to the alibi issue, that is so blatantly one-sided
as to call into question the basic fairness and objectivity
of the majority’s analysis and conclusion. As I discuss
more fully hereinafter, the majority concludes that Sher-
man’s decision to forgo any inquiry into Ossorio in
furtherance of the petitioner’s alibi defense was reason-
able because the facts supported Sherman’s belief that
any further investigation probably would not be produc-
tive. See part II C of the majority opinion. Even though
the case law is perfectly clear that all of the relevant
facts and circumstances are to be considered in evaluat-
ing the objective reasonableness of such a decision; see
Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984) (explaining that, ‘‘[i]n
any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonable-
ness in all the circumstances’’ [emphasis added]);
accord Gaines v. Commissioner of Correction, 306
Conn. 664, 680, 51 A.3d 948 (2012); the majority’s review
of the alibi issue begins and ends with its conclusion
that Sherman reasonably believed that it was likely that
no investigation into Ossorio would be fruitful. At no
time does the majority even acknowledge, let alone eval-
uate, the powerful, countervailing considerations that
militate strongly in favor of the habeas court’s determi-
nation that the sixth amendment required Sherman to
conduct some additional investigation. These consider-
ations are obvious, and include the paramount impor-
tance of the petitioner’s alibi defense, the enormous
significance of an unbiased and credible witness who
could corroborate the alibi testimony of the Skakel
family members, the ease with which such a witness
promptly could have been located, and the gravity of
the charge that the petitioner faced. I can conceive of
only one reason why the majority refuses to take those
highly relevant considerations into account: they are
incompatible with the majority’s conclusion that Sher-
man’s performance was reasonable under the circum-
stances.3
I
SHERMAN’S FAILURE TO LOCATE AND INTERVIEW
A CRITICAL ALIBI WITNESS CONSTITUTED
DEFICIENT REPRESENTATION UNDER
THE SIXTH AMENDMENT
I could not disagree more with the majority’s conclu-
sion rejecting the habeas court’s decision that Sherman
failed to conduct a constitutionally adequate investiga-
tion into the petitioner’s alibi defense, resulting in
extreme prejudice to the petitioner. In fact, I believe
that the majority’s analysis and conclusion represent an
unprecedented and indefensible deviation from settled
sixth amendment principles.
As I explain hereinafter, there are a number of serious
errors in the majority’s analysis that lead to its palpably
wrong conclusion, but two obvious and fundamental
flaws skew its entire analysis. First, the majority
employs an improper legal standard in determining that
Sherman’s handling of the petitioner’s alibi defense
comported with the petitioner’s sixth amendment right
to the effective assistance of counsel. More specifically,
the majority concludes that Sherman’s failure to inter-
view Ossorio was not constitutionally deficient because
Sherman reasonably could have inferred from all of
the circumstances that Ossorio would not be able to
provide any useful testimony. Contrary to the majority’s
decision, the sixth amendment does not permit defense
counsel to forgo any inquiry into the testimony of a
potentially critical witness like Ossorio merely because
counsel thinks or believes that the witness will not be
helpful; counsel has a duty to his client to take reason-
able steps to find out what the witness knows, and not
to rely on inference, belief or educated guess. Indeed,
federal courts are unanimous on this point. Consistent
with that precedent, one searches the majority opinion
in vain for a case with contrary reasoning, or one that
presents a fact pattern even remotely similar to this
case, in which the petitioner was not awarded a new
trial. I submit that none exists.
Second, as I mentioned previously, the majority con-
siders only those factors that support its conclusion
justifying Sherman’s failure to follow up on Dowdle’s
testimony, and chooses to ignore all of the compelling
considerations that militate in favor of the habeas
court’s determination that Sherman had a clear duty to
undertake a further inquiry into Dowdle’s ‘‘beau.’’ By
any fair measure, Sherman’s decision to simply disre-
gard Dowdle’s grand jury testimony and to make no
effort to find Ossorio was particularly unreasonable
and professionally irresponsible under the facts and
circumstances that the majority simply ignores. The
charge that the petitioner faced—murder, which carried
a maximum sentence of life imprisonment—could not
be more serious, and the importance of corroborative
alibi testimony—from an independent, nonfamily mem-
ber witness like Ossorio—cannot be overstated. Sher-
man reasonably could not have ruled out the possibility
that Ossorio would be able to provide such testimony,
and he would have confirmed that Ossorio could, in
fact, do so merely by asking Dowdle to identify her
‘‘beau,’’ who, at that time, lived within miles of Sher-
man’s law office, and then by contacting Ossorio, who
was ready, willing and able to testify—credibly, as the
habeas court found—on the petitioner’s behalf. As the
United States Supreme Court has observed in a case
involving this very issue, ‘‘[w]hen viewed in this light,
the ‘[reasonable] decision’ the [majority and the state
both] invoke to justify counsel’s [failure to pursue] miti-
gating evidence resembles more a post hoc rationaliza-
tion of counsel’s conduct than an accurate description
of their deliberations prior to [trial].’’ Wiggins v. Smith,
539 U.S. 510, 526–27, 123 S. Ct. 2527, 156 L. Ed. 2d
471 (2003).
Not surprisingly, both Sherman and his associate,
Jason Throne, testified without contradiction that an
objective and unbiased witness would have been critical
to the petitioner’s alibi defense, and that they were very
eager to locate a witness who met that profile. And yet,
when Sherman and Throne learned by reading the grand
jury testimony of their own witness, Dowdle, that just
such an independent and unbiased witness—her former
‘‘beau’’—was at the home of James Terrien, with Dow-
dle, on the evening of October 30, 1975, they did nothing
in response to that testimony. Nevertheless, the major-
ity concludes that Sherman and Throne reasonably
decided that it just was not worth the effort to follow
up on Dowdle’s testimony, even though it would have
entailed nothing more than a couple of telephone calls.
It is perplexing, to say the least, that the majority
endorses an investigative approach that reflects such
a gross lack of attention and effort, one that created
such a serious and needless risk that the petitioner’s
case would be severely prejudiced because of counsel’s
cavalier refusal to pursue a potentially critical lead. In
fact, I cannot fathom why the majority sets the bar so
low, or why it employs such a skewed and one-sided
analysis in doing so.
A
The Facts
The relevant facts and procedural history pertaining
to this issue are largely undisputed. Within hours of the
discovery of the victim’s body around 12:30 p.m. on
October 31, 1975, the police began interviewing those
persons who might be able to provide useful informa-
tion about the events surrounding the victim’s murder.
In one of those interviews, Thomas Skakel informed
the police that he had been with the victim until approxi-
mately 9:30 p.m. on October 30, at which time both
of them departed for their respective homes. Thomas
Skakel also told the police that, at about that same
time, the petitioner left for the Terrien home, which is
about a twenty minute car ride from the Skakel home,
in Thomas Skakel’s father’s Lincoln Continental,
accompanied by his brothers John Skakel and Rushton
Skakel, Jr., and their cousin, Terrien.4 In his interview
with the police, the petitioner also stated that he had
gone to the Terrien home around 9:30 p.m., watched
television there, and did not return home until approxi-
mately 11 p.m. Interview reports of others who were
questioned by the police soon after the discovery of
the victim’s body do not indicate whether those persons
were questioned about the activities and whereabouts
of Thomas Skakel and the petitioner in the general time
frame of the murder. In the weeks following the murder,
however, everyone who expressed any knowledge
about the comings and goings of the petitioner and
Thomas Skakel corroborated the statements that they
had given to the police. Among those who did so in
their police interviews were John Skakel, Rushton Ska-
kel, Jr., and Terrien. In addition, Terrien’s sister, Dow-
dle, told the police that the petitioner was at the Terrien
home (where she resided) on the evening of October
30, 1975, along with her brother and her cousins, John
Skakel and Rushton Skakel, Jr.
Shortly after the murder, the prime suspect in the
victim’s death was Thomas Skakel, for whom the Green-
wich police sought permission from the Office of the
State’s Attorney to apply for an arrest warrant. Permis-
sion was denied because the state’s attorney did not
believe that the evidence set forth in the warrant appli-
cation and affidavit constituted probable cause to
believe that Thomas Skakel had committed the murder.
Although the investigation into the victim’s death con-
tinued for some time,5 the petitioner did not become a
suspect until sometime in the mid-1990s. As a conse-
quence, for at least twenty years following the victim’s
death, investigators had no reason to focus their atten-
tion on the petitioner or his activities, and did not do so.
Apparently prompted by information gleaned from a
report prepared by Sutton Associates, a private security
firm, sometime in the mid-1990s,6 those investigators
undertook to develop a case against the petitioner.
Because of this investigation, in July, 1998, the peti-
tioner retained Sherman to represent him.
In connection with that renewed investigation, a
grand jury was empaneled at the state’s request for
the purpose of acquiring additional evidence about the
murder and, in particular, evidence linking the peti-
tioner thereto. Numerous people were called to appear
before the grand jury, one of whom was Dowdle. On
September 22, 1998, she testified before the grand jury
under oath that she was home on the evening of October
30, 1975, when her brother, Terrien, and cousins, the
Skakels, arrived around 9:30 p.m. to watch television.
Because she was in her mother’s library putting her
daughter to bed, and Terrien and the Skakels were in
a room located off the library, she could say only that
she heard the Skakels’ voices but could not recall, given
the passage of time, whether she actually saw the peti-
tioner. Dowdle also testified, however, that, when inter-
viewed by the police shortly after the murder, she told
them that the petitioner had been at her home that
evening. She further testified that her ‘‘beau’’ was with
her that evening at her home. Sherman, however, never
followed up on Dowdle’s testimony that she had a com-
panion, her ‘‘beau,’’ that evening.
Following completion of the grand jury investigation,
in January, 2000, the petitioner was charged with the
victim’s murder, and the petitioner’s criminal trial com-
menced in early May, 2002. In their trial testimony in
support of the petitioner’s alibi defense, Rushton Ska-
kel, Jr., and Terrien explained, consistent with their
grand jury testimony and the statements that they had
given to the police some twenty-seven years earlier,
that they and the petitioner, along with John Skakel,
had driven to the Terrien residence at around 9:30 p.m.
on October 30, 1975, remained there until about 11 p.m.,
and then returned home. John Skakel also testified at
trial but stated that he could not recall whether the
petitioner had gone to the Terrien home that evening.
When asked, however, whether the statement he had
given to the police soon after the murder accurately
reflected what he knew at the time—that is, that the
petitioner was at the Terrien home with other family
members that evening—John Skakel responded in the
affirmative. Finally, Dowdle’s trial testimony mirrored
her grand jury testimony. In fact, during questioning of
Dowdle by State’s Attorney Jonathan Benedict about
her grand jury testimony, Dowdle expressly reiterated
that a ‘‘friend’’ was with her at the Terrien home on the
evening of October 30, and, in addition, while she was
still on the stand, a portion of her grand jury testimony
containing the reference to her ‘‘beau’’ was read and
published to the jury. Again, Sherman took no action
with respect to the identity, availability or potential
testimony of Dowdle’s ‘‘beau.’’
Benedict sought to rebut the petitioner’s alibi defense
with the testimony of three witnesses, Helen Ix, Andrea
Shakespeare, and Julie Skakel, all of whom were pres-
ent at the Skakel residence from approximately 9 to
9:30 p.m. on October 30, 1975. Ix and the victim, Ix’
close friend, had gone to the Skakel home together,
arriving shortly after 9 p.m. Ix remained there until
approximately 9:30 p.m., when she left and went home.
On direct examination, Ix testified that she was uncer-
tain whether the petitioner was in the car when it
headed for the Terrien residence; on cross-examination,
however, she indicated that she thought that he was in
the car, but she was not sure in light of the passage
of time.
Shakespeare, a good friend of Julie Skakel’s, had
been with the Skakel family at dinner that evening and
returned with the family members to the Skakel resi-
dence at about 9 p.m. Initially, on direct examination
by the state, Shakespeare asserted that the petitioner
had remained at home when the Skakel brothers left
for the Terrien residence. Thereafter, however, upon
being recalled to testify by Sherman, she acknowledged
that she had given a tape-recorded statement to the
police in 1991, the relevant portion of which was played
for the jury, in which she stated that she did not see
the car when it left for the Terrien residence and that
she therefore did not see whether the petitioner was
in the car. She further told the police that, although she
believed that the petitioner had gone to the Terrien
residence, she had no independent recollection of the
events in question and that her belief was based on
what others had told her had occurred on the evening
of October 30, 1975.
Finally, Julie Skakel, the petitioner’s sister, testified
that she was uncertain about the events of that evening.
In light of that testimony, the state was permitted to
introduce a statement that she had made in a prior
proceeding in which she stated that, at around 9:20 p.m.
on October 30, 1975, she saw an unidentified person
run by, just outside a window in the Skakel residence,
and that she called out, ‘‘Michael, come back here.’’
The significance of this testimony was to demonstrate
that, at least at that moment in time, Julie Skakel
believed that the figure she observed through the win-
dow was the petitioner.
At the conclusion of the evidence, Benedict, in his
closing argument to the jury, acknowledged that the
petitioner’s proffered alibi was the ‘‘cornerstone of the
defense . . . .’’ In fact, according to Benedict, the alibi
was the key component of a scheme, hatched by the
petitioner’s father, Rushton Skakel, Sr., and furthered
by the entire Skakel family, all of whom, Benedict
alleged, siblings and cousins alike, knew that the peti-
tioner had murdered the victim, to shield the petitioner
from the consequences of his heinous crime. Benedict
argued that the family plot to protect the petitioner
commenced ‘‘on October 30, 1975, with the disappear-
ance . . . [and] disposal’’ of incriminating evidence,
including ‘‘the golf club, the shaft and any other evi-
dence of the crime’’ within ‘‘thirty-six hours’’ of its com-
mission. The cover-up continued the day after the
murder, when Littleton was ‘‘ordered’’ to take the peti-
tioner, Thomas Skakel, John Skakel, and Terrien for an
overnight visit to the Skakel family home in Windham,
New York, the place where the conspiracy allegedly
‘‘took shape.’’ In the state’s view, the family’s effort to
‘‘advance’’ this ‘‘produced’’ and ‘‘concocted’’ alibi con-
tinued during the grand jury proceedings and at the
petitioner’s criminal trial, at which the petitioner’s wit-
nesses all gave intentionally false testimony in asserting
that the petitioner was at the Terrien residence when,
according to the great weight of the evidence, the victim
was being murdered. Finally, Benedict repeatedly and
forcefully reminded the jurors that the petitioner’s alibi
witnesses were all family members, emphasizing that
‘‘[n]o independent witness [could] say what happened
once [the] Lincoln [Continental] backed out of the drive-
way’’ of the Skakel home at about 9:15 p.m. on October
30, 1975. Benedict’s argument evidently was convincing,
because the jury, after expressly requesting that the
testimony of Ix, Shakespeare and Julie Skakel be read
back—the only testimony offered by the state that even
arguably tended to refute the petitioner’s alibi—found
the petitioner guilty.7
Thereafter, following an unsuccessful appeal from
the judgment of conviction; see State v. Skakel, 276
Conn. 633, 770, 888 A.2d 985, cert. denied, 549 U.S. 1030,
127 S. Ct. 578, 166 L. Ed. 2d 428 (2006); and from the
denial of his petition for a new trial; see Skakel v. State,
295 Conn. 447, 452, 991 A.2d 414 (2010); the petitioner
commenced the present habeas action. I now briefly
summarize testimony from the habeas trial that is perti-
nent to the petitioner’s contention that Sherman failed
to conduct a constitutionally adequate investigation of
his alibi defense.
The petitioner elicited testimony from Ossorio, a psy-
chologist who was seventy-two years old at the time
of the habeas trial, that he was visiting Dowdle at the
Terrien residence during the evening of October 30,
1975, and until around midnight on October 31, and
that the petitioner and several others also were there
that evening, watching television in the library. Ossorio
testified that, although he was visiting Dowdle, who
was caring for her child, he ‘‘was in and out’’ of the
room in which the petitioner and the others who were
there that evening were watching television. Ossorio,
who further testified that he resided in Greenwich at
the time of the petitioner’s criminal trial, stated that
neither the police nor the defense had ever sought to
interview him regarding his presence at the Terrien
residence on that date, and that he had never come
forward because he did not pay close enough attention
to the trial to appreciate that his presence at the Terrien
residence, and his recollection of the evening’s events,
would have been important to the case. The habeas
court expressly credited Ossorio, who it characterized
as a ‘‘disinterested,’’ ‘‘powerful,’’ and ‘‘credible’’ witness.
The petitioner also presented the testimony of
Michael Fitzpatrick, a prominent Connecticut attorney
and past president of the Connecticut Criminal Defense
Lawyers Association who specializes in criminal
defense and civil litigation. Fitzpatrick testified that he
had spent more than 200 hours reviewing all of the
transcripts and other materials relevant to the petition-
er’s habeas claims, and, on the basis of his expertise
and experience in the field of criminal law, it was his
opinion that a reasonably competent criminal defense
attorney, after receiving and reviewing Dowdle’s grand
jury testimony, ‘‘absolutely’’ would have ascertained
Ossorio’s identity and then made reasonable efforts to
locate and interview him. That investigation was
required, according to Fitzpatrick, because it was
incumbent on Sherman to confirm that Ossorio was
present at the Terrien residence on October 30, 1975,
and, if so, whether his recollection of the events would
strengthen the petitioner’s alibi defense. In particular,
Fitzpatrick explained that, if Ossorio recalled that the
petitioner was present at the Terrien home that evening,
that testimony would have ‘‘[made] it impossible for
the state to argue in summation that there [was] not a
single independent [alibi] witness in the case, which
was one of the chief grounds the state asserted for
rejecting the alibi.’’ Fitzpatrick further testified that
Sherman’s failure to identify and interview Ossorio
‘‘absolutely prejudiced’’ the petitioner because ‘‘it
deprived [him] . . . of the opportunity to present an
independent alibi witness, and we know by way of fact
. . . that he was convicted, [and] that the jury unani-
mously rejected the alibi.’’
Throne, an associate in Sherman’s office who served
as cocounsel for the petitioner along with Sherman,
also was a witness at the habeas trial. Among other
subjects, Throne testified about the petitioner’s alibi,
explaining that it was ‘‘extremely important’’ to the
petitioner’s overall defense of the charge against him.
When asked if the petitioner’s trial counsel were ‘‘eager
to find anyone who could corroborate [the alibi],’’
Throne responded, ‘‘[a]bsolutely, without question.’’
Throne further stated that, ‘‘even more importantly,’’
the petitioner’s counsel were ‘‘especially eager to find
a nonfamily member who could corroborate [the peti-
tioner’s alibi].’’ He elaborated on that testimony by not-
ing the ‘‘obvious concern’’ that the petitioner’s counsel
had because all of the alibi witnesses were family mem-
bers, and because of the likelihood that ‘‘the jury would
perceive all of those witnesses as having bias and a
motivation to lie or distort facts or truth, which wasn’t
the case. . . . I wish that we had even a single witness
that wasn’t blood related to include in that group that
could have testified to the same facts that everyone
else testified to, to establish that [the petitioner] was
not there the night of the murder.’’ According to Throne,
the testimony of an independent, nonfamily alibi wit-
ness would have been ‘‘critical’’ to the petitioner’s
alibi defense.
Finally, Sherman testified at the habeas trial. When
asked whether the alibi was the petitioner’s ‘‘principal
defense’’ at his criminal trial, Sherman responded,
‘‘[a]bsolutely,’’ and, thereafter, characterized the alibi
defense as ‘‘our mainframe.’’ He also stated that it would
have been ‘‘very important’’ to have an alibi witness
who was not related to the petitioner and that, if he had
located one, he would have had him testify in support of
the petitioner’s alibi, ‘‘[w]ithout a doubt.’’ In response
to questioning from the state, and with reference to
Dowdle’s grand jury testimony, Sherman indicated that,
because Dowdle had testified that she ‘‘really didn’t
venture out’’ of the library on the evening of October
30, 1975, Ossorio, her guest, might well have stayed in
the library, as well. Sherman further agreed that,
because Dowdle recalled hearing but not seeing the
Skakel relatives in a nearby room, Ossorio also may
not have seen the Skakels. Sherman also acknowledged
that he had read Dowdle’s grand jury testimony prior
to trial, testimony that included her statement that her
‘‘beau’’ was with her that evening at the Terrien home.
When Sherman was asked why he had never inquired
into the identity of Dowdle’s ‘‘beau,’’ Sherman explained
simply that, ‘‘I had no reason to suspect that he, in fact,
would be helpful in that he saw [the petitioner] and the
rest of the boys.’’
B
The Applicable Law
As the majority notes, the sixth amendment guaran-
tees criminal defendants the effective assistance of
counsel; Strickland v. Washington, supra, 466 U.S. 687;
and that guarantee ‘‘is beyond question a fundamental
right.’’ Kimmelman v. Morrison, 477 U.S. 365, 377, 106
S. Ct. 2574, 91 L. Ed. 2d 305 (1986). ‘‘The [s]ixth [a]mend-
ment recognizes [this right] because it envisions [that
counsel will play] a role that is critical to the ability of
the adversarial system to produce just results.’’ (Inter-
nal quotation marks omitted.) Id., 394. ‘‘[C]ounsel’s
function, as elaborated in prevailing professional
norms, is to make the adversarial testing process work
in the particular case.’’ (Internal quotation marks omit-
ted.) Id., 384. Consequently, ‘‘[a]n accused is entitled
to be assisted by an attorney, whether retained or
appointed, who plays the role necessary to ensure that
the trial is fair.’’ (Internal quotation marks omitted.)
Id., 377.
These general principles are no less applicable to the
investigative stage of a criminal case than they are to
the trial phase. Indeed, the United States Supreme Court
has explained that the foregoing ‘‘standards require no
special amplification in order to define counsel’s duty
to investigate . . . . [Simply stated], strategic choices
made after less than complete investigation are reason-
able precisely to the extent that reasonable professional
judgments support the limitations on investigation. In
other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that
makes particular investigations unnecessary.’’ Strick-
land v. Washington, supra, 466 U.S. 690–91. That is,
counsel’s decision to forgo or truncate an investigation
‘‘must be directly assessed for reasonableness in all
the circumstances . . . .’’ Id., 691. ‘‘In assessing the
reasonableness of an attorney’s investigation . . . a
court must consider not only the quantum of evidence
already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investi-
gate further.’’ Wiggins v. Smith, supra, 539 U.S. 527. In
addition, in contrast to our evaluation of the constitu-
tional adequacy of counsel’s strategic decisions, which
are entitled to deference, when the issue is whether ‘‘the
investigation supporting counsel’s [strategic] decision’’
to proceed in a certain manner ‘‘was itself reasonable’’;
(emphasis altered) id., 523; ‘‘we must conduct an objec-
tive review of [the reasonableness of counsel’s] perfor-
mance . . . .’’ (Emphasis added.) Id. Thus, ‘‘deference
to counsel’s strategic decisions does not excuse an inad-
equate investigation . . . .’’ Williams v. Stephens, 575
Fed. Appx. 380, 386 (5th Cir.), cert. denied, U.S.
, 135 S. Ct. 875, 190 L. Ed. 2d 709 (2014). Finally,
because a thorough pretrial investigation is so often an
essential component of the defense of a criminal case—
especially if the case is complex or involves particularly
serious charges—‘‘[c]ourts have not hesitated to find
ineffective assistance in violation of the [s]ixth [a]mend-
ment when counsel fails to conduct a reasonable inves-
tigation into one or more aspects of the case and when
that failure prejudices his or her client.’’ Towns v.
Smith, 395 F.3d 251, 258 (6th Cir. 2005).
Although the reasonableness of any particular investi-
gation necessarily depends on the unique facts of any
given case; see, e.g., Strickland v. Washington, supra,466 U.S. 688–89; counsel has certain baseline responsi-
bilities that must be discharged in every criminal matter.
‘‘It is the duty of the [defense] lawyer to conduct a
prompt investigation of the circumstances of the case
and to explore all avenues leading to facts relevant to
the merits of the case . . . .’’ (Internal quotation marks
omitted.) Rompilla v. Beard, 545 U.S. 374, 387, 125 S.
Ct. 2456, 162 L. Ed. 2d 360 (2005); see also, e.g., McCoy
v. Newsome, 953 F.2d 1252, 1262–63 (11th Cir.) (‘‘[w]hen
a lawyer fails to conduct a substantial investigation into
any of his client’s plausible lines of defense, the lawyer
has failed to render effective assistance of counsel’’
[internal quotation marks omitted]), cert. denied, 504
U.S. 944, 112 S. Ct. 2283, 119 L. Ed. 2d 208 (1992). This
duty exists irrespective of whether the defendant is
helpful to counsel by providing information pertinent
to his defense or whether he provides no such assis-
tance. See Rompilla v. Beard, supra, 381 (although peti-
tioner was unwilling to assist counsel in pretrial
preparation and ‘‘was even actively obstructive by send-
ing counsel off on false leads,’’ counsel nevertheless
had independent obligation to conduct thorough inves-
tigation); Daniels v. Woodford, 428 F.3d 1181, 1202–1203
(9th Cir. 2005) (‘‘[e]ven though [the petitioner] refused
to speak to his counsel, [counsel] still had an indepen-
dent duty to investigate [and prepare]’’ because ‘‘[p]re-
trial investigation and preparation are the keys to
effective representation of counsel’’ [internal quotation
marks omitted]), cert. denied sub nom. Ayers v. Dan-
iels, 550 U.S. 968, 127 S. Ct. 2876, 167 L. Ed. 2d 1152(2007). Thus, ‘‘[a]n attorney’s duty of investigation
requires more than simply checking out the witnesses
that the client himself identifies.’’ Bigelow v. Haviland,
576 F.3d 284, 288 (6th Cir. 2009); see also id., 288–89
(‘‘[Defense counsel] had no reasonable basis for assum-
ing that [the petitioner’s] lack of information about still
more witnesses meant that there were none to be found.
. . . With every effort to view the facts as a defense
lawyer would have [viewed them] at the time, it is diffi-
cult to see how [defense counsel] could have failed
to realize that without seeking information that could
either corroborate the alibi or contextualize it for the
jury, he was seriously compromis[ing] [his] opportunity
to present an alibi defense.’’ [Citations omitted; internal
quotation marks omitted.]).
Of course, ‘‘the duty to investigate does not force
defense lawyers to scour the globe on the off chance
something will turn up; reasonably diligent counsel may
draw a line when they have good reason to think further
investigation would be a waste.’’ Rompilla v. Beard,
supra, 545 U.S. 383. In other words, counsel is not
required to conduct an investigation that ‘‘promise[s]
less than looking for a needle in a haystack, when a
lawyer truly has reason to doubt there is any needle
there.’’ Id., 389. But ‘‘[p]retrial investigation and prepa-
ration are the keys to effective representation of coun-
sel’’; (internal quotation marks omitted) Daniels v.
Woodford, supra, 428 F.3d 1203; see also House v. Balk-
com, 725 F.2d 608, 618 (11th Cir.) (‘‘[p]retrial investiga-
tion, principally because it provides a basis [on] which
most of the defense case must rest, is, perhaps, the
most critical stage of a lawyer’s preparation’’), cert.
denied, 469 U.S. 870, 105 S. Ct. 218, 83 L. Ed. 2d 148(1984); and counsel is therefore not free to simply
ignore or disregard potential witnesses who might be
able to provide exculpatory testimony. See, e.g., Black-
mon v. Williams, 823 F.3d 1088, 1105 (7th Cir. 2016)
(‘‘Just one [potential] witness might have been able to
give [the petitioner] a true alibi. At a minimum, all of
[the potential witnesses] could have bolstered his [alibi]
claim. . . . It is not reasonable strategy to leave such
possible testimony unexplored under these circum-
stances.’’); Ramonez v. Berghuis, 490 F.3d 482, 489 (6th
Cir. 2007) (‘‘[h]aving . . . recognized the possibility
that the three witnesses could provide testimony benefi-
cial to [the petitioner], it was objectively unreasonable’’
for counsel to terminate his pretrial investigation before
learning what those witnesses had to say); Gersten v.
Senkowski, 426 F.3d 588, 610 (2d Cir. 2005) (defense
counsel rendered ineffective assistance in concluding
investigation prematurely because he ‘‘never discov-
ered any evidence to suggest one way or another
whether [further investigation] would be counterpro-
ductive or such investigation fruitless, nor did counsel
have any reasonable basis to conclude that such investi-
gation would be wasteful’’), cert. denied sub nom. Artus
v. Gersten, 547 U.S. 1191, 126 S. Ct. 2882, 165 L. Ed. 2d
894 (2006); Pavel v. Hollins, 261 F.3d 210, 220–21 (2d
Cir. 2001) (‘‘First, there is simply no suggestion in the
record that there was any reason not to put [the witness]
on the stand, and an attorney’s failure to present avail-
able exculpatory evidence is ordinarily deficient, unless
some cogent tactical or other consideration justified it.
. . . And, second, [defense counsel’s failure to put her]
on the stand was based on an inadequate investigation.
. . . [Defense counsel] never contacted [the witness]
with regard to her putative testimony, and never
inquired into whether she might be willing to testify on
[the petitioner’s] behalf. . . . [In cases in which a criti-
cal issue is the relative credibility of the party’s wit-
nesses], it should be perfectly obvious that it will almost
always be useful for defense counsel to speak before
trial with [readily available] fact witnesses whose non-
cumulative testimony would directly corroborate the
defense’s theory of important disputes. Accordingly,
when [defense counsel] learned before trial that [she]
might well be such a witness, he should have taken
affirmative steps to discuss the case with her. . . . But
[defense counsel] . . . did not contact [the witness].
Indeed, there is no indication in the record that [coun-
sel] conducted any substantial, affirmative investiga-
tion into [the witness’] potential testimony.’’ [Citations
omitted; emphasis in original; footnotes omitted; inter-
nal quotation marks omitted.]).
Similarly, a decision by counsel to forgo an investiga-
tion into the possible testimony of a potentially signifi-
cant witness is constitutionally unacceptable unless
counsel has a sound justification for doing so; specula-
tion, guesswork or uninformed assumptions about the
availability or import of that testimony will not suffice.
Instead, counsel must seek to interview the witness—
or have the witness interviewed—to determine the
value of any testimony that he may be able to provide.
See, e.g., Ramonez v. Berghuis, supra, 490 F.3d 489(‘‘[c]onstitutionally effective counsel must develop trial
strategy in the true sense—not what bears a false label
of ‘strategy’—based on what investigation reveals wit-
nesses will actually testify to, not based on what counsel
guesses they might say in the absence of a full investiga-
tion’’); Pavel v. Hollins, supra, 261 F.3d 221 (defense
counsel never contacted potentially favorable witness
because counsel was ‘‘confident as to what [that] wit-
ness would say,’’ but ‘‘counsel’s anticipation [of that
testimony] does not excuse the failure to find out’’
[internal quotation marks omitted]); United States v.
Moore, 554 F.2d 1086, 1093 (D.C. Cir. 1976) (‘‘counsel’s
anticipation of what a potential witness would say does
not excuse the failure to find out; speculation cannot
substitute for certainty’’).8 In the same vein, when coun-
sel’s failure to proceed with an investigation is due
not to professional or strategic judgment but, instead,
results from oversight, inattention or lack of thorough-
ness and preparation, no deference or presumption of
reasonableness is warranted. See, e.g., Carter v. Dun-
can, 819 F.3d 931, 942 (7th Cir. 2016) (‘‘[t]he conse-
quences of inattention rather than reasoned strategic
decisions are not entitled to the presumption of reason-
ableness’’ [internal quotation marks omitted]); Wilson
v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (errors
warranting determination of sixth amendment violation
include ‘‘omissions [that] cannot be explained convinc-
ingly as resulting from a sound trial strategy, but [rather,
that] arose from oversight, carelessness, ineptitude, or
laziness’’ [internal quotation marks omitted]).
As I previously indicated, in determining whether
counsel’s pretrial investigation satisfied existing profes-
sional norms, we consider the nature and extent of
the investigation in light of all relevant circumstances.
Strickland v. Washington, supra, 466 U.S. 691. One such
consideration is whether defense counsel undertook
any investigation with respect to the particular witness
involved, and, if so, at what point and for what reason
did counsel decide to forgo any further investigation.
A complete failure to take even the most elementary
investigative steps with respect to a potential defense
or witness is frequently deemed to be constitutionally
inadequate. See, e.g., Bond v. Beard, 539 F.3d 256, 289
(3d Cir. 2008), cert. denied, 558 U.S. 835, 130 S. Ct. 81,
175 L. Ed. 2d 56 (2009), and cert. denied, 558 U.S. 932,
130 S. Ct. 58, 175 L. Ed. 2d 232 (2009); Ramonez v.
Berghuis, supra, 490 F.3d 489; Towns v. Smith, supra,
395 F.3d 259; Soffar v. Dretke, 368 F.3d 441, 473–74 (5th
Cir.), amended in part on other grounds, 391 F.3d 703(5th Cir. 2004).
Finally, with specific regard to the duty to investigate
a defendant’s alibi defense, counsel is obligated to make
all reasonable efforts to identify and interview potential
alibi witnesses. See, e.g., Towns v. Smith, supra, 395
F.3d 259 (‘‘Without even attempting to interview [the
witness], counsel simply decided not to call him as a
witness. That decision was objectively unreasonable
because it was a decision made without undertaking a
full investigation into whether [the witness] could assist
in [the petitioner’s] defense. . . . By failing even to
contact [the witness] . . . counsel abandoned his
investigation at an unreasonable juncture, making a
fully informed decision with respect to [whether to
have the witness testify] impossible.’’ [Citation omitted;
internal quotation marks omitted.]); Bryant v. Scott, 28
F.3d 1411, 1415 (5th Cir. 1994) (‘‘[A]n attorney must
engage in a reasonable amount of pretrial investigation
and at a minimum . . . interview potential witnesses
and . . . make an independent investigation of the
facts and circumstances in the case. . . . [W]hen alibi
witnesses are involved, it is unreasonable for counsel
not to try to contact the witnesses and ascertain
whether their testimony would aid the defense.’’ [Cita-
tions omitted; internal quotation marks omitted.]).
Furthermore, the failure to conduct a thorough inves-
tigation of an alibi defense is perhaps most damaging
when ‘‘the missing witness is disinterested in a case in
which the other witnesses have a relationship to the
defendant.’’ Carter v. Duncan, supra, 819 F.3d 943; see
also Blackmon v. Williams, supra, 823 F.3d 1104–1105
(explaining that unreasonableness of counsel’s failure
to investigate was compounded by ‘‘significant potential
benefits of obtaining alibi testimony from witnesses
unimpaired by family ties to [the petitioner]’’); Mont-
gomery v. Petersen, 846 F.2d 407, 413 (7th Cir. 1988)
(characterizing disinterested alibi witness who defense
counsel unreasonably failed to identify and locate as
‘‘extraordinarily significant’’ when all twelve alibi wit-
nesses were either relatives or close friends of peti-
tioner).
In light of these general principles, it is readily appar-
ent that Sherman’s decision to disregard Dowdle’s
grand jury testimony about her ‘‘beau’’—a decision
based solely on Sherman’s belief that any inquiry into
that subject matter would not have been fruitful—was
profoundly unreasonable under the circumstances. As
a result, Sherman failed by a wide margin to satisfy
Strickland’s requirement that a decision to forgo or
truncate a particular pretrial investigation must flow
from an informed professional judgment.
Accordingly, the habeas court properly reached the
only conclusion that the facts and law support: Sherman
could not reasonably have elected simply to ignore
Dowdle’s grand jury testimony and do nothing to con-
tact her former ‘‘beau,’’ because all of the other alibi
witnesses were close relatives of the petitioner, and
Sherman knew both that the state would argue that
those witnesses were all lying to protect the petitioner
and that an independent alibi witness, with no ties to
the petitioner or his family, would have enhanced the
credibility of the petitioner’s alibi immeasurably.
C
The Flaws in the Majority’s Conclusion That the Habeas
Court Incorrectly Concluded That Sherman
Rendered Ineffective Assistance in
His Handling of the Petitioner’s
Alibi Defense
The habeas court’s memorandum of decision is metic-
ulous and thoughtful, and that court’s conclusion is fully
supported by the facts and the law governing claims
alleging ineffective assistance of counsel. Unfortunately
for the petitioner—and, more generally, for the interests
of justice—the same cannot be said of the majority
opinion.
The majority identifies four reasons for rejecting the
habeas court’s conclusion that Sherman’s handling of
the petitioner’s alibi defense did not satisfy constitu-
tional standards. First, the majority asserts that Sher-
man reasonably could have believed that, despite
Dowdle’s testimony to the contrary, her unnamed
‘‘beau’’ was not, in fact, at the Terrien home on the
evening of October 30, 1975, because neither the peti-
tioner nor any of his alibi witnesses had told Sherman
about the presence of Dowdle’s ‘‘beau’’ at the Terrien
home that evening. The majority next claims that it was
not unreasonable for Sherman either to have ‘‘over-
look[ed] or disregard[ed]’’ Dowdle’s testimony about
her ‘‘beau’’ because there was no reference to any such
person in any of the interview reports and other materi-
als that had been turned over to Sherman in discovery,
and Dowdle’s reference to her ‘‘beau’’ was therefore
aberrational. Third, even if Dowdle’s ‘‘beau’’ was at
the Terrien home that evening, it was reasonable for
Sherman to infer that, like Dowdle herself, he more or
less stayed in the library, where he, Dowdle and her
child were located, and, consequently, it also was rea-
sonable for Sherman to assume that the ‘‘beau’’ did not
go into the nearby room where the Skakel brothers and
Terrien were watching television. Finally, the majority
contends that, more than twenty years later, it was
not unreasonable for Sherman to think that Dowdle’s
‘‘beau,’’ having never been interviewed or otherwise
having come forward, likely would not have a reliable
memory of the events of the evening of October 30, 1975.
The majority asserts that, because these considerations
provided Sherman with legitimate reasons to think that
Dowdle’s ‘‘beau’’ would not be able to provide helpful
alibi testimony, Sherman’s decision to take no action
of any kind to identify the ‘‘beau’’ also was reasonable.
As I explain hereinafter, these considerations fall far
short of justifying Sherman’s failure to take even the
most preliminary investigative steps to ascertain
whether Dowdle’s ‘‘beau’’ could offer valuable alibi evi-
dence. But, before doing do, I first explain the majority’s
use of an improper standard to determine whether Sher-
man was constitutionally required to make a reasonable
inquiry into what, if anything, Dowdle’s ‘‘beau’’ knew
about the petitioner’s whereabouts on the evening of
October 30, 1975. I then discuss the multiple, compelling
reasons why no competent attorney would have failed
to conduct such an obvious and simple investigation
in the present case. Thereafter, I return to the four
reasons on which the majority relies to support its con-
clusion that Sherman acted reasonably in doing nothing
to follow up on Dowdle’s testimony about her ‘‘beau.’’
1
The Majority Employs the Wrong Legal Standard
The standard that the majority uses for determining
whether Sherman performed competently in declining
to act on Dowdle’s grand jury testimony concerning
her ‘‘beau’’ is whether Sherman reasonably could have
concluded that such an investigation more than likely
would not result in the discovery of any favorable testi-
mony. According to the majority, under Strickland,
Sherman had no constitutional duty to try to learn any-
thing at all about Dowdle’s ‘‘beau’’ because Sherman
reasonably believed, in light of all the relevant circum-
stances, that her ‘‘beau’’ probably would not be able to
provide any useful alibi testimony. On first reading, this
reasoning might seem persuasive because it arguably
was reasonable for Sherman to think that there was a
better than even chance that Dowdle’s ‘‘beau’’ either
would not be available to testify, or that he did not see
the petitioner at the Terrien home on the evening of
October 30, 1975, or that he could not recall the relevant
events of that evening. The majority’s test, however, is
patently unsupportable because whether Sherman had
a duty to investigate Ossorio’s potential value as an
alibi witness does not depend on whether Sherman
reasonably may have believed or inferred that Ossorio
more likely than not had no useful information. The
proper standard, rather, is whether, under all the cir-
cumstances, a competent attorney would have under-
taken reasonable efforts to determine whether Ossorio
had any such information. It is perfectly clear that, by
doing absolutely nothing to ascertain Ossorio’s poten-
tial value as an alibi witness, Sherman failed woefully
to meet that standard.
Accordingly, even if the reasons proffered by the
majority support a reasonable inference that Ossorio
might well not have been able to assist the petitioner’s
defense, that inference would not remotely justify Sher-
man’s failure to ascertain Ossorio’s identity from Dow-
dle and to learn, from Ossorio himself, whether he saw
the petitioner at the Terrien residence on the evening of
October 30, 1975. As long as the facts and circumstances
known to Sherman gave rise to a reasonable possibility
that Ossorio might be able to provide valuable testi-
mony, Sherman inarguably had an obligation to make
a reasonable effort to find Ossorio and to ask him. As
I explain hereinafter, those facts and circumstances
leave no doubt that Sherman violated the petitioner’s
constitutionally protected right to counsel by not mak-
ing such an effort.
The reasonable inference or belief standard that the
majority adopts has no legal precedent and is entirely
inadequate to protect the sixth amendment rights of an
accused. Under that standard, a defense attorney would
be free to refuse to initiate a reasonable investigation
into the possible testimony of a potentially important
witness, even in cases in which there remains a reason-
able prospect that the witness will be able to provide
vital defense evidence. Indeed, under the majority’s
standard, defense counsel could abdicate any duty to
investigate eyewitness testimony whenever conditions
render it reasonably likely that the witness’ ability to
observe or recall could have been impaired—for exam-
ple, due to darkness, the consumption of alcohol, or
the like. That simply cannot be the standard contem-
plated by the sixth amendment, as it would give defense
attorneys far too much leeway to decline to investigate
potential witnesses when there is still a reasonable
chance that the witness will be able to provide valuable
testimony. Due to the significance of the pretrial investi-
gation stage of a criminal case, the right to the effective
assistance of counsel must include the right to have
counsel conduct a reasonable investigation into any
potentially important witness unless defense counsel
can rule out any reasonable likelihood that the witness
may be able to provide favorable testimony. That stan-
dard, in stark contrast to the majority’s approach,
affords criminal defendants an appropriate level of pro-
tection because, under that test, defense counsel must
take reasonable steps to follow leads for which there
is a real and legitimate possibility that the investigation
will yield favorable results, yet, at the same time, coun-
sel permissibly may decide against initiating or continu-
ing an investigation when doing so would simply be a
waste of time; see Rompilla v. Beard, supra, 545 U.S.
383; tantamount to a ‘‘scavenger hunt for potentially
exculpatory information with no detailed instruction
on what this information may be or where it might be
found’’; United States v. Farr, 297 F.3d 651, 658 (7th
Cir. 2002); or otherwise ‘‘pointless’’; United States v.
Weaver, 882 F.2d 1128, 1138 (7th Cir.), cert. denied sub
nom. Schmanke v. United States, 493 U.S. 968, 110 S.
Ct. 415, 107 L. Ed. 2d 380 (1989); ‘‘futile’’; United States
v. Six, 600 Fed. Appx. 346, 350 (6th Cir. 2015); or ‘‘harm-
ful to the defense.’’ Harrington v. Richter, 562 U.S. 86,
108, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).
The sixth amendment does not mandate perfect coun-
sel, of course, but it does require more of counsel during
the pretrial investigation stage of the case than merely
picking the lowest hanging fruit. Consequently, even if
the reasons proffered by the majority justified the belief
that Ossorio more than likely would not have been able
to provide evidence favorable to the petitioner, that
inference does not justify Sherman’s failure to make
reasonable efforts to find out whether Ossorio was in
a position to do so. This is hardly a case in which
additional investigation would have been an exercise
in futility or a waste of time. On the contrary, this is a
case ‘‘in which the [petitioner’s] attorneys failed to act
while potentially powerful mitigating evidence was star-
ing them in the face . . . .’’ (Citations omitted.) Bobby
v. Van Hook, 558 U.S. 4, 11, 130 S. Ct. 13, 175 L. Ed. 2d
255 (2009). When, as in the present case, a defendant
is being tried for murder and defense counsel knows
of a potential witness who may be able to provide testi-
mony critical to the defendant’s primary defense, coun-
sel may not rely on inferences, beliefs or deductions in
deciding to forgo even the most rudimentary investiga-
tion into whether that witness can corroborate that
defense.
2
Under the Proper Standard, Why There Are Compelling
Reasons Why Sherman Was Required To Make
Reasonable Efforts To Locate Ossorio
The reasonableness of Sherman’s decision not to
investigate whether Dowdle’s ‘‘beau’’ could provide tes-
timony favorable to the petitioner turns on the facts of
the case and the circumstances pertaining to the wit-
ness. As I previously indicated, there are several com-
pelling reasons why it was absolutely necessary for
Sherman to have made reasonable efforts to find out
whether Ossorio could corroborate the petitioner’s
alibi, all of which the majority ignores. These reasons
include (1) the firsthand nature of the source of the
information to be investigated, (2) the importance of
the petitioner’s alibi defense, (3) the significance of
Ossorio’s testimony to that defense, (4) the import of
Ossorio’s testimony to rebut the state’s claim of a long-
standing family cover-up, (5) the ease with which Sher-
man could have discovered that Ossorio clearly remem-
bered that the petitioner was at the Terrien home on
the evening at issue, and (6) the gravity of the criminal
charges and the magnitude of the sentence that the
petitioner faced. In light of these considerations, it was
inexcusable for Sherman to do nothing to ascertain
Ossorio’s identity, locate him, and then, upon doing so,
either rule him out as an alibi witness or secure his
testimony for trial if, as it has now been established,
he could credibly corroborate that alibi.
Before I address these considerations, it bears
emphasis that the habeas court reviewed them, along
with the reasons proffered by the respondent, the Com-
missioner of Correction, for concluding that Sherman
was not unreasonable in failing to follow up on Dow-
dle’s grand jury testimony, and found, quite properly,
that they outweigh the countervailing factors advanced
by the respondent. Inexplicably, however, the majority
does not even mention the considerations on which the
habeas court and the petitioner relied; nor does the
majority explain why they are not substantially more
weighty and consequential than Sherman’s belief that
there probably was no point in even trying to determine
whether Dowdle’s ‘‘beau’’ would be able to corroborate
the petitioner’s alibi defense. The court in Strickland
made clear that, if counsel elects not to undertake a
particular investigation, that decision itself must be rea-
sonable under all of the circumstances. Strickland v.
Washington, supra, 466 U.S. 691. As I discuss herein-
after, the reasons that the majority proffers to justify
Sherman’s decision not to follow up on Dowdle’s testi-
mony are mere makeweights—indeed, they smack of
the same kind of after the fact rationalization of coun-
sel’s conduct that the United States Supreme Court
rejected in Wiggins v. Smith, supra, 539 U.S. 526–27—
and pale by comparison to the following, truly compel-
ling considerations that support the petitioner’s con-
tention that Sherman’s failure to take any action in
regard to Ossorio violated the petitioner’s sixth amend-
ment right to counsel.
The first such consideration is the firsthand nature
of the information provided by Dowdle in her grand
jury testimony. Although Dowdle gave no indication
one way or the other in that testimony whether Ossorio
knew of the petitioner’s presence at the Terrien home
on the evening of October 30, 1975, Dowdle did have
direct knowledge that another identifiable and presum-
ably independent person, Ossorio, was there that eve-
ning. Thus, Dowdle’s information about Ossorio’s pres-
ence was not based on hearsay or speculation; she had
personal knowledge that Ossorio was at the Terrien
home that evening.
Second, the petitioner’s alibi was his primary defense
to the state’s case against him. Although the state con-
tended that it was possible that the victim was murdered
as late as 1 a.m. on October 31, 1975, the substantial
weight of the evidence indicated that the murder most
likely was committed between 9:30 and 10 p.m. on Octo-
ber 30. Consequently, because the state was required
to disprove the petitioner’s alibi beyond a reasonable
doubt; see, e.g., State v. Butler, 207 Conn. 619, 631, 543
A.2d 270 (1988) (defendant in criminal case is entitled
to instruction that state must rebut alibi defense beyond
reasonable doubt); if the jury believed the petitioner’s
alibi witnesses—indeed, even if the petitioner’s wit-
nesses merely raised a reasonable doubt in the jurors’
minds as to the petitioner’s whereabouts between 9:30
and 10 p.m.—there is a very good likelihood that the
petitioner would have been acquitted. See footnote 7
of this opinion.
The importance of the petitioner’s alibi defense is
also reflected in how vigorously the state opposed it.
State’s Attorney Benedict claimed that it had been con-
cocted by the Skakel family and founded on the perjuri-
ous testimony of the petitioner’s alibi witnesses. Ben-
edict spent a considerable amount of time, both in
adducing testimony from the state’s witnesses and in
cross-examining the petitioner’s witnesses, as well as
during closing argument, attempting to demonstrate
that the petitioner’s alibi had been fabricated. It is likely
that Benedict challenged the petitioner’s alibi so aggres-
sively because, as the Supreme Court of New Jersey
has observed, ‘‘few defenses have greater potential for
creating reasonable doubt as to a defendant’s guilt in the
minds of [the jurors than an alibi].’’ (Internal quotation
marks omitted.) State v. Porter, 216 N.J. 343, 353, 80
A.3d 732 (2013).
Next, the testimony that Ossorio could have provided
was unquestionably essential to the petitioner’s alibi
defense. That testimony, which the habeas court
expressly credited, placed the petitioner at the Terrien
residence during the relevant time frame on the evening
of October 30, 1975, thereby fully corroborating the
testimony of the petitioner’s other alibi witnesses. But
Ossorio’s testimony, while corroborative, certainly was
not cumulative, because the petitioner’s other alibi wit-
nesses were either siblings or cousins of the petitioner.
Although Ossorio was friendly with Dowdle in the mid-
1970s, there is no indication that he had maintained
any ties to her or the Skakel family over the years, and,
thus, he would have been an independent and unbiased
witness with no motive to lie about seeing the petitioner
at the Terrien home on the evening of October 30. Bene-
dict emphatically and persistently maintained that the
jury should not credit the petitioner’s alibi because all of
the alibi witnesses were closely related to the petitioner
and were lying to protect him. In light of this contention
by the state, credible testimony from Ossorio would
have been absolutely critical, both to establish the credi-
bility of the alibi generally and to demonstrate the credi-
bility of the petitioner’s witnesses more specifically.
Indeed, if believed, Ossorio’s testimony would have dis-
proved Benedict’s contention that the Skakel family
had created the fictitious alibi to protect the petitioner
and then continually lied, under oath and otherwise, in
furtherance of the fraudulent scheme. Thus, with
respect to the petitioner’s alibi defense, the quantum of
evidence already known to Sherman—evidence marked
by the weakness inherent in any alibi defense comprised
solely of the testimony of family members—should have
prompted Sherman to investigate the lead provided by
Dowdle. See, e.g., Wiggins v. Smith, supra, 539 U.S.
527 (‘‘[i]n assessing the reasonableness of an attorney’s
investigation . . . a court must consider not only the
quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable
attorney to investigate further’’).
In addition, as I discussed previously, the state
adduced testimony from Ix, Shakespeare, and Julie Ska-
kel in an effort to discredit the petitioner’s alibi defense.
Testimony from a neutral, objective and credible wit-
ness like Ossorio would have gutted the testimony of
those state witnesses, testimony that no doubt appeared
far more significant in light of the state’s contention
that the petitioner’s alibi witnesses all were lying. In
fact, it seems clear that the jury was influenced by the
testimony of Ix, Shakespeare and Julie Skakel because
the jury, during its deliberations, asked that the testi-
mony of those witnesses, insofar as it related to the
petitioner’s alibi, be read back.
Along the same lines, Ossorio’s testimony also would
have refuted Benedict’s claim that the alibi was an inte-
gral part of a broader Skakel family scheme to cover
up for the petitioner. According to Benedict, this
scheme was hatched immediately after the victim’s mur-
der and began with the disposal of incriminating evi-
dence and the trip to Windham, New York, continued
with the petitioner’s enrollment at the Elan School in
Maine, and, thereafter, was exemplified by his allegedly
self-serving statements to Richard Hoffman, the ghost-
writer assisting the petitioner with his book, and, finally,
culminated in the perjurious grand jury and trial testi-
mony of the petitioner’s alibi witnesses. Because the
allegedly fraudulent alibi provided the foundation for
Benedict’s claim of a grand family scheme, Ossorio’s
credible testimony demonstrating the validity of the
alibi also would have debunked Benedict’s broader con-
spiracy theory.
Yet another consideration that the majority fails to
consider is the ease with which Sherman could have
ascertained that Ossorio had critical alibi testimony to
offer, such that even the most rudimentary of inquiries
would have led Sherman directly and immediately to
Ossorio. See, e.g., Rompilla v. Beard, supra, 545 U.S.
389–90 (explaining that ‘‘[t]he unreasonableness of
attempting no more than [counsel] did was heightened
by the easy availability of the [material evidence]’’).
Upon reading Dowdle’s grand jury testimony and learn-
ing that her ‘‘beau’’ was with her at the Terrien residence
on the evening of October 30, 1975, all Sherman had to
do was pick up the telephone and ask Dowdle—his
own alibi witness—to identify her ‘‘beau.’’ And then,
after learning that her ‘‘beau’’ was Ossorio, it would
have been easy for Sherman to locate and speak to
him—indeed, a look in the telephone listings and
another telephone call would have sufficed—because
he lived just a few miles from Sherman’s office. As
in all criminal cases that involve the issue of defense
counsel’s failure to interview a potential witness to
ascertain what he or she has to say, counsel has no
absolute obligation ‘‘to actually track down’’ the wit-
ness, ‘‘only that he put in a reasonable effort to do so.’’
Avery v. Prelesnik, 548 F.3d 434, 438 (6th Cir. 2008),
cert. denied, 558 U.S. 932, 130 S. Ct. 80, 175 L. Ed. 2d
234 (2009); see also id. (‘‘There is no reason based on
professional judgment why [defense counsel] would not
have pursued speaking to [the potential alibi witness].
The [D]istrict [C]ourt correctly concluded that [defense
counsel] was under a duty to reasonably investigate,
which entails, at the bare minimum, asking for [the
potential alibi witness’ telephone] number or address
and reasonably attempting to contact him.’’ [Internal
quotation marks omitted.]). In the present case, the
most elementary and obvious of inquiries by Sherman
or his investigator would have revealed that Ossorio
was a critical alibi witness, and Sherman’s unwilling-
ness to take even those modest steps unreasonably
deprived the petitioner of Ossorio’s crucial trial tes-
timony.
Consequently, this is not a case that required Sher-
man to devise a plan ‘‘to balance limited resources
in accord with effective trial tactics and strategies.’’
Harrington v. Richter, supra, 562 U.S. 89; see also Rog-
ers v. Zant, 13 F.3d 384, 387 (11th Cir.) (‘‘[the] correct
approach toward investigation reflects the reality that
lawyers do not enjoy the benefit of endless time, energy
or financial resources’’), cert. denied, 513 U.S. 899, 115
S. Ct. 255, 130 L. Ed. 2d 175 (1994). Taking his investiga-
tion into Ossorio’s identity, whereabouts and possible
testimony one step at a time, Sherman would have been
able to successfully complete the investigation in two
easy steps and at negligible expense. But, even if that
were not so painfully apparent, the petitioner paid Sher-
man more than $2 million in legal fees, and so the cost
of undertaking reasonable steps to locate Ossorio, a
potentially critical witness, certainly was not an issue.
Finally, as a general matter, an adequate pretrial
investigation is required in all criminal cases. But com-
mon sense dictates that, when the stakes are highest—
when the criminal charges are most serious, exposing
the defendant to the most lengthy of prison terms—the
importance of a thorough pretrial investigation is that
much greater. In the present case, both the gravity of
the charged offense, murder, and the magnitude of the
potential maximum sentence, life imprisonment, are
obvious. In such circumstances, the responsibilities of
defense counsel are especially great, commensurate
with the heightened exposure, concerns and expecta-
tions of the defendant. Defense counsel must be particu-
larly attentive to detail, because the defendant’s life is
on the line. Of course, the gravity of the murder charge
placed Sherman on notice that he needed to put appro-
priate time, thought and effort into the case. He clearly
did not live up to professional norms, however, in failing
even to contact Dowdle after reading her grand jury
testimony and learning that her ‘‘beau’’ was at the Ter-
rien home, with her, on the evening of October 30, 1975.
3
The Majority Cannot Justify Sherman’s
Grossly Inadequate Handling of the
Petitioner’s Alibi Defense
The majority goes to great lengths in trying to ratio-
nalize Sherman’s indefensible failure to follow up on
Dowdle’s grand jury testimony, which identified her
‘‘beau’’ as a potential, independent alibi witness. The
majority’s attempt to justify Sherman’s decision to forgo
even the most rudimentary and self-evident steps to
find out if Ossorio could corroborate the petitioner’s
alibi—steps that, if taken, would have put Sherman
in touch with Ossorio immediately—is both unavailing
and troubling.
The majority first argues that it was reasonable for
Sherman to believe, in spite of Dowdle’s testimony to
the contrary, that her unnamed ‘‘beau’’ actually was not
present with her at the Terrien residence on the evening
of October 30, 1975, because neither the petitioner nor
his alibi witnesses had mentioned anything to Sherman
about Dowdle’s ‘‘beau.’’ Even if this argument was pred-
icated on an accurate rendition of the facts,9 it is based
on a fundamental misunderstanding of the timeline of
this case.
It is undisputed that the petitioner was never consid-
ered a suspect in the victim’s murder before the mid-
1990s; rather, he was considered only a potential wit-
ness before that time. Indeed, State’s Attorney Benedict
acknowledged this fact at trial, noting that, until the
1990s, no witness had ever been asked to account for
the petitioner’s whereabouts or movements on the night
of the murder because the police never suspected his
involvement in the crime. Two events occurred in the
1990s that caused the petitioner to fall under suspicion:
the theft of the Sutton files, in 1995, which revealed
that the petitioner had changed his account of his activi-
ties on the night of the murder, and the publication of
a book by Mark Fuhrman, in 1998, in which Fuhrman
claimed to have solved the long, unsolved murder by
being the first to suspect the petitioner’s involvement
in it. Fuhrman urged that a grand jury be empaneled
immediately to investigate his theory. Shortly there-
after, a grand jury was empaneled, and, in July, 1998,
the petitioner hired Sherman to represent him in con-
nection with that proceeding. Dowdle was called before
the grand jury two months later, on September 22, 1998,
at which time she was asked about her recollection of
the evening of October 30, 1975. Dowdle explained that
she was at home with her ‘‘beau.’’
Accordingly, and contrary to the assertion of the
majority, the existence of a potential, independent alibi
witness for the petitioner was revealed as soon as the
petitioner became a suspect in the murder, by the only
person who was likely to recall after so many years
that such a person even existed. Given the belated
development of the case against the petitioner, Sherman
should have known that it was possible—even likely—
that neither the petitioner nor the other alibi witnesses
recalled or had given any thought to whether Ossorio—
or anyone else—was at the Terrien residence on the
evening of October 30, 1975. It is apparent, for instance,
that even Dowdle failed to appreciate the significance
of Ossorio’s presence at her home, either when she
testified before the grand jury or when she again men-
tioned him at the petitioner’s criminal trial four years
later. In any event, there are many reasonable explana-
tions why the petitioner and his alibi witnesses did
not volunteer information about Ossorio to Sherman
immediately after he was retained by the petitioner, but
there is simply no justification for Sherman to have
concluded that Dowdle was mistaken about the pres-
ence of her ‘‘beau’’ at the Terrien home, or, if her ‘‘beau’’
was there with her, that he would not know whether
the petitioner also was present at that time. The only
rational thing for Sherman to do to clarify any confusion
that he may have had about Dowdle’s testimony would
have been to speak to her about the matter.10 This is
especially true in view of the fact that, at the petitioner’s
criminal trial, Dowdle again testified that she had a
companion with her on the evening of October 30, 1975,
this time characterizing him as a ‘‘friend.’’ Inexplicably,
Sherman failed to follow up on either reference.
The majority also contends that, despite Dowdle’s
reference to her ‘‘beau’’ in her grand jury testimony,
Sherman reasonably could have believed that Ossorio
was not at the Terrien home on the evening of October
30, 1975, because he had never been named in the many
police reports that were generated after the murder.
The majority asserts that the absence of Ossorio from
these reports rendered Dowdle’s reference to him as
aberrational and, therefore, somehow insignificant.
This contention, too, is baseless, and for much the same
reason. Because the petitioner did not become a suspect
until more than twenty years after the murder, police
investigators simply were not concerned about the peti-
tioner’s whereabouts during the twenty year period in
which the vast majority of the police interviews were
conducted. Until the petitioner became a suspect, there
was never any reason for the police to seek a complete
accounting of all individuals present at the Terrien
home on the evening of October 30, 1975. Thus, the
majority is unable to cite a single report in which Osso-
rio likely would have been identified in the course of
the interview. In fact, there is no such report because,
as Benedict expressly acknowledged at trial, until the
1990s, witnesses had never been asked to account for
the petitioner’s whereabouts on the night of the murder
for the simple reason that no one who indicated being
at the Terrien home on the evening of October 30,
including the petitioner, ever was a suspect before that
time. In other words, the majority’s suggestion that
Dowdle’s reference to her ‘‘beau’’ is aberrational
assumes without any evidentiary support that there was
a context in which Ossorio’s name—or the name of
anyone else who was visiting or working at the Terrien
home on October 30—would have come up during the
first twenty years of the investigation. The simple fact
of the matter is that Ossorio’s name would have come
up only if the police had suspected that the petitioner,
Rushton Skakel, Jr., John Skakel, or Terrien did not go
to the Terrien home as reported and, therefore, had
asked them whether anyone could vouch for their pres-
ence there.
In this respect, the present case is governed by the
principles announced in Rompilla v. Beard, supra, 545
U.S. 383, in which defense counsel was deemed to have
rendered constitutionally deficient assistance by failing
to review more thoroughly certain evidence in the pros-
ecutor’s possession. In addressing the dissent’s primary
argument, the court stated: ‘‘The dissent would ignore
the opportunity to find this [mitigating] evidence on the
ground that its discovery . . . rests on serendipity
. . . . But once counsel had an obligation to examine
the file, counsel had to make reasonable efforts to learn
its contents; and once having done so, they could not
reasonably have ignored mitigation or red flags simply
because they were unexpected.’’ (Citation omitted;
internal quotation marks omitted.) Id., 391 n.8. That is
precisely the situation in the present case: Sherman
concededly had an obligation to review Dowdle’s grand
jury testimony with reasonable care, and once having
done so, he could not ignore the obvious red flag raised
by that testimony, namely, that Dowdle was accompa-
nied by her ‘‘beau’’ at the Terrien residence on the
evening of October 30, 1975.11
The majority next tries to convince us that it was
reasonable for Sherman to infer that, because Dowdle
indicated in her grand jury testimony that she mostly
stayed in the library that evening and had not seen
the Skakel brothers herself, Ossorio, too, did not have
occasion to see who was watching television in an adja-
cent room. This argument, too, is based on the unsup-
ported assumption that Ossorio stayed put in the library
all evening, even when Dowdle went to put her daughter
to bed. The fact is that Sherman had no idea whether
Ossorio remained in the library, wandered around the
house, spent time in the television room or otherwise
bumped into the Skakel family members during the
ninety minutes or so that they were all together in the
Terrien residence. Of course, the only way for Sherman
to have found out is to have asked Ossorio, but, inexpli-
cably, he made no effort to do so.
The majority also asserts that Sherman reasonably
could have believed that Ossorio likely would not be
able to recall what occurred on the evening of October
30, 1975, because Sherman could not have interviewed
him until Sherman was retained in 1998, some twenty-
three years after the relevant events. To buttress this
argument, the majority observes that Ossorio had not
been questioned or otherwise come forward in those
twenty-three years, lending support to the inference
that he would not be able to remember who was present
at the Terrien home that evening. Again, although Osso-
rio might not have remembered whether the petitioner
was at the Terrien home on October 30, he well might
have. And, indeed, he did. Sherman obviously could not
rule out that possibility, and he made no effort to do
so—if he had, he would have learned that Ossorio did,
in fact, see the petitioner there that evening. Under the
majority’s logic, Sherman had no duty to make any
effort to follow up on any lead about any new or addi-
tional alibi witness—or any kind of witness, for that
matter—because he reasonably could have concluded
that no such witness was likely to remember events
from more than two decades beforehand. Of course,
the case concerned events long in the past, and, so,
both the state and the defense were required to do their
best to develop facts based largely on memory and
recall. Indeed, this case never could have been brought
but for the state’s ability to locate witnesses who could
remember and testify about events that had occurred
decades earlier. Sherman’s job in defending the peti-
tioner necessarily required him to undertake the same
investigation. The majority, however, agrees with the
respondent that it was reasonable for Sherman to forgo
an investigation into Ossorio due to the lapse of time.
This argument makes no sense to me, and I simply
cannot see why the majority finds it persuasive.
Finally, from my perspective, the majority’s attempt
to rehabilitate Sherman’s representation of the peti-
tioner misses the point altogether. As I discussed pre-
viously, when a defense attorney represents a defendant
in a murder case involving an alibi, the dictates of the
sixth amendment—that the attorney take reasonable
steps to advance that alibi—are coextensive with com-
mon sense; after all, reasonableness and common sense
are closely related. And it defies common sense to con-
clude that it was perfectly reasonable for Sherman to
decide that he need not even speak to Dowdle about
her ‘‘beau’’ because he felt there was a likelihood that
any such inquiry would prove to be unproductive. The
fact is, of course, that there was absolutely no reason
for Sherman even to attempt to evaluate the likelihood
that Ossorio could or could not provide important alibi
testimony; the only reasonable thing for Sherman to do
was to ask Ossorio, which he readily could have done
but elected not to do. That the majority defends Sher-
man’s inexplicably poor and prejudicial decision mak-
ing with respect to Ossorio, and concludes that it
somehow comports with the petitioner’s right to the
effective assistance of counsel, is indeed baffling.
4
The Majority’s Position Has No Support
in Applicable Precedent
In support of its argument that, under all the facts
and circumstances, it was reasonable for Sherman to
‘‘overlook or disregard’’ Dowdle’s ‘‘singular reference’’
to her ‘‘beau’’ in her grand jury testimony, the majority
suggests that courts have not found counsel ineffective
for failing to interview an alibi witness when the defen-
dant did not bring that witness to the attention of coun-
sel. The majority is entirely mistaken both in its ultimate
conclusion and in its reading of the relevant case law.
As the majority appears to concede, it is generally
not reasonable for counsel to fail to investigate potential
alibi witnesses identified by a client. See, e.g., Mosley
v. Atchison, 689 F.3d 838, 849 (7th Cir. 2012); Grooms
v. Solem, 923 F.2d 88, 90 (8th Cir. 1991); Vazquez v.
Commissioner of Correction, 107 Conn. App. 181, 185–
86, 944 A.2d 429 (2008). By the same token, ‘‘[d]efense
counsel is not required . . . to investigate everyone
whose name happens to be mentioned by the defen-
dant.’’ (Internal quotation marks omitted.) Nealy v.
Cabana, 764 F.2d 1173, 1178 (5th Cir. 1985). The major-
ity is manifestly incorrect, however, insofar as it
appears to assert that counsel is not ineffective in failing
to investigate an alibi witness unless the defendant
provides counsel with the witness’ name. Contrary to
the majority’s suggestion—and to common sense, as
well—the key consideration is not whether the client
has mentioned the witness to counsel but whether a
reasonably diligent and effective lawyer, once apprised
of the existence of a potentially critical witness, could
make a ‘‘reasonable professional [judgment]’’ that it
was nonetheless unnecessary to contact the witness
or otherwise to pursue that line of defense. (Internal
quotation marks omitted.) Wiggins v. Smith, supra, 539
U.S. 533. Of course, the answer to that question is ‘‘no.’’
The majority cites Gaines v. Commissioner of Cor-
rection, supra, 306 Conn. 664, in particular, for the prop-
osition that counsel’s failure to investigate an alibi
witness renders his performance deficient only when
he has been provided with the witness’ identity and has
‘‘reason to believe that the witness might have helpful
information to give.’’ Gaines stands for no such proposi-
tion and cannot arguably be read as the majority does.
In that case, the petitioner, Norman Gaines, was com-
pletely unable to remember his whereabouts on the
night of the crime or to remember a single witness
who might attest to them. Gaines v. Commissioner of
Correction, supra, 675. Nonetheless, this court found
that his defense attorney’s representation was ineffec-
tive insofar as he failed to interview either of the only
two individuals that Gaines mentioned as people he
knew in Bridgeport, where the crime occurred, even
though Gaines never suggested that they might have
information helpful to his defense. Id., 685–87.
Gaines, therefore, hardly stands for the proposition
that counsel need not investigate witnesses who have
not been identified by the client. To the contrary,
Gaines clearly illustrates why Sherman was manifestly
ineffective insofar as he failed to look into Dowdle’s
‘‘beau.’’ First, in Gaines, we noted how easy it would
have been to contact the potential witnesses. See id.,
685–86 (‘‘no . . . extensive investigation, based wholly
on conjecture, was necessary to discover or to contact
[the witness]’’). In the present case, as I explained, it
can hardly be said that contacting Ossorio would have
been any more difficult.12 Second, in Gaines, we empha-
sized that counsel was responsible for making a context
specific assessment of the value of potential witnesses,
completely apart from the assessment made by Gaines.
See id., 684 (‘‘[Gaines’] failure to indicate explicitly that
[the witness] possessed information that would be help-
ful to his case did not relieve [counsel] of his duty to
interview [the witness]. Criminal defendants are guar-
anteed effective assistance of counsel, including ade-
quate pretrial investigation, because they require the
skill and knowledge of an individual trained in the
adversarial process to identify the most important wit-
nesses and evidence in order to present the most effec-
tive defense.’’). In the present case, just as in Gaines,
Sherman immediately should have recognized the
potential value of Ossorio’s testimony, even though he
was not identified by the petitioner. Indeed, the possibil-
ity that a person identified as being at the scene in
question would remember who else was there—like
in the present case—is hardly more remote than the
possibility, as in Gaines, that a person that Gaines knew,
though not placed with him on the night of the crime,
would in fact have been moving her belongings with
Gaines on a particular night five months earlier, and
would also happen to remember that fact. See id., 671,
686–87. Furthermore, just as in Gaines, the fact that
Ossorio might not have ended up providing useful infor-
mation is entirely beside the point. Given the potential
value of his testimony and the ease with which it might
have been acquired, there is simply no justification—
none whatsoever—for Sherman’s decision not to inves-
tigate further.
In fact, the majority’s unsupported contention to the
contrary notwithstanding, courts have consistently rec-
ognized that effective counsel cannot limit his investiga-
tion to those leads presented by the client himself, but,
rather, counsel has an independent duty to investigate
potential alibi witnesses not suggested by the client. In
Bigelow v. Haviland, supra, 576 F.3d 284, for instance,
the Sixth Circuit held that counsel ‘‘had no reasonable
basis for assuming that [the petitioner’s] lack of infor-
mation about still more [alibi] witnesses [aside from
one already identified by the petitioner] meant that
there were none to be found.’’ Id., 288. The court
observed that an attorney has a duty of investigation
that goes beyond what the client himself identifies and
concluded that counsel’s representation was ineffective
insofar as he failed to pursue such additional investiga-
tion as would have revealed the alibi witnesses. Id.,288–89. Federal case law is replete with such examples.
See, e.g., Stitts v. Wilson, 713 F.3d 887, 893 (7th Cir.
2013) (‘‘When a defendant’s alibi is that he was at a
nightclub at the time of the shooting, where there are
presumably many people, we cannot fathom a reason
consistent with [United States] Supreme Court prece-
dent that would justify a trial counsel’s decision to
interview only a single alibi witness without exploring
whether there might be others at the venue who could
provide credible alibi testimony. There is simply no
evidence in the record to suggest that exploring the
possibility of other alibi witnesses ‘would have been
fruitless’ under these circumstances.’’ [Emphasis omit-
ted.]), cert. denied, U.S. , 134 S. Ct. 1282, 188
L. Ed. 2d 299 (2014); United States v. Gray, 878 F.2d
702, 711–12 (3d Cir. 1989) (counsel was ineffective when
he failed to interview unnamed potential eyewitnesses
to altercation, in addition to several known witnesses);
Sullivan v. Fairman, 819 F.2d 1382, 1391–92 (7th Cir.
1987) (counsel was ineffective when he made merely
‘‘perfunctory’’ efforts to interview witnesses noted in
police reports).
The facts of this case illustrate the need for just such
an independent duty. By the late 1990s, it is entirely
unsurprising that the petitioner failed to recall the tran-
sitory presence of his older cousin’s boyfriend nearly
twenty-five years earlier. In such a situation, counsel
must probe harder—to seek to fill in the gaps when
the foibles of memory are likely to interfere with a
defendant’s full recollection of the past. See Bigelow
v. Haviland, supra, 576 F.3d 288 (counsel’s duty to
look beyond witnesses identified by client is especially
significant when client may have trouble remembering
them himself). Courts have reasonably recognized,
moreover, that such duties grow increasingly acute as
the gravity of the crimes charged increases. See Gaines
v. Commissioner of Correction, supra, 306 Conn. 684(‘‘[g]iven the seriousness of the charges that his client
faced [and the other relevant considerations], it was
unreasonable for [defense counsel] not to recognize the
potential that [the witness] might possess information
helpful to the petitioner’s case’’); see also Gregg v. Rock-
view, 596 Fed. Appx. 72, 77 (3d Cir. 2015) (‘‘[e]specially
given the gravity of the criminal charges [the petitioner]
was facing, counsel could not have reasonably elected
to rely exclusively on [one witness] and forgo any inves-
tigation into [another]’’); Raygoza v. Hulick, 474 F.3d
958, 964 (7th Cir.) (‘‘[i]n a [first degree] murder trial, it
is almost impossible to see why a lawyer would not at
least have investigated the alibi witnesses more thor-
oughly’’), cert. denied sub nom. Randolph v. Raygoza,
552 U.S. 1033, 128 S. Ct. 613, 169 L. Ed. 2d 413 (2007);
Bryant v. Scott, supra, 28 F.3d 1417–18 (‘‘given the
seriousness of the offense and the gravity of the punish-
ment, counsel should have tried to investigate the
potential alibi witnesses’’); Coleman v. Brown, 802 F.2d
1227, 1234 (10th Cir. 1986) (‘‘[i]n light of the strong
case against [the petitioner] and the seriousness of the
charges, it was improper for his attorney to fail to inves-
tigate what was perhaps [the petitioner’s] sole line of
defense’’), cert. denied, 482 U.S. 909, 107 S. Ct. 2491,
96 L. Ed. 2d 383 (1987).
Thus, there is no question that Sherman’s perfor-
mance was not rendered effective merely by virtue of
any inability on the petitioner’s part to recollect the
presence of Dowdle’s ‘‘beau.’’ If Sherman was aware
of Ossorio’s presence and believed that his testimony
might be useful, Sherman had an independent duty to
investigate, regardless of whether the petitioner pointed
him in that direction. The majority argues, nonetheless,
that Sherman, having examined the grand jury testi-
mony with reasonable care,13 could justifiably have
declined to investigate the potential witness on the
assumption that Ossorio would not have possessed use-
ful information. Myriad cases point in the opposite
direction.
In fact, courts have often criticized attorneys who
fail to investigate potential witnesses on the basis of
flawed assumptions about their usefulness. See United
States v. Best, 426 F.3d 937, 945 (7th Cir. 2005) (‘‘[a]n
outright failure to investigate witnesses [as opposed to
the decision not to call such witnesses after investiga-
tion], is more likely to be a sign of deficient perfor-
mance’’); Black v. Larson, 45 Fed. Appx. 653, 655 (9th
Cir. 2002) (‘‘[a]lthough generally we defer to counsel’s
decision not to proffer a witness at trial, that decision
is entitled to less deference when the attorney fails to
interview the witness’’); Gomez v. Beto, 462 F.2d 596,
597 (5th Cir. 1972) (counsel was ineffective for failing
to investigate and subpoena alibi witnesses because,
among other things, ‘‘he did not believe [that] a person
could remember that long ago’’). In Blackmon v. Wil-
liams, supra, 823 F.3d 1105, for instance, the Seventh
Circuit concluded that counsel’s representation was
ineffective insofar as he failed to investigate potential
alibi witnesses who had attended a barbeque with the
petitioner at a time relevant to the crime alleged. The
Seventh Circuit roundly criticized the state court for
‘‘appear[ing] to assume that counsel knew, somehow,
that the additional alibi witnesses would offer purely
cumulative testimony.’’ Id., 1104. Rather, the court
observed that, ‘‘[i]f counsel never learned what the wit-
nesses would have said, he could not possibly have
made a reasonable professional judgment that their tes-
timony would have been cumulative.’’ (Internal quota-
tion marks omitted.) Id.; see also Anderson v. Johnson,
338 F.3d 382, 392–93 (5th Cir. 2003) (counsel was inef-
fective for assuming, after reviewing state’s file but
without further investigation, that witness would not
provide useful testimony). Courts have been similarly
critical of assumptions made about a witness’ ability
or willingness to testify on behalf of the defendant.
See Avila v. Galaza, 297 F.3d 911, 920 (9th Cir. 2002)
(‘‘[Counsel] . . . failed to identify these potential wit-
nesses because he thought that some of the people
might not make the best appearance before a jury, and
because his investigator . . . told him . . . that some
witnesses had been uncooperative. That witnesses
might not cooperate or make the best appearance at
trial are unreasonable bases not to identify or attempt
to interview them, however. A lawyer has a duty to
investigate what information . . . potential [eyewit-
nesses possess], even if he later decide[s] not to put
them on the stand.’’ [Emphasis in original; internal quo-
tation marks omitted.]), cert. dismissed, 538 U.S. 919,
123 S. Ct. 1571, 155 L. Ed. 2d 308 (2003); Schlup v.
Bowersox, United States District Court, Docket No.
4:92CV443 (JCH) (E.D. Mo. May 2, 1996) (‘‘The record
lacks evidence supporting trial counsel’s assumption
that interviewing eyewitnesses would have been fruit-
less because no eyewitnesses would have discussed the
murder . . . . In the absence of evidence supporting
trial counsel’s assumption, his complete failure to inter-
view eyewitnesses to the crime falls below an objective
standard of reasonableness. Trial counsel did not have
a sufficient basis for believing that investigating eyewit-
nesses would not benefit the defense.’’).
In the present case, it is readily apparent that the
potential value of Ossorio’s testimony was far too high
for Sherman to dismiss Dowdle’s reference—even a
single reference—without reasonable investigative
effort.14 As the Eighth Circuit has observed, ‘‘[o]nce
a defendant identifies potential alibi witnesses, it is
unreasonable not to make some effort to contact them
to ascertain whether their testimony would aid the
defense.’’ Grooms v. Solem, supra, 923 F.2d 90. In that
case, counsel failed to investigate a potential alibi that
arose at the beginning of trial on the assumption that
he would be precluded from offering any alibi witnesses
on state procedural grounds. See id. In the present case,
Sherman faced no such procedural barrier; he merely
assumed, on the basis of the petitioner’s twenty-five
year old recollection, that Ossorio would be able to offer
no useful testimony. Such an assumption is patently
unreasonable in the circumstances presented.
In reaching a contrary conclusion, the majority relies
on cases involving facts that bear no resemblance to
the present case. It suggests, first, that, as in United
States v. Farr, supra, 297 F.3d 658, Sherman did not
act unreasonably in failing to engage in a ‘‘ ‘scavenger
hunt’ ’’ for potentially exculpatory information with no
reason for knowing what the information was or where
it might be found. In Farr, however, the defendant had
refused to cooperate with his attorney; see id., 654; and
could not, on appeal, ‘‘name a single witness who could
help his cause, much less identify the substance of their
alleged testimony.’’ Id., 656. Thus, the court had no
reason to decide whether the defendant’s counsel was
ineffective; without any sense of who the witnesses
were or what they might say in his defense, the court
could conclude only that the defendant was not preju-
diced by the missing testimony. Id., 659. In the present
case, by contrast, the location and import of the poten-
tially exculpatory information is—and always has
been—beyond question. Sherman simply needed to
speak to Dowdle and ask her who her ‘‘beau’’ was.
The majority also refers to two Eighth Circuit cases
to illustrate the significance of the petitioner’s failure
to precisely identify Ossorio or to help Sherman locate
him. But, once again, the majority fails to ascribe any
value to identifiability, focusing narrowly on the for-
mality of whether the defendant has fully identified the
witness for the benefit of counsel. What these cases
stand for, in fact, is the proposition that counsel is not
required to conjure up a witness of uncertain value
when that witness is not reasonably identifiable.15 In
those cases, unlike in the present case, each witness
was misidentified in the police reports—a barrier to
investigation that, without the aid of the defendant,
counsel had failed to surmount. See Battle v. Delo, 19
F.3d 1547, 1555 (8th Cir. 1994), amended on other
grounds, 64 F.3d 347 (8th Cir. 1995), cert. denied sub
nom. Battle v. Bowersox, 517 U.S. 1235, 116 S. Ct. 1881,
135 L. Ed. 2d 176 (1996). Furthermore, counsel in at
least one of these cases, unlike Sherman, did make
efforts to investigate the misidentified witness. See
Harris v. Bowersox, 184 F.3d 744, 756–57 (8th Cir.
1999), cert. denied, 528 U.S. 1097, 120 S. Ct. 840, 145
L. Ed. 2d 706 (2000). In any event, both cases are inappo-
site: in the present case, there was no impediment to
investigation. Sherman, unlike counsel in Harris, sim-
ply failed to try.16
This failure to investigate, as I explained, was not
the product of strategic thinking; it was the result of
unfounded and unsupportable assumptions about the
value of a potentially critical alibi witness in a murder
case. However sparse the references to Ossorio, this is
not a case in which counsel was at liberty to ignore them
or to risk miscalculating their potential significance.
Rather, it was his constitutional responsibility to take
reasonable steps to ascertain Ossorio’s identity and to
determine his value as a witness. Sherman knew that
Ossorio was the only unrelated alibi witness; see Mont-
gomery v. Petersen, supra, 846 F.2d 413 (failure to inter-
view only disinterested alibi witness was unreason-
able); and he had no real basis, aside from conjecture,
for concluding that Ossorio would not prove to be a
useful witness. See, e.g., State v. Sanford, 24 Kan. App.
2d 518, 523, 948 P.2d 1135 (failure to question potential
witnesses was unreasonable when counsel merely
‘‘believed that they would be hostile witnesses’’), review
denied, 262 Kan. 967 (1997). Armed with the knowledge
of a potentially critical breakthrough, it is inconceivable
that a competent attorney would decline to make even
perfunctory efforts to contact such a witness. In cases
like these, courts have not hesitated to find that coun-
sel’s assistance did not satisfy the requirements of the
sixth amendment. Neither should we.
D
Conclusion
When Sherman learned from Dowdle’s sworn grand
jury testimony that another person, subsequently identi-
fied as Ossorio, was present at the Terrien home on
the evening of October 30, 1975, Sherman simply elected
to disregard that testimony. He did so, even though he
did not know whether Ossorio could corroborate the
petitioner’s alibi and even though he could have found
out in no time and with virtually no investigative effort
that Ossorio could, indeed, provide critical alibi testi-
mony. In not bothering to follow up on Dowdle’s testi-
mony, Sherman disregarded his professional obligation
to investigate critical prosecution evidence, thereby
engendering ‘‘a breakdown in the adversarial process
that our system counts on to produce just results.’’
Strickland v. Washington, supra, 466 U.S. 696. It is
nothing short of astonishing that the majority approves
of Sherman’s game of Russian roulette, with the peti-
tioner’s freedom at stake, as consonant with the consti-
tutional guarantees of a fair trial and the effective
assistance of counsel.
II
SHERMAN’S FAILURE TO RAISE A THIRD-PARTY
CULPABILITY DEFENSE AGAINST
THOMAS SKAKEL
I also must register my strong objection to the majori-
ty’s determination that the habeas court incorrectly con-
cluded that Sherman’s representation was constitution-
ally deficient insofar as he failed to pursue a third-party
culpability defense17 against Thomas Skakel in light of
Thomas Skakel’s highly incriminating admissions in
Sherman’s presence and in the presence of Sherman’s
associate, Throne, on the eve of the petitioner’s criminal
trial. Eight days before that trial, Thomas Skakel admit-
ted to Sherman and Throne that he had lied to the police
in 1975 when he told them that the victim left his house
at 9:30 p.m. Thomas Skakel admitted that, in fact, he
and the victim had a sexual encounter in his backyard
that lasted until at least 9:50 p.m., placing Thomas Ska-
kel with the victim at the likely time of her death.
Indeed, the victim was found with her pants and under-
wear down around her knees, which is completely con-
sistent with Thomas Skakel’s statement about his
sexual contact with her.
The majority concludes that Sherman’s decision to
implicate Littleton rather than Thomas Skakel was
objectively reasonable, but not because the evidence
implicating Littleton was strong. It was not. In fact, it
was nonexistent. The majority concludes, rather, that
the evidence adduced at the habeas trial did not support
the habeas court’s finding that Thomas Skakel dis-
cussed his sexual encounter with the victim when he
met with Sherman and Throne in 2002 and, therefore,
that the evidence did not support the habeas court’s
finding that Sherman could have called Throne to the
stand to testify about Thomas Skakel’s admissions. The
majority also concludes that the habeas court’s finding
that Throne could have testified about the admissions
was ‘‘entirely speculative’’ in light of Throne’s inability,
at the petitioner’s 2013 habeas trial, to remember the
specifics of what was discussed at the 2002 meeting,
apart from the fact that Thomas Skakel admitted to
having lied to the police about when he last saw the
victim. The majority finally concludes that, even if
Thomas Skakel discussed his sexual liaison with the
victim with Throne and Sherman, and even if Throne
would have recalled that discussion long enough to
testify about what Thomas Skakel told them at the
petitioner’s criminal trial one week later, Sherman’s
decision not to pursue a third-party defense inculpating
Thomas Skakel was objectively reasonable as a strate-
gic matter. Specifically, the majority contends that
apprising the jury that Thomas Skakel had changed his
story after twenty years and admitted to having a sexual
encounter with the victim minutes before her death ran
the risk of strengthening the state’s theory regarding
the petitioner’s motive for killing the victim. None of
the majority’s conclusions withstands scrutiny.
Before addressing each of the majority’s conclusions
in turn, however, it is necessary to compare the evi-
dence implicating Littleton with that which pointed to
Thomas Skakel as the killer. The majority’s recitation
of that evidence omits many essential facts that bear
directly on the objective reasonableness of Sherman’s
decision to raise a third-party culpability defense
against one and not the other. When such a comparison
is made, however, it is manifestly clear that Sherman’s
decision to implicate Littleton was entirely unreason-
able given the dearth of evidence connecting him to the
murder and the multitude of facts pointing to Thomas
Skakel’s involvement, all of which were known to Sher-
man before the petitioner’s criminal trial. See, e.g., Bry-
ant v. Commissioner of Correction, 290 Conn. 502, 513,
964 A.2d 1186 (‘‘a court deciding an actual ineffec-
tiveness claim must judge the reasonableness of coun-
sel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct’’ [inter-
nal quotation marks omitted]), cert. denied sub nom.
Murphy v. Bryant, 558 U.S. 938, 130 S. Ct. 259, 175 L.
Ed. 2d 242 (2009).
It is also clear that Sherman’s decision prejudiced the
petitioner because it deprived him of the opportunity to
demonstrate to the jury that someone other than he
had the motive, means and opportunity to kill the victim,
the raison d’eˆtre of a third-party culpability defense.
No such argument could be made against Littleton, and
Sherman’s meager attempt to do so was justifiably exco-
riated—even ridiculed—by the state. And with good
reason: as the habeas court observed, ‘‘Sherman essen-
tially abandoned any third-party culpability claim in his
jury argument,’’ whereas the halfhearted argument that
he did make ‘‘actually harmed the defense’’ because it
communicated to the jury that Sherman himself put no
stock in it.
A
The Kenneth Littleton Evidence
At the time of the victim’s murder, Littleton, a then
twenty-four year old graduate of Williams College with
no known history of mental illness or violence, was
completing his second month of teaching and coaching
at the Brunswick School (Brunswick), a private school
in Greenwich. Shortly after his arrival at Brunswick, the
headmaster informed him that the petitioner’s father,
Rushton Skakel, Sr., was in need of a live-in tutor for
his children. Littleton accepted the position and, as fate
would have it, spent his first night in residence at the
Skakel home on October 30, 1975, the night of the mur-
der, arriving there at approximately 4:30 p.m. Because
Rushton Skakel, Sr., was out of town at the time, Little-
ton’s duties included babysitting for the younger Skakel
children, nine year old Stephen Skakel and twelve year
old David Skakel, until their father’s return. There is
no evidence that Littleton, who had just moved to
Greenwich to teach, had ever been to the Skakels’ neigh-
borhood prior to the evening of October 30, 1975, or
had ever met or laid eyes on the victim. This fact alone
eliminated him as a suspect for most of the officers
involved in the investigation based on the widely held
belief that only someone familiar with the victim and
the neighborhood would have known to conceal the
victim’s body under the pine tree behind her parents’
house, or would have been able to locate that tree in
the dark. Sherman was also aware that the petitioner’s
sister, Julie Skakel, had observed Littleton in the Ska-
kels’ kitchen, at approximately 10 p.m., the victim’s
time of death as established by the substantial weight
of the evidence at trial, and as argued by the defense.
The Greenwich police followed numerous leads in
the months and years following the murder. In 1976,
the police prepared an arrest warrant charging Thomas
Skakel with the victim’s murder based, in part, on false
statements that he had given to them following the
murder, his history of mental instability and violence,
and because he was the last person to be seen with
the victim prior to her death. The warrant was never
approved, however, and the case ultimately went cold
for nearly fifteen years.
At the most basic level, therefore, Littleton made for
an unlikely target, and, for a long period of time, he
was treated as such. In 1991, however, the Office of
the State’s Attorney reopened the investigation, and
suspicion soon fell on Littleton, who, in the intervening
years, had developed a severe alcohol addiction and
had been diagnosed with bipolar disorder, which
caused him to act erratically at times. In 1991, Detective
Frank Garr and Inspector John F. Solomon traveled to
Canada to interview Littleton’s former wife, Mary
Baker, in the hope that she might be able to shed light
on the investigation. Baker agreed to assist Garr and
Solomon because she ‘‘thought it was the right thing
to do,’’ even though she did not believe Littleton had
anything to do with the victim’s murder. Initially, Baker
simply recorded her telephone conversations with Lit-
tleton, during which she would ask him questions about
the murder. According to Garr, he and Solomon ‘‘guided
[Baker with respect to] how to proceed with these con-
versations between her and her [former] husband in
the attempt to get him to open up and discuss the crime
and possibly his complicity in it.’’ Specifically, Garr and
Solomon ‘‘suggested to her’’ what to say ‘‘to see what
type of a response’’ it would elicit from Littleton.
According to Garr, this approach never elicited a single
incriminating response.
In December, 1991, Baker agreed to go to Boston,
Massachusetts, and meet with Littleton in person, at a
hotel, under the pretext of discussing the possibility of
getting back together with him. The plan called for
Baker to tell Littleton that the reason she was reluctant
to get back together with him was because, several
years earlier, while she and he were driving through
Connecticut on their way to Massachusetts, he had con-
fessed to the victim’s murder during a drunken
blackout.
Littleton, who wanted very much to reunite with
Baker, agreed to the meeting. A transcript of their con-
versation, which was secretly recorded by the police,
was provided to Sherman prior to trial. As planned,
Baker began the conversation by telling Littleton about
his so-called admissions. Shocked by the news, Littleton
strenuously denied any involvement in the victim’s mur-
der, insisting that he never laid eyes on her ‘‘that night
or ever . . . .’’ Littleton also told Baker that he was
willing to do whatever it took to convince her of his
innocence, including submitting to a ‘‘sodium pento-
thal’’ test administered by the Greenwich police, which
he hoped might finally answer a question that had vexed
the police at the time of the murder. Littleton explained
that ‘‘the key thing that they were interested in [was]
what [Thomas Skakel] was wearing when he came into
the room to watch [television later in the evening]. And
I couldn’t tell them that.’’ Littleton testified that ‘‘this
was a big key point they really hammered . . . but I
couldn’t remember [if Thomas Skakel] was wearing
something different . . . versus what he was wearing
earlier in the evening.’’
After his meeting with Baker, Littleton agreed to meet
with Kathy Morall, a forensic psychiatrist retained by
the Greenwich police to evaluate him as a possible
suspect. At the time of their meeting, Littleton was
unaware of the ruse that the police and Baker had
played on him in Boston. During their first meeting,
Littleton told Morall of the ‘‘frightening’’ news that he
had received from Baker. Specifically, Littleton
informed Morall that Baker had told him that, during
a trip through Connecticut, ‘‘I was blacked out for about
[one] hour to [one] hour and fifteen minutes. . . .
[Baker] said that I was in the backseat . . . . She told
me that I said I did it.’’ At their next meeting, while
discussing the same car ride, Littleton reminded Morall,
‘‘I told you this, you know, it’s kind of frightening but
. . . this is when I said, I did it. . . . [Baker] heard
me.’’ This statement, ‘‘this is when I said, I did it’’;
(emphasis added); provided the crux of Sherman’s
third-party culpability defense against Littleton. During
his cross-examination of Littleton at the petitioner’s
criminal trial, Sherman asked Littleton whether he had
ever told Morall that he had told Baker, ‘‘I did it,’’ mean-
ing that he had murdered the victim. Littleton answered,
‘‘[y]es.’’ Littleton explained, however, that he had only
said that to Morall because that is what Baker had told
him, not because he had any memory of confessing
to the victim’s murder. Littleton testified that it never
occurred to him at the time of his meeting with Morall
that Baker, a person whom he loved and trusted, would
lie to him about such a thing.
Convinced beyond any conceivable doubt that Little-
ton had absolutely nothing to do with the murder, the
state granted him full immunity—effectively exonerat-
ing him in the eyes of the jury—and, at trial, completely
discredited Sherman’s unpersuasive attempt to depict
Littleton as a suspect. The state’s task was not a difficult
one in light of Baker’s testimony, corroborated by Garr
and Solomon, that everything she had told Littleton was
part of a ruse, as State’s Attorney Benedict put it, ‘‘to
dupe [a] psychologically fragile person to confess to
[a] crime [he did not commit] . . . .’’ Benedict
explained that, in 1992, Garr and Solomon got it into
their heads that they were ‘‘going to break the case by
tricking . . . Littleton into confessing. . . . There is
no question that [their plan] . . . was a complete flop.’’
Benedict further argued that, obviously, ‘‘the evidence
of Littleton’s interview by Morall was simply a product
of his having been hoodwinked in Boston. For counsel
to suggest to you here that what Littleton said to Morall
is a confession is really treating you no differently than
the police treated Littleton . . . in 1992.’’
By the end of the petitioner’s criminal trial, Sherman
himself effectively conceded that his attempts to incul-
pate Littleton were not merely fruitless for his client
but fundamentally baseless as a strategic matter, as
evidenced by his assertion that he had ‘‘no clue, no
clue’’ whether Littleton was responsible for the victim’s
murder. Moreover, Sherman stated, in referring to Lit-
tleton’s so-called ‘‘confession,’’ ‘‘[a]t the very least, what
we learned from . . . Littleton is, you know, a confes-
sion ain’t always a confession, is it,’’ clearly expressing
the view that Littleton’s supposed confession was
hardly that. In fact, at one point during his closing
argument, Sherman quite reasonably stated that ‘‘who-
ever did [commit] this crime . . . should rot in hell.’’
But shortly thereafter, when again discussing Littleton,
Sherman stated that, ‘‘I thought that he was a very
pathetic creature. I felt very badly for him. I don’t think
I beat him up too much on the stand.’’ At another point,
Sherman argued to the jury that the state should be
‘‘comforted by the fact’’ that it ‘‘didn’t make the wrong
decision by arresting . . . Littleton.’’ One is left only
to observe that it is hard to imagine a closing argument
that does more to undermine a key aspect of a party’s
claim.18 As the habeas court generously noted, Sher-
man’s bizarre closing argument ‘‘essentially eviscer-
ated’’ any third-party culpability defense predicated on
Littleton’s commission of the murder19 and was itself
deficient.20
As the habeas court further concluded, when the
Littleton evidence is compared to the powerful evidence
implicating Thomas Skakel, Sherman’s failure to assert
a third-party culpability defense against Thomas Skakel
‘‘was and is inexplicable’’ and ‘‘cannot be excused as
a reasonable exercise of judgment or [as] a matter of
trial strategy.’’ Even ‘‘[i]f Sherman was, in fact, commit-
ted to the notion that only one third-party culpability
defense should be asserted, a proposition [that] may
well be within trial counsel’s informed discretion, he
unreasonably chose a third party against whom there
was scant evidence and ignored a third party against
whom there was a plethora of evidence.’’ I turn to the
latter evidence now.
B
The Thomas Skakel Evidence
At the time of her death, the victim had been
acquainted with Thomas Skakel and the petitioner for
approximately eight weeks. It is undisputed that
Thomas Skakel was the last person to be seen with her
prior to her death. Seven different witnesses reported
seeing them alone in his driveway at approximately 9:30
p.m. In a tape-recorded interview following the murder,
the victim’s friend, Ix, reported that, on the night of the
murder, at approximately 9:15 p.m., she, the victim, the
petitioner and an eleven year old boy named Geoffrey
Byrne were seated in the Skakels’ Lincoln Continental
in the Skakel driveway talking, when Thomas Skakel
came outside and joined them. At that time, the petition-
er’s older brothers, John Skakel and Rushton Skakel,
Jr., and their cousin, Terrien, approached the car and
told them that they needed to use it to drive Terrien
home. When asked by the police whether everyone got
out of the car at that point, Ix responded: ‘‘Not everyone.
Just [Thomas Skakel], and me, and [the victim and
Byrne].’’ Ix reported that she and Byrne then left for
their respective homes, and, as they were leaving, the
victim stated, ‘‘I’m going home in a few minutes,’’ too.
Both Ix and Byrne reported that, as they were walking
out of the driveway, ‘‘they observed Thomas [Skakel]
push [the victim],’’ causing her to ‘‘[trip] over a small
steel curbing surrounding a planted area.’’ Ix and Byrne
‘‘reported that they did not see [the victim] return to
the driveway’’ after that.
The victim’s mother telephoned the Greenwich police
at 3:48 a.m. on October 31, 1975, to report the victim
missing. During that telephone call, she reported that
the victim had been ‘‘expected home at 9:30 p.m.’’ and
‘‘had never been late like this before.’’ She also reported
that she had called several of the victim’s friends before
calling the police and had been told by one to ‘‘check
with the . . . Skakels . . . .’’ The victim’s mother
reported that she then ‘‘called the Skakel residence
. . . and spoke to Thomas [Skakel],’’ who told her that
he last saw the victim at approximately 9:30 p.m. on
October 30, and that the victim had told him that she
was going home to do her homework. At trial, the vic-
tim’s mother testified that her daughter ‘‘always came
home’’ when expected and that her failure to do so on
the night of the murder was ‘‘an aberration.’’
The police interviewed Thomas Skakel following the
discovery of the victim’s body, and he told them that,
on the night of the murder, at approximately 9:15 p.m.,
he went outside to his father’s Lincoln Continental to
get an audio cassette. When he got to the car, the peti-
tioner, Ix, Byrne, and the victim were sitting inside the
car, talking, and he decided to join them. After a few
minutes, his brothers John Skakel, Rushton Skakel, Jr.,
and his cousin, Terrien, approached the car and told
them that they were going to take Terrien home. Consis-
tent with Ix’ statement to the police, Thomas Skakel
reported that he, Ix, Byrne, and the victim got out of
the car and that John Skakel, Rushton Skakel, Jr., and
Terrien got into the car with the petitioner and departed
for Terrien’s house. Thomas Skakel further stated that
after he, Ix, Byrne, and the victim got out of the car,
Ix and Byrne went home, leaving Thomas Skakel and
the victim alone in the driveway. Thomas Skakel
reported that ‘‘he talked to [the victim] for a few
minutes, said goodnight, and entered [his] house
[through] the side door.’’ Thomas Skakel’s sister, Julie
Skakel, reported to the police that she observed Thomas
Skakel enter the side kitchen door at approximately
9:25 to 9:30 p.m., as she was leaving to take her friend
Shakespeare home. According to Thomas Skakel, he
then went to his bedroom to complete a homework
assignment on Lincoln Log cabins. Thomas Skakel fur-
ther stated that, at approximately 10:15 p.m., he went
to his father’s bedroom and watched television with
Littleton for approximately fifteen minutes. When con-
fronted with the fact that Ix and Byrne had seen him
push the victim into the bushes, Thomas initially denied
that he had done so but then admitted to ‘‘horse play-
ing.’’ When asked whether he kissed or attempted to
kiss the victim, or had had any sexual desire for the
victim, Thomas Skakel answered, ‘‘no.’’
Thomas Skakel became the prime suspect in the vic-
tim’s murder after the police learned from his teachers
that he had lied about his homework assignment, and
learned from Littleton that Thomas Skakel was not in
his bedroom at 10 p.m. In the course of their investiga-
tion, the police also learned from a number of witnesses
that Thomas Skakel was an emotionally unstable teen-
ager who was prone to ‘‘frequent and quite sudden
outbursts of severe physical violence,’’ the apparent
result of a traumatic head injury, which made him
‘‘impulsive and [susceptible] to precipitous outbursts
of anger. He would rant and rave, be extremely noisy,
and, on one occasion, [he] put his fist through a door.’’
(Internal quotation marks omitted.) On other occasions,
he reportedly ‘‘stabbed his brother in the head with a
fork,’’ ripped a telephone out of a wall, and ‘‘beat the
crap’’ out of an opponent during a soccer game. Wit-
nesses also informed the police that Thomas Skakel
frequently walked around the neighborhood carrying a
golf club21 and that, shortly after the victim’s murder,
his father committed him to Yale-New Haven Hospital
for two weeks of psychiatric evaluation. Sherman also
was aware that Thomas Skakel, by his own admission,
had consumed ‘‘about four or five’’ beers and ‘‘one or
two scotches’’ in the space of two or three hours on
the night of the murder.
Entries in the victim’s diary further revealed that, in
the weeks preceding her murder, Thomas Skakel had
made unwanted sexual advances toward her. In one
such entry, dated October 4, 1975, the victim wrote that
‘‘[Thomas Skakel] was being an ass. At the dance he
kept putting his arms around me and making moves.’’
Allison Moore, a friend of the victim’s, corroborated
the victim’s account of Thomas Skakel’s interest in the
victim, reporting to the police that, ‘‘just prior to [her
death], [the victim] informed her that . . . Thomas
[Skakel] wanted to date her, but that [the victim] had
refused. [Moore] reported that [the victim] told her that
Thomas [Skakel] was aggressive, and that [the victim]
thought [Thomas Skakel was] strange.’’ Another friend,
Christine Kalan, reported that she also ‘‘was aware of
the fact that Thomas [Skakel] wanted to date [the vic-
tim] but that [the victim] just liked [him] as a friend.’’
The timeline of the murder established by the Green-
wich police was also highly incriminating with respect
to Thomas Skakel. The police believed that the victim
was attacked on her way home from the Skakel drive-
way sometime between 9:30 and 10 p.m., a conclusion
based on forensic analysis of the victim’s body,22 the
extreme agitation of two neighborhood dogs at the edge
of the crime scene,23 and a loud commotion heard by
the victim’s mother between 9:30 and 10 p.m. in the
victim’s yard. The commotion, which consisted of
‘‘excited voices’’ and ‘‘incessant barking,’’ was so dis-
tracting that the victim’s mother stopped what she was
doing to look out the window. On the basis of this and
other information, the police concluded: ‘‘Our assump-
tion is that death occurred about 10 p.m., October [30],
as the investigation shows that two neighborhood dogs
were highly agitated shortly before 10 p.m. We feel that,
even though there was no school the next day, the
[victim] left the Skakel house and was headed home
because her friends were not going to remain out any
longer that night. We have interviewed [400] people,
and no one saw the [victim] after 9:30 p.m. on the night
in question. It seems highly unlikely . . . that a . . .
fifteen year old female would [wander the neighbor-
hood alone] at night.’’
In 1994, after Rushton Skakel, Sr., hired Sutton Asso-
ciates to investigate the victim’s murder; see footnote
6 of this opinion; Thomas Skakel admitted to the Sutton
investigators that he had lied to the police in 1975.
Although he had originally told the police that he last
saw the victim in his driveway at 9:30 p.m., Thomas
Skakel now confessed that, after his brothers left to
take Terrien home, he went inside the house briefly
and then rejoined the victim for a sexual encounter in
his backyard that lasted until 9:50 or 9:55 p.m., during
which he ejaculated. When first interviewed by the
investigators, Thomas Skakel stated that the victim ini-
tially ‘‘rejected’’ his advances but then acquiesced. In
a follow-up interview, however, he portrayed the victim
as the aggressor, stating that it was the victim who
pursued him because ‘‘maybe she wanted more of
Tommy.’’
Of course, Thomas Skakel’s admissions to the Sutton
investigators, later repeated to Sherman and Throne,
placed him with the victim after the neighborhood dog
began its frantic and violent barking a few feet from the
crime scene. See footnote 23 of this opinion. Although
State’s Attorney Benedict, at trial, tried to minimize the
import of the dog’s behavior relative to the timing of
the victim’s murder, its significance was not lost on the
Greenwich police or on any of the forensic investigators
who advised them in their investigation; all of them
believed that the dog’s aberrant behavior corresponded
with the time of the attack. Sherman also considered
it a crucial piece of evidence because he argued to the
jury that the dog’s violent barking at 9:45 p.m. ‘‘time
stamps when this crime occurred.’’ According to the
defense’s own theory of how the crime unfolded, there-
fore, Thomas Skakel’s admissions to the Sutton investi-
gators placed him with the victim at the time of the
attack.
In the course of their investigation, Sutton investiga-
tors interviewed Thomas Skakel’s sister, Julie Skakel,
whose account of the evening further cast doubt on
Thomas Skakel’s innocence. She reported that, on the
night of the murder, at approximately 1:30 a.m., she
received the first of several telephone calls from the
victim’s mother, who was trying to locate the victim.
According to Julie Skakel, she went to Thomas Skakel’s
room to ask him if he knew where the victim might be
so that she could report back to the victim’s mother.
Julie Skakel stated that Thomas Skakel told her that
the victim had left at 9:30 p.m. and that he had to ‘‘study
for a test’’ that night. In their suspect profile of Thomas
Skakel, the Sutton investigators noted that, while there
may have been an innocuous reason for Thomas Skakel
to lie to the police about his sexual encounter with the
victim after learning of her murder, that motive ‘‘would
originate after Thomas [Skakel] knew [the victim] had
been murdered. . . . When Julie [Skakel] came into
his room at 1:30 a.m., however, Thomas [Skakel] was
untruthful about [having a] test and when he had last
seen [the victim]. . . . Many divergent and damning
conclusions can be drawn when speculating about the
significance of [these lies],’’ which were told at a time
when presumably only the killer knew that the victim
was dead. Thomas Skakel also lied to the victim’s
mother when he spoke to her in the early morning hours
of October 31, 1975. As I previously indicated, Thomas
Skakel told her that the victim had left his house at 9:30
p.m., stating that she was going home to do homework.
Sherman also had firsthand knowledge of Thomas
Skakel’s admissions because he and Throne met with
Thomas Skakel and his attorney, Emanuel Margolis, on
the eve of the petitioner’s criminal trial. At that time,
according to Sherman’s habeas trial testimony, Margolis
‘‘allowed [Sherman and Thorne] to speak to [Thomas
Skakel] about anything [they] wanted . . . .’’ Both
Sherman and Throne testified at the habeas trial that
they had read the Sutton Report prior to their meeting
with Thomas Skakel and were aware of the information
contained in it relative to him. Sherman specifically
acknowledged that he was aware that, ‘‘[o]n October
7, 1994, Thomas [Skakel] broke down in tears and
informed [the] Sutton [i]nvestigators that he had, in
fact, spent at least an additional twenty minutes with
[the victim] behind his house. . . . They began an
extended . . . twenty [minute] kissing and fondling
session, which include[d] mutual fondling . . . and
. . . concluded when both masturbate[d] [the other] to
orgasm. At [that] point, approximately 9:50 p.m., both
[the victim] and [Thomas Skakel] rearranged their
clothes, and [the victim] . . . is last seen by [Thomas
Skakel] hurrying across the rear lawn [toward] her
home. [Thomas Skakel] stated that . . . he opened [the
victim’s] pants, slightly pushing them down, [and] fon-
dled her vagina . . . . Thomas [Skakel] . . . stated
[that] he soiled his clothing . . . when [the victim]
brought him to . . . orgasm using her hand on his
penis.’’ Sherman testified that ‘‘[Thomas Skakel’s] dis-
cussion with [him] was consistent with what was in the
Sutton Report. . . . He repeated the version of events
as you recited [from] the Sutton Report.’’ Sherman
stated, moreover, that he and Throne took notes during
the meeting.
Throne also testified at the petitioner’s habeas trial
about his and Sherman’s 2002 meeting with Thomas
Skakel. Although he could not remember the specifics
of what was said at the meeting, he did recall that it
made a ‘‘significant impression’’ on him because
Thomas Skakel admitted to having lied to the police
about when he last saw the victim. In particular, Throne
remembered that Thomas Skakel told them that he and
the victim were together after the time that the police
believed that they had parted ways.
At the habeas trial, the petitioner’s habeas counsel
asked Sherman why, in light of the litany of evidence
implicating Thomas Skakel in the victim’s murder, he
did not pursue a third-party culpability claim against
him, particularly given the defense’s theory that the
victim was attacked at 9:45 p.m. Sherman responded
that Thomas Skakel ‘‘was going to invoke the fifth
amendment [privilege] no matter what we did, and I
[did not think] ethically I could put him on the stand
knowing that he was going to invoke the fifth amend-
ment privilege.’’ Sherman further testified: ‘‘I told
[Thomas Skakel’s attorney], I’m calling him as a witness.
[Thomas Skakel’s attorney] told me in no uncertain
terms that he’s not going to testify because he will claim
the fifth amendment privilege.’’ Specifically, Sherman
stated: ‘‘I’m sorry. [I was] not the one trying . . . to
protect [Thomas] Skakel, but he would not testify, and
I don’t think the third-party culpability issue would have
worked [otherwise].’’ Although Sherman acknowledged
that he did not believe in ‘‘putting out a buffet table
of alleged suspects,’’ he emphasized that his ‘‘[p]rime’’
reason for not implicating Thomas Skakel was that he
did not think it would have been successful without
Thomas Skakel’s testimony. Sherman explained: ‘‘My
client was [the petitioner]. I bore no allegiance; I bear
no allegiance to anyone but [the petitioner]. If I had
. . . something that I deemed was credible enough to
pass [the court’s] third-party culpability threshold, I
would have used it. . . . I don’t think we reached that
threshold [with Thomas Skakel]. I don’t think it was
there. I wish it was.’’
But it was there. As the habeas court concluded,
Thomas Skakel’s statements against penal interest
could have been presented to the jury through Throne,
who readily could have been called to testify about
them.24 Of course, it would have been preferable for
Sherman to have had a nonattorney witness present
when interviewing Thomas Skakel because Throne
could not participate in the trial both as counsel and
as a witness. In this case, however, Throne undoubtedly
was more valuable to the petitioner as a witness than
as Sherman’s inexperienced third chair at trial.25 If nec-
essary, Sherman also could have called Margolis to tes-
tify, since Thomas Skakel’s admissions in the presence
of third parties would not have been protected by the
attorney-client privilege. See, e.g., State v. Cascone, 195
Conn. 183, 186, 487 A.2d 186 (1985) (‘‘Communications
between client and attorney are privileged when made
in confidence for the purpose of seeking legal advice.
. . . By contrast, statements made in the presence of
a third party are usually not privileged because there
is then no reasonable expectation of confidentiality.’’
[Citations omitted.]); see also Ullmann v. State, 230
Conn. 698, 713, 647 A.2d 324 (1994) (attorney-client
privilege ‘‘protects only those disclosures—necessary
to obtain informed legal advice—which might not have
been made absent the privilege’’ [emphasis omitted;
internal quotation marks omitted]); Ullmann v. State,
supra, 710 (attorney-client privilege ‘‘is strictly con-
strued because it tends to prevent a full disclosure of
the truth in court’’ [internal quotation marks omitted]).
It is apparent, therefore, that Sherman could have
put Thomas Skakel’s highly incriminating admissions
before the jury, either through Throne or Margolis, and
that he wanted to do so as a key component of a third-
party culpability defense built around Thomas Skakel.
But he was unaware that the law permitted him to do
so; he thought that the only way that he could make
the jury aware of those admissions was through Thomas
Skakel’s direct testimony. It is well established that the
influence of a mistake of law on an attorney’s decision
making cannot be characterized as a matter of trial
strategy under Strickland. See, e.g., Hinton v. Alabama,
U.S. , 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1 (2014)
(‘‘[a]n attorney’s ignorance of a point of law that is
fundamental to his case combined with his failure to
perform basic research on that point is a quintessential
example of unreasonable performance under Strick-
land’’); Williams v. Taylor, 529 U.S. 362, 373, 120 S. Ct.
1495, 146 L. Ed. 2d 389 (2000) (petitioner was denied
right to effective assistance of counsel when defense
counsel failed to investigate and present substantial,
mitigating evidence during sentencing phase of capital
murder trial, not for any tactical reason, but because
he erroneously believed that law did not permit him
to present such evidence). Thus, insofar as Sherman’s
decision not to present a third-party culpability defense
centered on Thomas Skakel resulted from Sherman’s
mistaken belief that that defense required Thomas Ska-
kel’s testimony, the decision was not reasonable
under Strickland.
The importance of Thomas Skakel’s admissions to
the defense was great. The great weight of the trial
evidence established that the victim was attacked at
approximately 9:45 p.m. Unlike Thomas Skakel, who
could not account for his whereabouts between 9:30
and 10:20 p.m., the petitioner had a strong alibi for that
time frame, which is why the state took the bold position
that the petitioner’s alibi witnesses were all lying to
protect him. If the defense had offered the jury a plausi-
ble third-party culpability suspect, however, the jury
would have viewed the state’s speculative argument
concerning the petitioner’s alibi in a far different light.
As the habeas court noted: ‘‘[Sherman’s] task . . .
would not have been to convince the jury that [Thomas]
Skakel committed the murder; rather, he needed only
to argue that the direct and circumstantial evidence
regarding [Thomas] Skakel’s potential culpability
should, at least, create a reasonable doubt in the minds
of the [jurors] as to the petitioner’s guilt. As presented,
[Sherman’s] defense deprived the petitioner of an
opportunity for the jury to hear [Thomas] Skakel’s
admission of a sexual encounter with the victim, and
for . . . Sherman to point out the compatibility of
some aspects of this story with the physical crime scene
findings regarding the victim’s [state of undress]. . . .
Sherman deprived the petitioner of an opportunity to
present [Thomas] Skakel’s consciousness of guilt [in
his] change of stories, his growing sexual interest in
and aggressiveness toward the victim leading to the
date of her murder, and the police awareness that he
had a history of emotional instability.’’
The habeas court further noted: ‘‘At trial, the jury
heard only that when the Lincoln [Continental] left the
Skakel property, [Thomas] Skakel and the victim were
standing together in the driveway. Significantly, the jury
heard nothing regarding a sexual encounter between
[Thomas] Skakel and the victim. However, it is reason-
able to conclude that, in a competently presented third-
party culpability claim regarding [Thomas] Skakel, a
jury would have heard testimony that [Thomas] Skakel
claimed that he had been engaged with the victim in a
consensual sexual encounter to the rear of the Skakel
property [until 9:50 p.m.] on October 30, 1975, during
which he unfastened her [pants] and partially lowered
[them] while [they both] engaged in mutual masturba-
tion; that no living person could account for [Thomas]
Skakel’s whereabouts between 9:15 p.m. and approxi-
mately 10:17 p.m., when [Thomas Skakel] joined Little-
ton to watch [television]; that [Thomas] Skakel initially
had lied to the Greenwich police about his whereabouts
and activities after approximately 9:15 p.m. that eve-
ning; and [that] he had lied to [the police and] Littleton
about having worked on a homework assignment in his
father’s room. The jury would also have heard that no
one ever reported seeing the victim alive after she and
[Thomas] Skakel were seen together in the Skakel drive-
way as the Lincoln [Continental] left for the Terrien
home at approximately 9:15 p.m. Based on the availabil-
ity of this evidence to . . . Sherman, [there is] little
doubt that the trial court would have permitted the
petitioner to assert a third-party culpability claim
regarding [Thomas] Skakel.’’ (Footnote omitted.)
Indeed, on the basis of the evidence known to Sher-
man at the time of the petitioner’s criminal trial, Sher-
man could have argued persuasively to the jury as
follows. Finding herself alone with Thomas Skakel in
the driveway at 9:25 p.m., the victim told him that she
had to leave, too, because she was due home at 9:30
p.m. Thomas Skakel then offered to walk the victim
home and asked her to wait while he grabbed a jacket,
or used the bathroom, since he had been drinking heav-
ily. Such a scenario was consistent with Julie Skakel’s
testimony that she saw Thomas Skakel enter the house
through the side door at 9:30 p.m. Thomas Skakel then
rejoined the victim outside, grabbing a golf club from
the bucket by the door as he left the house, as was his
custom according to various witnesses. While en route
to the victim’s house, an intoxicated Thomas Skakel
made a pass at the victim, and what may or may not
have been initiated as a consensual sexual encounter
between them turned suddenly violent when the victim
rejected his advances or withdrew her consent for fur-
ther physical contact. Infuriated by her rejection,
Thomas Skakel struck the victim with the golf club,
which, in his rage, became a weapon of convenience.
Consistent with the forensic evidence, the victim was
able to get away from Thomas Skakel after the initial
assault, but Thomas Skakel caught up with her, struck
her repeatedly with the golf club and then dragged her
lifeless body to the pine tree behind her house. Thomas
Skakel’s assault on the victim was undoubtedly the
commotion that the victim’s mother heard between 9:30
and 10 p.m., and the event that caused one of the neigh-
borhood dogs to commence its incessant and plaintive
barking at the entrance to the victim’s driveway.
Thomas Skakel then ran home, which would have taken
him less than one minute according to the evidence
adduced at trial, removed his bloodstained clothing and,
thirty minutes later, joined Littleton to watch television
with him, in an effort to establish an alibi.
Testimony by Thomas Skakel’s family, friends and
teachers regarding his violent temper would only have
strengthened Sherman’s argument, as would the vic-
tim’s diary and the testimony of her friends regarding
Thomas Skakel’s aggressiveness toward her before her
death. To reinforce his argument, Sherman needed only
to remind the jury that Thomas Skakel, by his own
admission, had placed himself with the victim after the
neighborhood dog began its violent barking at 9:45 p.m.,
that he was hospitalized for two weeks shortly after
the murder for psychiatric evaluation, that he had lied
about his whereabouts between the hours of 9:30 and
10:20 p.m. not only to the police, but also to his sister
and the victim’s mother before anyone knew that the
victim was dead. Sherman could have argued that
Thomas Skakel’s guilt was consistent not only with the
forensic evidence but with the victim’s last words to
Ix at 9:25 p.m., that she was ‘‘going home’’ soon, and
with the victim’s mother’s statement to the police that
the victim had been due home at 9:30 p.m.
Finally, and perhaps most important, Sherman could
have argued to the jury that this scenario required no
more speculation—indeed, I would argue that it
required considerably less speculation—than the state’s
argument with respect to the petitioner, namely, that
all of his alibi witnesses were lying and that the peti-
tioner must have jumped out of the Lincoln Continental
after it left the driveway, found a golf club lying about
in the dark, waited for the victim near her house, and
then bludgeoned her as she entered the driveway, all
because he had seen her ‘‘carrying on’’ with Thomas
Skakel, as Benedict characterized Thomas Skakel’s con-
duct. In short, in stark contrast to Sherman’s claim that
Littleton may have murdered the victim—a claim for
which there was absolutely no support in the evi-
dence—the evidence against Thomas Skakel provided
an opportunity for Sherman to present a coherent and
compelling third-party culpability defense—a defense
that he, for no legally or strategically valid reason, failed
to employ.26
C
The Majority’s Conclusions
The majority rejects the habeas court’s determination
that Sherman’s failure to implicate Thomas Skakel in
the victim’s murder was objectively unreasonable, but
not for any of the reasons that Sherman gave at the
petitioner’s habeas trial. Rather, because, in the majori-
ty’s view, the evidence did not support the habeas
court’s finding that Thomas Skakel discussed ‘‘the
details’’ of his sexual encounter with the victim when
he met with Sherman and Throne in 2002, the habeas
court incorrectly concluded that Sherman could have
put Throne on the stand to testify about Thomas Ska-
kel’s admissions. The majority also concludes that the
habeas court’s finding that Throne could have testified
about the admissions was ‘‘entirely speculative’’ in light
of Throne’s inability, at the petitioner’s 2013 habeas
trial, to remember the specifics of what was discussed
at the 2002 meeting, apart from the fact that Thomas
Skakel admitted to having lied to the police about when
he had last seen the victim. The majority is mistaken
on both counts.
First, it is abundantly clear that Thomas Skakel did
discuss the details of his sexual encounter with the
victim. After the petitioner’s habeas counsel read aloud
from the portion of the Sutton Report describing when,
where and how the sexual encounter unfolded, Sher-
man stated that Thomas Skakel ‘‘basically repeated
. . . the version of events as you recited or read [from]
the Sutton Report . . . .’’ Sherman later confirmed that
‘‘his . . . discussion with [him] was consistent with
what was in the Sutton Report.’’ Sherman also testified
that Thomas Skakel ‘‘recounted’’ his sexual encounter
with the victim at the meeting. At another point, Sher-
man testified that it was not his impression from talking
to Thomas Skakel that the encounter involved sexual
intercourse, only ‘‘sexual play,’’ something of the nature
of ‘‘touching, masturbation, mutual masturbation, that
kind of stuff.’’ Sherman further testified that the encoun-
ter occurred ‘‘ten minutes before . . . 10 p.m.’’
The majority does not explain what additional details
about the sexual encounter were required for Sherman
to assert a strong third-party culpability claim against
Thomas Skakel. The fact is that Sherman had all of the
information he needed. Indeed, it was not the precise
nature of Thomas Skakel’s purported sexual encounter
with the victim that mattered. It was the fact that he
had one at all that mattered because it allowed Sherman
to argue to the jury that Thomas Skakel had lied to the
police when he told them that there had been no such
encounter and that the victim had left his house at 9:30
p.m. In any event, it is readily apparent that the habeas
court’s finding that Thomas Skakel discussed his sexual
encounter with the victim when he met with Sherman
and Throne in 2002 is supported by the habeas trial
record. It is the majority’s finding to the contrary that
is belied by the record.
The majority also concludes that ‘‘[a]ny finding con-
cerning the details that Throne could have relayed to
the jury about Thomas Skakel’s alleged encounter with
the victim would . . . be entirely speculative’’ in light
of Throne’s inability to recall, in 2013, what was dis-
cussed at the 2002 meeting, beyond the fact that Thomas
Skakel’s admission had made a significant impression
on him because Thomas Skakel acknowledged that he
was with the victim much longer than what he had told
the police. The majority must do better than this. It
simply cannot be the position of this court—or any
court—that it is entirely speculative to conclude that
defense counsel would remember bombshell revela-
tions favorable to his or her client long enough to be
able to testify about them at the client’s murder trial a
few days later, if called on to do so. If competent counsel
has a duty under Strickland that ‘‘includes the obliga-
tion to investigate all witnesses who may have informa-
tion concerning [the defendant’s] guilt or innocence’’;
Towns v. Smith, supra, 395 F.3d 258; it is axiomatic that
he also has a duty to remember what those witnesses tell
him—at least long enough to act on the information for
the benefit of his client. This applies in spades to a
witness as important to the defense as Thomas Skakel,
for years the prime suspect in the victim’s murder, and
who, in accordance with their own timeline of the crime,
Sherman and Throne had every reason to believe was
with the victim at the time of her death.
Accordingly, Throne’s inability to recall in 2013 the
specifics of what was discussed at the 2002 meeting is
simply irrelevant. The only issue that matters is whether
he would have remembered what was discussed imme-
diately following the meeting. That is when the peti-
tioner claims that Sherman’s representation was
ineffective insofar as he failed to call Throne as a wit-
ness to repeat Thomas Skakel’s admissions. The habeas
court was absolutely correct that, under Strickland and
its progeny, there is only one answer to that question
and that is, of course, that he would have remembered.
The majority finally contends that, even if Throne
could have testified as to Thomas Skakel’s admissions,
Sherman reasonably could have decided to forgo impli-
cating Thomas Skakel in the victim’s murder because
there was no evidence that his sexual encounter with
the victim turned violent, or because implicating
Thomas Skakel ran the risk of strengthening the state’s
theory that the petitioner murdered the victim in a jeal-
ous rage. The majority thus suggests that ‘‘defense coun-
sel in Sherman’s position reasonably could have
concluded that it was better to pursue a suspect [Little-
ton] who had at least arguably implicated himself in the
crime.’’ Again, neither of these contentions holds water.
First, Littleton inarguably did not implicate himself
in the victim’s murder, a fact that, as Benedict argued
at the petitioner’s criminal trial, would not have been
lost on a child much less on a jury of twelve adults.
Indeed, even Sherman could not make a straight-faced
argument tying Littleton to the murder.
Moreover, the facts simply do not support the majori-
ty’s low estimation of the strength of the evidence impli-
cating Thomas Skakel. Indeed, one is hard-pressed to
find a Connecticut case—or a case from any other juris-
diction—in which the evidence of third-party culpability
was any stronger. The majority certainly has not cited
one. Not even Sherman claimed that asserting a third-
party claim against Thomas Skakel was not in the peti-
tioner’s best interest. While Sherman had plenty of evi-
dence against Thomas Skakel, he mistakenly believed
that, without Thomas Skakel’s testimony, he did not
have enough admissible evidence to satisfy the thresh-
old for raising such a claim.
Second, it is simply absurd for the majority to suggest
that Sherman reasonably could have decided against
asserting a powerful and compelling third-party culpa-
bility defense against Thomas Skakel out of concern
that it would bolster the state’s tenuous theory that the
then fifteen year old petitioner murdered the victim in
a jealous rage. As the respondent acknowledges, the
evidence adduced at trial to support that theory was
scant at best. Indeed, the respondent can identify only
two pieces of evidence that supported it. The respon-
dent first points to a telephone conversation between
Geranne Ridge and a friend, which the friend secretly
recorded for Garr, during which Ridge claimed to have
met the petitioner at a party, and that the petitioner
told her within minutes of their meeting about ‘‘mastur-
bating in a tree’’ and murdering the victim because she
had had sex with Thomas Skakel. At the petitioner’s
criminal trial, however, Ridge testified that, although it
was true that she had once been introduced to the
petitioner at a party, she did not actually speak to him,
and everything that she had told her friend on the tele-
phone was gleaned from ‘‘magazines, newspapers and
from [the tabloids],’’ like the ‘‘Star, Globe, Inquirer,
those kinds of things.’’ An embarrassed Ridge testified
that she had lied to her friend because he ‘‘was always
bragging about who he knew’’ and Ridge just wanted
to seem ‘‘more knowledgeable than [she] was’’ about
the petitioner’s case.
The only other evidence that the respondent cites in
support of the theory regarding the petitioner’s motive
is the trial testimony of Elizabeth Arnold, who stated
that, in 1978, while she and the petitioner were enrolled
at Elan School,27 the petitioner told her ‘‘that his brother
[fucked] his girlfriend . . . well, they didn’t really have
sex but they were fooling around.’’ On cross-examina-
tion, Arnold was asked why, when testifying before the
grand jury, she had failed to mention that the petitioner
had told her that Thomas Skakel had fooled around
with his girlfriend. Arnold responded that she did not
remember it at the time but that reading Fuhrman’s
book afterward had refreshed her recollection.
Fuhrman’s book, an entirely speculative account of
how the murder could have unfolded, appears to have
refreshed the recollections of many witnesses for the
prosecution, several of whom came forward only after
reading it, or after reading or watching a news story
about it. One key witness, Shakespeare, completely
altered her account of the night of the murder after
reading it.28 The central thesis of the book, borrowed
from one of several theories posited in the stolen Sutton
files, was that the petitioner and the victim were boy-
friend and girlfriend and that the petitioner flew into a
rage upon seeing the victim in a sexual encounter with
Thomas Skakel. See M. Furhman, Murder In Greenwich
(1998) p. 215. Indeed, in the book, Fuhrman claimed
that unnamed sources had told him that the petitioner
and the victim were once boyfriend and girlfriend. Id.Fuhrman also claimed that the victim’s diary ‘‘clearly
stated that both Skakel boys were romantically inter-
ested in her. [The victim] also said that while she liked
Thomas [Skakel], she had to be careful of [the peti-
tioner].’’ Id. The victim’s diary, of course, says nothing
of the sort. Nor does it appear that Sherman read it; if
he had, he would have used it to rebut the state’s dubi-
ous claim as to the petitioner’s motive.29
Indeed, in her diary, the victim wrote candidly about
her boyfriends and social exploits during the fifteen
months that she lived in Greenwich. She was an avid
chronicler of her adolescent life and enjoyed writing
about boys—the ones she liked, the ones she did not
like, the ones she suspected liked her, and so on and
so forth. If the victim and the petitioner were in a rela-
tionship during the eight weeks that they knew one
another, or if the victim suspected that the petitioner
liked her during that time period, it is safe to say that
it was the only time that the victim did not write about
such matters in her diary. It is clear, therefore, that
the state’s theory as to motive could have been easily
rebutted by a minimally competent defense attorney
using the resources available to him, and that it pre-
sented no obstacle whatsoever to Sherman’s ability to
present a compelling third-party culpability defense
implicating Thomas Skakel. The habeas court was abso-
lutely right to conclude that, by failing to assert such
a defense, Sherman simply was not acting as the compe-
tent counsel guaranteed by the sixth amendment.
III
PREJUDICE
There can be little doubt that the petitioner was
severely prejudiced by Sherman’s deficient perfor-
mance in his presentation of the petitioner’s alibi and
third-party culpability defenses. To satisfy the prejudice
prong of Strickland, ‘‘[the petitioner] must demonstrate
that there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding
would have been different.’’ (Internal quotation marks
omitted.) Janulawicz v. Commissioner of Correction,
310 Conn. 265, 268 n.1, 77 A.3d 113 (2013). In this con-
text, a reasonable probability that the result of the trial
would have been different ‘‘does not require the peti-
tioner to show that counsel’s deficient conduct more
likely than not altered the outcome in the case. . . .
Rather, it merely requires the petitioner to establish a
probability sufficient to undermine confidence in the
outcome.’’ (Citation omitted; internal quotation marks
omitted.) Bunkley v. Commissioner of Correction, 222
Conn. 444, 445–46, 610 A.2d 598 (1992). Moreover, ‘‘[i]n
making this determination, a court hearing an ineffec-
tiveness claim must consider the totality of the evidence
before the judge or the jury. . . . Some errors will have
had a pervasive effect on the inferences to be drawn
from the evidence, altering the entire evidentiary pic-
ture, and some will have had an isolated, trivial effect.
Moreover, a verdict or conclusion only weakly sup-
ported by the record is more likely to have been affected
by errors than one with overwhelming record support.’’
(Internal quotation marks omitted.) Gaines v. Commis-
sioner of Correction, supra, 306 Conn. 688–89.
In the present case, as the habeas court observed,
‘‘[i]t would be an understatement to say that the state
did not possess overwhelming evidence of the petition-
er’s guilt. An unsolved crime for more than two decades,
there was evidence that initially the Greenwich police
sought the arrest of [Thomas] Skakel without success
and then focused on Littleton to no avail before finally
turning to the petitioner. The evidence adduced at trial
was entirely circumstantial, consisting . . . [primarily]
of testimony from witnesses of assailable credibility
who asserted that, at one time or another and in one
form or another, the petitioner made inculpatory state-
ments. The state also adduced, as consciousness of
guilt evidence, testimony that the petitioner changed
his initial account to the police of his movements on
the evening of the murder.’’
Not only was there no physical evidence connecting
the petitioner to the crime and no eyewitnesses, few
of the witnesses who did testify were interviewed by
the police at the time of the events in question. Almost
all of the state’s witnesses, in fact, testified based on
their recollections of those events some twenty-five
years after the fact. While this would be a concern in
any murder case, it was especially problematic in the
present one given the extensive pretrial publicity sur-
rounding the case. The risk inherent in prosecuting a
murder case on the basis of twenty-five year old memo-
ries filtered through such a potentially corruptive lens
is obvious. Memories rarely improve over time, even
under the best of conditions. The state’s evidence,
which, as the habeas court noted, consisted largely of
the testimony of witnesses of suspect credibility who
did not come forward until decades after the events in
question, was hardly so convincing as to render harm-
less the kinds of grievous errors committed by Sherman
in his conduct of the petitioner’s criminal trial.
In the intervening years since the petitioner’s convic-
tion, unsettling questions have also arisen over the
veracity of core tenets of the state’s central thesis rela-
tive to the petitioner’s guilt, weakening what was to
begin with a less than persuasive case. As the habeas
court explained in connection with the petitioner’s
claim that Sherman’s representation was ineffective
insofar as he failed to challenge one such fundamental
aspect of the state’s case against him, information con-
tained in the state’s own investigative file and available
to Sherman before trial revealed that the state’s argu-
ment was baseless, and, yet, it went unchallenged by
the defense.30
No argument, however, was more central to the
state’s theory of guilt or damaging to the petitioner than
that of the alleged conspiracy by the petitioner’s family
to fabricate an alibi for him. Thus, the prejudicial impact
of Sherman’s failure to locate and interview Ossorio, a
critical independent alibi witness with no ties to the
petitioner’s family, is virtually incalculable because it
deprived the petitioner of the opportunity to disprove
the state’s central thesis. Cf. Gaines v. Commissioner
of Correction, supra, 306 Conn. 689 (‘‘[s]ome errors will
have had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary
picture’’ [internal quotation marks omitted]). Moreover,
in presenting a far weaker alibi defense than would
have been put forward by competent counsel—one that
left the door wide open for the state to argue that the
alibi was predicated solely on the testimony of close
family members, all of whom were lying to protect the
petitioner—Sherman’s performance harmed the peti-
tioner in yet another way, ‘‘for it is generally acknowl-
edged that an attempt to create a false alibi constitutes
evidence of the defendant’s consciousness of guilt.’’
(Internal quotation marks omitted.) Henry v. Poole, 409
F.3d 48, 65 (2d Cir. 2005), cert. denied, 547 U.S. 1040,
126 S. Ct. 1622, 164 L. Ed. 2d 334 (2006); see also id.(‘‘[T]here is nothing as dangerous as a poorly investi-
gated alibi. An attorney who is not thoroughly prepared
does a disservice to his client and runs the risk of having
his client convicted even [when] the prosecution’s case
is weak.’’ [Internal quotation marks omitted.]).
Sherman’s deficient performance resulting from his
failure to present a powerful third-party culpability
defense predicated on evidence that the victim was
killed by the petitioner’s brother, Thomas Skakel, a
longtime suspect in the victim’s murder, also caused
the petitioner serious prejudice: it deprived him of the
opportunity to provide the jury with convincing evi-
dence that someone other than the petitioner had the
motive, means and opportunity to kill the victim. This
is particularly true in light of the fact that Sherman had
startling new and highly incriminating evidence linking
Thomas Skakel to the crime, namely, Thomas Skakel’s
own statement acknowledging both that he had lied
to investigators about the time that he and the victim
departed on the evening of October 30, 1975, and that
he had had a sexual encounter with the victim at the
scene of the murder when it most likely was committed.
Such a compelling third-party culpability defense focus-
ing on Thomas Skakel—in contrast to the foolhardy
attempt to implicate Littleton—no doubt would have
raised a reasonable doubt in the jurors’ minds as to
who murdered the victim. Although the prejudice flow-
ing from Sherman’s incompetent handling of the peti-
tioner’s third-party culpability defense is alone more
than sufficient to require a new trial, when that preju-
dice is considered along with the prejudice flowing from
Sherman’s deficient handling of the alibi defense, it
strains credulity to believe that the petitioner’s trial
resulted in a verdict worthy of confidence.
IV
CONCLUSION
Under our constitution and system of laws, a defen-
dant is presumed innocent until he has been found
guilty beyond a reasonable doubt after a fair trial. A
critical component of a defendant’s right to a fair trial
is the right to the effective assistance of counsel. As
the habeas court aptly observed, counsel’s ‘‘defense of
a serious felony prosecution requires attention to detail,
an energetic investigation and a coherent plan of
defense capably executed.’’ When counsel has not per-
formed competently in one or more of these respects—
in the present case, defense counsel was deficient in
all three areas—and when, as in the present case, a
review of the record also leads to the conclusion that,
because of counsel’s deficient performance, confidence
in the guilty verdict has been undermined, the convic-
tion is not sufficiently reliable and cannot be permitted
to stand. Nothing short of a new trial will suffice to
vindicate the defendant’s right to a proceeding that
leads to a reliable outcome.
In recognition of these core principles, more than
fifty years ago, the United States Supreme Court stated
that, ‘‘if the right to counsel guaranteed by the [c]onsti-
tution is to serve its purpose, defendants cannot be left
to the mercies of incompetent counsel, and . . . judges
should strive to maintain proper standards of perfor-
mance by attorneys who are representing defendants
in criminal cases in their courts.’’ McMann v. Richard-
son, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763(1970). Today, this court shirks its responsibility to
maintain such standards by upholding a guilty verdict
reached only after a trial literally riddled with highly
prejudicial attorney incompetence. One can only trust
that the petitioner will receive a fairer hearing, one in
which his right to the effective assistance of counsel
is accorded due consideration, in the federal courts.
1
This right is made applicable to state prosecutions through the due
process clause of the fourteenth amendment. E.g., Davis v. Commissioner
of Correction, 319 Conn. 548, 554, 126 A.3d 538 (2015), cert. denied sub
nom. Semple v. Davis, U.S. , 136 S. Ct. 1676, 194 L. Ed. 2d 801 (2016).
2
With respect to the other seven areas in which Sherman was found to
have represented the petitioner incompetently, the habeas court was unable
to conclude that the prejudice flowing from that inadequate representation
was so great as to warrant a new trial. In his cross appeal, the petitioner
contends that the habeas court incorrectly concluded that he was not suffi-
ciently harmed by those seven areas of deficient performance to warrant a
new trial. In view of my conclusion that the petitioner is otherwise entitled
to a new trial, I need not address the claims that the petitioner raises in
his cross appeal.
3
The majority expresses its displeasure with my characterization of its
analysis of the alibi issue as transparently one-sided and unfair, and also
accuses me more generally of misstating its views. See footnote 1 of the
majority opinion. With respect to the former, there is no euphemistic way
to describe the majority’s analysis: it completely ignores the countervailing
considerations that the habeas court found to be decisive and provides no
reason or justification for doing so. With respect to the latter, the majority
does not identify any of the views that it claims I have misstated, and I
know of none.
4
Testimony established that the Terrien home is about a twenty minute
car ride from the Skakel home.
5
For example, at one point, Littleton was a suspect, but he ultimately
was cleared of any possible involvement in the murder. Indeed, prior to the
petitioner’s criminal trial, Littleton was given immunity from prosecution
by the Office of the State’s Attorney, presumably so that he would be willing
to testify at the petitioner’s criminal trial to rebut the petitioner’s contention
that he, Littleton, might have killed the victim. See part II of this opinion.
6
The petitioner’s father, Rushton Skakel, Sr., who is now deceased, hired
Sutton Associates to investigate the victim’s murder in the apparent hope
of exonerating his family members. According to Leonard Levitt, a journalist
who has written extensively about the case, Rushton Skakel, Sr., gave those
investigators free rein to pursue the investigation wherever it led them,
purportedly assuring them that, if it turned out that a member of his family
was responsible for the victim’s murder, the family would publicly acknowl-
edge it. In 1994, an employee of Sutton Associates stole the firm’s files on
the case, including detailed suspect profiles of Thomas Skakel and the
petitioner, and gave them to Levitt and Dominick Dunne, an author, who, in
turn, gave them to Mark Fuhrman, the former detective famous for perjurious
testimony in the Orenthal James (O.J.) Simpson murder trial. In 1998, Fuhr-
man published a book in which he purported to solve the long unsolved
murder of the victim by accusing the petitioner based on one of several
theories of the murder posited by Sutton Associates investigators and con-
tained in the stolen files, namely, that the petitioner may have had a relation-
ship with the victim and become jealous upon seeing her and Thomas Skakel
‘‘carrying on’’ in the Skakel driveway.
7
Although Benedict observed in closing argument, more or less in passing,
that the jury was not required to reject the petitioner’s alibi defense in
order to find him guilty—because the forensic evidence indicated that she
conceivably could have been alive as late as 5:30 a.m. on October 31, 1975—
he made no effort to explain where the victim conceivably could have been
after 9:30 p.m. on October 30, when she was due home. Indeed, not one of
the hundreds of persons interviewed by the police since the crime was
committed ever saw the victim after 9:30 p.m., when she was last seen with
Thomas Skakel. Neither did Benedict proffer a credible explanation as to
why several people, including the victim’s mother, heard dogs barking agitat-
edly and other unusual noises between 9:30 and 10 p.m. on October 30.
Moreover, although Benedict asserted that the victim could have been alive
after 10 p.m., Benedict himself acknowledged that there is no reasonable
likelihood that the victim was alive after 1 a.m. on October 31. In any event,
if the petitioner could have demonstrated to the satisfaction of the jury that
he was not anywhere near the scene of the crime between 9:30 and 10 p.m.
on October 30—indeed, if he could have raised a reasonable doubt in the
jurors’ minds as to his whereabouts at that time—it is highly unlikely that
he would have been found guilty of the victim’s murder.
8
See also Heard v. Addison, 728 F.3d 1170, 1180 (10th Cir. 2013) (‘‘[a]
decision not to investigate cannot be deemed reasonable if it is uninformed’’
[internal quotation marks omitted]); Mosley v. Atchison, 689 F.3d 838, 848
(7th Cir. 2012) (‘‘[i]f [defense counsel] . . . never found out what [the]
testimony [of the potential witnesses] would be, he could not possibly have
made a reasonable professional judgment that their testimony would have
been [unnecessary] and could not have chosen not to call [the witnesses]
as a matter of strategy’’); Bond v. Beard, 539 F.3d 256, 289 (3d Cir. 2008)
(‘‘It is difficult to call [defense counsel’s] decisions ‘strategic’ when they
failed to seek rudimentary background information about [the potential
witness]. Strategy is the result of planning informed by investigation, not
guesswork. The record does not support the suggestion that [defense coun-
sel’s] investigation met prevailing professional standards.’’), cert. denied,
558 U.S. 835, 130 S. Ct. 81, 175 L. Ed. 2d 56 (2009), and cert. denied, 558
U.S. 932, 130 S. Ct. 58, 175 L. Ed. 2d 232 (2009); Anderson v. Johnson, 338
F.3d 382, 392 (5th Cir. 2003) (‘‘[counsel cannot rely] exclusively on . . .
assumptions divined from a review of the [s]tate’s files,’’ and ‘‘[w]ithout so
much as contacting a witness, much less speaking with him, counsel is ill-
equipped to assess his credibility or persuasiveness as a witness’’ [internal
quotation marks omitted]); Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir.
1999) (counsel improperly relied on his ‘‘vague impression’’ that police
investigators who interviewed three potential key defense witnesses did not
find them credible because ‘‘[f]ew decisions a lawyer makes draw so heavily
on professional judgment as whether . . . to proffer a witness at trial,’’ and
‘‘counsel cannot make [that judgment] about a witness without looking him
in the eye and hearing him tell his story’’), cert. denied sub nom. Lambert
v. Lord, 528 U.S. 1198, 120 S. Ct. 1262, 146 L. Ed. 2d 118 (2000); Kenley v.
Armontrout, 937 F.2d 1298, 1308 (8th Cir.) (‘‘‘[c]ounsel can hardly be said
to have made a strategic choice against pursuing a certain line of investiga-
tion when [he] has not yet obtained the facts on which such a decision
could be made’ ’’ but, instead, bases that decision on unsupported assump-
tions), cert. denied sub nom. Delo v. Kenley, 502 U.S. 964, 112 S. Ct. 431,
116 L. Ed. 2d 450 (1991).
9
With respect to the factual premise of the respondent’s argument, I
disagree with the majority’s assertion that the habeas court credited Sher-
man’s testimony that the petitioner had not told him about Ossorio’s pres-
ence at the Terrien residence on the evening of October 30, 1975, and
discredited the petitioner’s contrary testimony that he had, in fact, brought
that fact to Sherman’s attention. The habeas court made no such finding,
explaining, instead, that it made no difference whether the petitioner had
informed Sherman about Ossorio because Sherman was on notice, by virtue
of Dowdle’s grand jury testimony, that her ‘‘beau’’ was, in fact, at the Terrien
residence. In essence, the habeas court simply assumed that the petitioner
had not told Sherman about Ossorio and then proceeded to explain why
Dowdle’s grand jury testimony was more than sufficient to place Sherman
on notice of Ossorio as a potential independent alibi witness. I fully agree
with the habeas court that, in light of Dowdle’s grand jury testimony, it
matters not whether the petitioner told Sherman about Ossorio. If, however,
it truly matters to the majority, I would urge the majority to obtain an
articulation from the habeas court on this issue because I firmly believe
that the majority is mistaken in its reading of the habeas court’s decision.
Because, however, the majority proceeds on the premise that the petitioner
did not apprise Sherman about Ossorio, and because it makes no difference
for purposes of my analysis, I assume that such was the case.
10
The majority makes much of the fact that, according to Sherman’s
testimony at the habeas trial, none of the petitioner’s alibi witnesses ever
told him that Ossorio or anyone else was present at the Terrien home on
the evening of October 30, 1975. The majority’s reliance on this testimony
is misplaced. First, the habeas court never made any findings with respect
to the credibility of that testimony, and so the majority has no basis to treat
it as accurate. Second, the issue is not whether the witnesses volunteered
information about Ossorio to Sherman because, as I have explained, there
are many reasons why they would not have known that Ossorio was a
potentially important witness. Indeed, the fact that Dowdle was unaware
of Ossorio’s importance is reflected in her matter-of-fact grand jury and
trial testimony about Ossorio. Third, Sherman was questioned at the habeas
trial whether he had asked the family alibi witnesses about the presence of
anyone else at the Terrien residence on the evening of October 30. With
respect to Rushton Skakel, Jr., and John Skakel, Sherman could say only,
‘‘[p]robably.’’ When asked the same question about Terrien and Dowdle,
Sherman answered, ‘‘I would assume I did.’’ In fact, Sherman’s ‘‘assum[p-
tion]’’ that he had questioned Dowdle on the issue was patently incorrect:
the habeas court expressly found that, if Sherman had asked Dowdle about
her ‘‘beau,’’ she would have identified him as Ossorio. Sherman, however,
never did inquire about Dowdle’s beau.
11
The majority tries to distinguish Rompilla from the present case on
the ground that Rompilla did not involve an alibi defense. The majority’s
argument presents a classic example of a distinction without a difference.
The fact that Rompilla is not an alibi case is completely irrelevant, and the
majority provides no explanation for its contrary assertion. Rompilla is
highly relevant to the present case because it underscores the fact that
counsel has an obligation to make reasonable inquiry into facts in mitigation
or other red flags when reviewing discovery materials, even when those
facts or red flags are unexpected. Dowdle’s testimony concerning her ‘‘beau’’
is precisely the kind of red flag that competent counsel would have recog-
nized and pursued further.
12
Ease of access, rather than whether the petitioner supplied the name
of the witness, was the focus of the court’s analysis in Gaines. Given our
previous recognition that counsel may be required to investigate leads not
supplied by a client; see Siemon v. Stoughton, 184 Conn. 547, 557, 440 A.2d
210 (1981) (counsel was ineffective for failing to interview witnesses of
related incidents presented by investigator); whether a name was supplied
is simply irrelevant. In both Gaines and the present case, counsel made a
conscious decision not to investigate an identifiable witness whose testi-
mony might well have been helpful.
13
To do otherwise when reviewing testimony pertaining directly to the
petitioner’s alibi in a case relying largely on an alibi defense would itself
clearly amount to ineffective assistance of counsel, and the majority does
not contend otherwise. On the contrary, the majority sets forth the reasons
why, in its view, Sherman’s conscious decision not to pursue the Ossorio
lead was reasonable.
14
I again underscore the minimal effort that would have been required
of Sherman to locate Ossorio, as well as the potentially great reward of a
disinterested alibi witness. See, e.g., Montgomery v. Petersen, supra, 846
F.2d 413 (counsel was ineffective by failing to track down ‘‘extraordinarily
significant’’ testimony of single disinterested alibi witness in case). By way
of analogy, we are not asking Sherman to waste his time panning for gold
on a miner’s chance of striking it rich. We are simply asking him to check
the number on his bingo card to see if it matches the winning draw. Whereas
the former might reasonably be characterized as a fool’s errand, the failure
to do the latter is neither rational nor reasonable.
15
Moreover, as the Third Circuit has explained, incomplete knowledge of
a witness’ name does not render the witness unidentifiable. See Gregg v.
Rockview, supra, 596 Fed. Appx. 77 (counsel acted unreasonably in failing
to ascertain identity of alibi witness merely referenced by petitioner as
‘‘Weezy’’).
16
Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 837 A.2d
849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Tocca-
line v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004), which
the majority also cites for the proposition that counsel’s representation is
not deficient when he fails to investigate witnesses not mentioned by the
client, is similarly inapposite. In that case, although the habeas court was
presented with the testimony of the missing witness, there was nothing to
indicate that the witness was identifiable by counsel at the time of trial.
Instead, the habeas court suggested that counsel might have discovered the
witness with a properly attuned line of questioning, a suggestion that the
Appellate Court reasonably rejected. See id., 816–17. Such a fact pattern
is entirely distinct from one involving the failure to investigate a readily
identifiable witness, as in the present case.
17
As the majority explains, to put forth a third-party culpability defense,
the defendant ‘‘must . . . present evidence that directly connects a third
party to the crime with which the defendant has been charged. . . . It is
not enough to show that another had the motive to commit the crime . . .
nor is it enough to raise a bare suspicion that some other person may have
committed the crime of which the defendant is accused.’’ (Citations omitted;
internal quotation marks omitted.) State v. Hernandez, 224 Conn. 196, 202,
618 A.2d 494 (1992). Third-party culpability evidence is admissible, therefore,
when the evidence is sufficient to give rise to a reasonable doubt about the
defendant’s guilt. See, e.g., State v. Baltas, 311 Conn. 786, 810–11, 91 A.3d
384 (2014).
18
The majority intimates that Sherman was unaware of the futility of a
third-party culpability defense predicated on Littleton’s commission of the
murder, observing that the habeas court made no finding that Sherman was
aware before the petitioner’s criminal trial that the core of his third-party
culpability defense against Littleton—Littleton’s purported admissions—
was the result of a ruse that had been played on him by state and local
investigators. No such finding was required, however, because the record
establishes that Sherman was made aware of this fact by the state’s pretrial
motion to preclude him from raising a third-party culpability defense against
Littleton on the ground that there was no evidence connecting Littleton to
the murder.
19
In light of the complete absence of evidence suggesting that Littleton
had played a role in the victim’s murder, it is difficult to understand why
the trial court permitted Sherman to raise a third-party culpability defense
predicated on Littleton’s commission of the murder. Perhaps it is because
before the Littleton evidence actually was presented in open court to the
jury, it appeared to the court that Littleton might have made some potentially
incriminating statements to Baker or Morall. As the real story emerged,
however, it became crystal clear that Littleton never did any such thing. By
that point, of course, Sherman was stuck with his ill-advised decision to
present the Littleton third-party culpability defense.
20
Sherman also sought to implicate Littleton on the basis of certain addi-
tional facts, but none of these facts would have created the slightest doubt
in the minds of the jurors as to the wisdom of the state’s decision to grant
Littleton immunity from prosecution. Indeed, none of them even connected
Littleton to the murder. For example, the majority states that Sherman
presented the testimony of state criminalist, Henry Lee, that ‘‘two hairs
found at the crime scene were microscopically similar to head hairs from
Littleton.’’ Contrary to the majority’s assertion, however, the hairs in question
were not found at the crime scene but, rather, on sheets that were brought
to the crime scene, by responding officers, who used them to cover the
victim’s body for transport to the morgue. As a result, it could not be
determined whether the hairs were present during the commission of the
crime or whether they were brought to the crime scene with the sheets.
Sherman was also aware before the petitioner’s criminal trial that mitochon-
drial DNA testing of one of the hairs had conclusively eliminated Littleton
as the source of that hair. Although insufficient DNA material was obtained
from the second hair to permit similar testing, all of the trial experts agreed
that the hair showed both similarities and dissimilarities to Littleton’s hair
such that the most that could be gleaned from a comparison of the two
was that Littleton could not be excluded from the class of potential donors.
Sherman also introduced evidence of Littleton’s erratic behavior in the
years following the murder, the apparent result of alcoholism and an
untreated bipolar disorder. But he utterly failed to present an intelligible
connection between that behavior, which occurred many years after the
murder, and any possible involvement by Littleton in the murder. In one
incident, for example, which took place in the 1990s, Littleton was arrested
for drunk and disorderly conduct after climbing a tower in Florida and
delivering President John F. Kennedy’s ‘‘Iich bin ein Berliner’’ speech. During
his arrest, Littleton identified himself as ‘‘Kenny Kennedy, the black sheep
of the Kennedy family.’’ On the basis of this evidence, Sherman argued
that Littleton once identified himself as ‘‘Kenny Kennedy because [John F.
Kennedy] was his hero. He painted himself as the black sheep of the Kennedy
family. How does that figure in here? I don’t know.’’ It is unlikely the jury
knew either. The majority also notes that Sherman, in the petitioner’s pretrial
motion for permission to present a third-party culpability defense, indicated
that he ‘‘planned to show that Littleton had lied to the police in his initial
statement about his activities on the night [of the victim’s murder] . . . and
later had changed his account about his activities that night on several
occasions.’’ Sherman appeared to abandon this argument at the petitioner’s
criminal trial, however, as there is no mention of it in his closing argument;
nor does there appear to be any evidence to support it.
21
The Skakel family chauffeur, Franz Wittine, reported to the police that,
‘‘on several occasions he observed Thomas [Skakel] leave his house to take
a walk, carrying a golf club. He also reported that he had observed Thomas
[Skakel] in outbreaks of rage.’’ Another witness, ‘‘Jackie Wetenhall, one of
[the victim’s] close friends . . . observed Thomas [Skakel] . . . walking
. . . at night, carrying a golf club.’’
22
Joseph Jachimczyk, a physician and then Chief Medical Examiner for
Harris County, Texas, assisted the Greenwich police in their investigation
and determined that the time of the victim’s death was 10 p.m., which
determination was based, in part, on the contents of her stomach and the
extent of rigor mortis that had set in by the time her body was discovered.
Harold Wayne Carver II, the state Chief Medical Examiner in 2002, testified
that, although the victim could have died as late as 5:30 a.m. on October
31, 1975, in his opinion, she died ‘‘closer to 9:30 p.m.’’ on October 30.
23
The record establishes that, at approximately 9:45 p.m., a dog belonging
to the Ix family became extremely agitated at the foot of the family’s drive-
way, directly across the street from the entrance to the victim’s driveway.
It was later determined, on the basis of blood spatter found at the scene,
that the victim was initially assaulted at that location. Ix reported to the
police that, when she returned from the Skakel driveway at 9:30 p.m., she
immediately telephoned a friend. Ix reported that, while she was talking on
the telephone, at approximately 9:45 p.m., her dog began to bark incessantly
and ‘‘violently’’ in the direction of the victim’s driveway. Ix went outside to
call the dog, but the dog refused to come even though it always came when
she called him. Ix testified that the dog ‘‘was kind of frozen in the road like
he didn’t [want to] go any closer,’’ and that she had never seen him so
‘‘scared’’ or agitated. After about twenty or twenty-five minutes of constant
barking, the family’s housekeeper had to go out and force the dog inside.
Another of the victim’s neighbors, Robert Bjork, reported that, although he
did not appreciate the significance of his dog’s behavior at the time, he
observed his dog, at approximately 10 p.m., run back and forth between
where the victim’s blood was found on the driveway and the tree where
the victim’s body was discovered.
24
One might think that Thomas Skakel’s admissions, or statements against
penal interest, would have been admissible through a witness from Sutton
Associates. Issues relating to the attorney-client and work product privileges,
however, ultimately prevented any such use of the Sutton Report or its
authors.
25
Throne testified that he was ‘‘fresh out of law school,’’ with no prior
experience in the area of criminal law, when Sherman hired him to work
on the petitioner’s case. Sherman’s son, Mark Sherman, was second chair.
26
I also note that Sherman did not request a jury instruction on the
petitioner’s third-party culpability defense, and the trial court did not give
one. Nor did Sherman undertake to explain the legal significance of the
defense in closing argument. As this court determined in State v. Arroyo,
284 Conn. 597, 609, 935 A.2d 975 (2007), a defendant is entitled to an instruc-
tion on a third-party culpability defense if requested. Perhaps because Arroyo
was decided after the petitioner’s criminal trial, the petitioner has not
claimed that Sherman’s representation was ineffective insofar as he failed
to request such an instruction. However, whether the jury fully understood
that the state bore the burden of rebutting the defense beyond a reasonable
doubt—and that it was not the petitioner’s burden to establish Littleton’s
guilt—is not clear. In any event, the fact that the Littleton third-party culpabil-
ity defense had no basis in fact doomed it from the very start; under the
circumstances, Sherman’s failure to apprise the jury of its legal import
was inconsequential.
27
The petitioner was sent to Elan School, an alcohol and drug rehabilita-
tion facility for troubled adolescents in Poland, Maine, in 1978, as part of
a plea agreement after the petitioner was charged with driving under the
influence in New York.
28
The majority also relies on Fuhrman’s book to support its conclusion
that Sherman reasonably could have decided to forgo implicating Thomas
Skakel out of fear that it might bolster the state’s theory as to the petitioner’s
motive. See footnote 18 of the majority opinion. Such reliance only reflects
the thin reed on which the majority’s argument rests.
29
It is unfortunate that the majority has seen fit to rely on Fuhrman’s
speculative account of a relationship between the victim and the petitioner
as a basis for reversing the habeas court’s judgment. Although the possibility
of such a relationship was one of several theories posited by the Sutton
investigators in the mid-1990s, no credible evidence was adduced at the
petitioner’s 2002 criminal trial in furtherance of it.
30
The aspect of the case identified by the habeas court pertains to State’s
Attorney Benedict’s argument at trial that the petitioner was sent to Elan
School as part of the Skakel family’s broader cover-up to hide him from
the police, who were kept in the dark regarding his whereabouts. This
contention is belied by police investigative reports, which make clear that
the police knew full well that the petitioner was at Elan School and had
been in direct contact with the school. This point is important because
Benedict also argued at trial that administrators at Elan School, who repeat-
edly accused the petitioner of having murdered the victim, learned of the
petitioner’s involvement in the murder from the petitioner’s own family,
and not from the police.