Reply Brief — Connecticut, Petitioner v. Michael Skakel

No. 18-185

In The

Supreme Court Of The United States

______________________________

STATE OF CONNECTICUT,

Petitioner,

v.

MICHAEL SKAKEL,

Respondent.

______________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CONNECTICUT

______________________________

REPLY BRIEF FOR THE PETITIONER

STATE OF CONNECTICUT

_______________________________

KEVIN T. KANE

Chief State=s Attorney

JAMES A. KILLEN*

Senior Assistant State=s Attorney

Office of the Chief State=s Attorney

Appellate Bureau

300 Corporate Place

Rocky Hill, CT 06067

Tel. (860) 258-5807

Fax (860) 258-5828

Email: James.Killen@ct.gov

*Counsel Of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

ARGUMENT .............................................................. 1

I.

OVERALL PERFORMANCE IS THE

CENTRAL FOCUS OF THE FIRST

STRICKLAND PRONG .................................. 2

II.

LOWER COURTS ARE DIVIDED

OVER

WHETHER

COUNSEL’S

OVERALL

PERFORMANCE

IS

RELEVANT TO THE STRICKLAND

ANALYSIS ....................................................... 4

III.

THIS CASE PRESENTS AN IDEAL

VEHICLE BY WHICH TO RESOLVE

THE CONFLICT BECAUSE THE

ISSUE WAS SQUARELY RAISED

BELOW

AND

HAD

THE

CONNECTICUT SUPREME COURT

CONSIDERED

OVERALL

PERFORMANCE

AND

EGREGIOUSNESS IT COULD NOT

HAVE

FOUND

A

SIXTH

AMENDMENT VIOLATION .......................... 7

CONCLUSION ......................................................... 13

i

TABLE OF AUTHORITIES

Page

CASES

Henry v. Poole, 409 F.3d 48 (2d Cir. 2005),

cert. denied, 547 U.S. 1040 (2006) ......................... 5, 6

Hinton v. Alabama, 571 U.S. 263 (2014)................... 3

Kimmelman v. Morrison, 477 U.S. 365

(1986) .............................................................. 2, 3, 8, 9

People v. Henry, 744 N.E.2d 112 (N.Y. 2000) ............ 6

Rompilla v. Beard, 545 U.S. 374 (2005) .................... 3

Smith v. Murray, 477 U.S. 527 (1986) .................. 4, 8

State v. Thiel, 264 Wis. 2d 571, 665 N.W.2d

305 (2003) ................................................................... 6

Strickland v. Washington, 466 U.S. 668

(1984) ............................................................. 1-7, 9, 13

United States v. Cronic, 466 U.S. 648 (1984) ............ 3

Williams v. Lemmon, 557 F.3d 534

(7th Cir. 2009) ......................................................... 5, 7

ii

ARGUMENT

The defense team in this case provided

representation far above that afforded the

overwhelming majority of criminal defendants.

Nevertheless, the exceptional quality of their overall

performance was completely ignored by the

Connecticut Supreme Court in finding a Sixth

Amendment violation. The court therefore failed to

heed this Court’s admonition in Harrington v.

Richter, 562 U.S. 86 (2011), that “when counsel’s

overall performance indicates active and capable

advocacy,” an “isolated error” can “support an

ineffective-assistance claim” only if it is “sufficiently

egregious and prejudicial.” Id. at 111 (quoting

Murray v. Carrier, 477 U.S. 478, 496 (1986) (internal

quotation marks omitted). Had the court done so, the

only reasonable conclusion it could have reached is

that the defense team’s single omission in failing to

present Denis Ossorio as a fourth, partial-alibi

witness, even if error, simply was not “egregious

error” sufficient, by itself, to find a Sixth

Amendment violation and overturn the defendant’s

conviction.

Unfortunately, the state court’s misapplication of

Strickland in this regard is not uncommon among

lower courts. Indeed, the defendant’s own conflicting

efforts to reconcile this Court’s jurisprudence and

that of other federal and state courts regarding the

proper role of overall performance in evaluating

claims of ineffectiveness under Strickland v.

1

Washington, 466 U.S. 668 (1984), confirm why it is

critical that this Court grant certiorari to clarify and

resolve this important Sixth Amendment issue.

I. OVERALL

PERFORMANCE

IS

THE

CENTRAL

FOCUS

OF

THE

FIRST

STRICKLAND PRONG

As explained in the Petition at 15-22, this Court’s

decisions establish two relevant rules with respect to

Strickland’s deficient-performance prong. First,

courts must take into account defense counsel’s

overall performance. Richter, 562 U.S. at 111;

Kimmelman v. Morrison, 477 U.S. 365, 396 (1986).

Second, when counsel’s overall performance is

strong, an isolated error constitutes deficient

performance only if the error was “egregious.”

Richter, 562 U.S. at 111; Carrier, 477 U.S. at 496.

Only when those two conditions are met is a single

error by otherwise effective counsel of such

magnitude that it “undermined the proper

functioning of the adversarial process.” Richter, 562

U.S. at 110 (internal quotation marks omitted).

The defendant in his Brief in Opposition agrees

that overall performance must be taken into

account—except when he denies that very

proposition. On the one hand, he says that

consideration of overall performance is implicit in

Strickland’s statement that a habeas petitioner must

“show that, considering all of the circumstances,

counsel’s representation fell below an objective

standard of reasonableness as measured by

2

prevailing professional norms.” BIO 22 (quoting

Strickland, 466 U.S. at 687-88) (emphasis added by

BIO). He also acknowledges that Kimmelman and

Richter stated that overall performance is essential

to the Strickland analysis, even while expressing

semantic disagreement with the state’s assertion

that it is the “central focus” of Strickland’s first

prong. BIO 24-25.

On the other hand, the defendant quotes dicta in

United States v. Cronic, 466 U.S. 648 (1984) as

establishing that overall performance is not essential

to the Strickland analysis, BIO 24, and insists that

Hinton v. Alabama, 571 U.S. 263 (2014), and

Rompilla v. Beard, 545 U.S. 374 (2005), implicitly

show that overall performance is irrelevant to the

Strickland analysis because those cases never

address it. BIO 28.

If the Brief in Opposition leaves one thing clear it

is

that

this

Court’s

ineffective-assistance

jurisprudence needs clarification. Should an isolated

mistake by counsel whose “overall performance

indicates active and capable advocacy” be treated the

same as an isolated mistake by counsel whose

overall performance does not? The defendant

maintains that Richter and the cases upon which it

relies—which answered that question no—should be

taken neither literally nor seriously. The state, by

contrast, does not believe this Court’s statements

should be so readily dismissed.

3

The defendant fares no better when he tries (BIO

at 27-28) to read the word “egregious” out of this

Court’s decisions in Carrier, Richter and Smith v.

Murray, 477 U.S. 527 (1986). Those decisions did not

state that a single error by otherwise “active and

capable” counsel satisfy Strickland’s first prong if

the error simply (in Strickland’s words) “fell below

an objective standard of reasonableness.” 466 U.S.

at 688. Rather, the decisions demanded that the

single error be “egregious.” No dictionary of which

we are aware equates the terms egregious and

unreasonable.

In Strickland, the Court explained that the first

Strickland prong “requires showing that counsel

made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” 466 U.S. at

687. That showing is necessarily difficult to make in

a single-error case “when counsel’s overall

performance indicates active and capable advocacy.”

Richter, 562 U.S. at 111. In such cases, like the

present one, only an egregiousness requirement

ensures that that showing is truly made.

II. LOWER COURTS ARE DIVIDED OVER

WHETHER

COUNSEL’S

OVERALL

PERFORMANCE IS RELEVANT TO THE

STRICKLAND ANALYSIS

The defendant’s own shifting views reflect the

confusion shared by our federal and state courts as

to what, if any, role overall performance plays in

4

evaluating

claims

of

ineffectiveness

under

Strickland. His suggestion that the lower courts

agree on the proper role of overall performance, BIO

29, is flatly contradicted by the numerous conflicting

cases discussed in the Petition, as well as those set

forth in the Amicus Brief joined in by eleven other

states. See Pet. 22-32; Amicus Br. 3-7.

Like the divide between the state and the

defendant’s position on the question presented here,

the lower courts disagree on whether a court must

take overall performance into account and whether

the court must find a single error amidst otherwise

capable advocacy to be egregious. Tellingly, the

defendant omits any mention of the Seventh

Circuit’s decision in Williams v. Lemmon, 557 F.3d

534 (7th Cir. 2009). See Pet. 23. There, in an opinion

by Judge Easterbook, the court ruled that “counsel’s

entire performance” must be assessed and that

where it is “otherwise capable,” only “an ‘egregious’

error” will constitute deficient performance. Id. at

538, 541 (quoting Carrier, 477 U.S. at 496).

Numerous other courts have said the same. See Pet.

23-30; Amicus Br. 4-6.

In direct contrast, the Second Circuit and

Wisconsin Supreme Court expressly preclude

consideration

of

overall

performance

when

evaluating counsel’s effectiveness under Strickland.

See Pet. 29-30. In Henry v. Poole, 409 F.3d 48 (2d

Cir. 2005), cert. denied, 547 U.S. 1040 (2006), the

Second Circuit granted habeas relief because the

5

state court’s “reliance on ‘counsel's competency in all

other respects’ . . . failed to apply the Strickland

standard at all.” Id. at 72. The defendant errs in

asserting (BIO at 30-31) that the Second Circuit said

this in the context of addressing prejudice. In issuing

that holding, the Second Circuit in Henry specifically

cited to the portion of the state court’s decision

addressing whether the defendant was afforded

competent representation. Henry, 409 F.3d at 72

(citing People v. Henry, 744 N.E.2d 112, 114 (N.Y.

2000)).

Although the context of the Wisconsin Supreme

Court’s discussion of the issue in State v. Thiel, 264

Wis. 2d 571, 665 N.W.2d 305 (2003) was more

muddled, the import of its directive could not have

been clearer: “The fundamental purpose of the Sixth

Amendment's guarantee of effective assistance of

counsel is not to assess the overall performance of

counsel but to ensure that the adversarial process

functions fairly and reliably.” Thiel, 264 Wis.2d at

607, 665 N.W.2d at 323 (emphasis added.) It is

fanciful for the defendant to suggest that this

directive “not to assess the overall performance of

counsel” will impact only a court’s assessment of the

prejudice prong, and not the performance prong, of

Strickland.

As discussed in the Petition at 30-31, there also is

a third category of jurisdictions, including the

Connecticut Supreme Court, which, while not

directly articulating any view on the role of overall

6

performance, nevertheless lend implicit support to

the views of the Second Circuit and Wisconsin

Supreme Court by routinely ignoring overall

performance when applying Strickland’s first prong.

It is readily apparent that the views regarding

the role of overall performance expressed by the

Seventh Circuit in Williams and shared by the

numerous other jurisdictions set forth on pages 2329 of the Petition and the views expressed by the

Second Circuit, the Wisconsin Supreme Court and

other jurisdictions that implicitly agree, are

diametrically opposed to each other.

For these reasons, certiorari should be granted in

this case to provide much-needed clarification of, and

consistency as to, this issue.

III. THIS CASE PRESENTS AN IDEAL

VEHICLE BY WHICH TO RESOLVE THE

CONFLICT BECAUSE THE ISSUE WAS

SQUARELY RAISED BELOW AND HAD

THE CONNECTICUT SUPREME COURT

CONSIDERED OVERALL PERFORMANCE

AND EGREGIOUSNESS IT COULD NOT

HAVE FOUND A SIXTH AMENDMENT

VIOLATION

Contrary to the defendant’s argument, this case

presents an excellent vehicle by which to address the

proper role of overall performance in the Strickland

analysis and what does and does not constitute a

single error sufficiently “egregious” to render

7

otherwise active and capable overall performance

inadequate nevertheless.

The quality of the defense team’s overall efforts

in this case was exceptionally high, while the state

court’s sole justification for finding constitutional

ineffectiveness—the defense team’s failure to

present a fourth potential, partial-alibi witness—did

not constitute the type of “egregious” error sufficient

to meet the standard explicated in Kimmelman,

Carrier, Smith, and Richter for claims of

ineffectiveness based on a single error. The

disposition of the question presented is therefore

outcome-determinative.

The defendant’s vehicle

arguments are without merit.

First, he rightly concedes that the Connecticut

Supreme Court’s second decision did not alter the

portions of its first decision rejecting any claims of

ineffectiveness other than those relating to that

fourth witness, Ossorio. See BIO 16 n.6 (“The

Connecticut Supreme Court’s May 2018 decision

specified that it superseded the court’s initial

December 2016 decision only ‘on the issue for which

reconsideration en banc was granted’ [i.e., the

Ossorio issue]”); id. at 23. Notwithstanding this

concession, however, many of the defendant’s

arguments are premised on a view of the record

inconsistent with the Connecticut Supreme Court’s

unchallenged conclusion that the defense team was

not ineffective in any respect other than in failing to

uncover Ossorio.

8

For example, he discusses, at length, the state

habeas trial court’s contrary conclusions to suggest

ineffectiveness in other respects, as well as to

suggest his own innocence, contrary to the jury’s

guilty verdict. See BIO 13-14; see also id. at 34-35.

But all of these other findings of ineffectiveness by

the state habeas court were discredited and

overruled by a solid majority of the state supreme

court justices below. See Pet. App. A-362 to A-474.

Second, there is no merit to the defendant’s

argument that the state failed to fairly present this

issue to the Connecticut Supreme Court. On the

contrary, the state expressly argued that the defense

team’s able and effective overall efforts in this case

precluded a finding of ineffectiveness under

Strickland’s first prong. See State Conn. Sup. Ct.

Br. 25-31. Although the defendant grudgingly

concedes as much, he argues that the state failed to

“argue for a categorical rule that ‘overall

performance’ must be expressly analyzed in each

case.” BIO 33. Of course, in the state’s view,

Kimmelman and Richter already set forth a

“categorical rule” that overall performance must be

considered and, thus, there was no reason for the

state to ask the state court to create one. No

procedural rule provides that it is insufficient for a

party to cite controlling authority to an appellate

court unless the party also asks the court to

“expressly analyze” that controlling authority when

rendering its decision.

9

Even less meritorious is the defendant’s

argument that this Court should not decide whether

the state supreme court erred in failing to consider

counsel’s overall performance in this case precisely

because that court failed to consider overall

performance in this case. BIO 32. The very nature

of the question presented in the Petition requires a

case in which the lower court did not properly

consider overall performance. Indeed, if the lower

court did consider overall performance, the question

presented in this case would be academic.

Consequently, the state supreme court’s failure to

consider this critical issue, which was squarely

presented to it in the state’s brief, does not preclude

this Court’s review of the correctness of that

decision.1

Third, contrary to the defendant’s claim, this

case does not present that rare instance in which a

single error by counsel could be deemed so

“egregious” that it precluded counsel from providing

reasonably competent assistance, regardless of his or

her overall performance.2

The defendant also cites no authority for his argument

that the state waived its right to pursue the issue of overall

performance by failing to reiterate, in its response to the

defendant’s motion for reconsideration after the Connecticut

Supreme Court’s first decision, the argument already presented

to that court in its brief. BIO 33.

1

The defendant erroneously asserts that the state no

longer disputes the Connecticut Supreme Court’s conclusion

(continued...)

2

10

It is difficult to characterize as egregious the

defense team’s omission in not seizing upon

Georgeann Dowdle’s fleeting reference in a grand

jury transcript to another, unnamed person who,

according to Dowdle’s account, never left the far-off

room at the Terrien house, Pet. App. A-59 to A-60, A401 to A-403, and would not even have been in a

position to provide any helpful information. See

HT4/18/13: 187, HT 4/23/13: 49-50.

In addition, the account provided by all of the

other alibi witnesses, as well as the defendant

himself, gave the defense team every reason to

believe that no one else, including any unnamed

beau, could corroborate their alibi. Pet. App. A-399

to A-405, HT4/16/13: 233-34, HT4/18/13: 187. It

cannot be overstated that, in his later habeas

testimony, Ossorio did not merely claim that he

surreptitiously observed the defendant and the

others while he passed by them, unnoticed, at the

Terrien house. Rather, Ossorio claimed that he had

(...continued)

that there is a reasonable likelihood that the jury would

acquitted the defendant if the jury had been aware of Ossorio.

BIO at 2. On the contrary, there are a host of problems with

that court’s misguided analysis that the state continues to

dispute vehemently. The state simply has chosen to focus on

the legal question particularly worthy of this Court’s attention:

the state court’s failure to consider whether the defense team’s

single alleged-error in failing to pursue Ossorio was sufficiently

egregious to justify the court’s refusal to consider the team’s

overall performance.

11

a conversation with the boys, who were watching a

Monty Python television show. App. at A-56 to A-57,

HT4/18/13: 74-79. See HT4/18/13: 75 (“At that

particular time I saw them, they were watching

some television shows, and we had a brief

discussion.”) (emphasis added).

There is no way to reconcile Ossorio’s account of

this alleged conversation, forty years later at the

habeas trial, with the far more immediate

recollection of all of the other parties present that no

such encounter with the unnamed beau, or anyone

else, ever took place that evening. Thus, reasonably

competent counsel would have had no reason to

anticipate that this unnamed beau would provide an

account so directly contrary to that provided by

Dowdle, all of the other alibi witnesses, and even the

defendant himself.

Indeed, while touting the potential benefit of

Ossorio’s testimony as the only unrelated partialalibi witness, the defendant overlooks the fact that

his testimony would have provided substantial

fodder for the prosecution’s further impeachment of

the alibi defense. In addition to Ossorio’s decadeslong delay in providing this alibi testimony to

anyone, despite the notoriety of this case, the fact

that Ossorio’s account conflicted with the defense’s

other alibi witnesses, none of whom could

corroborate this alleged conversation with Ossorio,

undoubtedly would have been seized upon by the

prosecution to argue that the defendant’s own

12

witnesses could not even give the same story. This

downside to presenting Ossorio’s account may well

have offset, and even overshadowed, any benefit to

the defense from the mere fact that Ossorio was not

related to the defendant.

It is only with the benefit of the hindsight that

Strickland expressly discourages, Strickland, 466

U.S. at 689—i.e., it is only now knowing what

Ossorio was willing to say forty years later at the

habeas trial—that any likely benefit to be had from

tracking down the unnamed beau has been

magnified. Consequently, even assuming, arguendo,

that the defense team’s omission in not pursuing the

unnamed beau is even properly characterized as an

“error” that other reasonably competent attorneys

would not have made under the same circumstances,

it certainly falls short of the type of “egregious error”

that, alone, rendered counsel’s performance

constitutionally incompetent and the defendant’s

trial fundamentally unfair.

CONCLUSION

The petition for a writ of certiorari should be

granted.

13

Respectfully submitted,

STATE OF CONNECTICUT

KEVIN T. KANE

Chief State’s Attorney

State of Connecticut

Counsel of Record:

JAMES A. KILLEN

Senior Assistant State’s Attorney

Office of the Chief State’s Attorney

Appellate Bureau

300 Corporate Place

Rocky Hill, CT 06067

Tel. (860) 258-5807

James.Killen@ct.gov

December, 2018

14