home

Skakel Appeals to Supreme Court

By Jeralyn, Section Crime in the News
Posted on Wed Jul 12, 2006 at 08:56:15 PM EST
Tags: (all tags)
Share This: Digg! StumbleUpon del.icio.us reddit reddit

With none other than former Solicitor General Ted Olson as his new lawyer, Michael Skakel is asking the Supreme Court to take his case and overturn his conviction for murdering 15 year old Martha Moxley. At the time of the crime in 1975, Connecticut had a 5 year statute of limitations on murders that were not capital murders. It eliminated the statute of limitations on all murders in 1976. But Skakel wasn't charged with capital murder, and he wasn't charged until 2000, by which time the five year period had long expired.

Skakel's trial lawyer, Mickey Sherman, raised the argument in the trial court and was turned down. His brief is here. After Skakel was convicted at trial, his appellate lawyers took the issue up to the Connecticut Supremem Court, where they were turned down. But, in turning Skakel down, the court had to overrule its own precedent -- earlier decisions that would have required them to rule in Skakel's favor.

"Mr. Skakel's constitutional rights as well as the constitutional protections afforded to all citizens are threatened by the Connecticut Supreme Court's ruling," said Theodore B. Olson, a former U.S. Solicitor General who is representing Skakel. "The State of Connecticut's retroactive application to Mr. Skakel of a statute of limitations that the State's highest court had twice held did not apply to cases such as his violated his constitutional right to due process under the law."

"The breadth of the Connecticut Supreme Court's approach to retroactivity is of enormous significance," Olson wrote. "If that approach is permitted, no citizen may rely on a state supreme court's interpretation of its own criminal statutes, no matter how precisely on-point or long-standing or well-settled the prior interpretation. Such a proposition is so far-reaching that this court's review is warranted."

Now, will the Supreme Court take the case? Olson says, "The Connecticut ruling is at odds with decisions by the U.S. Supreme Court as well as federal appeals courts."

I think Skakel has a shot here. I don't see how the Court can apply a statute of limitations retroactively. I hope he's successful.

[My chronology of news articles on the case from 2002 is here; 2001 is here. TalkLeft coverage is here.]

< Putin on Cheney's Errant Aim | Bob Novak Wiggles >

  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


    • Display: Sort:
    Skakel Appeals to Supreme Court | 62 comments (62 topical)
    Re: Skakel Appeals to Supreme Court (none / 0) (#1)
    by DavidLA on Wed Jul 12, 2006 at 10:00:47 PM EST
    I understand and agree with your point on Constitutional grounds, due process and all that. I wonder though, a jury did find him guilty of murder based on evidence and testimony unrelated to these procedural conflicts. Does this not matter at all? A dismissal of charges because of not filing on time may be fair and constitutional, but is it really just?

    Re: Skakel Appeals to Supreme Court (none / 0) (#2)
    by Aaron on Wed Jul 12, 2006 at 10:02:09 PM EST
    Maybe a lawyer can explain this to me, but back in 1975, 15 year olds were not being tried as adults anywhere in the US if I'm not mistaken, so how did they try this man nearly 30 years later using statutes which apply to adults? He was a juvenile at the time so exactly how does this work legally after so much time passes? I'm not interested in seeing the man escape justice through a legal technicality, but neither am I interested in seeing an adult being tried as an adult for a crime he committed when he was a juvenile. There's gotta be a better way to find justice in this case. If he had been convicted when he was 15 or 16, wouldn't he have been out of juvenile lockup at 18?

    Re: Skakel Appeals to Supreme Court (none / 0) (#3)
    by Talkleft Visitor on Wed Jul 12, 2006 at 10:07:27 PM EST
    Aaron, that was also an argument that was litigated before trial and lost. Here's a Court TV article on it. Here is the court's decison.

    Re: Skakel Appeals to Supreme Court (none / 0) (#4)
    by Talkleft Visitor on Wed Jul 12, 2006 at 10:30:53 PM EST
    The constitutional argument is far more important than the jury's verdict. It affects all of us, not just Michael Skakel. Memories weaken upon the passage of time, they become comingled with post-event information --things witnesses later heard and read about the case -- so that often it is no longer possible for them to distinguish between their original memory of the event and the blended memory that is created by what they heard or observed and what they later learned from others. This was particularly true in Skakel's case where Dominick Dunne and Mark Fuhrman, the OJ cop, wrote books about the case before trial claiming Skakel was guilty. The testimony of the kids at the Elan school was especially suspect. The court even admitted the testimony of a drug addict who testified at the grand jury under the influence of heroin and at preliminary hearing but had od'd and died before trial. After the preliminary hearing, Court TV's news report said:
    However, the testimony of a key witness who claims Skakel confessed to killing Martha Moxley began crumbling Wednesday and collapsed completely Thursday morning. After admitting Wednesday that his grand jury testimony was useless because he was high on heroin during the proceedings, Gregory Coleman -- who attended a reform school with Skakel -- resumed the stand Thursday and said his previous day's testimony was unreliable because he was going through withdrawal during the court session and had to be rushed to the hospital immediately afterward for methadone treatment. "I wasn't feeling good at all yesterday," said Coleman, who had giggled inappropriately and stared at the clock during that testimony. "There was really no focusing at all yesterday." ....Outside court, the defense blasted Coleman's credibility. "Do I want him on heroin or methadone? It's like asking me who is your favorite Menendez brother," quipped Skakel attorney, Michael Sherman, outside court.


    Re: Skakel Appeals to Supreme Court (none / 0) (#5)
    by Aaron on Wed Jul 12, 2006 at 10:48:59 PM EST
    Thanks TL It seems like a very flawed and overly simplistic solution to a complex problem, and a solution which seems to places an undue burden on the defense, who for all intents and purposes is defending an adult in an adult court for the crimes of a juvenile who may or may not have been competent at the time. It's as if the fact that he committed the crime as a juvenile doesn't matter at all. I don't think I'd want to be the defense lawyer trying to deal with this case, because you're proceeding from a position of disadvantage from the start of such a trial. For there to be any kind of genuine equity in such cases there should really be some kind of intermediate jurisdiction specifically designated to deal with these kind of cases. A court where the judge would be obligated to take into account these factors at the very least during the sentencing phase, if at no other point.

    Re: Skakel Appeals to Supreme Court (none / 0) (#6)
    by inmyhumbleopinion on Wed Jul 12, 2006 at 11:19:00 PM EST
    Talk Left posted:
    Memories weaken upon the passage of time, they become comingled with post-event information --things witnesses later heard and read about the case -- so that often it is no longer possible for them to distinguish between their original memory of the event and the blended memory that is created by what they heard or observed and what they later learned from others.
    Wouldn't this also be an issue with capitol murders? Why are these "weakened memories" acceptable when prosecuting the more serious crime of capitol murder? State of Connecticut versus Michael Skakel Oral Arguments before the Supreme Court of the State of Connecticut Part I Part II

    Re: Skakel Appeals to Supreme Court (none / 0) (#7)
    by Deconstructionist on Thu Jul 13, 2006 at 06:17:25 AM EST
    The issue here IS NOT whether it is unconstitutional to have very long or no statute of limitations. All the stuff about memories and such is true but not really relevant to the issue in this case. It is not the current law that is being challenged per se; it is whether it is a violation of his rights to apply current law to a crime committed before it was enacted. BIG DIFFERENCE. There is no real question that a crime committed many many years ago but be AFTER the connecticut SOL was changed could be prosecuted now. The issue is whether it violates ex post facto prohibitions to allow a prosecution under the "new" law that would be time-barred if the law in effect at the time of the crime was applied. I'd argue that a SOL is not merely a "procedural law" but one that protects important substantive rights and is subject to ex post facto.

    Re: Skakel Appeals to Supreme Court (none / 0) (#8)
    by Bob In Pacifica on Thu Jul 13, 2006 at 06:54:54 AM EST
    I would guess that "weakened memories" should be taken into consideration by any jury in any trial. The best recollection is almost always the first recollection. Being high on heroin can weaken one's memory, for example. Or other drugs.

    Re: Skakel Appeals to Supreme Court (none / 0) (#11)
    by Deconstructionist on Thu Jul 13, 2006 at 07:58:10 AM EST
    TL: You write: "IMHO, it was a legislative oversight that resulted in no statute of limitations for non-capital murders. It only existed from 1973 to 1976 in CT. When the Supreme Court struck down capital murder statutes in 1973, CT redrafted its law but only included a "no statute of limitations" provision for capital murder. They fixed it in 1976. But Moxley was killed in 1975 before the fix." I believe you have that almost precisely backward. Given the legislative history, it appears that the "oversight" was in the first encactment which established the 5 year statute of limitations for non-capital murder and other felonies. As the next enactment repealed the 5 year statute of limitations, and that remains in effect to this day, I don't see how you can conceivably argue it "was a legislative oversight that resulted in no statute of limitations for non-capital murders."

    Re: Skakel Appeals to Supreme Court (none / 0) (#9)
    by Talkleft Visitor on Thu Jul 13, 2006 at 08:00:27 AM EST
    Deconstructionist, I was answering the commenter's question about why statutes of limitations are important and not just technicalities -- we all know that the argument the court right now is the constitutionality of the retroactive application of the statute, my original post made that clear. Please lighten up a little, ok?

    Re: Skakel Appeals to Supreme Court (none / 0) (#12)
    by Talkleft Visitor on Thu Jul 13, 2006 at 08:07:24 AM EST
    The court said it was a legislative oversight that they forgot to remove the 5 year statute of limitations for regular murder. The opinion of the CT supreme court is here for all to read. Sorry if my wording did not make that clear. From the Court TV article:
    The issue has its roots in the 1972 U.S. Supreme Court decision that struck down capital punishment in Connecticut and other states. As a result, Connecticut lawmakers tinkered with the state's murder statute in 1973 to distinguish between capital offenses and plain old murder. The change, however, created a new problem. Narrowly construed, the law in effect when Moxley was brutally beaten and stabbed with a broken golf club in 1975 seemed to set a five-year deadline for prosecutors to bring a murder charge but no limit for the new capital felony offense. The legislature amended the statute in 1976 to do away with the time limit for filing murder charges, but that left a three-year period where the law was in question.
    More here.

    Re: Skakel Appeals to Supreme Court (none / 0) (#13)
    by Deconstructionist on Thu Jul 13, 2006 at 08:21:52 AM EST
    Aaron: you write: "Maybe a lawyer can explain this to me, but back in 1975, 15 year olds were not being tried as adults anywhere in the US if I'm not mistaken," You are mistaken. Connecticut (and most other states) did have provisions for trying 15 year olds in "adult court" for certain crimes in 1975. Skakel's arument was not that no such provisions existed but that they were not followed at the time and that the transfer 25 years later was not valid. you ask: "so how did they try this man nearly 30 years later using statutes which apply to adults?" The court applied the juvenile law regarding transfer to adult jurisdiction and found Skakel's case qualified for such transfer. "He was a juvenile at the time so exactly how does this work legally after so much time passes?" The court considered whether at the time of the crime Skakel was old enough and committed a crime which allowed transfer under the law. It answered both questions in the affirmative and rejected arguments that boiled down to: he's no longer a juvenile so you can't use juvenile law provisions but he wasn't an adult then so you can't just initiate an adult prosecution therefore he can't be tried at all. you continue: "I'm not interested in seeing the man escape justice through a legal technicality, but neither am I interested in seeing an adult being tried as an adult for a crime he committed when he was a juvenile." Well, the law was and is that juveniles of a certain age can be tried as adults for certain crimes. You need to speak with your legislators about that. you oopine: "There's gotta be a better way to find justice in this case." Such as? "If he had been convicted when he was 15 or 16, wouldn't he have been out of juvenile lockup at 18?" Possibly, but not likely. Murder is considered a serious crime. More likely he would have been sentenced to a considerably longer term and simply would have served the first part of it in a juvenile facility and then been transferred to an adult facility upon becoming an adult.

    Re: Skakel Appeals to Supreme Court (none / 0) (#14)
    by inmyhumbleopinion on Thu Jul 13, 2006 at 08:27:28 AM EST
    Talk Left posted:
    I was answering the commenter's question about why statutes of limitations are important and not just technicalities.
    This is clearly a technicality, but how sound is a moral justification that he shouldn't be tried based on the "weakened memories" excuse, when "weakened memories" are not, and never were, a bar to prosecuting capitol murder?

    Re: Skakel Appeals to Supreme Court (none / 0) (#15)
    by Deconstructionist on Thu Jul 13, 2006 at 08:29:30 AM EST
    TL: This is not that difficult. when the Connecticut legislature amended the law follwing Furman, the first enactment created a 5 year statute of limitiations for felonies other capital murder. Then in 1976, it repealed the 5 year statute of limitation. Only during the period between 1973 and 1976 did the law provide for a 5 year statute of limitation for non-capital murder. If Court TV wrote: "The court said it was a legislative oversight that they forgot to remove the 5 year statute of limitations for regular murder." Then it has as much trouble understanding this as do you. The five year statute of limitation for non-capital murder was created in the first enactment and removed in the second. It makes no sense to argue the Legislature "forgot" to remove the 5 year SOL when it did exactly that in 1976. What it appears it did is DECIDE THAT CREATING THE 5 YEAR STATUTE OF LIMITATION IN THE FIRST PLACE WAS A MISTAKE.

    Re: Skakel Appeals to Supreme Court (none / 0) (#16)
    by Talkleft Visitor on Thu Jul 13, 2006 at 08:36:40 AM EST
    Hi Talkleft, You wrote:
    IMHO, it was a legislative oversight that resulted in no statute of limitations for non-capital murders.
    If the legislature had waited until 1981 to fix their error, Skakel would have had a much better case on the question of retroactivity. His "right" to rely on the statute of limitations (oversight or no) would reasonably have kicked in in 1980, not in 1976. That is the discovery that the Supreme Court made in the Skakel case.

    Re: Skakel Appeals to Supreme Court (none / 0) (#17)
    by Talkleft Visitor on Thu Jul 13, 2006 at 08:42:38 AM EST
    Deconstructionist, You wrote:
    What it appears it did is DECIDE THAT CREATING THE 5 YEAR STATUTE OF LIMITATION IN THE FIRST PLACE WAS A MISTAKE.
    They never actually wrote up a statute of limitations for non-capital murder. It occurred automatically by virtue of the way the SOL was written long before. So its "creation" has none of the indices of intention that usually accompany legislative decision-making.

    Re: Skakel Appeals to Supreme Court (none / 0) (#18)
    by inmyhumbleopinion on Thu Jul 13, 2006 at 08:48:55 AM EST
    I thought Deconstructionist was not saying they decided to create it, but that they decided its unintentional "automatic creation" was a mistake.

    Re: Skakel Appeals to Supreme Court (none / 0) (#19)
    by Talkleft Visitor on Thu Jul 13, 2006 at 08:51:02 AM EST
    Deconstructionist, you're quibbling and shouting (please lose the caps in your comments) over nothing. I'm not here to debate you. Please move on to the topic of this post, Skakel's chances for success in getting his case accepted.

    Re: Skakel Appeals to Supreme Court (none / 0) (#20)
    by Deconstructionist on Thu Jul 13, 2006 at 08:51:51 AM EST
    pb: I agree with that insofar as the first enactment appears to have "created" the 5 year SOL by reference to a general provision and the Legislature specifically excluded capital murder from the general provision. It's quite possible no one realized they created a 5 year SOL for non-capital murder at the time of the first enactment. then when they realized it, they changed it. My point is that it makes no sense whatsoever to argue that the elimination of the 5 year SOL was an ooversight as asserted by TL. As for your first post basically asserting that the relatively rapid "fix" of the statute weakens Skakel's argument, i really don't agree. A court must first decide the plain meaning of a statute and if the text itself is unambiguous it must apply the plain meaning of the words without resort to hypotheses about legislative intent. I tend to agree that it is likely the Legislature did not intend to create the 5 year SOL, but it seems to me there can be little question that it did so unambiguously even if inadvertantly in the first enactment and that was the law in effect at the time of the crime. I think he has a good arguemt. I would hate to see ex post facto protections eroded simply because it would result in an unpopular or even "wrong" result in this one case. That's where derives the axiom: Hard cases make bad law.

    Re: Skakel Appeals to Supreme Court (none / 0) (#21)
    by Deconstructionist on Thu Jul 13, 2006 at 09:09:47 AM EST
    It goes beyond merely interpreting Connecticut's law. the U.S. supreme court is being asked to (but might decline) to decide whether the Connecticut court's interpretation and application of the ex post facto issuer violtes the U.S. Constitution. See: Article I, § 9: 3. No bill of attainder or ex post facto law shall be passed.

    Re: Skakel Appeals to Supreme Court (none / 0) (#22)
    by Deconstructionist on Thu Jul 13, 2006 at 09:24:54 AM EST
    I should probably define those terms for non-lawyers. Essentially, a bill of attainder is a legislative act which singles out a person, group or class and attempts to impose sanctions for conduct or status existing prior to the enactment. It is considered alegislative usrpation of the judicial authority by providing punishment without due process and trial rights before the courts. Ex post facto (after the fact) legislation is legislation which alters the law retroactively in an attempt to make an act punishable (or "more punishable") when it was not at the time it was committed. In ex post fact analysis, a distinction has long been drawn between "procedural" and substantive" law and rights. It is not always easy to draw a bright line between the two concepts. A rule of procedure can affect substantive rights. In this case, I don't think one can wave away ex post facto considerations by the expedient of labeling an SOL a procedural law. As I see it, a court LACKS JURISDICTION to proceed in a case barred by a valid SOL. I don't think you can call a law that invests a court with jurisdiction that does not exist under the law in effect at the time of the act to be a mere procedural rule.

    Re: Skakel Appeals to Supreme Court (none / 0) (#23)
    by Dadler on Thu Jul 13, 2006 at 09:45:09 AM EST
    This is such an odd case. The technical legal issues are certainly vital and need to be justly dealt with (as TL says, because they are obviously important for all of us), but the reality of the human aspect is just as telling and sad. Skakel is such a pathetic guy, bloated and unaccomplished and essentially an adult child. Tormented for much of his life by this case. The novel CRIME AND PUNISHMENT has always struck me in connection with this case much more strongly than others. And then you have the murdered girl's family who, like ANY of us, would go to our graves seeking justice, no matter how delayed or sloppy or criticized (often justifiably) by legal professionals whose job is to keep the larger picture in mind.

    Re: Skakel Appeals to Supreme Court (none / 0) (#24)
    by Deconstructionist on Thu Jul 13, 2006 at 09:50:07 AM EST
    PB: I went and looked at the Connecticut Supreme court opinion, and you are correct that this was essentially it's "creative" way of upholding the conviction: "His "right" to rely on the statute of limitations (oversight or no) would reasonably have kicked in in 1980, not in 1976. That is the discovery that the Supreme Court made in the Skakel case." It seems that the Connecticut Supreme Court is suggesting that there is some sort of "implied tolling" of an SOL where one is subsequently amended or repealed and that the repealed SOL is only applicable for however long its duration may be from the point of the amendment or repeal forward. Ignoring the fact that makes no logical sense. (It's not a subsequent piece of legislation that creates accrual of the state's cause of action but the commission of the crime that does that)I don't see how that sleight of hand avoids ex post facto problems. The fact remains the Court found the law in effect at the time of the crime allowed this prosecution when its plain meaning says otherwise. It is precisely the changing of the law after the fact to the detriment of the individual that ex post facto forbids. this rationale is particularly absurd in a criminal case. In a civil case it is the plaintiff with the cause of action who is charged with timely filing the suit-- it is the plaintiff who is barred if he misses the deadline and the plaintiff who bears the cost of being dilatory. In a criminal case, the defendant has no ability to initiate an action against himself and have himself "cleared" within the SOL. He should not thus be subjected to a an argument that a "new" SOL began running or that an existing SOL ceased to have effect when a new law is later passed.

    Re: Skakel Appeals to Supreme Court (none / 0) (#25)
    by Deconstructionist on Thu Jul 13, 2006 at 10:11:29 AM EST
    Dadler: You make excellent points. (Although I'm not convinced Skakel was tormented to the extent of Raskolnikov). I have "lawyer me" and "person me." We're closely related but my job often requires suppressing "person me" Socially, I'd probably be more popular if I suppressed "lawyer me" to a greater extent. "Lawyer me" is the one who has no patience with other lawyers misinterpreting and/or misrepresenting very basic things when purporting to analyze issues for lay people. Even if the mistake is inadvertant once a discussion becomes premised on a misunderstanding of things it tends to devolve more and more into erroneous assertions and assumptions. It is important to get it right. I don't buy the, "it doesn't really matter it's just a detail" excuse. I hope TL can see fit not to take it personally, because I like this site and think it largely dies a good job of explaining things even with the avowed bias. Largely isn't good enough though and when a mistake is made it should be identified and person identifying it should not face griping. The legal issues are important and sometimes the "correct" resolution of those results in the "wrong" result in a specific case. I feel for the people who believe they are denied justice because of issues not directly bearing on guilt and innocence but we MUST have a rule of law and established procedures. The alternative is the loss of a free society. allowing rules to be changed after the fact to get the "right" result in a specific case sets a precedent that will almost inevtitably be appleied to get the "wrong" result against someone else in the future. As a man, based on what I know, I think Skakel is almost certainly guilty and deserves punishment. As a lawyer, I can't condone perverting the Constitution to see it done.

    Re: Skakel Appeals to Supreme Court (none / 0) (#26)
    by Deconstructionist on Thu Jul 13, 2006 at 11:15:47 AM EST
    Don't be so sure of that. The U.S. Supreme Court declines to hear the vast majority of cases presented to it by petition for writ of certiorari and the existence or non-existence of a constitutional question of merit is not determinative. I think most lawyers would agree that sometimes the court declines to accept cases not because they think the legal basis for the holding below was correct but because Justices don't want to use that particular case to correct an erroneous decision. That could be because: it doesn't present the issue framed the way the court would prefer it; simple prioritizing--meaning because it isn't a case with high enough stakes to warrant correcting that case instead of a different one and it can only hear so many cases; or because as human beings the court isn't eager to coirrect the law and cause the "wrong" result. Of course, being a "Kennedy," having a former Solicitor General representing you, and the case being high profile no doubt enhances the chance of getting the court to hear the case.

    Re: Skakel Appeals to Supreme Court (none / 0) (#27)
    by Talkleft Visitor on Thu Jul 13, 2006 at 11:49:09 AM EST
    Deconstructionist: You wrote:
    A court must first decide the plain meaning of a statute and if the text itself is unambiguous it must apply the plain meaning of the words without resort to hypotheses about legislative intent.
    As the Ct. Supeme Court has written, "Although we acknowledge the fundamental principle that criminal statutes are to be strictly construed, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent." It's a no-brainer that the legislature never intended to write a statute of limitations for murders of the type Skakel committed, and its also a fact that they never did. Here's relevant exchange from oral arguments regarding the Connecticut view on retroactive law. Seeley: What this court has held is that they cannot be applied retroac--- that statute of limitations cannot be applied retroactively in a criminal context is what has been the holdings of this court. Justice: I don't think we've said that. I think if the legislature makes it clear that... what we've said is that if the legislature makes it clear that a ... that a statute of limitations in a criminal context is to be applied retroactively then it may be. So there's no constitutional prohibition. Seeley: Correct. Correct. Correct, you honor. Right. And that is ... that is the point here is that what this court has said is that the legislature must make it clear within the body of the statute itself that it is to be applied retroactively.

    Re: Skakel Appeals to Supreme Court (none / 0) (#28)
    by Deconstructionist on Thu Jul 13, 2006 at 12:16:20 PM EST
    "Although we acknowledge the fundamental principle that criminal statutes are to be strictly construed, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent." First, that's the Connecticut Supreme Court not the United States Supreme Court. Second, its language is (artfully? carelessly?) imprecise. Courts are not supposed to "interpret" laws that are unambigous on their face. They must apply them to the facts. "Interpretation" only commences (or only should commence) when the statute (or statutes in pari materia) cannot be applied without interpretation. Yes, one "interpretation" is warranted the interpretation is supposed to empower legislative intent not thwart it but a court is not supposed to legislate under the guise of interpreting and speculating as to legislative intent. That the Connecticut Supreme Court weaseled arond to evade the issue in no way binds the U.S. Supreme Court. From a logical perspective, the Connecticut court's position is absurd. If the Legislature did not believe it had in fact established a five year SOL for non-capital murder then it would not have been necessary to repeal it in 1976. Clearly, the "intent" of that legislature was to undo what it believed a previous legislature had done. Now, perhaps, if the enactment eliminating the 5 year SOL had included legislative findings that the earlier enactment was subject to or was being misinterpretation and the new legislation was intended only to CLARIFY that there was in the view of the Legislature never a 5 year SOL applicable, that argument might appear to be something other blatant results oriented jurisprudence. not only did the legislature not attempt to state it was a clarifying amendment it pointedly included no language suggesting retroactive application was intended.

    Re: Skakel Appeals to Supreme Court (none / 0) (#29)
    by Talkleft Visitor on Thu Jul 13, 2006 at 03:54:45 PM EST
    Oh! My eyes are starting to cross. Excuse me, but, uhm, in the America into which I was born, it was ALWAYS deemed more important to insure the law was upheld, for the sake of everyone in the country, than to punish the offender, no matter WHAT the offense. I was always so PROUD of this about my country! Oh, please, it seems the SCOTUS managed to eke out the right decision in Hamdan, now maybe they can do it again here.

    Re: Skakel Appeals to Supreme Court (none / 0) (#30)
    by cpinva on Thu Jul 13, 2006 at 08:14:04 PM EST
    first off, this was a precurser to the scott peterson case: little to no actual compelling evidence, but a horrific crime, loud parents with access to the media, and a kind of pathetic loser defendent. plus, everyone just "knew" he was guilty, facts be damned! deconstructionist, you make some compelling points. i must take issue with you however, with regards to your contention that courts are soley concerned with ensuring the laws are followed to a "t", regardless of the outcome. not true. there is the small matter of "in the interest of justice". this situation arises when the strict application of the law would result in a grossly egregious miscarriage of justice. if the court failed to step in, the erosion of the public's trust in the justice system would ensue. it is only the public's continued trust in the system that allows it to function. as a member of a federal law enforcement agency, i see this situation arise on occasion; it does restore my somewhat jaded faith.

    Re: Skakel Appeals to Supreme Court (none / 0) (#10)
    by Talkleft Visitor on Thu Jul 13, 2006 at 11:57:06 PM EST
    IMHO, it was a legislative oversight that resulted in a five year statute of limitations for non-capital murders. The disparity only existed from 1973 to 1976 in CT. When the Supreme Court struck down capital murder statutes in 1973, CT redrafted its law but only included a "no statute of limitations" provision for capital murder. They fixed it in 1976. But Moxley was killed in 1975 before the fix.

    Re: Skakel Appeals to Supreme Court (none / 0) (#31)
    by Talkleft Visitor on Fri Jul 14, 2006 at 02:52:44 AM EST
    Agent99 writes,
    Oh! My eyes are starting to cross. Excuse me, but, uhm, in the America into which I was born, it was ALWAYS deemed more important to insure the law was upheld, for the sake of everyone in the country, than to punish the offender, no matter WHAT the offense.
    I'm thankful that the law WAS upheld. There's a sophistry in interpreting laws in the complete opposite manner from what was intended, and that sophistry has sociopathic features in this particular case. Get-out-of-jail-free cards for murderers should be made of sterner stuff than specious arguments that we all have some duty to be the victims of the typos of our legislators. This strange little edict that says judges should (no wait, not should... MUST) interpret laws robotically without reference to their clear motives or to the stark reality of their provenance is partly at fault here. Did we vote on that edict? I think not. The idea that we all have to suffer such interpretations so that they won't someday be improperly be used against us is a reductio ad absurdum, nothing less. We all suffer court decisions when they are intellectually and socially bankrupt. The best we can hope for from our judges is that they know the difference. We're fortunate that they sometimes do.

    Re: Skakel Appeals to Supreme Court (none / 0) (#32)
    by Deconstructionist on Fri Jul 14, 2006 at 06:23:16 AM EST
    "deconstructionist, you make some compelling points. i must take issue with you however, with regards to your contention that courts are soley concerned with ensuring the laws are followed to a "t", regardless of the outcome." I said no such thing. In fact, I think I made it clear that often courts are more "results oriented" than i think appropriate. 99: In this case, I think that if the U.S. Supreme Court hears the case it will reverse. I base that on the hypothesis that if it doesn't want to reverse it has no need to get involved and my belief that this is not a case which it would select to use as a vehicle for eroding ex post facto law. My guess is it either denies cert or it hears the case and holds that Conneccticut's application of an after created elimination of the SOL violates ex post facto.

    Re: Skakel Appeals to Supreme Court (none / 0) (#33)
    by Talkleft Visitor on Fri Jul 14, 2006 at 09:07:41 AM EST
    deleted for bias against the accused which this commenter has repeatedly displayed.

    Re: Skakel Appeals to Supreme Court (none / 0) (#34)
    by Talkleft Visitor on Fri Jul 14, 2006 at 09:38:48 AM EST
    Regarding TalkLeft's comment...
    deleted for bias against the accused which this commenter has repeatedly displayed.
    It should be noted that Michael Skakel is not "the accused". He has been legally and justly convicted for the murder of Martha Moxley. In my humble opinion, referring to a legally and justly convicted murderer as "the accused" is not only inaccurate, but also betrays your bias.

    Re: Skakel Appeals to Supreme Court (none / 0) (#35)
    by Talkleft Visitor on Fri Jul 14, 2006 at 09:55:32 AM EST
    Hi TL, You wrote:
    deleted for bias against the accused which this commenter has repeatedly displayed.
    1. You should delete all my posts that are biased against Michael, not just the one. 2. When I said that Michael lied to the police about his whereabouts the night of the murder, that is a simple fact. He is on tape directly lying to the police. As a matter of public policy, I am curious why people who evade the police should benefit from SOL's? Is there some public good involved in such a policy?

    Re: Skakel Appeals to Supreme Court (none / 0) (#36)
    by Talkleft Visitor on Fri Jul 14, 2006 at 10:40:43 AM EST
    Hi Tiger, You wrote:
    It should be noted that Michael Skakel is not "the accused". He has been legally and justly convicted for the murder of Martha Moxley.
    Until the appeal process is exhausted, we can perhaps only say that he has been convicted. The jury is still out on whether the conviction was just or legal. Even after the appeals have been exhausted, we're under no obligation to believe Michael killed anyone. He can get pardoned long after he (and we for that matter) are dead. Some religious organizations preach that we should not judge others, lest we want to be judged ourselves. A lot of people are liberals simply by virtue of accepting this epistomology as a code of ethics. To me its akin to throwing up one's hands and saying, "well, you never know? Everybody might be innocent!" The condition of the dead girl on the lawn proves beyond a shadow of a doubt that that is not the case.

    Re: Skakel Appeals to Supreme Court (none / 0) (#37)
    by Deconstructionist on Fri Jul 14, 2006 at 10:42:06 AM EST
    I don't think posts should be deleted for "bias" against s defendant whether still an accused or convicted. I don't know what the post said but unless it used offenseive language or was mere name-caling, I'd suggest a better polict is to let people speak their minds and let others use their minds to judge as they see fit. Just because one has the ability and right to do something doesn't make it a good idea to do it. Generally speaking, I think censorship is a very bad thing. Even if it is exercised outside a 1st Amendment context in a private forum, it still is contrary to the "spirit" that motivated the 1st Amendment. Government authoritarianism is obviously more dangerous but that does not make private authoritarianism an appealing trait. PB: I am curious why people who evade the police should benefit from SOL's? Is there some public good involved in such a policy? Statute of limitations exist in both civil and criminal law to provide "finality" (meaning so person does not have to have a potential claim or charge hanging over his head indefinitely) and in recognition that one with a claim should in fairness be required to bring it within a reasonable perior during which fair adjudication is more probable. Most SOLs for SERIOUS criminal charges are rather lenghty and it is common for their to be no SOL for the very moist serious such murder, sexual assault, etc; some state have no SOLs for any felonies other those based on perjury/false swearing and similar crimens falsi offenses. I think a 5 year SOL for murder is a terrible policy and I'm a criminal defense attorney. I do think Skakel may just "get lucky" here because of some sloppy legislative drafting. I understand many people think that is wrong and contrary to justice. I in no way impugn that belief; it is perfectly legitimate. As a lawyer, though, I think the government must not ever to be allowed to use its own "mistake" for an excuse to evade the plain meaning of a law. Opening that door a crack provides incentive for dreaming up a whole lot of other legislative "mistakes" to be ignored to the detriment of the individual. It's not a perfect world and sometimes you have to pick your poison. Releasing one (or even numerous) people because proper application of the law (even a mistaken law) dictates it be done is less lethal in my opinion than a society in which the courts ignore or gloss over the law to ensure punishment.

    Re: Skakel Appeals to Supreme Court (none / 0) (#38)
    by inmyhumbleopinion on Fri Jul 14, 2006 at 10:48:34 AM EST
    Here's what was deleted: Posted by PB July 14, 2006 09:52 AM

    Re: Skakel Appeals to Supreme Court (none / 0) (#39)
    by Talkleft Visitor on Fri Jul 14, 2006 at 11:02:42 AM EST
    Deconstructionist: You wrote:
    I don't think posts should be deleted for "bias" against s defendant whether still an accused or convicted. I don't know what the post said but unless it used offenseive language or was mere name-caling, I'd suggest a better polict is to let people speak their minds and let others use their minds to judge as they see fit.
    My post had neither offensive language nor name-calling, and I know TL isn't trying to leave anyone with the impression that it did. She is simply using her editorial discretion. It can be frustrating at times, but that's the nature of yellow journalism. You wrote:
    As a lawyer, though, I think the government must not ever to be allowed to use its own "mistake" for an excuse to evade the plain meaning of a law. Opening that door a crack provides incentive for dreaming up a whole lot of other legislative "mistakes" to be ignored to the detriment of the individual.
    I don't think they even considered it a mistake. The corrections they were making to the laws in response to Fuhrman simply had unintended downstream effects in sections of the code they hadn't looked at. So they clarified what they meant with an amendment so they wouldn't be misinterpreted. They could have, in retrospect clarified further that the amendment was to be applied retrospectively but it didn't occur to them that this would be necessary. I don't think the U.S. Supreme Court will consider this argument, because I don't think it is a serious argument. It's just more Skakel dollars being transferred to the many prestigious attorneys who are willing to accept it.

    Re: Skakel Appeals to Supreme Court (none / 0) (#40)
    by Talkleft Visitor on Fri Jul 14, 2006 at 11:12:55 AM EST
    PB stated...
    Until the appeal process is exhausted, we can perhaps only say that he has been convicted. The jury is still out on whether the conviction was just or legal.
    I could be mistaken, but doesn't the Connecticut Supreme Court's ruling on the matter mean the State of Connecticut views Michael Skakel's conviction as legal and, most likely, just?
    Even after the appeals have been exhausted, we're under no obligation to believe Michael killed anyone. He can get pardoned long after he (and we for that matter) are dead.
    Yes. Yes. We are free to believe that all those convicted murderers sitting in prison today, filing those appeals, not only have been wrongly convicted but are factually innocent. For now I'll stick with what the documented facts support, what the Jury in Norwalk CT has found, and what the Connecticut Supreme Court has upheld.

    Re: Skakel Appeals to Supreme Court (none / 0) (#41)
    by Deconstructionist on Fri Jul 14, 2006 at 11:21:27 AM EST
    PB: you wrote: "don't think they even considered it a mistake. The corrections they were making to the laws in response to Fuhrman simply had unintended downstream effects in sections of the code they hadn't looked at. So they clarified what they meant with an amendment so they wouldn't be misinterpreted. They could have, in retrospect clarified further that the amendment was to be applied retrospectively but it didn't occur to them that this would be necessary." Well, the "unintended consequences" WERE the MISTAKE. [btw It's Furman-- your spelling is for the disgaceful cop in the Simpson case] As for you belated, well it was a clarification argument. I doubt it is coincidental that you raise that assertion after I pointed out yesterday that is clearly not what the repealing enactment did. It's not a matter of the Legislature could have "clarified better;" it's that in no way can the repealing enactment be read as other than a repeal. "I don't think the U.S. Supreme Court will consider this argument, because I don't think it is a serious argument." I don't know whether they will consider Skakel's argument or not. I will say that if they choose not to do so the primary reason wull be precisely that it IS A VERY SERIOUS AND VERY GOOD ARGUMENT. Only if the want to reverse are they likely to accept cert.

    Re: Skakel Appeals to Supreme Court (none / 0) (#42)
    by Talkleft Visitor on Fri Jul 14, 2006 at 12:47:40 PM EST
    Deconstructionist: You wrote:
    Well, the "unintended consequences" WERE the MISTAKE. [btw It's Furman-- your spelling is for the disgaceful cop in the Simpson case]
    Yes, thank you for the correction.
    As for you belated, well it was a clarification argument. I doubt it is coincidental that you raise that assertion after I pointed out yesterday that is clearly not what the repealing enactment did. It's not a matter of the Legislature could have "clarified better;" it's that in no way can the repealing enactment be read as other than a repeal.
    What the repeal "clarified" was that the legislature didn't intend for the statute of limitations to apply to class A felony murder despite the fact that it wasn't a capital offense. The clarification was not motivated by any particular case then on the books, or as a means of convicting some otherwise unconvictable felon. It was clarified to avoid people getting the impression that the legislature had adopted a new kinder and gentler policy toward the perpetrators of brutal murders. It's only motive, in fact, (and in my opinion) was clarification. In other words, nobody was lobbying for increased statute of limitations privileges for felony murderers back in 1973. Nor have they ever. You wrote:
    I don't know whether they will consider Skakel's argument or not. I will say that if they choose not to do so the primary reason wull be precisely that it IS A VERY SERIOUS AND VERY GOOD ARGUMENT. Only if the want to reverse are they likely to accept cert.
    You're more cynical than I am. I can't see anything close to serious about the argument, although it took quite a bit of research before I could clearly articulate why that is the case,as I'm sure it did them. If they don't pick up the case, I'll assume they agree with me.

    Re: Skakel Appeals to Supreme Court (none / 0) (#43)
    by Talkleft Visitor on Sat Jul 15, 2006 at 04:25:31 AM EST
    Deconstructionist, You wrote:
    Courts are not supposed to "interpret" laws that are unambigous on their face. They must apply them to the facts. "Interpretation" only commences (or only should commence) when the statute (or statutes in pari materia) cannot be applied without interpretation. Yes, on[c]e "interpretation" is warranted the interpretation is supposed to empower legislative intent not thwart it but a court is not supposed to legislate under the guise of interpreting and speculating as to legislative intent.
    The "myth" being promoted here (with artful, careless? imprecision I might add) is that this is an example of the Ct. Supreme Court thwarting a legislative intent, and therefore legislating from the bench. The "ambiguity" that justifies the court's interpretation is here...
    Sec. 2 This act shall take effect from its passage. Approved April 6. 1976."
    From the plain language of the statute it is clear that the intent of the legislature is to extend the statute of limitations on felony murder from 1978, the date when it would actually first expire for its potential beneficiaries) to forever (or no statute of limitations, as it might also mathematically be described). Had they wished otherwise the legislature could have scheduled the act to take effect after 1978. They did not make that choice.

    Re: Skakel Appeals to Supreme Court (none / 0) (#44)
    by Deconstructionist on Sat Jul 15, 2006 at 07:19:28 AM EST
    PB: You write: "The "ambiguity" that justifies the court's interpretation is here... Sec. 2 This act shall take effect from its passage. Approved April 6. 1976." From the plain language of the statute it is clear that the intent of the legislature is to extend the statute of limitations on felony murder from 1978, the date when it would actually first expire for its potential beneficiaries) to forever (or no statute of limitations, as it might also mathematically be described). Had they wished otherwise the legislature could have scheduled the act to take effect after 1978. They did not make that choice." **** I'd call that sophistry, but sophistry connotes a clever and effective misleading argument. That's merely misleading. The "effective date" of legislation means nothing more and nothing less than the date the legislation AS WRITTEN becomes enforceable. There is nothing "ambiguous" at all about "effective from passage." In tis case that means that "effective April 6, 1976 the SOL no longer applies. Therefore, any non-capital murder (or the other felonies to which the law was applicable) committed AFTER PASSAGE could have an indictment returned and be prosecuted beyond 5 years after the crime without violating a SOL. Even if it was "ambiguous," what tortured logic could possibly support the argument that elimination of the SOL was meant to apply to crimes committed before the law was changed? And-- the huge point is -- that even if a Legislature INTENDS to make criminal laws which act to the dtriment of the individual retroactive, it should not be permitted to do so because that violates the United states Constitution Article I, § 9.

    Re: Skakel Appeals to Supreme Court (none / 0) (#45)
    by Talkleft Visitor on Sat Jul 15, 2006 at 08:12:35 AM EST
    Hi Deconstructionist, You wrote:
    Even if it was "ambiguous," what tortured logic could possibly support the argument that elimination of the SOL was meant to apply to crimes committed before the law was changed?
    A Statute of Limitations is a prohibition on the State to prosecute an individual. Before 1976 the State was not prohibited from prosecuting Michael Skakel, and after 1976 (due to this act) the State was not prohibitd from prosecuting Michael Skakel. The Act is simply an extension of the time frame within which Michael could be prosecuted. You wrote:
    And-- the huge point is -- that even if a Legislature INTENDS to make criminal laws which act to the dtriment of the individual retroactive, it should not be permitted to do so because that violates the United states Constitution Article I, § 9.
    You can choose to regard this as a retroactive law, but it shouldn't be to hard for you to understand that that is a choice. Generally speaking retroactive laws can be abstracted to forms that share a certain logical construction. A free society by its nature is one in which that which is not prohibited is allowed, and retrospective laws are obviously anathema to that construction. But a statute of limitations is not a prohibition on Michael Skakel. It is a prohibition on the state. So there are two good reasons why it doesn't fit the model. The first is that the act was not retroactive because it didn't prohibit the state from doing something it had a right to do in the past. The second is that even if it were retroactive nobody would care, because the State is not a citizen, and is therefore not protected by the Bill of Rights.

    Re: Skakel Appeals to Supreme Court (none / 0) (#46)
    by Deconstructionist on Sat Jul 15, 2006 at 09:06:44 AM EST
    PBR: you write: "Statute of Limitations is a prohibition on the State to prosecute an individual. Before 1976 the State was not prohibited from prosecuting Michael Skakel, and after 1976 (due to this act) the State was not prohibitd from prosecuting Michael Skakel." Yes the SOL serves as a prohibition on the State, and under the PROHIBITION that EXISTED WHEN THE CRIME was committed, the state was prohibited from prosecuting more than 5 years beyond the date of the crime. Thus, UNDER THE LAW, the state should be found without authority to prosecute him after the anniversary of the crime in 1980. Expanding or extending a state's authority to prosecute a crime AFTER the crime was committed is retroactive application no matter how you slice it. Viewing it that way is not a "choice" and is not being questioned. The question it should be a PERMISSIBLE retroactive application in light of the constitutional prohibition on ex post facto laws. *** "The Act is simply an extension of the time frame within which Michael could be prosecuted." No. The "Act" was no such thing and if it was we would have no question about whther it was a bill of attainder. Acts singling out a person are similarly unconstitutional. The "act" was a general law repealing the the then existing SOL. It was the Court decisions that extended the time in which Skakel could be prosecuted, and they did so by using "sophistry" to evade the ex post facto issues. **** [insult deleted] *** you further state: "A free society by its nature is one in which that which is not prohibited is allowed, and retrospective laws are obviously anathema to that construction." We agree **** you state: "But a statute of limitations is not a prohibition on Michael Skakel. It is a prohibition on the state." Yes, and a prohibition that acted to protect the individual against state power by limiting that power. Adding to the state power by removing the limitation inarguably affects the individual directly. **** "So there are two good reasons why it doesn't fit the model. The first is that the act was not retroactive because it didn't prohibit the state from doing something it had a right to do in the past." I believe that is not correct. It was retroactive precisely because it ALLOWED the STATE to do something it was not allowed to do (prohibited) at the time of the crime-- namely prosecute the accused more than 5 years after the crime was committed. *** remainder deleted for insulting other commenter. [TL: This commenter is warned to change his tone, disagree civilly or visit another site. It is not acceptable to call commenters or their arguments stupid, gibberish and the like. Use of capital letters is considered shouting and very rude. Please keep comments to a reasonable length. Bandwidth is expensive. If commenters have more than three or four paragraphs to say, they should consider starting their own blog.]

    Re: Skakel Appeals to Supreme Court (none / 0) (#47)
    by Deconstructionist on Sat Jul 15, 2006 at 09:48:41 AM EST
    TL: I do not challenge your right to censor as you see fit and obviously recognize your de facto power to do so. I will ask why you see fit to censor my using a colloquiallism to call this unintelligible: "Generally speaking retroactive laws can be abstracted to forms that share a certain logical construction." and do it again when i use blunt language to state this assertion is not intelligent: "The first is that the act was not retroactive because it didn't prohibit the state from doing something it had a right to do in the past. The second is that even if it were retroactive nobody would care, because the State is not a citizen, and is therefore not protected by the Bill of Rights." It's all the more puzzling after reading some of the comments elsewhere on this site which escape your wrath, notably and recently in the you started this morning "Ex-Bush Aide..." You can do what you want as selectively and arbitrarily as your little heart (no pun intended) desires, but it sure is hard for me to understand your choices.

    Re: Skakel Appeals to Supreme Court (none / 0) (#48)
    by Talkleft Visitor on Sat Jul 15, 2006 at 09:59:27 AM EST
    Deconstructionist, You wrote:
    It was retroactive precisely because it ALLOWED the STATE to do something it was not allowed to do (prohibited) at the time of the crime-- namely prosecute the accused more than 5 years after the crime was committed.
    You're only missing the point by a little. It is precisely because the state was ALLOWED to prosecute Skakel at the time the new act was enacted that the act was not retroactive. In response to my:
    "Generally speaking retroactive laws can be abstracted to forms that share a certain logical construction."
    You wrote:
    That is simply gibberish.
    Liebniz, Frega and Boule are among the many historical advocates for mathematicizing human affairs. Souter doesn't couch his philosophy in mathematics, but he has expressed the importance of abstracting the principles behind the laws, which amounts to much the same thing.

    Re: Skakel Appeals to Supreme Court (none / 0) (#49)
    by Deconstructionist on Sat Jul 15, 2006 at 10:17:36 AM EST
    PB: You're only missing the point by a little. It is precisely because the state was ALLOWED to prosecute Skakel at the time the new act was enacted that the act was not retroactive. No, you are simply trying to redefine what retroactive means. There is no debate about whether applying an after enacted statute to conduct which occurred pre-enactment is a "retroactive application." The question is whether it is a permissible retroactive application. What would you say about this example: Current law says the penalty for CRIME A is limited to one year. you commit CRIME A. Then after you commit it, the penalty is changed to a maximum of life. you are charged after the enactment of the new penalty provision and the state argues you are subject to the life penalty because the state was not prohibited from increasing the penalty to life and that it is obvious the legislature intended for the life penalty to apply to all poersons who had not been sentenced at the time of the enactment. you argue, no, i can only be penalized in accordance with the law that existed when you committed the crime and the court has no jurisdiction to sentence you to more than the one year penalty. The court then holds that since the state could have had a life penalty for the offense when you committed it but only didn't because in drafting a tangential amendment had accidentally referred to a general penalty provision capped at one year and not the harsher sentence which applied before the "mistake, the state will be allowed to imprison you for life because it corrected the mistake after the fact but before your case came up. **** you then wrote: In response to my: "Generally speaking retroactive laws can be abstracted to forms that share a certain logical construction." You wrote: That is simply ***** [to appease the sensitive]. Liebniz, Frega and Boule are among the many historical advocates for mathematicizing human affairs. Souter doesn't couch his philosophy in mathematics, but he has expressed the importance of abstracting the principles behind the laws, which amounts to much the same thing." How does what anyone else did or wrote allow any meaning to be ascribed to what you wrote?

    Re: Skakel Appeals to Supreme Court (none / 0) (#50)
    by Talkleft Visitor on Sat Jul 15, 2006 at 12:23:44 PM EST
    Hi Deconstructionist, You wrote:
    How does what anyone else did or wrote allow any meaning to be ascribed to what you wrote?
    How does the fact that you don't find meaning in what someone else has said make it "gibberish?" My first inclination when I don't understand what somebody else has written is to ask what they meant, rather than to try and berate them. As far as your example goes... 1. a statute of limitations is not analogous to a penalty, 2. The legislature, in your analogy, has no authority to backdate its penalties.

    Re: Skakel Appeals to Supreme Court (none / 0) (#51)
    by Deconstructionist on Sat Jul 15, 2006 at 12:33:51 PM EST
    It's not perfectly analogous but both the penalkty and the SOL relate to limitations on eneforecement of an otherwise valid statute. If upon reconsidering: "Generally speaking retroactive laws can be abstracted to forms that share a certain logical construction" You still feel it is possiblt to ascribe meaning to it, please do. Perhaps, there is a worthwhile thought concealed in that meaningless jargon, but it sure can't be ascertained from those words.

    Re: Skakel Appeals to Supreme Court (none / 0) (#52)
    by Talkleft Visitor on Sat Jul 15, 2006 at 05:41:33 PM EST
    Deconstructionist:
    If upon reconsidering:"Generally speaking retroactive laws can be abstracted to forms that share a certain logical construction" You still feel it is possiblt to ascribe meaning to it, please do.
    I work among people who model for a living. Sentences such as mine are easily understood by such people. My claim is that there is a logical formula (or formulation) for what constitutes a violation of our prohibition of retroactive law standards, and that the Statute of Limitations does not fit into that formulation. I expressly stated what I considered that formulation to be in the sentence that followed. I'm sorry if it didn't make sense to you. I suggest a course in finite math would increase your familiarity with my casual vocabularity. You wrote:
    both the penalkty and the SOL relate to limitations on eneforecement of an otherwise valid statute.
    Justice Palmer differentiated the difference, to my mind, between Penalty statutes and SOLs quite articulately when he said the following to Seeley during oral arguments...
    It's hard for me to see how a statute of limitations in a criminal context involves substantive rights, because the defendant has no reliance interest, no reasonable reliance interest, on a particular statute of limitations that's in effect at a particular time.
    A defendant obviously has a very reasonable reliance interest in the penalties in place at the time he commits a crime. This is not so with a statute of limitations. This is only one of the several places your analogy is off-target, but it's probably the most fundamental one to me, because it fails to articulate (to the extent that such things can be articulated) the dividing line between the sociopathic argument and the moral one. In other words, it fails exactly where Justice Palmer has succeeded. It ignores the deeper social principles which inform the law. So the question you might wish to answer is the one posed by Palmer. What "reasonable reliance interest" did Michael Skakel have in the length of the statute of limitations at the time he committed the crime.

    Re: Skakel Appeals to Supreme Court (none / 0) (#53)
    by Deconstructionist on Sun Jul 16, 2006 at 07:10:00 AM EST
    I don't think people who commit murder or contemplate doing so "rely"the SOL. I would concede that in all likelihood no would-be murderer ever thought "Well, there's a 5 year SOL so I'll do the deed or conversely there is no SOL so I won't. However, I think arguing that therefore removes SOLs from the reach of ex post facto consideration is specious. With regard to a penalty provision would it be necessary for a defendant to prove that he relied on the then then existing penalty before undertaking his crime and that he would not have committed it if he believed a greater penalty was applicable? In the absence of such reasoning is the defendant really "relying" on the penalty provision or is that just an conceptual construct manufactured by Courts? In my experience, to the extent people "rely" on anything with regard to the law and enforcement thereof in deciding whether or not to commit crime, they rely on the (often very misguided) belief they either will escape detection or if detected be able to provide a plausible denial or justification to escape punishment. Very often, particularly with violent crimes of passion, I think there is no conscious consideration whatsoever of the legal ramifications of any nature and no "reliance" on any aspect of the law.

    Re: Skakel Appeals to Supreme Court (none / 0) (#54)
    by Talkleft Visitor on Sun Jul 16, 2006 at 08:52:06 AM EST
    Deconstructionist:
    I don't think people who commit murder or contemplate doing so "rely"the SOL.
    The question isn't so much, to my way of thinking, whether they in fact do rely on the SOL. It's whether there is a reasonable rationale for society to care whether they do. There IS a reasonable rationale for society to care, once a statute of limitations has actually kicked in, whether a person has relied upon it. A person might have burned the records that would have proved them innocent, for example. You wrote:
    I think arguing that therefore removes SOLs from the reach of ex post facto consideration is specious.
    That form of argument is known as "argument by declaration of victory." It's a sister to the "that's stupid" and the "that's gibberish" argument. You see it all the time on these blogs. Before you try arguing a case before the Supreme Court, I would recommend that you clear this particular form of argument from your resume, as it is not held in high regard by any of them, except perhaps Scalia.

    Re: Skakel Appeals to Supreme Court (none / 0) (#55)
    by Deconstructionist on Sun Jul 16, 2006 at 09:03:26 AM EST
    No, I gave my reasons WHY I think it's specious. You are free to disagree with my reasons but don't make the specious argument I didn't give any.

    Re: Skakel Appeals to Supreme Court (none / 0) (#56)
    by Talkleft Visitor on Sun Jul 16, 2006 at 09:18:26 AM EST
    Deconstructionist: You also wrote:
    With regard to a penalty provision would it be necessary for a defendant to prove that he relied on the then then existing penalty before undertaking his crime and that he would not have committed it if he believed a greater penalty was applicable?
    No. Nor would it be necessary with the statute of limitations, had the legislature enacted its new legislation in 1981, for Skakel to demonstrate that he had relied on that statute in order for him to benefit from its provisions.

    Re: Skakel Appeals to Supreme Court (none / 0) (#57)
    by Deconstructionist on Sun Jul 16, 2006 at 09:32:05 AM EST
    We can disagree on that. We will see if the Court accepts the petition. As I said, I very much doubt the Court accepts the petition and then upholds the Connecticut Supreme Court. If it wants to let the conviction stand there is really no good reason for it to take the case. If it does take the case and uphold the state court on thayt basis, I will gladly feast on crow.

    Re: Skakel Appeals to Supreme Court (none / 0) (#58)
    by Talkleft Visitor on Thu Aug 03, 2006 at 05:58:16 PM EST
    I have a question, TL: If the SC of the USA find Skakel deserves a new trial,will this proclaim many of the judges, who ruled against Michael Skakel, negligent to his/our due process and Rights? And, isn't it held in educated opinion that "if"(as is) the Supreme Court does indeed offer to hear Ted Olson (appeal)defend Michael Skakel, that they will overturn his conviction and a new trial will have to be set? Will Skakel be freed at that point (until his new trial)? Joni S Evans@aol.com

    Re: Skakel Appeals to Supreme Court (none / 0) (#59)
    by Talkleft Visitor on Fri Aug 04, 2006 at 02:25:20 PM EST
    The Justice Club, The appeal to the U.S. Supreme Court deals soley with the statute of limitations argument, claiming that Michael Skakel's 14th amendment right was violated by bringing the case to trail after a "supposed" five year statute of limitations on felony murder had passed. It is my understanding that should the U.S. Supreme Court choose to take this case and go on to rule in favor of Michael Skakel, that he would then be a free man, in no jeopardy of facing a new trial. This is not the same circumstance should Michael Skakel's appellete team be granted their motion for a new trial, with the claim of "newly discovered evidence".

    Re: Skakel Appeals to Supreme Court (none / 0) (#60)
    by Talkleft Visitor on Mon Aug 07, 2006 at 04:35:44 PM EST
    And, 1. at what point in Michael Skakels case and 2.by witch judge was this very constitutional argument (SOL) I am talking about occur?

    CERTIORARI DENIED (none / 0) (#61)
    by inmyhumbleopinion on Mon Nov 13, 2006 at 10:23:21 AM EST
    CERTIORARI DENIED  06-52 SKAKEL, MICHAEL V. CONNECTICUT

    Still has motion for new trial pending (none / 0) (#62)
    by Jeralyn on Mon Nov 13, 2006 at 11:32:59 AM EST
    and habeas petition in federal court after that.

    Read more about today's Supreme Court denial of review here.

    Skakel Appeals to Supreme Court | 62 comments (62 topical)