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Defense Attorney Discusses Skakel Sentencing

Aired August 28, 2002 - 13:31   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

KYRA PHILLIPS, CNN ANCHOR: We want to talk more about Skakel's situation now. Our guest from New York, criminal defense attorney Benjamin Brafman -- he has also worked as a prosecutor in Manhattan.
Benjamin, hello.

BENJAMIN BRAFMAN, DEFENSE ATTORNEY: How are you?

PHILLIPS: Very good here.

What do you think? Skakel, how much time will he spend in jail? Ten, 25, somewhere in between?

BRAFMAN: Well, I think that the consensus of Connecticut lawyers that know a lot about the sentencing process in Connecticut suggest that with a crime of murder as vicious as this one was, and with a tough judge and a high profile case, the odds are that he will get a very severe sentence, pretty close to the maximum. And that's the guess at this point.

PHILLIPS: Isn't Connecticut pretty tough, though, when it comes to violent murder cases?

BRAFMAN: Connecticut is one of the toughest states in the country when it comes to violent cases. When you add to the mix the fact that this is a high profile case, that it has received a great deal of notoriety, involving a brutal death of a young child, even though it is 25 years ago, I think Mr. Skakel is in all likelihood going to receive a fairly substantial prison sentence.

PHILLIPS: Do you think the notoriety of this case will affect how many years he spends in prison?

BRAFMAN: I think it will. I think the notoriety of a crime of violence generally ups the ante for the person accused because judges today are reluctant to do something that will appear to be lenient for fear of suggestions that because Skakel is a Kennedy or rich or well represented that he got the benefit of the doubt from the court. And the high profile nature of the case in today's climate, which is pro- police, very anti-crime, suggests a tough sentence is in store.

PHILLIPS: So let's talk about how attorneys for Skakel are going for a new trial because of this sketch, the whole sketch issue. First of all, what do you think about that? And if that is something that may hold up, won't that be a hard thing to prove?

BRAFMAN: I think, on balance, this is going to create fodder for appeal and not delay the sentencing much beyond this morning or this afternoon. I think it is inexcusable that this sketch existed, that they did not turn it over. I think, on balance, this is an appellate issue that is going to be strong on Skakel's part. But for a judge no set aside a jury verdict in a murder case where the whole world is sort of watching takes a great deal of guts. It is only done in the rarest of cases. And generally speaking, it only happens when a court is absolutely convinced that but for the disclosure of this evidence, the verdict would be different. And in this case, I'm not certain that the court's going to be able to make that conclusion. So I think it was a mistake on the part of the prosecution, but not a mistake that's going to delay the sentencing or impact on the sentencing.

PHILLIPS: The sketch we are talking about is the one that resembles Kenneth Littleton, the family tutor. The fact that he committed this crime when he was a juvenile, how could that affect his fate?

BRAFMAN: I think that's the key question. Is the judge going to accept the fact that despite the vicious nature of this crime, if Skakel had been apprehended 25 years ago, tried as a juvenile, he would have received a very short prison sentence, maximum of 10 years, would have been long out of jail, and is that going to impact. However, remember, he was tried as an adult. The Connecticut courts rejected the Skakel lawyers arguments that he should be tried as a juvenile.

Now the question is did the judge factor that into the equation. There's wide discretion for this court. He can give as low as 10, as high as 25 to life. My guess is it is going to be a factor, but not a compelling, because of the vicious nature of the crime.

PHILLIPS: We are going to hear from friends and family of Skakel. I'm told there are hundreds of documents that have poured through the courtroom on behalf of his attorneys. What exactly will those documents be? Are they all just letters saying he is a great guy? Or do you think there is some real slick evidence in there?

BRAFMAN: Well, I think for the most part, sentencing materials that are submitted to a court prior to sentencing really don't talk about guilt or innocence. They talk about even if you believe the jury was correct, this is a good person, he has done a lot of good, he's turned his life around. In the last 25 years, he has been a law abiding citizen. Give him a break. Give him the benefit of the doubt. Let's have some compassion.

I think, on the other hand, the judge is going to hear some very compelling, heartbreaking testimony from Ms. Moxley's family. They are going to describe life following the death of a child by violence, following a horrible, horrible ordeal of bringing this case to justice, of living with this nightmare for 25 years. I think Mrs. Moxley in particular is going to be a very, very compelling witness when she describes what her life has been like. I don't think any parent ever recovers from the death of a child, certainly not the death of a child by a crime of violence.

So I think the judge is going to hear two sides. My guess is that given the nature of the case, the nature of the crime, at this point, the judge is going to find the Moxley presentation to be somewhat more compelling.

PHILLIPS: So even as the talk about this abuse, family abuse, Robert Kennedy Jr. talks about this in his letter and that Skakel was beaten by a drunk father, is that going to influence these jurors or a judge?

BRAFMAN: I don't know how it is going to influence. If I was a judge, would I factor it into the equation? Absolutely. If someone has been abused as a child and as a result they turned out to be somewhat dysfunctional, it's a compelling issue that I think has to be addressed by a sentencing court.

Skakel, on the other hand, is not saying I did this crime, give me mercy because I had an abusive childhood. Skakel is taking the position, I didn't do this crime. Now consider the fact that I was an abusive child and I want some mercy. I think mercy on a case like this is much more easy it get from a judge when you have accepted responsibility for what has happened and then you try explain it by saying, I was abused as a child, I was dysfunctional, I was addicted to drugs, I didn't mean do this.

So it as hard call. My guess is, again going back to the horrific nature of the crime, the notoriety of the case, I think the celebrity quality of this case hurts Skakel. It does not help him.

PHILLIPS: Benjamin Brafman, defense attorney, thank you so much for your insight.

BRAFMAN: You're welcome.

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