Federal District Court Anne Thompson Grants Writ of Habeas Corpus for Racketeering Case.

Prepared as a Public Service for the People by the Law Office of Vincent J. Sanzone, Jr.

On March 5, 2003 a criminal jury in the Superior Court, Monmouth County, convicted alleged racketeer, Ray Cagno.  Cagno was found guilty of conspiracy to commit racketeering and the murders of victims Angellino and Randazzo.  The first trial (2002) ended in a mistrial when the witness for the State, Salvatore Lombardino refused to testify against Cagno.  However, the State alleged that while leaving the courtroom at the first trial, Lombardino gave Cagno a “thumbs up sign”, and stated to Cagno, “hang in there kid.”  At the second trial Lombardino was not called as a witness, but two detectives for the New Jersey State Police testified as to their observations of Lombardino at the first trial.  In summations the prosecutor asked the jury to infer that the witness’ silence; and his prior in-court conduct constituted evidence of Cagno’s guilt of the conspiracy between them.  The case went all the way to the New Jersey Supreme Court which affirmed the conviction with one justice dissenting, Justice Albin.

In Cagno v. Warren (N.J. District Court, 2014) the federal district court for the District of New Jersey, Judge Thompson, granted the habeas relief holding that Cagno’s Fourteenth Amendment due process rights were violated when he was convicted of conspiracy to commit racketeering at Petitioner’s second trial because the state should not have been allowed to present evidence of Salvatore Lombardino’s refusal to testify at Petitioner’s first trial.  Hence, Cagno’s Sixth Amendment right to confront all witnesses against him was violated.  Citing, Douglas v. Alabama, 380 U.S. 415 (1965).  In New Jersey the statute of limitations is an absolute bar to the prosecution of the offense. State v. Short, 131 N.J. 47, 55 (1993)

Further, because the State offered no other evidence to support a finding that the racketeering conspiracy continued beyond the statute of limitations period, which was five-years, the conviction could not stand.  Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970).  Both of those cases standing for the well settled proposition, that it is a violation of a defendant’s due process rights, for a conviction to be entered unless the state proves its case beyond a reasonable doubt, as to each and every element of the crime.

Although federal courts rarely grant a Writ of Habeas Corpus, this case is a good example in which the federal district court exercised its authority and granted such a motion.  The Writ of Habeas Corpus is usually the last line of defense to an unlawful conviction, unless the defendant is lucky enough to discover newly discovered evidence which would have proved his or her innocence if had been discovered at trial.  In that case, the defendant can reopen the process up again at the state court level, starting with the trial court.

Thoughts on Truth:  Veritas Quo, “Where truth is found.” 

A moral wrong can never be a civil right.

The further society deviates from the truth the more a society will hate that truth.

Law Office of Vincent J. Sanzone, Jr.

CriminalDefenseNJ.com

Elizabeth, N.J.

Tel. No. (908) 354-7006

Dated: September 11, 2014

Post-Conviction Relief, Writ of Habeas Corpus, Union Essex, Hudson, Morris, Bergen, Middlesex, Ocean, Monmouth, County Criminal Defense Attorney, Jersey City, Newark, Elizabeth, New Brunswick, Freehold, Toms River.

The Post-Conviction Relief (PCR) Motion an Analysis of New Jersey Criminal Law, Through the Michael Skakel Case.

A service to the people as a public service from the Law Office of Vincent J. Sanzone, Jr., Esq.

Defendant Michael Skakel was indicted for the murder of Martha Moxley in Connecticut in 1975.  Twenty-seven years (2002) later Mr. Skakel was convicted of the crime and has been incarcerated ever since.  In spite of legal fees and costs paid to his defense attorney Michael Sherman in the amount of approximately, $1,200,000.00 (one-million two-hundred thousand dollars).

On October 23, 2013 the Honorable JTR Bishop ruled that Attorney Sherman’s representation was deficient and ineffective and thus, Mr. Skakel was entitled to a new trial. 

The opinion of Judge Bishop is very informative and educational not only for the experienced criminal defense attorney, but also for individuals charged with crimes because it is a text book example of a “high profile” or “marquee defense attorney”, who simply didn’t know the law, did not adequately prepare for trial, and simply didn’t do his homework, as stated by Judge Bishop.

Judge Bishop made a number of finding of facts and conclusion of law which demonstrated that Attorney Sherman’s representation was substandard and therefore denied Mr. Skakel his Sixth Amendment to effective legal representation and a fair trial.

Although the court held that Attorney Sherman had made many trial errors, the court focused on the following five major errors.

First, there was overwhelming evidence that was in possession and knowledge of Attorney Sherman regarding the third-party culpability of Mr. Skakel’s older brother, T. Skakel.  However, instead of arguing to the jury that there was evidence that T. Skakel committed the murder and not his client, Attorney Sherman decided to argue and present evidence that someone else probability committed the murder, notwithstanding, that there was no credible evidence that this person was involved.  The court held that if the jury had heard this evidence at the trial (culpability of T. Skakel) that there was a likelihood that the jury would have harbored reasonable doubt as to the defendant's guilty, and the resulting verdict would have been different.

Second, that Attorney Sherman failure to locate and present the testimony of an alibi witness for the defense was likewise ineffective.  This witness was a powerful witness and Attorney Sherman should have known the existence of this witness because his identity was testified to by another witness in the grand jury proceedings.  Again, if the jury had heard this testimony the resulting verdict would have been different.

Third, that Attorney Sherman knew or should have known with reasonable diligence of two witnesses whom would have refuted the alleged confession that Mr. Skakel had allegedly made to a key state witness Gregory Coleman.  The court held that Attorney Sherman’s “failure of judgment borne of an undeserved confidence in the impact of his cross-examination of Coleman ... This failure of judgment prejudiced the petitioner.”  Therefore, the court held that because these witnesses did not testify there is a reasonable likelihood that the outcome of the trial would have been different. 

Fourth, Attorney Sherman’s failure to provide expert testimony that any alleged admissions made by Mr. Skakel while a patient in the intensive inpatient drug rehabilitation facility (Elan Facility), should not be used for the truth.

Fifth, Attorney Sherman’s failure to attempt to rebut the prosecution’s allegation that Mr. Skakel engaged in recent fabrication of his story by asserting that he had masturbated on the victim prior to her murder because he was afraid that the recent discovery of DNA would have linked him to the crime and murder.  However, the truth was that Mr. Skakel had stated to state investigators in 1987 that he had masturbated on Ms. Moxley, four to five years before any law enforcement agency knew how to apply DNA testing to a crime scene investigation.

In summary this is a text book case of a high priced attorney who dropped the ball.  If you are faced with a serious crime you should consult a New Jersey Criminal Defense Attorney who will fight for your defense.