The Friend
What you end up remembering isn’t always the same as what you have witnessed.
—Julian Barnes, The Sense of an Ending
On June 5, 2002, the jurors deliberating Michael’s fate sent a handwritten note to the judge. They wanted to review Andrea Shakespeare’s testimony. Following the trial, the jurors said they considered Andrea’s statements to be just as dispositive to their decision to convict as either Higgins’s or Coleman’s “confessions.” And like other pieces of evidence in the case against Michael, Benedict knew that he was selling lies.
Very few people understand the challenges facing witnesses asked to retrieve 25-year-old memories. Think about this: most Americans know where they were on 9/11. But how many of the smaller details do you recall with accuracy even 15 years later? The terrorist attacks were memorable and traumatic for all of us, even if we were not personally touched. I lost two friends among the nearly 3,000 killed, and my downtown law office was a casualty of the attack. Imagine that every couple of years someone sat you down and interviewed you about your 9/11 experience. Each time you did your best to remember every movement of that day. Inevitably, you will add new details to your story. Unless there is video footage recording your entire day, you will never be certain whether these memories actually occurred nor whether they represent the brain’s natural editing. You almost certainly would share false memories of 9/11.
On the morning of 9/11, I was in Washington, DC, in a meeting at the office of AFL/CIO President John Sweeney. I accompanied my comrade and boss, John Adams, then president of the Natural Resources Defense Council (NRDC), and a small group of my fellow NRDC attorneys. We were there to strategize with Sweeney on deploying his and other unions in the fight against President Bush’s plan to drill for oil in the Arctic Wildlife Refuge. At 9:37—and I only know the exact time because I looked it up—we heard an explosion. From Sweeney’s window, we could see the Pentagon in flames, and eventually, we watched SWAT teams fanning out, as fireman battled the inferno. After a harrowing period, I and a few of the New York–based NRDC contingent decided that we needed to get home. Together we traversed Capitol Hill, on foot, to a Hertz rental car location. Because the nation’s airports and rail traffic were shutdown, rental cars were at a premium that day and we had to pack into a sedan with another contingent of New Yorkers in order to get home. Sitting here now, I cannot remember any of the faces of the other occupants of that car, not even of the attorneys from the meeting, even though these were people with whom I worked daily. As the years passed, I found myself remembering looking out the window of Sweeney’s office and not only seeing the Pentagon burning, but also seeing the White House, its roof crawling with snipers. I’m quite certain that there’s no window in Washington, DC, that has a vista of both the Pentagon and the White House, and upon reflection, I probably walked by the White House on the way to pick up the car, and saw the snipers on the roof then. But I just can’t be sure.
This phenomenon of false memory is likely what happened in 1991, when Garr and Solomon interviewed Andrea. Sixteen years after the murder, she remembered something that didn’t happen. Her false memory would help land Michael in jail for a crime he didn’t commit.
I give Andrea benefit of the doubt that I can’t give Coleman or Higgins. Andrea did lie on the stand, but not for money. I doubt she did so knowingly. To her, Michael is the equivalent of my Chuck Clusen. Chuck is an NRDC lawyer who specializes in federal public lands and Alaska. Sometimes, he works out of the NRDC’s Washington offices. Other times, he works in the San Francisco office. He also spends good chunks of time in the Arctic. I consider Chuck a good friend, but I can’t, for the life of me, remember if he was in DC for that meeting. And in 2017, which is 16 years after 9/11, I guarantee my memories will be no clearer. I remember John Sweeney in that meeting. I remember John Adams. I don’t remember Chuck. But if Chuck called me today and told me that not only was he in that meeting, he was also shoehorned into that car back to New York, I reckon that my 9/11 memories would soon include Chuck’s face, whether he was actually there or not. Memory, it turns out, is malleable and we are highly suggestible creatures.
Andrea erred when she said that Michael didn’t go to Sursum Corda with his brothers. In the years following the crime, police interviewed Andrea repeatedly about the two suspects who were in the Skakel house with her that night. Over and over again, they asked her the same questions: Did you see Tommy in the house before Julie brought you home? Did you notice Martha lingering by the side door when Tommy came to the front door to pass you the station wagon keys? What do you remember about Kenny Littleton’s behavior during dinner at the Belle Haven Club? Was Littleton with Tommy at the front door when Tommy passed the keys to you? Even on these familiar issues, Andrea’s memories are fluid. In the early years, she said that Littleton, Stephen, and Tommy all met her at the door to give her the station wagon keys. (This is correct: Littleton had trouble opening the broken front door, and the two boys scrambled to help him.) But by the 1990s, she was adamant that it was only Tommy. So what about a new issue of inquiry? Until the 1990s, Michael was not a suspect. So for Andrea he was merely a bit player, her best friend Julie’s little brother. Michael never figured in any of the questions, so naturally, he faded out of her memories. Until 1991, that is.
Garr and Solomon drove up to Massachusetts in June of that year to interview Andrea. She was by then in her mid-30s. She’d married and had three kids with Rick Renna, who worked in residential real estate. Garr and Solomon began by reviewing with her the established facts of the night of the murder. Since Andrea was in the house with Julie drinking tea and watching TV while the boys were out in the car, she demurred that she had little to offer. “I didn’t see anybody after a certain point,” she told the detectives. “I mean, the first time I ever heard about guys sitting in a car listening to tapes, is right now.” Garr laid out the facts. “When the Dowdle boy gets in, John gets in, Rushton comes in, and they depart … with Michael in the car,” he said. She stopped him. “I don’t know why my memory serves me this way, but I thought it was Rush, Johnny, and Jimmy,” she said. “But I don’t even know if I saw them leave.” Because no witness in 16 years had ever suggested that Michael might not have gone to Sursum Corda, the investigators were surprised. “That was our understanding of what occurred,” Garr told her.
Andrea was forthright about the murkiness of her memories. “For some reason, I don’t know who told me … I don’t know if I remember it, I thought it was the three boys,” she said. “Did I see [Michael] in the house? No. Did I see him leave? No … I thought when we were recounting our stories before today, I thought I remembered hearing stories that Michael was in the back saying goodbye to Helen … Not that I saw, but it’s just what I heard afterwards … It was my assumption, and it’s a total assumption that there were four people in the backyard … Tommy, Michael, Helen, and Martha … I never even heard about a Geoffrey Byrne. And I don’t know whether it’s a story I was told from somebody. I don’t know where the information came from.”
Recall that the Lincoln pulled out of the driveway around 9:25 p.m. Julie and Andrea didn’t emerge from the house until 9:30 p.m. Helen, who stayed in the Skakel yard a few minutes after the Lincoln departed, never recalled even seeing Andrea that night. Until emerging from the house, Andrea was essentially in an information dead zone. Even though she didn’t see any of it, 16 years later she suddenly had a weird feeling, a hunch, an impression, that Michael was one of four people in the backyard when the Lincoln left. She naturally would have heard over the years that there were four people in the yard, because there were: Helen, Martha, Tommy, and Geoff, whose very presence apparently remained unknown to Andrea for 16 years.
This interview would not become noteworthy for another four years, when Garr returned to talk to her. By then, Dunne and Fuhrman had transformed the Sutton reports into the Rosetta stone of the case. And Garr was looking to pin the crime on Michael. At this point, Garr began drilling Andrea, and in the process, clearly implanting false memories in her brain. “I must have talked to her 165 times between that day and the last time I saw her in court 11 years later,” Garr told Levitt. “Each time, I would say to her, ‘Andrea, just tell me why you are so sure that Michael didn’t go.’ ”
Garr’s staccato questioning on that single point is a perfect example of the “misinformation effect,” according to one of the world’s preeminent experts on memory, Dr. Elizabeth Loftus of the University of California-Irvine. “What happens is people get feedback after they give an initial recollection and that feedback can artificially inflate their confidence,” she says. “I study how post-event information can contaminate people’s memories. If somebody comes along and either tells you somebody else’s version of the events or insinuates something to be true, many people will pick up on it and adopt it as their own memory.”
This is not junk science. Loftus, a Stanford psychology PhD, is a giant in her field. Since she began studying memory in the 1970s, she and her students have performed more than 200 experiments involving over 20,000 people, definitively proving how exposure to misinformation can induce memory distortion. In one study, she showed participants a simulated car accident at an intersection with a stop sign. Afterward, half of the participants received a suggestion that there had been a yield sign at the junction. The recipients of the suggestion tended to “remember” seeing a yield sign. Those who had not received the bogus information were much more accurate in their recollection of the stop sign. In one study, people “recalled” a large barn in a bucolic scene that contained no buildings at all. In another, by simply including a paragraph describing a fabricated childhood memory among a written description of other actual memories—getting lost in a mall at age 5, crying, being aided by an elderly woman, and finally reuniting with family—she successfully induced 29 percent of study participants to “remember” an event that never happened.
A decade after saying she didn’t know why she thought Michael had stayed behind and that she hadn’t seen Michael in the house, Andrea’s memory had improved immeasurably. Not only had she absorbed Garr’s drumbeat interrogations, she admitted having read Fuhrman’s book, which reintroduced and fortified Garr’s suggestions. At trial, Assistant State’s Attorney Susan Gill led her through her recollections of the Lincoln and its occupants.
Gill: And at some point earlier that evening, was there a Skakel car parked in that side driveway?
Shakespeare: Yes.
Gill: And after that car left, you left, correct?
Shakespeare: I left after the car left, yes.
Gill: Was Michael Skakel in the house after that car left?
Shakespeare: Yes.
Gill: And have you ever had any doubt in your mind about the fact that Michael Skakel was home after that car left from the side driveway?
Shakespeare: No.
Gill: From 1975 to today, have you been certain that Michael was home after that car left?
Shakespeare: Yes.
Under Sherman’s cross-examination, she went even further. In 1991, she’d had no idea that Martha and the boys had even been sitting in the car listening to music in the moments just before the Lincoln left. Now, in 2002, she remembered seeing the car.
Sherman: Did you indicate to Inspector Garr that you believed that only Rushton and John Skakel drove Mr. Terrien home but you’re not sure if you saw them leave?
Shakespeare: I saw them leave.
Sherman: Are you sure about that?
Shakespeare: Yes.
Sherman handed her a transcript of the 1991 interview, but when confronting proof of her contrary recollections, Shakespeare insisted her new memories were more accurate.
Sherman: Does that document refresh your recollection as to whether or not you told Inspector Garr in 1991 that you are not sure if you saw them leave?
Shakespeare: Yes, that’s what the document says.
Sherman: And, in fact, did you tell Inspector Garr in 1991 that you were not sure if you saw them leave?
Shakespeare: Yes.
Sherman: Is that different from your testimony today?
Shakespeare: No.
Sherman: So you are saying all along that you are not sure if you saw them leave.
Shakespeare: No, I am sure that I saw them leave.
Though testimony like this makes it a challenge, I’ll continue to give her the benefit of the doubt that she didn’t intentionally perjure herself. (I called Andrea to discuss her testimony, but she didn’t call back.) “I am so shocked at Andrea Shakespeare,” says her former best friend, Julie. “I’m just in a tizzy about her testimony that Michael did not go to the Terriens. There’s no way that she knew that. She didn’t even know that the boys had left.”
Higgins, Coleman, and Andrea were undeniably the big three prosecution witnesses in Michael’s trial. No other witnesses came close to inflicting the kind of damage they did. There was, of course, ample evidence and experts available for Michael’s defense to counter every claim these witnesses made. Unfortunately for Michael, the jury heard almost none of this evidence. There’s a simple explanation for this: Mickey Sherman.
Sherman proved inept in countering Andrea’s ambiguous testimony that she was “under the impression” that Michael was in the Skakel house when she left. A competent lawyer would have objected to Andrea’s testimony because it was speculation not based on personal knowledge. A skilled lawyer adept at destructive cross-examination would have destroyed Andrea’s claims as a recent fabrication.
During Michael’s habeas corpus hearings, Sherman testified that he had reached out to memory expert Elizabeth Loftus but opted not to call her to testify, because he thought she would be of no help. Sherman was lying. Loftus looked through her detailed work notes for me and did find that she’d indeed once consulted with Sherman on a case, but not until 2004, when he was defending Mark Mangelsdorf, a Harvard Business School graduate and corporate executive accused of a 22-year-old murder in Kansas. “He consulted with me on the Kansas case but I don’t see anything about Skakel,” she says. “I don’t see any notes or anything.” Loftus says she would have been able to contextualize Shakespeare’s testimony recounting details from an evening 27 years earlier, especially given Garr’s “165” interviews with her. “The weaker the memory, the easier it is to contaminate,” Loftus says. “If I want to contaminate somebody’s memory I just let some time pass so it can fade and it becomes more and more malleable.”
Even with a crooked cop willing to suborn perjury, manufacture a confession, conceal exculpatory evidence, leak grand jury testimony, and illegally seize evidence; even with an unscrupulous prosecutor, a skillfully manipulated press corps clamoring like a lynch mob for his conviction; even with a bitter and venal family lawyer nurturing a secret vendetta and manufacturing evidence to hang him, Michael still shouldn’t have lost the case. Unfortunately, Michael’s family hired Mickey Sherman to defend him—possibly the worst lawyer in Connecticut.