(CNN) — Michael Skakel's attorney has filed a legal brief arguing why his client should be granted bail after a judge ordered a new trial last week for Skakel -- the nephew of Robert and Ethel Kennedy, who has spent more than a decade behind bars on murder charges.
In the brief, attorney Hubert Santos argues that "the continued incarceration of the Petitioner is contrary to the principles underlying the Writ of Habeas Corpus 'to avoid the grievous wrong of holding a person in custody in violation of the federal constitution.' "
Skakel filed a bond motion last week asking he be released from prison after he won a new trial in the 1975 murder of 15-year-old Martha Moxley. In a dramatic turn of events, Connecticut appellate court Judge Thomas Bishop ruled that defense attorney Michael "Mickey" Sherman's representation of Skakel was "constitutionally deficient."
After the motion for bail was filed, Bishop ordered Skakel's attorney and the state's attorney to both file legal briefs before he addresses the issue of granting Skakel bail.
"The Court has raised the issue of whether the Court has any authority to grant bail, even if he were so inclined," Melissa Farley, director of external affairs for the State of Connecticut Judicial Branch, told CNN. Santos' brief was due by the close of business on Monday and the state's attorney is required to file a response by close of business on Wednesday.
Bishop will then make his decision whether or not to release Skakel on bail, according to Farley.
For years, Skakel fought unsuccessfully for his conviction to be overturned. But Bishop gave Skakel, 53, a chance for a fresh start last week, ruling that the defense during his 2002 trial had been inadequate.
"The defense of a serious felony prosecution requires attention to detail, an energetic investigation and a coherent plan of defense (capably) executed," Bishop wrote in his decision. "Trial counsel's failures in each of these areas of representation were significant and, ultimately, fatal to a constitutionally adequate defense."
State's attorney John Smriga said prosecutors plan to appeal, but are still reviewing the judge's decision.