Skakel's attorney, Hubert Santos, wrote in a legal brief that a judge who overturned Skakel's murder conviction last week has the authority to grant him bail.
Connecticut Judge Thomas Bishop ruled that Skakel's trial attorney, Michael Sherman, failed to adequately represent him in 2002 when he was found guilty in Moxley's golf club bludgeoning. Skakel and Moxley were 15-year-old neighbors in wealthy Greenwich at the time of her death.
"In light of this utter lack of evidence, combined with trial counsel's constitutionally deficient performance, (Skakel's) continued incarceration would be a miscarriage of justice of the highest order," Santos wrote.
Santos filed a motion last week seeking a $500,000 bond. Bishop asked for legal briefs from both sides, questioning whether he has the authority to consider a motion for bond because his orders are stayed and state law excludes bail for those convicted of murder.
Santos said automatic stays during appeals do not apply to cases like Skakel's and even if they did the court has the authority to terminate the stay. He cited a recent case in which two men were immediately released from prison after they won their appeal.
Skakel "has been returned to the status of an innocent defendant awaiting trial," Santos wrote, adding he was not a flight risk and contends it's "highly unlikely" prosecutors will win their appeal.
"Finally, though the public has an interest in seeing that convicted criminals serve their sentences promptly, there is a far stronger interest in ensuring that innocent persons are immediately released from custody and not allowed to languish in prison, potentially losing further years to the appeals process," Santos wrote.
Bridgeport State's Attorney John Smriga has said prosecutors will appeal both the decision and the request for bond. Prosecutors' legal brief is due Wednesday.
Sherman has said he did all he could to prevent Skakel's conviction and denied he was distracted by media attention in the high-profile case.