Trial strategy sparks debate
By Jonathan Lucas - Greenwich Time

The arrest of Kennedy nephew Michael Skakel for the 1975 murder of Martha Moxley Wednesday brought a long-awaited sense of satisfaction to the family of the 15-year-old victim and those involved with the high-profile case.

However, closure in the 24-year-old case will come only through a conviction - a daunting challenge that now confronts prosecutors who are planning their strategy in uncharted legal territory.

At the time his Belle Haven neighbor was savagely beaten and stabbed, Skakel was only 15, and although at 39 he is a middle-aged adult, he is being charged as a juvenile. Further complicating the case is the fact that prosecutors may be bound by laws in effect in 1975, when the crime took place.

Transferring the case to the public forum of state Superior Court in Stamford, where most juveniles facing serious criminal charges are now tried, is expected to be the prosecution's No. 1 priority. Wednesday, state investigators indicated they will seek to try Skakel as an adult.

State's Attorney Jonathan Benedict is to be the lead prosecutor in the case.

Skakel's attorney, Michael Sherman of Stamford, would not say yesterday whether he would contest a motion to move the trial to Superior Court.

"Right now it's in Juvenile Court," Sherman said. "When the state's attorney makes a motion to move the case, then we'll deal with it."

If Sherman does decide to fight the transfer, legal scholars familiar with the case said the prosecution will have its work cut out for it to make a compelling argument in the unprecedented case.

"I don't recall any other case with a fact pattern like this," said Hugh Keefe, a partner in a New Haven law firm and a Yale Law School tutor in trial practice clinical studies. "This is not a slam dunk by any means."

Though juveniles charged with murder are automatically tried as adults under today's legal standards, Skakel is expected to be tried under more liberal 1975 laws that rarely punished juveniles as adults and focused more on rehabilitation.

Cases in Juvenile Court are prosecuted similarly to adult ones, except that all proceedings and court documents are sealed. And a juvenile is not entitled to a trial by jury. A judge tries all juvenile criminal cases.

But the complications don't end there. The question of whether he can be punished as an adult is so complex that according to at least one expert, Skakel could actually be convicted and walk away with no punishment at all.

Under 1975 law, he would face a maximum of only four years if he were tried as a juvenile. If he were tried as an adult, he could get 25 years to life.

The hefty, mature Skakel who entered the Greenwich police station to surrender Wednesday was a stark contrast from the scrawny schoolboy seen in photographs that have appeared in newspapers since the slaying 24 years go.

Skakel is the oldest person ever to be treated as a juvenile in Connecticut courts. The notion of a man pushing 40 appearing in court next to teenagers has prompted some chuckling in Connecticut legal circles.

Skakel is to be arraigned behind closed doors in Juvenile Court in Stamford on Feb. 8.

However, the law pertaining to juvenile offenders was toughened in 1971 and again in 1975 to allow 14- to 16-year-olds charged with serious crimes to be tried as adults if they were found to possess the maturity and sophistication to warrant a transfer to Superior Court.

Skakel's status as a legal manchild turns the state's judicial system on its ear as he does not fit neatly into either judicial category.

"It's not clear under 1975 law whether he can be tried as a juvenile, an adult or at all," said David Rosen, a senior research associate at Yale Law School who also practices law in New Haven. "It could be that neither system may apply and the defense could argue that he's not subject to punishment 25 years later to things he did as a child. He may not be subject to punishment because former juvenile offenders were not subject to punishment once they stopped being juveniles."

Hillary Bargar, a juvenile prosecutor in Bridgeport, said Skakel's lawyers could keep the case in Juvenile Court for a year or more if they fight the transfer to adult court.

"The situation of a 40-year-old was never anticipated by the law," she said. "This could take a very long time to resolve."

Once the proper forum to try the case is determined, legal experts said the prosecution still will have to overcome numerous other obstacles to prove its case beyond a shadow of a doubt to win a conviction.

"Faded memories of witnesses, missing evidence, the difficulty of getting a jury to believe witnesses after so much time has passed are all typical problems in these types of cases," Keefe said. "It's ludicrous for a witness to sit on the stand and say they clearly remember what someone said or did after 24 years. It flies against common sense."

- Staff Writer Kerry Tesoriero and The Associated Press contributed to this report.