A Moxley Murder Defense?
In 1975, there was a five-year statute
of limitations for felony offenses.

John Turner, The Connecticut Law Tribune
Law News Network

Proving that Michael Skakel killed Martha Moxley in 1975 may be a heavy burden for State's Attorney Jonathan C. Benedict -- but the statute of limitations may already have run out.

"I think the law is very clear that it did," says David A. Moraghan, president of the Connecticut Criminal Defense Lawyers Association, after reviewing the old limitations statute and relevant case law. "It's definitely an issue I would raise on a motion to dismiss," he says.

Skakel will be arraigned in Stamford Juvenile Court on Feb. 8. He was charged as a juvenile because he was 15 at the time of Moxley's murder. The law at the time of the murder on Oct. 31, 1975 applies, Benedict said at a press conference Jan. 19.

In 1975, the statute of limitations on bringing a charge for a felony offense was five years. The law provided that the limitations period was tolled, however, if the suspect fled and took up residence out of state.

The law was amended in 1976 to eliminate the time limitation for capital and serious felonies -- including murder.

Reached at his Stamford office last week, Michael Sherman, Skakel's attorney, was unsure whether the statute applied to his client's case. Skakel left Connecticut in 1978 to attend an alcohol rehabilitation center in Maine. He attended the center for three years and was not charged until Jan. 19, 2000.

Moraghan says the exception does not apply to Skakel because he did not "flee" to the facility. Even if he did, the tolling of the statute was only for three years, Moraghan says.

"You wouldn't call that a change of residence anyway," says Richard R. Brown, of Brown, Paindiris & Scott in Hartford.

Brown should know.

When he was a public defender in 1981, he represented a defendant whose case may have a great impact on Skakel's fate.

In 1981, the state charged Brown's client, Wilmer Paradise Jr., and co-defendant Brian Ellis, with murder, felony murder and kidnapping in connection with the death of a 17-year-old woman in Enfield seven years earlier.

In 1982, the trial court dismissed the murder charges against Paradise and Ellis because the limitations period had expired before their arrests.

The state appealed to the Supreme Court, claiming that the amendments made to the law in 1976 should have applied to the murder charges brought against Paradise and Ellis for the 1974 murder. But the high court disagreed, holding that criminal statutes cannot be applied retroactively absent clear statutory language to the contrary.

Paradise and Ellis were re-arrested in 1983 for capital felony in connection with the Enfield murder. Superior Court Judge David M. Borden, now a state Supreme Court justice, ruled that the prosecution for capital felony was barred under the principles of res judicata.

But the Supreme Court overruled him, deciding in 1985, in State v. Ellis, that the statute did not apply to capital felonies because they are punishable by death.

"The court came up with a convoluted rationalization," Brown says now. "The state really wanted, somehow, to prosecute those guys."

Justice Ellen Ash Peters dissented, holding that capital felony and murder are the same charges for the purposes of res judicata and for purposes of double jeopardy.

Paradise was eventually tried and convicted on the capital felony charges and sentenced in 1987 to a prison term of 25 years to life. The Supreme Court upheld the conviction in 1990.

The state will be hard pressed to convict Skakel for the murder because of the gravity of the crime and its long, celebrated history, Brown says.

"I'm sure they made a well thought-out decision" to charge Skakel, he says, "and one that they arrived at reluctantly and with awareness of the consequences of their actions."

But the state cannot avoid the sensitive statute of limitations issue, he says.

"The state has an obligation, as does the defense attorney, to test this issue and let the chips fall where they may," Brown says.

Benedict did not return repeated phone calls to his Bridgeport office.

Another question is whether the state could re-arrest Skakel on capital felony charges to avoid the limitations period. Moxley was found with her jeans and underwear pulled below her knees, but an autopsy showed no signs of sexual assault.

If the state could show that Moxley died in the course of a sexual assault or a kidnapping, for example, a capital felony charge might be appropriate, Moraghan says.

But Skakel has only been charged with murder.

"Perhaps Mr. Skakel will send me a check if he somehow avoids prosecution," Brown says.