Experts expect long pretrial process
By J.A. Johnson Jr. - Greenwich Time
Prosecutors may have won an important victory with this week's court ruling that Martha Moxley murder defendant Michael Skakel will be tried as an adult, but they can expect to run into fierce resistance long before the first witness gets sworn in.
It is widely expected that Skakel's defense team will fire the opening volley with an appeal of the ruling transferring his case from juvenile to adult court, and then vigorously challenge the state every step of the way in an arduous pretrial process.
Skakel, 40, was 15 at the time of the murder. He was arraigned last year as a juvenile, but a judge on Wednesday transferred the case to adult court.
As indications of potential conflict, court observers and legal experts with intimate knowledge of Skakel's case pointed to the hard-fought battles over legal issues raised during the grand jury process that brought Skakel to where he is today.
Among those issues were questions of admissibility of evidence of claimed privileged statements and records, and the competency of witnesses to testify.
"I think all those issues remain alive," said Stamford attorney Emanuel Margolis. "They can all be revisited de novo by the defense."
Margolis has followed Skakel's case more closely than most, as he has represented Skakel's older brother Thomas, once the prime suspect in the Moxley murder, since 1976.
During the grand jury investigation that began in 1998 and concluded early the following year with Michael Skakel's arrest, Skakel's defense challenged the admissibility of such evidence as the testimony of witnesses who were in a substance abuse rehabilitation center with the defendant when Skakel allegedly confessed to murdering Moxley on Oct. 30, 1975.
Even though the defense lost those contests, Margolis said, the issues at the time were viewed in the context of the grand jury and not a jury trial, where rules of evidence are more stringent.
Stamford criminal defense attorney Matthew Maddox agreed that the Skakel case will soon give observers a sense of deja vu as it proceeds to trial.
"I think it would be virtually reckless not to exhaust every issue again, and knowing the way (Skakel's) defense attorney handles cases," Maddox said, "I would be very surprised not to see him revisit and re-litigate every issue if for no other reason - particularly in a case of this magnitude and notoriety - than because he is very mindful of the record that's being kept for purposes of appeal."
Another grand jury issue expected to recur prior to trial is the admissibility of testimony and records of private investigators hired, to whom Skakel allegedly admitted having lied to police in 1975.
Another point of contention could be whether the defendant's elderly father, Rushton Skakel Sr., has been rendered an incompetent witness by illness and psychological disorders.
Skakel's defense attorney, Michael Sherman, said he would not disclose his defense strategy.
"I'm not going to comment on what motions I'm filing until I do it," he said.
Sherman also said he did not know yet if he would appeal the judge's ruling that sent Skakel's case to adult court.
There remains the question of whether or not the transfer of the case from one court to another is even an appealable issue.
According to Deputy Chief State's Attorney Christopher Morano, the law as it existed in 1975 - and the law that has governed the prosecution of this case from the beginning - did not allow for the appeal of such transfers.
Even so, some say, that will probably not deter Sherman.
"You have to at least try, and if the appeal is denied, then that denial itself can become an appealable issue," Margolis said.
According to attorneys on both sides, the case is expected to proceed as follows:
Within the next two weeks, Skakel will be presented in Part B of state Superior Court in Stamford. This is the point at which Skakel's case is officially entered into the adult court record, and when the issue of bail can be discussed and Sherman will file his appearance as Skakel's attorney of record. The case will then be transferred to the court's Part A, which handles all serious felony prosecutions.
A probable cause hearing will be held in which a judge will determine whether the state's case is sufficient to warrant a trial. This hearing must occur within 60 days of Skakel's presentment. Often a formality waived by the defense, Sherman indicated he wants a probable cause hearing so he can have the opportunity to contest the state's evidence.
If probable cause is found, Skakel will be asked to enter a plea of guilty or not guilty. If he pleads not guilty, the matter will be scheduled for pretrial hearings.
Sherman said if there were to be a trial, he expected it would begin in six to 10 months.