"Attorneys Claim Skakel's Rights Violated"
By J.A. Johnson Jr., Greenwich Time, Feb. 27, 1999

Michael Skakel's constitutional rights were violated by the state's two-decade delay in obtaining records of his stay at a drug and alcohol rehabilitation center, where he allegedly made admissions to the 1975 Martha Moxley murder, according to court documents filed yesterday by Skakel's attorneys.

In a brief to the state Appellate Court, attorneys also argue that a Superior Court judge erred in previously ruling that testimony of former residents and staff members of the rehab center could be considered as evidence by a grand jury investigating the unsolved Moxley murder. In addition, the brief states that the judge erred when he ruled that Elan School was not a mental health facility and therefore anything said at the rehab center was not protected by the doctor-patient privilege.

If the grand jury probing the Moxley murder since June can consider this disputed evidence, the effectiveness of substance abuse treatment programs would be severely damaged, the appeals brief states.

Prosecutors have 30 days to respond with their own brief.

The appeal of Judge Edward Stodolink's December ruling against Skakel's request for an injunction to block Elan School-related testimony from the grand jury "raises issues of great importance concerning the privacy protection accorded to Connecticut citizens who seek treatment for substance abuse problems," New Haven attorneys William F. Dow III and David F. Grudberg state in the brief. "If allowed to stand, the trial court's ruling threatens to diminish the effectiveness of substance abuse programs such as Elan, as well as other similar forms of therapy increasingly in demand by our citizenry, which depend heavily on a therapeutic atmosphere of trust and confidence."

Skakel was admitted to Elan School in Poland Spring, Maine, in 1978 after his arrest for a drunken driving incident in which he attempted to run down a police officer before crashing his car in Windham, N.Y. The grand jury convened in Bridgeport last June is seeking testimony of former Elan School residents and staff members because prosecutors believe Skakel made "admissions" about the Moxley murder before being released from the program in 1980.

Michael Skakel and his brother, Thomas, are the only identified suspects in the Moxley murder. Both were with the victim the night she was slain on Oct. 30, 1975, and police identified the murder weapon as a 6-iron from a set of golf clubs owned by the Skakel family, who lived across the street from the Moxleys.

In their brief, Dow and Grudberg fault prosecutors for attempting to find out what may have happened at the rehab center two decades after the fact. "It is axiomatic that the United States Constitution forbids the deprivation of life, liberty or property without due process of law," the brief states. "In this case, the state waited nearly 20 years after (Skakel's) departure from Elan before initiating proceedings to obtain records and other testimony about his treatment .(and) by virtue of its own delay, and the resulting prejudice to (Skakel's) ability to present relevant evidence, the state has obtained confidential communications and records for use in the grand jury against Mr. Skakel. This violates (Skakel's) due process rights, and should be prohibited."

The attorneys also say that when ruling against Skakel's privacy claim, Stodolink wrongly applied current federal regulations for therapy programs rather than what applied at the time of the suspect's treatment. "This ruling was incorrect, as it violated traditional precepts of law, and robbed (Skakel) of the privacy he legitimately had a right to expect during his 1978-80 stay at Elan," according to the brief. "Had the contemporaneous regulations been applied, the state should only have been allowed access to objective data concerning Skakel's Elan treatment."

Objective data, as defined by 1978 federal regulations, would include such information as a patient's admission and discharge dates and medication he received, according to Skakel's lawyers. "Put otherwise, the trial court's broad order allowing inquiry into conversations with Michael Skakel at Elan should be reversed," the brief states.

The final issue in the appeal regards Stodolink's ruling that Elan School was not a mental health facility, which releases Skakel's statements at Elan from protection under doctor-patient privilege. Although Stodolink said Elan School held a conditional Maine license as a mental health facility from August 1979 to February 1980, he said it did not meet Connecticut's definition of a mental health facility because none of its staff was a license professional.

Skakel's attorneys say in making his ruling, the judge wrongly relied on the fact that Elan School's medical director was not at the facility on a daily basis. "The court's analysis was seriously flawed, and based on an overly narrow view of the mental health field," the brief states. "Likewise, its emphasis on the presence or absence of (the medical director) ignored uncontroverted evidence that the program was run under his supervision and control. Under these circumstances, the (doctor-patient) privilege should have applied."