Skakel appeal over testimony scheduled
Elan School statements in question.
By J.A. Johnson Jr., Greenwich Time
(Printed Sunday May 2, 1999)

Arguments have been scheduled for later this month in Martha Moxley murder suspect Michael Skakel's appeal of a ruling that a grand jury may consider testimony on alleged incriminating statements Skakel made during his stay at a drug and alcohol rehabilitation center.

In the appeal, Skakel's attorneys claim a Superior Court judge erred when he ruled in December that the rehab center was not a mental health facility and therefore testimony concerning statements Skakel made while there were not, protected by the doctor-patient privilege.

The state Appellate Court in Hartford will hear arguments May 27, a court clerk said Friday. Michael Skakel and his brother Thomas are the only suspects identified as being investigated by the grand jury in Bridgeport for the Oct. 30, 1975, murder of 15-year old Moxley. The Skakels were the girl's Greenwich neighbors at the time, and police said they were with the victim prior to her being slain with a golf club that belonged to the Skakel family.

Michael Skakel was admitted to Elan School 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 Prosecutors have alleged Skakel made "admissions" about the Moxley murder before being released from the treatment program in 1980.

Several former residents and staff members of the Poland Spring, Maine, rehab center have appeared before the grand jury since it was convened last June, and Skakel seeks to block that testimony with his appeal. If successful the appeal would also allow Elan School owner Joseph Ricci to avoid testifying. He has refused to do so on the basis of the confidentiality claim.

In a brief filed with the Appellate Court in February, Skakel's attorneys argue that when ruling against Skakel's privacy claim, Superior Court Judge Edward 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 , 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," states the brief, authored by New Haven attorneys William Dow III and David Grudberg. "Had the contemporaneous regulations been applied, the state should only been allowed access to objective data concerning Skakel' s treatment."

Objective data, as define 1978 federal regulations, include such limited information as a patient's, admission and discourage dates and any medication received, according to Skakel lawyers.

The state's brief, filed March 26 by Senior Assistant Attorney Susann E. Gill, however states that Stodolink's ruling proper because whatever privacy rights. Skakel sought to protect were no different now than were when he was at Elan School.

"It is natural that in fashion disclosure order in 1998 a would follow 1998 guidelines brief states. "It is incongruous suggest that the court use procedures to weigh current interests, and yet apply a superseded regulation to limit the scope of its order. For these reasons,'the trial court did not err in fashioning its order under current federal regulations."

Skakel's appeal further claims that Stodolink was wrong in ruling that Connecticut's doctor-patient privilege did not apply to statements the suspect may have made at Elan School because the rehab center during Skakel's stay was a licensed mental health facility.

But the state counters in its brief by saying in order for Skakel to prevail under Connecticut law, he would have to show that the disputed grand jury testimony is related to the diagnosis or treatment of a mental condition, which he failed to do on the Superior Court level.

An additional claim by Skakel's appeal is that his constitutional rights to due process were violated by the state's two-decade delay in obtaining information concerning his stay at Elan School.

"It is axiomatic that the United States Constitution forbids the deprivation of life, liberty or property without due process of law,' the appeals 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 e grand jury against Mr. Skakel. This violates (skakel's) due process tights, and should be prohibited".

In reply, prosecutors maintain the constitutional abuse allegation was made with no supporting analysis, and therefore "(Skakel's) final claim requires little discussion" in arguments before the Appellate Court.

The brief states, "(Skakel) has not even attempted, much less succeeded, in establishing actual prejudice or that the state purposely delayed seeking this information in order to gain a tactical advantage. This claim should be summarily rejected."