Issue of Skakel's fitness is key to closure of probe
By J.A. Johnson Jr., Greenwich Time

One side says a Florida judge disregarded overwhelming evidence presented in a competency hearing when ordering Rushton Skakel Sr. to appear before a Connecticut grand jury targeting two of his sons as suspects in the 1975 murder of Martha Moxley.

The other side maintains Martin County Judge John Fennelly acted appropriately because whether or not the elder Skakel is mentally competent is a matter to be decided if and when his sons become defendants in a trial.

Those are the main arguments expected to be made when Skakel's attorneys square off against a Florida assistant attorney general next month before justices of the Florida 4th District Court of Appeals.

A preview of the issues to be argued is found in briefs filed with the appellate court in advance of the scheduled June 9 oral arguments.

Pending appeals by Skakel Sr. and his son, murder suspect Michael Skakel - who is challenging the admissibility of testimony concerning his stay at a drug and alcohol rehabilitation center where prosecutors allege he made admissions about the Moxley murder - are all that is believed to be delaying the conclusion of the grand jury's investigation into the 15-year-old Greenwich girl's unsolved homicide.

More than 50 witnesses have appeared since the grand jury was convened in June, and sources said the investigation may conclude by August.

Connecticut prosecutors have said the elder Skakel's testimony is needed because they allege he attended a meeting at the rehab center in Maine during which Michael made admissions concerning Moxley's murder.

Police have said Michael and Thomas Skakel, then 15 and 17, respectively, were with Moxley the night she was killed with a 6-iron from a set of golf clubs owned by the Skakel family, who lived across the street from the Moxleys in Belle Haven.

Skakel Sr. is the brother of Ethel Skakel Kennedy, widow of U.S. Sen. Robert Kennedy. He now lives in Hobe Sound, Fla. Both Skakel brothers have maintained their innocence in the Moxley murder.

One of Skakel's attorneys unsuccessfully argued during an Oct. 16 hearing in Florida that his client should not be made to testify because failing physical and mental health render Skakel incompetent as a witness.

But in his ruling, Fennelly stated that the testimony of several witnesses called to the stand by attorney Richard Lubin - including Skakel's wife, priest, maid and physicians - failed to prove Skakel is incompetent. The judge noted that he never had the chance to observe the elder Skakel's "ability to observe and recollect facts" because Skakel was not called as a witness on his own behalf.

Fennelly further stated the seriousness of the crime being investigated outweighs any hardship the witness might endure, noting that Connecticut authorities allege in two affidavits that Skakel "has made a statement indicating his knowledge of the perpetrator."

In an appeals brief filed April 12, Lubin and co-counsel John Olea argue that Fennelly's ruling was wrong because "Substantial, competent and irrefutable testimony was presented establishing Skakel's incompetence," including physicians' diagnoses Skakel Sr. suffered from "degenerative dementia coupled with depression and schizotypal personality disorder" leading to memory loss and behavioral problems.

"At the hearing on this matter, no evidence to the contrary was presented by the State," the brief continues. "Since materiality is contingent on a witness' competency, it is axiomatic that an incompetent witness cannot provide material testimony."

However, counters Florida Assistant Attorney General James Carney in his brief filed April 28, Florida case law has conclusively determined that any claims of incompetency by a witness is an issue that must be decided at time of trial, since a person's mental state is subject to change over time.

"When (Skakel) finally appears before the Connecticut courts, he will undoubtedly argue that his condition has changed for the worse since the competency determination in Florida," Carney's brief states. "Even if the evidence presented at the October hearing showed (Skakel) was incompetent at that time, it does not prove his incompetency at the time of the Connecticut proceedings. (Skakel) can move to have his competency determined should he be called to present trial testimony in Connecticut."

The other pending appeal is to be argued before the Connecticut Appellate Court Thursday.

In the appeal, Michael Skakel seeks to have excluded as grand jury evidence all testimony concerning his stay at the rehab center on the basis such information is protected by the doctor-patient privilege.

The appeal seeks to overturn a Superior Court judge's December ruling that the testimony was admissible because Skakel had not been under the direct care of a psychiatrist during his 1978-80 stay at Elan School in Poland Spring, Maine, and that the rehab center was not a licensed mental health facility.