Motions in Skakel case should be heard soon
By J.A. Johnson Jr. - Greenwich Time
The trial might be delayed because of a pending appeal, but pre-trial motions in the case of the man accused of killing Greenwich teenager Martha Moxley will likely get a prompt hearing, attorneys on both sides of the case agree.
The deadline for filing motions was May 21, and responses were due on Tuesday.
With arguments in the appeal of a central legal issue not expected until the fall, it is likely - if Michael Skakel's appeal fails - the trial will not start until 2002. The larger issue is whether Skakel should face justice as a juvenile or an adult.
But both the prosecutor and defense attorney said yesterday that with the passing of Tuesday's deadline for all motions in the case to be filed, the trial judge will probably order a hearing on those motions within the next few weeks.
The most contentious arguments could be over which information from the state's files the defense is entitled to as part of its discovery request.
On May 21, defense attorney Michael Sherman filed an extensive discovery motion that made 93 specific requests for information or evidence, ranging from names of witnesses the state plans to call to results of DNA and other forensic tests of evidence.
Without being specific, the prosecutor, State's Attorney Jonathan Benedict, said, "We've already complied with 99 percent of the discovery request" since Skakel's case was transferred from the Juvenile Matters division to the Criminal Division in February.
"We will be arguing over the discoverability of a number of items we object to," Benedict said.
The prosecutor said the defense is "automatically" entitled to many items it asked for, but the state will fight against releasing other requested items, such as investigators' notes.
"Our position is he's not entitled to that," Benedict said.
"I believe what we asked for is totally appropriate and necessary to defend a 25-year-old murder case," Sherman countered. "This will be for the judge to decide."
Other motions that Judge John Kavanewsky Jr. must now rule on include the state's request that members of Skakel's defense team be limited on what they can publicly state about the case.
Sherman did not file a response to that motion, saying he had "no problem with it," although he might have something to say should Kavanewsky want to hear oral arguments. It is at the judge's discretion whether to hear oral arguments on the motions, as he could base his rulings solely on the written arguments and case law cited in the motions.
"I make no apologies for anything I've said in this case, but I also appreciate the fact we all want to follow the rules," Sherman said. "On the other hand, the state has an unlimited number of unlicensed agents working on its behalf," including authors and television personalities who have pronounced Skakel guilty before trial.
"I agree with the (state's) motion, but there is no gag order in effect, nor is there a request for a gag order," Sherman said. "All it is, is a request to limit us to comments that will not poison the jury pool."
A full gag order would preclude either side from making any public statements concerning the case.
The other issue for which Kavanewsky might want to hold a hearing is Skakel's motion to dismiss the charge that he murdered 15-year-old Moxley in 1975.
The defense contends in its motion that a five-year statute of limitations was in effect at the time, but the state argues the legislature had admittedly erred in imposing a time limit for prosecuting murder cases and amended the law in 1976.
Both Sherman and Benedict agreed if Skakel's case goes to trial, the trial would not begin until after the state Appellate Court rules on Skakel's appeal of his case being transferred to adult court. After his January 2000 arrest, the 40-year-old Skakel, a Kennedy nephew, was arraigned as a juvenile for the crime he allegedly committed when he was 15 years old.
Prosecutors contend in their response motion that transfers of cases from one court to another are not "appealable" issues, since appeals can only be made of a case's final disposition, such as when a guilty plea is entered or a jury returns a conviction.
Although the matter cannot be resolved before the Appellate Court hears oral arguments in September, Benedict and Sherman said Kavanewsky will probably deal with the remaining matters quickly.
"The judge indicated insofar as he could decide without argument, he would do so, but we anticipate some things will be set down for argument," Benedict said. "The court is most likely interested in keeping things moving along, so I would expect arguments to be scheduled within a couple of weeks."
Sherman said, "I assume the only thing the Appellate Court will delay is the actual trial date."