Experts: Skakel will stand trial
By J.A. Johnson Jr. - Greenwich Time
Michael Skakel will likely stand trial for the 1975 murder of Greenwich teenager Martha Moxley, and he will do so before a jury in adult court, several legal experts agree.
In a preliminary hearing that began in Stamford last week, those experts said, the prosecution already has provided Superior Court Judge Maureen Dennis with enough evidence for her to determine "reasonable cause" exists for a trial. Two witnesses have testified Skakel confessed to them that he murdered his Greenwich neighbor with a golf club, and a third testified that Skakel told him he was at the crime scene the night of the murder.
Reasonable cause - the juvenile court equivalent of probable cause in adult court - exists when evidence would lead a reasonable person to suspect a defendant committed the crime he is accused of. Skakel was charged as a juvenile because he was 15 when Moxley was murdered.
"Reasonable cause is not a hard standard to meet, and it would seem to me that standard has been met by the witnesses who indicated that Skakel confessed that he committed the crime," Stamford criminal defense attorney Daniel P. Weiner said.
"The state has met its burden of proof" with testimony about an alleged murder confession, Quinnipiac School of Law professor William Dunlap agreed. "And I'm even more convinced Judge Dennis will find reasonable cause exists because a one-judge grand jury has already found sufficient probable cause to have Skakel arrested."
An 18-month grand jury investigation into the long-dormant Moxley murder case resulted in Skakel's arrest in January. The probe was headed by Superior Court Judge George Thim.
Skakel, 39, is accused of bludgeoning Moxley to death with a golf club from a set owned by his family. Moxley had last been seen alive outside the Skakel home the evening of Oct. 30, 1975.
Philip Russell, a former New York assistant district attorney who practices criminal law in Greenwich, said the grand jury's findings are primarily what convinces him that Skakel is headed for trial.
"The so-called reasonable cause standard is so slight, and typically a prosecutor will advance a case through this procedural stage by putting on only a fraction of his evidence," Russell said. "And it's unlikely that the exhaustive grand jury investigation developed only two witnesses to (Skakel's alleged) admissions, so I believe there is much more in store. The judge has to find reasonable cause at this juncture."
Two of the witnesses said they heard the defendant confess in 1978, when they attended the same substance abuse rehabilitation center as Skakel. Under cross-examination, one of those witnesses, Gregory Coleman, admitted that years of drug and alcohol use have affected his memory. He also testified he had asked the State's Attorney's Office for financial and other help before testifying in the reasonable cause hearing, neither of which was given. The other witness, John Higgins, admitted under cross-examination that in 1996 he lied when he told a state inspector he never heard the alleged confession. Higgins explained the lie by stating, "I didn't want to be involved" in the homicide probe.
Despite defense attorney Michael Sherman's efforts to undermine the witnesses' credibility by calling into question their truthfulness and motives for testifying against Skakel, the legal experts said they expected Dennis to defer to a jury in deciding credibility.
"Credibility is almost always up to a jury to decide," said Robert Bello, who also practices criminal law in Stamford.
Although Dennis may defer the credibility issue to a jury, Bello said, Sherman is laying important groundwork for any future trial by his intense cross-examination of witnesses.
"He might not be scoring points with the judge, but he is effectively using this opportunity to lock witnesses into their testimony under oath," Bello said. "Seldom does a defense attorney get the opportunity to cross-examine a witness before trial."
Russell agreed, noting that "Mr. Sherman is keeping his eye on the trial - this court has given him a lot of latitude."
Defense attorneys are only given the opportunity to cross-examine witnesses during reasonable cause hearings at the presiding judge's discretion.
"It wouldn't make sense for Judge Dennis to curtail defense counsel and create the possibility of an appealable issue by infringing on his rights to confront witnesses," Russell said.
The legal experts were in agreement that if Dennis finds reasonable cause for a trial, she will likely transfer Skakel's case to adult court.
Even so, according to Weiner, a trial in adult court, where Skakel could be sentenced to 25 years to life in prison if convicted, would be unfair to Skakel. Weiner, who estimates 35 percent of his caseload is juvenile court cases, said if the state had acted more swiftly and arrested and convicted Skakel when he was still a minor, the most Skakel could have been incarcerated for was four years.
"I don't understand why Mr. Skakel should be penalized just because the state dragged its feet for 25 years," Weiner said. "Let's say, for the sake of argument, Mr. Skakel had responsibility (for the murder), he would have been done (with his punishment) years ago."
At the end of two days of presenting evidence last week, State's Attorney Jonathan Benedict called as his final witness Judith Kallen, an official with the state Department of Children and Families. To help make his case that adult court would be the proper venue for Skakel's trial, Benedict elicited testimony in which Kallen said there were no suitable juvenile detention facilities for persons over 18 years old.
Kallen also testified that among the criteria used when determining whether to incarcerate a juvenile are the seriousness of the crime, the offending child's capacity for rehabilitation and whether the child is likely to re-offend if released.
The testimony opened the door for Sherman to note that his client has not committed criminal offenses over the past two decades, and allowed the attorney to compare that knowledge with having a "crystal ball" with which to glimpse Skakel's future conduct if he had been prosecuted while still a juvenile.
"Mickey was very much on target with that," Weiner said.
Even so, other experts said, since the crime being considered is murder, it is possible Skakel's case would have been transferred to adult court whether it was 1975 or 2000.
"The severity of the offense here can be the overwhelming and supervening cause for referral (to adult court), making the other factors less significant," Russell said.
The reasonable cause hearing is scheduled to resume Wednesday, when Sherman will present rebuttal and expert witnesses. Although the hearing is expected to conclude Friday, court observers believe Dennis will not immediately rule on any of the issues, but will rather issue a written opinion days or weeks later.