Beyond Rich Man's Justice
Thomas Scheffey
The Connecticut Law Tribune

Michael Skakel, the scion of Greenwich wealth, has yet to be charged with anything in connection with the 1975 killing of his then 15-year-old neighbor Martha Moxley—bludgeoned to death with a golf club in a gated enclave of America's richest town.

But currently a grand jury is investigating the murder, and the struggle over potential evidence in this celebrity case is hard-fought. Defense efforts by Skakel's lawyers have already paid off for him and, indirectly, for those in need of a psychiatrist's care.

One key issue is whether the state can use as evidence certain statements that Skakel made while in a residential alcohol treatment facility in Maine, about four years after Moxley's death. Skakel sued to block such testimony, invoking the psychiatrist-client privilege. The appellate decision, Michael Skakel v. Jonathan Benedict, decided Aug. 5, helps define how broad that privilege is.

At trial, Stamford prosecutor Jonathan C. Benedict won a ruling that the psychiatrist-patient privilege doesn't shield statements made in a group discussion at an alcohol treatment facility overseen by a psychiatrist.

But the Appellate Court concludes that Bridgeport Superior Court Judge Edward F. Stodolink construed the privilege too narrowly in two ways.

Chief Judge Edward Y. O'Connell, William J. Lavery and Francis X. Hennessy found that the setting in which the privilege applies can be far less direct and intimate than the classic setting of a doctor, a couch and a patient. Indeed, a treatment setting more akin to a group Alcoholics Anonymous meeting may qualify, the court finds.

The Appellate Court also reverses Stodolink's finding that Connecticut's psychiatrist-patient privilege does not apply to alcohol treatment. He had concluded the privilege didn't apply to Skakel's alcohol-related disorder, because it wasn't a mental condition under the privilege statute.

Lavery, writing for the panel, says that including alcohol treatment within the definition of mental disorders would advance the Legislature's objective, by providing individuals who suffer from such disorders with an incentive to seek treatment and to make a full disclosure to a psychiatrist.

Prosecutor Benedict says the question of an appeal is a matter of when, not if. We intend to pursue it, he says in an interview. Last week his office was considering whether to appeal directly from this ruling, or to wait until the matter is remanded for further findings.

RICH MAN'S JUSTICE?

Skakel is represented by high-profile criminal lawyer Michael Mickey Sherman, of Stamford's Sherman & Richichi. He comments in an interview that the decision is a victory for his client and has a benefit far beyond the Skakel investigation. It stands for the principle that if you're in an alcohol treatment program, you're entitled to the same confidentiality as any other treatment program, says Sherman.

The downside of the decision, he adds, is that this won't be seen as the findings of three high court judges taking 38 pages showing why the law is on our side—it will be seen as just an example of a rich man's justice.

Sherman tapped David T. Grudberg, of New Haven's Jacobs, Grudberg, Belt & Dow, to handle the appellate work. Grudberg is the son of eminent criminal defender Ira Grudberg.

Not everyone, says Sherman, can afford to put on the kind of defense that my client has.

GARBAGE DISPOSAL

But the ruling has an impact far beyond Connecticut's richest community. The Rev. Henry Price, of Hartford's North End, has a career as a community leader, substance abuse adviser and counselor to people at the end of their rope. Confidentiality is a vital part of recovery, he says.

Price knows a lot about turning a life around—his own is Exhibit A.

In 1992, while holding a gun to the head of a young man he says sold him low-grade cocaine, Price became a murderer in one explosive flash. When the man's body hit the ground, says Price, I knew my life would never be the same after that. It has not been.

Price was quickly caught, tried and sentenced to 40 years. Remarkably, he was pardoned after 10 years because of his sincere remorse, self-improvement and achievements. An expert in 12-step programs like Alcoholics Anonymous, Price says recovering abusers should have a chance to open up and empty your garbage in a confidential setting.

Without a safe place to speak up, free from the fear that your statements may be used against you, Price says, you'd be putting a whole lot of people in a position of not wanting to seek recovery.

While a strong advocate of taking responsibility for past bad acts, Price says that initiative must come from an individual—not by transforming confidential confessions into legal admissions. The process of making amends, taking responsibility, can't be by trick, he says.

SHADOW DEFENSE

The defense in the Skakel case is in an odd position. Sherman's client has been subject to intensive speculation in several sensational books, including one by O.J. Simpson trial detective Mark Fuhrman. Sherman, who's debated Fuhrman on television repeatedly, calls it, Not a bad book—for a work of fiction. The Moxley murder case has also hit the small screen as a TV drama. Yet Sherman's client is charged with nothing yet.

We're sort of playing Blind Man's Bluff here, says Sherman, who says the testimony battle is over statements from witnesses that the defense hasn't heard.

In part of the one-man grand jury investigation conducted by Judge George N. Thim into the quarter-century-old mystery, prosecutor Benedict is seeking to introduce testimony from people who heard Skakel speak during his extended stay at a residential alcohol treatment center in Poland Spring, Maine, known as Elan.

Skakel lived there between March of 1978 to February of 1980. Elan was founded in 1970 by Boston psychiatrist Gerald E. Davidson, the record discloses. He visited from Boston at most two or three times a week. Davidson is now dead. His co-founder, Joseph Ricci, was the executive director and therapeutic director while Skakel was there.

Ricci had completed an addiction treatment program at Daytop, a New Haven treatment center, before founding Elan. Both Elan and Daytop, according to the trial court findings, are therapeutic communities that use behavior modification, similar to the Alcoholics Anonymous program, but under the guidance of a residential staff.

On weekdays, groups of eight to 10 students engaged in group discussions to share problems and discuss solutions. Psychiatrist Davidson rarely participated, but Ricci occasionally took part.

Benedict subpoenaed Ricci and Elan staff member Peter McCann to testify in Thim's grand jury investigation, and Sherman immediately filed a request to enjoin their testimony.

KEEPING MUM

For his part, Ricci refused to talk, and Benedict filed a motion to compel testimony. Skakel's lawyers applied for injunctive relief to prevent Ricci's testimony, which Stodolink denied and issued a motion to compel Dec. 10, 1998.

Sherman promptly appealed, on grounds that Stodolink misconstrued the statute to apply only to statements made in a mental health facility, rather than anywhere during a course of treatment.

The Lavery opinion says the question of whether Elan was a mental health facility is irrelevant, because the privilege applies everywhere during a course of treatment.

The decision gives new strength to the view that alcoholism can legally be considered a disease, in some contexts. If the Legislature had wanted to exclude alcohol-related disorders from the category of mental conditions protected by our state's psychiatrist-patient privilege, it could easily have done so, writes Lavery, concluding the lawmakers had no such intent.

He quotes with approval a phrase from the 1977 case of Adams v. Weinberger, in the Court of Appeals for the Eighth Circuit: We are not so Victorian as to be indifferent to the expanding theory of alcoholism being a disease.

The Appellate Court refused to be swayed by Benedict's leading authority, the 1987 case of State v. Rollinson, in which a plaintiff being treated for an alcohol-related disorder appealed the trial court's refusal to grant his motions to suppress statements he made to staff in the hospital's detox unit.

The plaintiff in Rollinson conceded that his claims didn't fall within the statutory privilege of communication between a psychiatrist and patient, and the state Supreme Court decided the case based on that point.

We decline to transform the defendant's concession in Rollinson into a legal conclusion that all records and communications relating to the diagnosis or treatment of alcohol-related disorders do not fall within the psychiatrist-patient privilege, Lavery writes, finding the trial court was wrong to conclude that alcohol-related treatment didn't fall within the definition of treatment for a mental condition in the confidentiality statute.