Round 2 in Skakel Privilege Issue Court Fight
Greenwich Time, October 6, 1999
By J.A. Johnson Jr., Staff Writer

BRIDGEPORT - Statements Michael Skakel made to fellow residents at a drug and alcohol rehabilitation center are not privileged communications and can be used as evidence by the grand jury investigating the 1975 Martha Moxley murder, a prosecutor told a Superior Court judge yesterday. Skakel's attorneys told the judge anything their client said while in treatment for alcohol addiction - be it to a licensed physician or his rehab center bunk mate - is protected by confidentiality laws and therefore cannot be used against him in court.

Those legal arguments, made yesterday before Superior Court Judge Edward Stodolink, were much the same as those he heard a year ago, when the battle over the disputed grand jury testimony began in his courtroom. Stodolink ruled in the prosecution's favor, but on Aug. 6 the state Appellate Court overturned his decision on the basis he had failed to properly apply federal regulations governing alcohol abuse treatment that were in effect when Skakel attended the Elan School rehab center from 1978 to 1980.

The Appellate Court remanded the case to the lower court for further legal arguments, and yesterday marked the beginning of Round Two. Prosecutors have alleged that while at Elan School, in Poland Spring, Maine, Skakel made possibly incriminating statements concerning the death of 15-year- old Moxley, who in 1975 lived across the street from Skakel in Greenwich. Police said Michael and his brother, Thomas, then 15 and 17, respectively, were both with the victim the night she was slain with a golf club from a set owned by the Skakel family.

The Skakel brothers are the only identified suspects in the Moxley case. A grand jury has been probing the unsolved murder since June 1998. Several former Elan staff members and residents, including Skakel's former bunkmate, already have testified before the grand jury, and the admissibility of that evidence hinges on the outcome of this new round of legal arguments. Should the prosecution lose this time around, the grand jury could be ordered to disregard all Elan School-related testimony.

Senior Assistant State's Attorney Susann Gill, who argued for the state before the Appellate Court, yesterday told Stodolink his original decision was valid because the prosecution is only seeking recollections of former Elan School residents, and confidentiality under federal regulations only applies to those who directly participate in another's treatment.

"The memories of former residents are beyond the control of Elan and the federal statute," Gill said.

Linda Kenney, a New Jersey lawyer with expertise on privilege issues who was hired by the Skakel defense team last year, argued yesterday that everyone within a rehab facility, including residents, have roles to play in treatment. "Confidentiality applies to all persons and all individuals," she said. "It's a global protection. . No matter what you call someone in a treatment program, as long as they get federal funds from the government, they are covered by the regulations."

Stodolink adjourned the hearing without scheduling a new date, but said he would probably reconvene in about a week to hear further arguments and testimony from witnesses.