Attorney snubs Moxley subpoena

By J.A. Johnson Jr. Greenwich Time, Staff Writer

10/20/98

BRIDGEPORT - The attorney for one of the suspects in the murder of Greenwich teenager Martha Moxley yesterday refused to accept a subpoena ordering him to appear before a grand jury that is probing the 1975 slaying.

The attempt to serve Thomas Skakel's attorney was made during a recess of a hearing being held to determine whether another witness, the owner of a private school for troubled adolescents, can be compelled to testify.

The matter of whether Joseph Ricci can be made to answer the grand jury's questions - about allegations he heard Thomas Skakel's younger brother, Michael, confess to the two-decades-old murder during his stay at Elan School from 1978 to 1980 - could not be resolved yesterday and a third day of the hearing was scheduled for Nov. 4. The first day of the hearing was Friday.

During a morning recess in the Ricci matter, state Inspector Frank Garr attempted to serve a subpoena to Stamford Attorney Emanuel Margolis - who has represented Thomas Skakel in connection with the Moxley murder since 1976. When Margolis refused to accept the order to appear before the Moxley grand jury on Oct. 30, Garr dropped the document on a bench in a courtroom hallway.

Garr later said he considered Margolis to have been duly served, an assertion the attorney disputed because he said he had not accepted the document. "I've engaged the services of my own attorney, and we will take all the necessary steps not only to quash this, but the person responsible for this will be facing our own legal steps," Margolis said. Margolis said he will seek to have the subpoena quashed on the basis of attorney-client privilege.

The subpoena was issued by State's Attorney Jonathan Benedict, who is assisting the grand jury that has been hearing testimony since July in the Moxley case. Margolis said the attempt to serve the subpoena may have been improper because it was done while he was in court on business connected with the grand jury. Although he was not a party to the hearing concerning Ricci, Margolis said he was there as an observer to represent Thomas Skakel's interests.

Michael Skakel's lawyer, Stamford attorney Michael Sherman, said it remains to be seen whether serving Margolis with the subpoena was improper, "but it certainly was shabby." Sherman likened the manner in which the subpoena was served to a "blitzkrieg" attack, adding, "I sort of feel like a border guard in Krakow in 1939." He said normally a subpoena is considered to have been served when the person being called physically takes possession of it. To have approached a lawyer with a subpoena while he was in court on official business may be a violation of state statute or the Connecticut Practice Book for attorneys, Sherman said, matters Margolis' lawyer will have to research. Garr said if Margolis does not appear before the grand jury on Oct. 30 as ordered, "We will deal with it at that time."

Last week, court sources revealed plans to subpoena both Margolis and Manhattan attorney Thomas Sheridan Jr., who represented Michael Skakel from 1978 until shortly after the grand jury was convened this year. As Margolis talked to reporters about the attempt to serve him with the subpoena, and with Sherman standing nearby, Sherman received a cellular telephone call from Sheridan, who informed his colleague that a subpoena had been served to an investigator with a private detective agency that once worked for the Skakel family. According to Sherman, Sutton Associates investigator Willis Krebs has also been ordered to appear before the grand jury on Oct. 30.

According to published accounts, Sheridan, on behalf of the Skakel family, hired Sutton Associates in 1992 in an attempt to clear the Skakel brothers as suspects, but the agency developed information that cast further suspicion on the suspects. According to those published accounts, the stories of what they did the night Moxley was murdered differed from what they told police in 1975. Sheridan had not been served with a subpoena as of yesterday, court sources said.

The Skakels were neighbors of Martha Moxley when she was slain the evening of Oct. 30, 1975. Thomas and Michael Skakel, who were then 17 and 15 years old, respectively, both were with the 15-year-old victim the evening of the crime. Police said the weapon used to bludgeon and stab Moxley was a 6-iron from a set of golf clubs owned by the Skakel family. No one has ever been charged in the killing. Both Michael and Thomas Skakel have repeatedly denied any involvement.

Ricci is believed to be a key witness because of allegations he heard a confession to the Moxley murder. He initially fought attempts to have him travel from his home state to appear before the grand jury, but was compelled to appear by a Maine judge on the strength of an affidavit filed in that state by Benedict. The Sept. 11 affidavit states that not only did Ricci hear the confession, but the "admissions were made by Michael Skakel in response to being confronted by Mr. Ricci and other Elan staff members as to Skakel's involvement in the matter."

Sheridan on Friday joined the fight to keep Ricci from having to testify about Michael Skakel's alleged murder confession or disclose records of Skakel's stay at Elan School by filing an affidavit stating it was his former client's "constitutional right to maintain the privacy of those records."

"Given the fact that the nature of the (Elan School) program is psychotherapy/ medical, there was no doubt, and it was my absolute and complete understanding, an understanding I relayed to my client, Michael Skakel, that the treatment and everything surrounding same was privileged under the law," Sheridan's affidavit states. The document further states that during a March 14, 1978, meeting Sheridan had with Elan School's medical director, the late Dr. Gerald Davidson, "assured me of the confidentiality of everything that occurred at Elan."

Davidson, who has since died, was often cited during yesterday's hearing. Because Ricci was unable to produce documentation that Elan School was a licensed mental health facility at the time of Skakel's stay there, his attorneys focused on the fact the school should enjoy confidentiality because its treatment programs were conducted under the direction of Davidson, a licensed physician and psychiatrist.

"I know I had them, but 20 years is a long time," Ricci testified about the documentation. "We searched where we could on our premises, but I was not able to obtain the mental health licenses."

Ricci, a recovered heroin addict, testified that he co-founded Elan School with Davidson in 1970 in an experimental attempt to rehabilitate youths suffering from substance abuse and behavioral problems by merging traditional clinical methods of treatment and such nontraditional "self-help" measures as primal scream and role-reversal therapies.

After the daylong hearing concluded, one of Ricci's attorneys said Ricci's testimony alone established that Michael Skakel had an expectation of privacy upon entering Ricci's facility in Poland Spring, Maine. "The fact that everyone at Elan was providing treatment under the direction of a physician is enough to satisfy the requirements for establishing privilege," Portland, Maine, attorney John Campbell said in an interview outside the Fairfield County Courthouse. As the hearing came to an end, Benedict told Superior Court Judge Edward F. Stodolink he needs time to prepare the state's case refuting Ricci's privilege claim.

"We may produce some witnesses who could describe the treatment provided at Elan School between 1978 and 1980 that they witnessed," the prosecutor said.