Now that the grand jury probing the 1975 murder of Greenwich teenager Martha Moxley is focusing on an alleged confession to the murder, the New Jersey lawyer has returned to Connecticut, this time to try to block the testimony of a witness believed to have heard suspect Michael Skakel's alleged mea culpa. At issue in both cases is whether medical records can be used as evidence without the patient's consent, and Kenney is a recognized expert on the question of confidentiality in such matters.
"She is highly talented, energetic and knowledgeable," said Hartford attorney Eliot Gersten. "Linda is well-known because she has a degree of specialty designed for difficult cases."
Gersten represents Alex Kelly's fianc‚e, Amy Molitor, who was injured in a 1996 automobile accident that police said was caused by Kelly when he was free on $1 million bond while awaiting trial for a 1986 rape. Kelly was subsequently convicted on the rape charge and is serving a 16-year prison sentence.
As Kelly awaits a second trial - for the alleged rape of a 17-year-old Stamford girl only days after the first rape - prosecutors have subpoenaed the records of Molitor's weeklong stay in Stamford Hospital to use as evidence against Kelly on a charge of evasion of responsibility. Gersten brought the New Jersey lawyer into the case in attempt to quash the subpoena, but on May 22 a Superior Court judge rejected Kenney's argument that the records were protected by doctor- patient confidentiality. An appeal of Judge Richard Comerford's decision is pending.
Kenney hopes to be more successful in the Moxley case. Prosecutors allege that Michael Skakel confessed to murdering his 15-year-old neighbor while a resident of Elan School in Poland Spring, Maine, from 1978 to 1980. At the time, the school was a rehabilitation and special education facility for youths with substance abuse and behavioral problems. Prosecutors want to question school owner Joseph Ricci about information they developed that Ricci heard Skakel's confession, but Ricci has refused to testify before the grand jury in Bridgeport on the basis that anything said by one of his students is protected by therapist-patient privilege.
Prosecutors have asked a Superior Court judge to compel Ricci to testify, but the matter remains unresolved after two days of hearings. A third day of testimony is scheduled for Nov. 4.
Skakel's lawyer, Stamford attorney Michael Sherman, said he brought Kenney into the case to argue the confidentiality issue because: "First and foremost, Linda is a nationally recognized expert in this particular field of privilege." He added, "Secondly, she is someone I've known professionally for seven or eight years, and I knew that she and I could work well together. Thirdly, she's had recent experience with Connecticut courts with the Kelly matter."
Kenney, 44, a resident of Red Bank, N.J., has practiced law since 1979 and has served as an assistant with the Monmouth County, N.J., prosecutor. Another of her specialties is representing employees in workplace lawsuits, and she has successfully handled cases against such large companies as TRW, AT&T and Continental Airlines.
In an interview Tuesday, Kenney said she sees the Skakel matter as the first test in Connecticut of a 1996 U.S. Supreme Court ruling that recognized the therapist-patient privilege in federal court proceedings. She likened prosecutors' attempts to gain information about Skakel's stay at Elan School to when Estelle Griswold ran afoul of a Connecticut law in 1961 by illegally distributing contraceptives at a Planned Parenthood clinic. The case led to the 1965 landmark U.S. Supreme Court decision that the right to privacy protects the rights of married couples to use contraceptives.
"Connecticut, which brought us Griswold, is not at the forefront of not protecting a sacred area of privilege, including medical and psychotherapeutic privilege," Kenney said.
The attorney suggested that in subpoenaing Ricci, prosecutors went overboard because the Moxley case has attracted national attention by virtue of the fact Skakel is a nephew of the late U.S. Sen. Robert Kennedy. "There's no Skakel exception to the doctor-patient privilege," Kenney said in Tuesday. "Just because there's been books written about (the Moxley case) is no reason to break that privilege."