State's Attorney Jonathan Benedict included the papers in an application with Nassau County Court, asking that a subpoenaed witness - who the prosecutor said heard suspects Michael and Thomas Skakel tell about being with the 15-year-old girl at about the time police said she was murdered or being near the crime scene shortly afterward - be ordered to appear before the grand jury in Bridgeport that is probing the Moxley murder.
James Murphy, president of the Jericho, N.Y.-based Sutton Associates private detective agency, is refusing to testify on the basis the sought information is exempt from disclosure due to attorney-client privilege. Murphy's firm was hired by the Skakel brothers' attorneys to investigate the murder in preparation for a possible criminal defense, court documents state.
The court papers mirror accounts reported by Newsday and published in Greenwich Time in 1995 that the stories the Skakel brothers told Sutton Associates investigators differed from the stories they gave police in 1975.
According to police reports, Thomas Skakel, then 17, told police he left Moxley at 9:30 p.m. on Oct. 30, 1975, to go home and write a book report for school, which was later determined to never have been assigned.
In his application for an order to compel Murphy to appear before the grand jury, Benedict states that after Murphy's firm was hired in 1991, Thomas Skakel told a Sutton Associates investigator that on the night of the murder, "at approximately 9:30, 9:35 p.m., he and Martha Moxley commenced a sexual encounter, at about 50 feet to the rear of the Skakel house in the middle of the rear lawn, which concluded in mutual masturbation. Thomas estimated that the entire encounter lasted about 20 minutes."
Police had established the girl's death to have been at about 9:50 p.m. They identified the murder weapon as a 6-iron from a set of golf clubs owned by the Skakels, who lived across the street from Moxley. Attorneys for the brothers have always maintained their clients' innocence.
According to Benedict, Michael Skakel, then 15, told authorities that on the night of the murder he last saw Moxley at about 9:30 p.m., when he left her outside his residence in order to drive a cousin home, and that he went directly to bed upon returning at about 11:30 p.m. and remained there until the following morning.
In his application with the Nassau County court, Benedict states that during his interview with a Sutton Associates investigator, the younger Skakel brother said that about 10 minutes after returning home from his cousin's home, he went back out and spied on a neighbor through a ground-level window of the woman's house. Michael Skakel then went to the nearby Moxley residence, where he "climbed a tree and looked into the room he thought was Martha's," the application states. "He yelled at the window, 'Martha, Martha,' but there was no response. Michael then stated that he masturbated to orgasm in the tree. Michael stated that he felt 'someone's presence' in the area where Martha's body was eventually discovered. He yelled 'into the darkness' and threw something at the trees. Still fearing what was there, he ran back to his house, and finding all doors locked, climbed to the second floor and entered his room through his bedroom window."
Benedict states in his application that Murphy participated in the interviews of both Skakel brothers, making him "material and necessary to the present grand jury investigation."
A hearing in which Nassau County Judge Jerald Carter was to rule on the Connecticut prosecutor's application had been scheduled to take place yesterday morning, but it was rescheduled for Nov. 10. Nassau County Assistant District Attorney Maureen Riordan said the postponement had been requested by Benedict, who needed time to review affidavits filed yesterday by attorneys seeking to block Murphy's grand jury appearance.
In one affidavit, Commack, L.I., attorney Robert Gottlieb urges Carter not to sign Benedict's application, arguing that any information obtained by private detectives working on the Skakels' behalf cannot by law be used against the suspects.
"Mr. Murphy was retained by the attorneys for Michael and Thomas Skakel to investigate the circumstances surrounding Martha Moxley's death, and to assist the Skakels and their attorneys in the preparation of a defense to any criminal prosecution against either of the Skakels in connection with Ms. Moxley's death," wrote Gottlieb, who was brought into the case by Michael Skakel's defense attorney, Michael Sherman of Stamford. "As a matter of overriding public policy and in accordance with the federal constitutional right to counsel, as well as universally accepted and time-honored privileges protecting the sanctity of the attorney-client relationship, this court should decline to sign the order."
Furthermore, Gottlieb argues, Benedict's application should not be approved because the prosecutor fails to demonstrate that Murphy is a material witness, claiming the assertion that Murphy participated in his firm's interviews with the Skakel brothers was "erroneous."
In an affidavit signed by Murphy, the former FBI agent states that "portions of the application are incorrect describing the interviews." Murphy was in court for the planned hearing yesterday but declined comment.
The current defense attorneys for the Skakel brothers, as well as a lawyer who represented Michael Skakel from 1978 until this past summer, each submitted an affidavit stating that his client had not waived the attorney-client privilege regarding information obtained by Sutton Associates.
Murphy's subpoena ordered him to appear before the grand jury Friday. It remains undetermined whether one of his colleagues, former Sutton Associates investigator Willis Krebs, will appear that day as ordered.
Both men were served on Oct. 19, and later that day Suffolk County Judge Michael Mullens signed an order for Krebs to appear in Bridgeport, according to Gottlieb. The attorney said he plans to intervene by filing a motion blocking the order until a hearing on his clients' concerns is held.
"It's the same issue as with Mr. Murphy," Gottlieb said yesterday. "Mr. Murphy and Mr. Krebs were both hired as private investigators for and on behalf of defense attorneys, and neither they nor any agent of a defense attorney should ever be compelled to testify about confidential communications, whatever they may be."
Krebs, now a detective with the Suffolk County District Attorney's white collar crime unit, declined comment. Benedict was not in Nassau County Court yesterday and could not be reached for comment.