An attorney for Stamford criminal defense lawyer Emanuel Margolis yesterday filed a motion to quash the subpoena on the basis he had not been properly served with the order.
Prosecutors maintain that Margolis was properly served on Oct. 19, however, and they expect the attorney to appear this morning at the Fairfield County Courthouse in Bridgeport as ordered.
Margolis, who has represented Moxley murder suspect Thomas Skakel since 1976, could not be reached for comment yesterday. His attorney, Hartford constitutional law expert Ralph Elliot, said even if his client were to appear before the grand jury, he would not testify due to the attorney-client privilege. "If the only reason they want to question him is to ask him his age, he will answer to that," Elliot said.
But even for the grand jury to get to that point, Elliot said, prosecutors need to reissue their subpoena and serve it the proper way. According to a motion that was filed yesterday, Elliot argues that the court order should not be enforced because Margolis was not served the subpoena by an "indifferent person," as state law requires. The subpoena was served by state Inspector Frank Garr, who is the lead investigator for the Moxley case and is assisting with the grand jury. Garr is not an indifferent person, Elliot states in the motion.
In addition, the motion to quash states, when Margolis refused to accept the subpoena, Garr left the document on a courthouse bench. Margolis has stated he did not physically accept the subpoena because, contrary to general practice, the attempted service was made while he was in court on business pertaining to the grand jury investigation. Garr tried giving the subpoena to the attorney during a break in a hearing concerning the other Moxley murder suspect, Thomas Skakel's brother Michael Skakel. Margolis later told reporters he was attending the hearing to represent his client's interests.
Elliot defended his attempts to quash the subpoena. "It is an extraordinary event to call a lawyer before a grand jury, whose only contact with the matter being investigated is his lawyer-client relationship with one of the parties" being investigated, Elliot said. "So if they are intent on this extraordinary procedure, then every 'i' should be dotted and every 't' crossed at every step of the proceeding."
State's Attorney Jonathan Benedict, who is assisting the Moxley grand jury and applied for Margolis' subpoena, did not return telephone calls seeking comment. Garr, however, said, "We are going under the assumption that Mr. Margolis is going to appear here as ordered." Should the motion to quash be granted, Elliot said he expects another subpoena to be issued and then properly served. He said his client would comply with a properly served court order, at which time the issue of attorney-client privilege would be addressed before a judge.
Since convening in July, the grand jury has heard from nearly 40 witnesses, but has not had additional testimony since the boyhood best friend of Michael Skakel appeared Sept. 23. The proceeding has been on hold indefinitely as lawyers for the suspects seek to block testimony of witnesses on several fronts.
Lawyers have claimed one subpoenaed witness who allegedly heard Michael Skakel confess to murdering Moxley cannot testify because any such statement would have been made while the suspect was at a drug and alcohol rehabilitation facility, making anything Skakel said there confidential information under the doctor- patient privilege.
Defense lawyers also are attempting to block the grand jury appearance of investigators from a private detective agency who prosecutors claim participated in interviews with the Skakel brothers. During the interviews, both suspects allegedly significantly changed the alibis they gave police in 1975.
In addition, a Florida judge's ruling is pending on claims that the suspects' father, Rushton Skakel Sr., cannot be compelled to comply with a subpoena issued to him in August - ordering him to travel from his home in Hobe Sound, Fla., to appear before the Bridgeport grand jury - because psychological problems render him incompetent as a witness.