An attorney for Rushton Skakel Sr., 74, now of Hobe Sound, Fla., argued in Martin County Circuit Court of Florida last month that his client was incompetent to testify due to psychological and medical problems, and that traveling to Connecticut would pose an undue hardship.
In his ruling, however, Martin County Judge John Fennelly said the seriousness of the crime being investigated by the grand jury sitting in Bridgeport outweighed any hardships the witness might endure.
Meanwhile, a judge in Nassau County Court in New York has delayed deciding on whether to enforce a subpoena for another witness - a private detective to whom suspects Michael and Thomas Skakel allegedly told stories that differed greatly from alibis they gave police in 1975 - until a hearing is held next month in which prosecutors will have to prove the detective's testimony is crucial for the grand jury investigation.
Judge Jerald Carter said he is ordering the hearing because of defense claims that the sought information is protected from disclosure by the attorney-client privilege. The potential witness - James Murphy, president of the Jericho, N.Y.- based Sutton Associates private investigations firm - had worked on the Skakels' behalf in preparation for a possible criminal defense in connection with the Moxley case, defense attorneys have said.
"Ordinarily, the court would issue an order directing a witness to appear" before the grand jury, Carter said from the bench. "However, because this matter involves the attorney-client privilege, and because the witness demands a hearing, as is his right, (the witness) will be afforded the opportunity of a hearing at which time evidence will be presented and a record established." The hearing has been scheduled for Dec. 2.
In Florida, Judge Fennelly yesterday ruled that at an Oct. 16 hearing, an attorney for Rushton Skakel Sr. failed to prove that their client would be an incompetent grand jury witness. Fennelly noted that even with Skakel bearing the burden of proof on the matter, he was never called on as a witness on his own behalf.
"Mr. Skakel chose not to testify, thus the court is unable to make specific determination of his ability to observe and recollect facts, to narrate those facts, and appreciate the moral obligation to tell the truth," the judge wrote in his decision.
Fennelly also quoted from a psychiatric evaluation admitted as evidence by Skakel's own physician that stated Skakel "feigns sickness and has instantaneous recoveries."
In addition, the Florida judge rejected claims that appearing before the grand jury would pose an "undue hardship" on Skakel, stating that in deciding whether to enforce the Connecticut subpoena, he had to "consider the gravity" of the crime in question - first-degree murder.
Quite frankly, it does not get more serious than that," Fennelly wrote. In asking the Florida court to enforce the Connecticut subpoena, prosecutors deemed the elder Skakel a crucial witness for the grand jury proceeding, alleging Skakel attended a meeting at a drug and alcohol rehabilitation facility Michael Skakel's defense lawyer, Stamford attorney Michael Sherman, said Fennelly's ruling "is not a big surprise." He said, "I'm not sure what (prosecutors) expect Rushton Skakel to add that he hasn't already said. He's said that he was on a trip when the crime occurred, and he has no knowledge that any of his children were involved."
Skakel initially was subpoenaed to appear before the grand jury on Oct. 23. State prosecutors could not be reached yesterday afternoon to find out when the witness would be testifying.
Following yesterday's hearing in Nassau County, a second hearing was supposed to take place in eastern Long Island, in Suffolk County Court, on a motion by Michael Skakel's attorneys to quash a subpoena that was issued to another Sutton Associate investigator, Willis Krebs. That hearing was postponed until Dec. 3.
The subpoena ordered Krebs to appear before the grand jury in Bridgeport, but Michael Skakel's attorneys intervened, asking that the court order be quashed on the basis of attorney-client privilege.
According to court documents, Sutton Associates was hired by the Skakel brothers' attorneys in 1991 to investigate the Moxley murder in preparation for a possible criminal defense. After Murphy resisted his subpoena, an application for an order to compel his grand jury appearance was filed in Nassau by State's Attorney Jonathan Benedict, who is assisting the grand jury probe. In that application, the Connecticut prosecutor calls Murphy "a material and necessary witness" for the grand jury, saying he participated in interviews of both suspects in which they changed their alibis.
In those interviews, Benedict's application states, Murphy heard Michael and Thomas Skakel tell about either being with their 15-year-old neighbor at about the time police said Moxley was murdered, or being near the crime scene shortly afterward. Police identified the murder weapon as a 6-iron from a set of golf clubs owned by the Skakel family.
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 with the Nassau court, Benedict states that Thomas Skakel told a Sutton Associates investigator that on the night of the murder, he and Martha Moxley had a sexual encounter behind the Skakel house that began at about 9:30 p.m. or 9:35 p.m. and lasted about 20 minutes. Police established the girl's death to have been at about 9:50 p.m.
According to Benedict's court filing, 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 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, he went back out and spied on a neighbor, then climbed a tree by the Moxley home near what he thought was Martha's window, where he yelled in and got no response. He next went home past the spot where the girl's body was eventually discovered, entering his room through a second-floor window.