Court skirmishes over reluctant witnesses and defense attorneys' attempts to block testimony might delay completion of the grand jury investigation into the Martha Moxley murder until at least early next year, officials said this week.
Those officials had hoped the grand jury would finish the probe of the Greenwich teenager's unsolved 1975 murder before the initial deadline of its mandate expires next month. But according to State's Attorney Jonathan Benedict, who has been assisting the grand jury since it was convened in June, court battles over witnesses and sought-after testimony will force the investigative body to apply for a six-month continuance. "We will be asking for an extension," Benedict said Tuesday.
The prosecutor's comment came immediately after a hearing in Nassau County Court in which a judge delayed ruling until next month on Benedict's application for enforcement of a subpoena that is being contested by a witness residing in New York.
Since it began taking testimony in July, the grand jury has worked at a fairly rapid pace, hearing from about 40 witnesses, including friends and family members of suspects Michael and Thomas Skakel, who were neighbors of Moxley. According to one court official, who asked not to be identified, the probe "is nearing the end," with the only stumbling blocks to a 1998 completion being the challenges to grand jury subpoenas.
The first of those challenges came Sept. 24 when the owner of a Maine drug and alcohol rehabilitation facility refused to answer grand jury questions concerning prosecutors' allegations that he heard Michael Skakel confess to having murdered Moxley during Skakel's stay at the facility from 1978 to 1980. Elan School owner Joseph Ricci claims anything said by any resident of his facility must remain confidential under the doctor-patient privilege, and the matter remains unresolved after four days of an open-court hearing in Bridgeport. A fifth day of the hearing is scheduled for Tuesday.
Another witness, New York resident James Murphy, refuses to comply with a subpoena to testify about significant changes the Skakel brothers allegedly made to the alibis they gave police in 1975. Murphy heads Sutton Associates, a private detective agency that the Skakels' attorneys said were hired in 1991 to investigate the Moxley murder on the suspects' behalf in preparation for a possible criminal defense. Those attorneys have argued that any knowledge Murphy has about the case is protected from disclosure by the attorney-client privilege.
Nassau County Judge Jerald Carter ordered a hearing for Dec. 2 in which prosecutors will have to prove that Murphy's testimony is so important to the investigation that the claimed attorney-client privilege should be broken.
The following day, on Dec. 3 in Suffolk County Court, another hearing is scheduled in which the Skakels' attorneys will seek to quash a subpoena issued to a former Sutton Associates investigator, Willis Krebs, now a detective with the Suffolk district attorney's white-collar crime unit. The attorneys said they will invoke the attorney-client privilege in opposition to Krebs' subpoena, which already has been signed by Suffolk County Judge Michael Mullen.
Michael Skakel's defense lawyer, Stamford attorney Michael Sherman, said he welcomes the likelihood of an extension of the grand jury probe. "While I would love to see a swift resolution to this situation, I'm gratified that there is no rush to judgment and that they are taking the appropriate amount of time before making such a difficult decision," Sherman said yesterday.
The clock began ticking on the murder investigation in June when Superior Court Judge George Thim was appointed grand juror for the Moxley matter by Chief Court Administrator Aaron Ment. The appointment came after a three-judge panel sitting in New Haven held hearings and approved Benedict's application for a grand jury. The Connecticut grand jury is rarely used, and only four applications for the special probe have been approved this decade. The grand jury has subpoena power that state prosecutors lack and by law can be applied for only when all other investigative means have been exhausted.
According to state statute, the single-judge investigative grand jury has six months from its appointment to determine whether probable cause exists for an arrest. The law allows a maximum of two extensions of the investigation, each of which can be for as long as six months.
Upon completing his work, Thim will have 60 days in which to file a report of his findings. That report must state whether probable cause for arrest was found, and it can be used by prosecutors in seeking an arrest warrant. The grand jury report must then be made public within seven days unless the prosecutor files a motion to have it sealed. If such a motion is made, Thim has to hold a hearing within 15 days and render a decision within another five days.
Thim may only grant the motion to seal the report if he finds a "substantial probability" that public disclosure would jeopardize the rights of the accused to a fair trial, lead to subornation of perjury or witness tampering, put lives or reputations at risk, or cause defendants to flee to avoid prosecution.
Moxley, 15, was bludgeoned to death the evening of Oct. 30, 1975, on the lawn of her home on Walsh Lane in the Belle Haven section of Greenwich. The murder weapon was a 6-iron investigators linked to a set of golf clubs owned by the Skakels. Two Skakel children, Thomas and Michael, then 17 and 15, respectively, were among the last persons known to be with Moxley on the night of the murder, and both have been identified as suspects.
Because there were no witnesses to the crime or physical evidence directly linking the killer, investigators were left with a mostly circumstantial case, one which they said might only be solved with a confession. Authorities over the years accused the Skakel family of hindering the investigation by refusing to make the suspected brothers available for questioning.
Benedict's application for a grand jury came two months after the prosecutor who had overseen the Moxley investigation since 1975 quit the case. Donald Browne, who retired as state's attorney in September but stayed on as a special prosecutor for the Moxley matter, has been criticized for his handling of the investigation, including his failure to ask for a grand jury.