By J.A. Johnson Jr., Staff Writer, Greenwich Time
Martin County Judge John Fennelly - who last month ordered Skakel to travel from his Hobe Sound, Fla., home to appear before the grand jury on Dec. 11 - granted Skakel a "limited stay, of until 5 p.m. Thursday," to appeal his order, which upheld a Connecticut material witness subpoena, according to Martin County Assistant State's Attorney Robert Belanger.
Fennelly upheld the subpoena after presiding over an Oct. 16 hearing in which Skakel's attorney unsuccessfully argued his client should not be made to testify because declining physical and mental health rendered him an incompetent witness. That attorney, Richard Lubin of West Palm Beach, Fla., did not return telephone calls seeking comment yesterday.
According to the defense lawyer for Michael Skakel - one of the elder Skakel's sons - Fennelly's granting of a limited stay on his own order was a victory of sorts for Skakel Sr. and his attorney. "It's more than they expected and less than they hoped for," said Stamford attorney Michael Sherman. "They figured this subpoena would be rubber stamped, which is usually the case, and that has not happened."
According to Belanger, it is now up to the Florida Fourth District Court of Appeals to decide whether to intervene and grant an indefinite stay on Fennelly's order that Skakel must testify. For that to happen, he said, the appellate court would have to grant an "emergency stay" of the lower court's ruling, which would place Fennelly's order on hold until it can be appealed.
"Judge Fennelly expects them to decide before 5 p.m. Thursday, and if there is no action, it is the functional equivalent of a denial," the prosecutor said. "In other words, he's saying, 'You're getting on a plane for Connecticut.' " An emergency stay had not been applied for as of late yesterday afternoon, according to a Fourth District Court of Appeals clerk.
In documents filed with Martin County District Court of Florida, Connecticut prosecutors say Skakel is needed as a material witness because he attended a meeting at a drug and alcohol rehabilitation facility in Maine during which his son, Michael, allegedly made admissions as to the Moxley murder. The other suspect in the 15-year-old girl's homicide is Michael's older brother, Thomas. Police have said the then-teenage brothers, who lived across the street from the victim, were with Moxley the night she was killed and that the murder weapon was a 6-iron from a set of golf clubs owned by the Skakel family. Both Skakels maintain their innocence.
In his ruling, Fennelly stated that the testimony of several witnesses called to the stand by Lubin - including Skakel's wife, priest, maid and physicians - failed to prove that Skakel is incompetent. The judge noted that he never had the chance to observe the elder Skakel's "ability to observe and recollect facts" because he was not called as a witness on his own behalf.
Fennelly further stated the seriousness of the crime being investigated outweighs any hardship the witness might endure, noting that Connecticut authorities allege in two affidavits that Skakel "has made a statement indicating his knowledge of the perpetrator."
During yesterday morning's hearing before Fennelly, Belanger said he argued against granting an indefinite stay, claiming Skakel was using delaying tactics to avoid appearing before the grand jury. "It would not be unreasonable to suggest a pattern of dilatory tactics in an effort to avoid testifying in Connecticut," Belanger stated in a brief filed prior to the hearing.