of Moxley Murder 'Confession'"
By J.A. Johnson Jr., Staff Writer, Greenwich Time
Judge Edward Stodolink said he will issue his ruling from the bench this afternoon on an injunction to block the disputed testimony that saw seven days of a hearing over two months. Stodolink's announcement yesterday came after two hours of final argument by the Moxley case prosecutor and the three attorneys seeking to keep the evidence from the grand jury.
At issue is an allegation by State's Attorney Jonathan Benedict that a suspect, Michael Skakel, a nephew of the late Robert Kennedy, "made admissions" as to the Moxley murder during his 1978-1980 stay at Elan School, a drug and alcohol rehabilitation facility in Poland Spring, Maine.
The grand jury that was convened in June to probe the 23-year-old murder has already heard testimony from former Elan School residents and staff members. Attorneys representing Skakel and Elan School owner Joseph Ricci are seeking to have Stodolink rule that anything said at the rehab center is protected from disclosure by the doctor-patient privilege, and to order the grand jury to disregard that testimony.
The hearing on the privilege issue was forced by Ricci's refusal to answer questions when appearing before the grand jury on Sept. 21. The refusal prompted an application for the court to compel his testimony, and Stodolink will rule on that application today as well.
In their final arguments yesterday, attorneys on both sides of the issue said state and federal law upholds their claims as to whether the disputed testimony can be used as evidence.
Ricci's attorney, John Campbell, said witnesses who testified during the hearing established that Elan School was a federally funded residential substance abuse treatment center, and therefore subject to federal confidentiality laws.
Reading from the Code of Federal Regulations, and citing a reference to debate in Congress during the drafting of substance abuse confidentiality requirements in 1972, Campbell said, "There was nothing to suggest any circumstances under which a court order authorizing such a disclosure would be either desirable or appropriate. Yet the mere possibility that such an order might be issued is to some a source of anxiety which impairs the effectiveness of treatment."
Benedict concurred there were confidentiality requirements under federal law, but told Stodolink confidentiality was not the issue before him. "The two phrases have sometimes been used recklessly and, I submit, incorrectly and interchangeably," Benedict said. "Nobody is suggesting confidentiality is not an important therapeutic concept, but it is not the same thing as privilege in court."
Benedict said privilege can, by law, be extended only to medical records and direct communications between a physician and patient. "What the state seeks is the recollections of persons who were there" at the rehab with Skakel, the prosecutor said.
Benedict has alleged in court documents that Skakel made admissions as to the Moxley murder during a group therapy session, and yesterday told Stodolink that Skakel had waived any privilege he may have enjoyed when speaking with fellow residents about the crime.
Skakel and his older brother, Thomas, are suspects in the murder. The brothers, then 15 and 17, were Moxley's neighbors and were with her the night she was killed, bludgeoned with a 6-iron that matched a set owned by the Skakels. Both Skakels have maintained their innocence.
Benedict reminded the judge that opposing counsel was unable to produce any evidence that Elan School had been a licensed mental health facility, other than Ricci's testimony that it was. "To be perfectly frank with the court, the state has some strong reservations as to the credibility of Mr. Ricci," he said.
Linda Kenny, a New Jersey attorney specializing in privilege issues who was retained by Skakel's defense lawyer, Michael Sherman, argued that the expectation of privacy Skakel had upon entering Elan School was his First Amendment right. "Your honor, there is no Skakel exception to the right of privacy under the Constitution," Kenny told the judge.