By J.A. Johnson Jr., Greenwich Time
Even the lawyer representing suspect Michael Skakel concedes the ruling on the hotly contested evidence could bode ill for his client. "There is no question that - depending on what has been, or will be, testified to before the grand jury - a confession very well may be enough to persuade the grand juror that an arrest is appropriate," said Stamford criminal defense attorney Michael Sherman.
Sherman had filed for an injunction to bar from the grand jury any testimony concerning Skakel's 1978-80 stay at Elan School, the Maine rehab center where prosecutors allege Skakel may have made admissions to the murder of his 15-year- old Greenwich neighbor. But on Thursday, Superior Court Judge Edward Stodolink denied the injunction, rejecting defense claims that statements Skakel may have made at the rehab were protected by the physician-patient privilege. In his ruling, Stodolink said Skakel had been at Elan School for an alcohol abuse problem, and that there was no evidence he received psychiatric care while there. Sherman said a decision on whether to appeal would be made within two weeks.
Greenwich criminal defense attorney Philip Russell, who has closely followed the Moxley case, said he believed Stodolink's ruling would survive an appeal. "It's fairly well-settled law in jurisdictions that have looked at this issue that a statement made in group therapy is not privileged communication," Russell said. One recent example, he said, involved a New York court's finding that a confession to a murder that came out at an Alcoholics Anonymous meeting was admissible as evidence.
Michael Skakel and his older brother, Thomas, are suspects in the murder, which occurred Oct. 30, 1975. The 15-year-old Moxley was beaten and stabbed to death with a 6-iron police said came from a set of golf clubs owned by the Skakel family, her neighbors. The brothers, who were 15 and 17 at the time, have maintained their innocence. Michael Skakel was admitted to Elan School as a condition of dismissal of a 1978 drunken-driving charge in Windham, N.Y.
Presuming Stodolink's ruling will withstand an appeal, Russell said testimony about Skakel's alleged confession - along with the apparently undisputed facts Skakel had been with Moxley the night she was killed and that the murder weapon was a 6-iron from a set of clubs owned by the Skakel family - would likely result in the grand jury's recommendation for an arrest. "I think this evidence, taken in conjunction with the physical evidence at the crime scene, may well meet the probable cause (for an arrest) standard, which is all the grand jury needs" to recommend an arrest, Russell said.
Another well-known area defense attorney, Robert Bello of Stamford, said it was too soon to tell whether Stodolink's ruling will stand over time. "To be sure, the state is in a much better position now because one judge has ruled these kinds of statements are admissible, but I think this is an issue that will be relitigated if this matter goes to trial," Bello said. "I don't think we've heard the last of it."
State's Attorney Jonathan Benedict, who is assisting the grand jury, said Stodolink's ruling opened the door for use of testimony about incriminating statements Skakel may have made not only in making an arrest, but in any subsequent prosecution. "If there were admissions made at Elan, we can now produce them before the grand jury and also produce them at trial," he said.
Several former Elan School residents and staff members are known to have already testified before the grand jury, including 41-year-old Chuck Seigan. In open- court testimony while attorneys battled over the privilege claim, Seigan was not allowed by Stodolink to answer a prosecutor's question about whether Skakel was involved in a murder that was discussed in a group meeting at Elan. Seigan, who was at Elan for an amphetamine addiction in 1978, was allowed to say, however, that Skakel had been the focus of a group meeting during which "the fact that there was a murder" was discussed.
Sherman said whatever his client may have said at Elan School could be tempered by additional information shedding light on the manner in which it was said. "If Michael confessed to someone, that may be enough for a grand juror to find enough probable cause, but not knowing the context in which these so-called admissions were made, it's impossible to make that call," Sherman said.
Retired Greenwich Detective Stephen Carroll, who was the senior local investigator for the Moxley case before retiring in 1978, said Stodolink's ruling could give the grand jury valuable evidence he would've liked to have but was never able to obtain. "This is major," said Carroll. "Way back then, we were saying the only way this case would be solved was with a confession, and now it looks like they have one." Carroll said that should testimony corroborate allegations about a confession, "they should be issuing an arrest warrant right now."
Thomas Skakel's defense lawyer, Emanuel Margolis, said any celebration by the prosecution may be short-lived. "Any time you win a complicated case in court, it is reasonable to claim victory," Margolis said. "But whether or not this victory will continue to the point where an appellate court reviews the relevant facts and the law and upholds the decision is a horse of a different color."
Nevertheless, and a successful appeal notwithstanding, Greenwich Police Chief Peter Robbins said Stodolink's ruling was a "huge step towards bringing this case to a close." He said, "With this information before the grand jury, and being able to tie it in to what's already known, I think they are very close to having enough probable cause for an arrest."
Benedict's lead investigator on the Moxley case, Inspector Frank Garr, agreed the grand jury needs more evidence than testimony about a possible confession before it recommends an arrest be made. "Certainly, Judge Stodolink's ruling was good for us, and I think it is a major step in the right direction" for the investigation, he said. "But probable cause is one thing, and it takes more than that to walk into a courtroom."
Garr's boss concurred. "We're not in the posture of doing anything yet," Benedict said. "I think we have a long way to go."
Additional hurdles the prosecution has yet to clear include attempts to quash subpoenas by material witnesses in other states. An attorney for Rushton Skakel Sr. - the two suspects' father - is appealing a Florida judge's order that the elder Skakel travel from his home in Hobe Sound, Fla., to testify before the grand jury in Bridgeport. The order to honor the Connecticut subpoena was made after Skakel Sr.'s attorney unsuccessfully argued failing physical and mental health rendered his client an incompetent witness.
Prosecutors allege in documents filed with the Florida court that Skakel Sr. was present during an Elan School meeting in which his son, Michael, allegedly confessed to his involvement in the Moxley murder.
And prosecutors are awaiting the ruling of a Nassau County, N.Y., judge on whether the grand jury appearance of another reluctant witness - the owner of a private investigations firm that probed the Moxley murder for the Skakel brothers' attorneys - can be compelled. Prosecutors allege that in interviews with private detectives, both Skakel brothers significantly changed the alibis they gave police in 1975.