Is time up for prosecuting Moxley murder?
By Kerry Tesoriero - Greenwich Time
An expired statute of limitations may mean Michael Skakel cannot be prosecuted in the 1975 murder of Martha Moxley, the Connecticut Law Tribune has reported.
Since Skakel's arrest Jan. 19, speculation about the task before State's Attorney Jonathan Benedict has focused on whether the Greenwich-raised nephew of Ethel Kennedy, who was 15 when the murder took place, will be handled in Juvenile or Superior Court.
But in a recent article in the Connecticut Law Tribune, an authority on criminal defense law stated that Skakel, 39, cannot be taken to court at all.
David Moraghan, president of the Connecticut Criminal Defense Lawyers' Association, said he was researching the law on the adult prosecution of juveniles to respond to questions about the Skakel case when he found the statute.
"I know in 1975 there was a five-year statute of limitations on murder," Moraghan said.
Skakel was charged with murder as a juvenile 24 years after Moxley's slaying.
The statute could create grounds for a motion to dismiss the charge against Skakel.
"I'm hesitant to say what I'm going to do or to start responding to that," said Skakel's attorney, Michael Sherman of Stamford.
State law was amended in 1976 to remove the statute of limitations on the charge of murder.
"But the (state) Supreme Court at the same time that they actually amended the statute said that it could not be applied retroactively," Moraghan said.
Even so, two men were convicted in 1987 of capital felony charges connected to the 1974 murder of a 17-year-old Enfield woman. The pair was arrested seven years after the crime.
Wilmer Paradise Jr. and Brian Ellis were charged with murder, felony murder and kidnapping in 1981.
Those charges were dismissed in 1982 because the statute of limitations had expired. State prosecutors appealed the dismissal to the state Supreme Court but lost.
So the state re-arrested the two men in 1983, this time imposing a different charge on each man: capital felony. Those charges were dismissed by a Superior Court judge who deemed the prosecution a case of double jeopardy.
Again, prosecutors appealed the dismissal to the state Supreme Court. The high court overruled the trial court judge's dismissal in 1985, ruling in State vs. Ellis that the statute of limitations did not apply to capital felonies.
"It's an interesting case that may or may not be relevant," Sherman said of State vs. Ellis. "I'd rather not forecast my motions at this point."
Benedict did not return calls seeking comment yesterday.
Robert Brown of Hartford, a criminal defense attorney who represented Paradise, said yesterday Sherman is likely to move for a dismissal based on the statute of limitations that was in effect in 1975.
"He will invariably raise the issue and cite my case," Brown said. "The prosecution is likely to say, 'Yes, but that's ancient history. We have new laws now and those new laws apply.' "
Statutes are not typically applied retroactively in criminal cases. But Brown noted that a civil case may support the prosecution's expected argument that the new laws apply.
"We have a civil statute that allows people up to age 35 to sue if they were sexually assaulted," Brown said.
That statute can be applied retroactively, he said, and Benedict may cite it to justify retroactive prosecution of Skakel on the murder charge.