Police witness testifies investigators wanted to arrest defendant's brother
By John Springer, Court TV
NORWALK, Conn. — A retired police captain testified Wednesday that Greenwich, Conn., police applied for an arrest warrant in 1976 seeking to charge the defendant's brother, Thomas, with Martha Moxley's 1975 murder.
The revelation, made public for the first time, came as defense lawyer Mickey Sherman was trying to question prosecution witness Thomas Keegan about his early suspicions that Thomas — not defendant Michael Skakel — killed Martha with their late mother's golf club.
"When you submitted the warrant [application] for the arrest of Thomas Skakel for murder did you believe that affidavit contained probable cause for his arrest for murder?" Sherman asked.
"I did," said Keegan, now a member of the South Carolina House of Representatives.
Then-prosecutor Donald Browne refused to sign the arrest warrant and Thomas Skakel, now 43, was never charged. The testimony is important for the defense, however, because Skakel's lawyers believe it shows that Michael Skakel was the third person police believed was Martha's killer. Police also suspected the Skakel family tutor, Kenneth Littleton.
Keegan's testimony about the failed attempt to charge Thomas Skakel came over the objections of prosecutor Jonathan Benedict, who argued that it was not relevant to the guilt or innocence of the 41-year-old defendant.
Judge John Kavanewsky said that until he sees the document he cannot rule whether Benedict should be compelled to turn over the affidavit naming Thomas Skakel as Martha's suspected killer. Sherman argued outside the presence of the jury that he should be given the document under the rules of discovery.
"Why don't we have that?" Sherman asked, after the jury was dismissed from the courtroom. "We're entitled to that."
Martha Moxley's bludgeoned body was found on her family's estate in the exclusive Belle Haven community in Greenwich. She was killed the night before Halloween, Oct. 30, 1975, known as "Mischief Night" to the locals.
The Skakels, who are related to the Kennedys by marriage, lived next door and became the focus of the investigation early on because the Skakel boys were friends with Martha. The sensational trial got under way Tuesday, 26 years and six months after the murder. Prosecutors say Skakel killed Martha after she rejected his advances.
Sherman argued Wednesday that he has repeatedly asked prosecutors to turn over any arrest and search warrant applications for any suspect. Sherman said he was hearing for the first time what he had long suspected: that police had tried to arrest Thomas Skakel.
Thomas Skakel is on the prosecution's witness list, as is his longtime lawyer, Emmanuel Margolis. In her diary, Martha called Michael Skakel "an ass" but seemed to be ambivalent about Thomas' touching and flirting.
Kavanewsky appeared annoyed that the issue had not been dealt with before the start of Skakel's trial. Kavanewsky noted that Sherman went to great lengths and detail during pretrial arguments in seeking the court's permission to point the finger at the former Skakel tutor, Kenneth Littleton.
Kavanewsky, raising his voice, told Sherman that he would entertain a motion about disclosing the arrest warrant application and hold a hearing later. Sherman said he had already made that motion and was incredulous that the prosecution had not responded by turning over the document.
"I'm hearing that for the first time from the state," Sherman said. Kavanewsky called a recess and told Benedict and Sherman he wanted to speak to him in chambers. Prosecutor Susann Gill later told the judge that the prosecution team could not find the warrant application. Gill said that if it is discovered, they will turn it over to the defense.
Keegan told reporters outside the courthouse that he believed Thomas Skakel "had knowledge" about Martha's death but stopped short of saying he still believes Thomas Skakel was involved.
Keegan, who appeared to be choosing his words more carefully than other witnesses, also testified that:
No physical evidence was developed linking anyone to the murder;
Rushton Skakel Sr. cooperated with the investigation fully for about three months, giving police access to the Skakel home in Belle Haven, a ski lodge in upstate New York, and to family members;
Golf clubs were routinely left around the Skakel property;
Police went to Massachusetts in November 1976 to investigate Littleton's background;
Detroit homicide investigators and Houston's chief medical examiner, a defense witness, were asked to help narrow the time of death;
He always felt that the Connecticut medical examiner's eight-hour window for the time of death, 9:30 p.m. to 5:30 am., was "overly broad."
Westchester veterinarian Edward Fleischli, also a defense witness, was hired to provide an opinion about why numerous neighborhood dogs began barking simultaneously.
Identified the sneakers Martha was wearing when she was killed. One of them had the name "Tom" written on the sole.
As Keegan left Norwalk Superior Court, he greeted Dr. Henry Lee, the world-renowned forensic scientist and chief emeritus of the Connecticut State Police Forensic Crime Laboratory. Lee, who reviewed physical evidence in the case during the 1990s, examined the crime scene and reviewed more than 150 photos and 200 documents.
In Lee's opinion, Martha's blue jeans and underwear were already pulled down when she was struck with the first blow of the golf club, he testified. Lee theorized that her killer dragged the body feet first, stopping midway along a clearly visible 78-foot drag path to change course. Citing blood splatter, Lee testified that Martha was likely face down at one point and face up at another time when the killer dragged the body through the grass.
At the request of prosecutors, Lee had more than 500 tests conducted on Martha's clothes but found no foreign DNA material, blood or semen. Although two hairs found on a crime scene sheet were "microscopically similar" to hair taken from Kenneth Littleton's hairbrush, Lee testified that the similarity is far from being conclusive.
The prosecutor, Benedict, tried unsuccessfully to admit into evidence a 1991 photograph of Lee standing with Skakel family lawyers Tom Sheridan and Emmanuel Margolis. Lee met with the lawyers after investigators jumpstarted the stalled probe into Martha's death.
Benedict argued that evidence will show that Michael Skakel changed his story about his movements on the night of the murder after learning that Lee was on the case. It was about the time when DNA was coming into its own as a forensic identification tool.
"That inference is a leap of light years. That's a picture of Dr. Lee with two lawyers," Sherman complained.
Sherman stepped on a landmine of sorts on his cross-examination of Lee, who has written 30 textbooks on crime scene investigation and is considered an international leader in the field.
"Dr. Lee, you don't have direct evidence that Michael Skakel committed this crime, do you?" Sherman asked.
"I don't have direct evidence but I have indirect evidence that we don't discuss here," Lee replied.
When pressed by reporters outside the courthouse, Lee declined to discuss that indirect evidence.
Five autopsy photos that jurors were shown Tuesday were displayed on an overhead screen Wednesday during the testimony of the prosecution's seventh witness.
Chief State's Medical Examiner H. Wayne Carver testified that he reviewed the 1975 autopsy report and agreed with the pathologist's opinion that Martha was struck eight or nine times with a golf club.
One black and white photo showed Martha's hair pulled back. Her eyes were closed. Two blows from the club made an "X" mark over her left eye. Carver said a U-shaped mark on Martha's forehead was probably made by the broken shaft of the club. He said both her nose and skull bone below the surface were broken.
A color photo of the back of Martha's shaved head showed three long tears that were made, in Carver's opinion, by the golf club head before the shaft broke off.
Another color photo showed a puncture wound to the right side of Martha's neck, just below her right ear. An earring is visible in the photograph. Martha's blonde hair, stained by blood, disappears into the puncture wound. Another photo shows the exit wound and a thick piece of matted hair coming out the other side of Martha's head.
Skakel looked at the photographs but showed no emotion. He listened intently as Carver agreed with the physician who performed the autopsy that Martha was dead or dying — but certainly unconscious — when the shaft of the broken golf club was thrust into her neck.
"The majority of people injured in this fashion would lose consciousness relatively quickly," Carver testified.
On cross-examination, Sherman asked Carver only if his review of the autopsy report and photos was consistent with the murder having occurred between 9:30 p.m. and 10 p.m. His client has an alibi for that period of time.
Carver said it was consistent. On redirect examination, however, Carver said the murder could have occurred between 9:30 p.m. and 1 a.m. Michael Skakel arrived home at 11:15 or 11:30 p.m.
Dr. Elliot Gross, who performed the autopsy, is also on the prosecution's witness list. Gross, Connecticut's chief medical examiner in 1975, is currently in charge of forensic pathology in Cape May County, N.J.