"What is Privilege? Moxley Investigation Raises Intricate Issue."
By J.A. Johnson Jr.
If the owner of a Maine school for troubled teens actually heard a confession to
the murder of Martha Moxley, can he be required to testify about it in court?
That question is at the heart of a legal dispute involving a witness who is
refusing to testify before the grand jury investigating the 1975 death of Belle
Haven resident Moxley.
It has been alleged that Joseph Ricci, owner of the Elan School for troubled
adolescents in Maine, overheard suspect Michael Skakel admit to the 15-year-old
girl's brutal murder while Skakel was attending Elan two decades ago. Ricci has
refused to testify before the grand jury in Bridgeport, asserting that anything
a student says at his licensed mental health facility must remain confidential
if treatment programs are to be successful.
"The (school's) record of accomplishment is facilitated by the confidentiality
we accord to the statements and records of our students," Ricci said immediately
following his grand jury appearance. But he said he knew of no statement by any
Elan student admitting complicity to murder.
In legal terms, Ricci and his lawyers are contending any statements Skakel may
have made at Elan School fall under the category of "privileged communications,"
or utterances that cannot be used as evidence in a court of law.
They are asking the court to provide the same protections that have been given
long-recognized privileged communications, such as what is told to a priest in
the confessional, what a husband confides to his wife or what a physician learns
from a patient.
Without those protections, legal experts say, sinners would be reluctant to
repent, the sanctity of marriage would diminish and doctors could not
effectively treat the ill.
According to Quinnipiac College School of Law Dean Emeritus Terence H. Benbow,
the concept of privilege is deeply rooted in English common law, on which our
legal system is based. Common law is the body of principals and rules governing
people and protecting property that derive authority not from legislation, but
through tradition and social custom.
"Society has to look at these privileges and appreciate how important they are
not just for the guilty or the accused, but for all of us," Benbow said. "They
are necessary to maintain some sort of social order and protect individual
The order and liberties referred to by the law professor cannot be realized or
maintained without the free flow of confidential information between specified
groups of people, said Public Defender Joseph Bruckmann.
"No matter what the context, the same idea applies for whatever purpose two
people are meeting in order to reach a socially-accepted goal, whether it
pertains to investigating sexual abuse, psychological or drug counseling, or
talking to a priest or rabbi," Bruckmann said. "With spousal privilege, the
idea is there's a policy of wanting to do anything we can to keep families
intact, which would be difficult if the law could require one spouse to make
statements contrary to the other spouse."
The concept applies as well to the attorney-client relationship, so that lawyers
can learn everything they can from clients to effectively represent them, as
well as to the doctor-patient relationship, so physicians can properly diagnose
and treat illness, according to Greenwich defense attorney Philip Russell.
"The legislature and the courts have long recognized that access to certain
types of professional assistance is meaningless unless the person seeking
professional guidance can speak truthfully and tell the whole story to the
professional whose advice he is seeking," Russell said. "For every person who
admits to a murder within the context of a therapeutic relationship, there are
probably thousands of people who derive great help and comfort from being able
to unburden themselves of their secrets and their private thoughts which are not
criminal in nature."
Confidentiality can sometimes even survive death. Earlier this year, the U.S.
Supreme Court ruled that an attorney for the late Vincent Foster, friend and
adviser to President Clinton, did not have to turn over documents pertaining to
allegations of Clinton wrongdoing to Independent Counsel Kenneth Starr because
the attorney-client privilege did not end with Foster's 1993 suicide.
The question of privilege in the Moxley case arose last month, after State's
Attorney Jonathan Benedict subpoenaed Ricci to appear as a witness before the
grand jury. After Ricci refused to comply with the subpoena, Benedict filed
court papers in Maine asking that the Elan School owner be ordered to appear at
the Bridgeport courthouse because the prosecutor "has been informed by several
former residents of Elan that Joseph Ricci was present and overheard Michael
Skakel make admissions to the murder of Martha Moxley."
Police have named Michael Skakel and his brother Thomas, then 15 and 17 years
old, respectively, as suspects in the Oct. 30, 1975, death of Moxley. Police
said the girl died from blows that came from a golf club owned by the Skakel
family, which lived across the street from the Moxleys.
The younger Skakel brother attended Elan School from 1978 to 1980. Attorneys for
both brothers have said their clients are innocent.
A Maine judge upheld the subpoena, and Ricci appeared before the grand jury
Sept. 24. But as a result of Ricci's refusal to answer questions, a hearing was
scheduled for Thursday, when Superior Court Judge John Ronan will be asked to
rule on Ricci's claim that the information sought by the Moxley grand jury is
William Haslun II, who recently completed a term as president of the Greenwich
Bar Association, said he doubted Ricci's claim of privilege will prevail.
"In reading about (Ricci's) position, I did raise my eyebrows because it struck
me as certainly a gray area," Haslun said. "I think if someone goes to a mental
health institution, there is an expectation by that person anything they say
will be confidential because they are seeking medical treatment, but whether the
headmaster of an institution or school can claim that privilege when he is not a
medical physician, I question whether that falls under the proper legal
definition of a protected statement."
Said Benbow, "The mere fact (Ricci) is owner of the facility is unlikely to
permit him to assert privilege. The idea is if you allow other people to
overhear a conversation, then you have waived the privilege."
Benbow cited a recent example in which a New York court ruled an admission to a
crime made during a meeting of Alcoholics Anonymous was admissible as evidence
because privilege is waived when a confession is made in a group setting.
If Skakel did confess to the Moxley murder, Haslun said how the admission was
allegedly overheard by Ricci will determine its admissibility as evidence.
"If Michael Skakel was playing soccer and said it to another soccer player while
the headmaster was standing there, then it's not protected," the attorney said.
"And if he made it in group therapy, he also may have waived that right (of
privacy) because other people were present."
Greenwich Time, Oct. 4, 1998