The lawyers had asked Superior Court Judge Edward Stodolink for a temporary restraining order on the testimony until the judge ruled on a pending question of whether anything said by residents at the rehab facility - Elan School in Poland Spring, Maine - is protected from disclosure by the doctor-patient privilege.
Stodolink denied the request, stating that should he rule that the statements were privileged information, such statements already heard by the one-man grand jury investigating the Moxley slaying would be disregarded as evidence.
The request came during the fourth day of a hearing in which prosecutors are seeking an order from Stodolink to compel testimony from Elan School owner Joseph Ricci. Prosecutors allege that during Skakel's stay at the rehab facility, from 1978 to 1980, Ricci heard Skakel confess to murdering his 15- year-old neighbor. Ricci has refused to testify before the grand jury about the allegation on the basis of the doctor-patient privilege.
Skakel's defense lawyer, Stamford attorney Michael Sherman, said he learned through a newspaper account that at the same time Stodolink was holding the hearing on the privilege issue on the fifth floor of the Fairfield County Courthouse on Wednesday, someone who had been at Elan School with Skakel was testifying in the sealed third-floor grand jury room.
"Isn't that why we are here?" Sherman asked the judge. "For the court to make a determination on whether anything Michael Skakel said to anyone in the (rehab) program is privileged?"
New Jersey attorney Linda Kenney, an expert on the privilege issue hired for Skakel's defense, posed the question, "Is the grand jury tainted?" by information that may later be ruled to be confidential.
Portland, Maine, attorney John Campbell, who represents Ricci and Elan School, stated: "No attorney in Connecticut should be allowed to go ahead and present evidence that may be confidential to a grand jury."
In refusing to issue the temporary restraining order, Stodolink noted that the grand juror, Superior Court Judge George N. Thim, is a "quite competent jurist." He said, "If (Thim) were to be advised there were certain witnesses he should disregard, he would certainly do so. That testimony would have to be removed from the body of evidence."
According to court documents, prosecutors allege "several former residents of Elan (said) that Joseph Ricci was present and overheard Michael Skakel make admissions to the murder of Martha Moxley; that said admissions were made by Michael Skakel in response to being confronted by Mr. Ricci and other Elan staff members as to Skakel's involvement in the matter."
On Wednesday, one former Elan School resident, Chuck Seigan, testified that while at the rehab center with Skakel, Ricci ran a special meeting that was called to punish Skakel for escaping from the facility after being admitted in 1978 following his involvement in a drunken-driving accident. During that meeting, the 41-year-old Illinois resident testified, Ricci confronted Skakel with reasons for his being at Elan School. "There were many different reasons, but (Ricci) did bring out the fact that there was a murder," Seigan testified.
The Elan School was founded by Ricci in 1970 as a rehabilitation facility, primarily for youths with substance abuse and behavioral problems.
The hearing on the privilege issue began Oct. 16, and the matter remained unresolved following yesterday's proceeding, during which the state presented the last of its witnesses. One witness the prosecution planned on presenting yesterday afternoon, but decided against doing so, was Ricci's former wife.
Skakel's attorneys objected to the woman as a witness, stating they had no time to prepare cross-examination because they only learned of the witness during the lunch break for yesterday's hearing. The attorneys also questioned the woman's motive for agreeing to testify, noting a recent telephone call she made to her and Ricci's grown son in Oregon concerning her demand for a $400,000 lump sum payment in return for a discontinuation of alimony from Ricci. "She said she would come to Connecticut and embarrass him somehow if he didn't settle," Campbell said.
In an interview afterward, State's Attorney Jonathan Benedict said he decided against calling Ricci's ex-wife because he wanted to keep her in reserve as a possible rebuttal witness after Skakel's attorneys present their case. The hearing is scheduled to resume Nov. 17, when Skakel's attorneys plan to present expert testimony on the privilege issue.