Skakel's attorney, Richard Lubin, yesterday said he plans to appeal a Florida judge's order for Skakel to comply with a grand jury subpoena. Martin County Judge John Fennelly on Tuesday ruled against Skakel after an Oct. 16 hearing in which Lubin tried proving his client was unable to testify because of failing physical and mental health.
"We feel that we put on a very compelling case on all three fronts - that Mr. Skakel is incompetent to testify, that an incompetent witness cannot provide material testimony and, based upon his psychological, neurological and physical condition, it would be an undue hardship under the statute to require Mr. Skakel to travel to Connecticut," Lubin said.
The West Palm Beach attorney said he planned on Monday to file a motion requesting a stay on Fennelly's order, and he would file the appeal shortly afterward.State's Attorney Jonathan Benedict, the prosecutor assisting the grand jury, refused comment yesterday.
Skakel, brother of Ethel Kennedy, is tentatively scheduled to appear before the grand jury on Dec. 11. At the end of Skakel's competency hearing last month, however, Fennelly indicated that he expected any ruling he made to be appealed and would grant a stay request.
In his ruling, Fennelly stated that several witnesses called to the stand by Lubin - including Skakel's wife, priest, maid and physicians - failed to prove claims that psychological and medical problems rendered Skakel incompetent to testify before the Connecticut grand jury. The judge said the seriousness of the crime being investigated outweighed any hardships the witness might endure, noting that Connecticut authorities alleged in two affidavits that Skakel "has made a statement indicating his knowledge of the perpetrator."
In one such affidavit filed with the Florida court, prosecutors allege Skakel attended a meeting at a drug and alcohol rehabilitation facility in which his son, Michael, confessed to the Moxley murder. The other suspect in the Moxley case is Michael Skakel's older brother, Thomas. Police have said the then- teenage brothers, who lived across the street from the victim, were with Moxley the night she was killed and that the murder weapon was a 6-iron from a set of golf clubs owned by the Skakel family.
In his ruling, Fennelly further noted that he never had the chance to observe the elder Skakel's "ability to observe and recollect facts" because Skakel was never called as a witness on his own behalf. Lubin yesterday defended his decision not to have his client take the witness stand.
"The reason we didn't is because an incompetent witness cannot testify," he said. "In our view, it would have been of no benefit because he's not competent and could not say anything meaningful."
The attorney added, however, that should Fennelly's ruling be reversed and another competency hearing ordered, he might have Skakel take the witness stand. "That is an option to consider," Lubin said.