Attorney: No Smoking Gun; Appeal Mulled."
By J.A. Johnson Jr., Staff Writer, Greenwich Time
Superior Court Judge Edward Stodolink additionally ruled that the owner of the center, where the state alleges former Greenwich resident Michael Skakel may have made admissions as to the murder, must give grand jury testimony concerning his knowledge of any admissions made by Skakel.
Several former residents and staff members of Elan School have testified before the grand jury that has been probing the 23-year-old murder case, and defense attorneys had contended the testimony should be barred as evidence because any statements they may have heard Skakel make during his 1978-80 stay at the Poland Spring, Maine, rehab center were protected by the physician-patient privilege.
Stodolink, however, said no evidence had been presented that Skakel received psychiatric care at Elan, where he said treatment largely involved peer pressure techniques and group meetings run by Elan residents. "Michael Skakel was not there for his mental condition, but rather for abuse of alcohol," the judge said. "There is cause to have that information obtainable by the state on the limited area of the death of Ms. Moxley."
If Stodolink's ruling on the privilege issue went the other way, the grand jury would have been ordered to disregard any testimony pertaining to Elan School, and Ricci would not have to testify.
Skakel's attorneys immediately filed a motion to stay Stodolink's order until it can be appealed. State's Attorney Jonathan Benedict said he would ask the state Supreme Court to "expeditiously" hear the appeal, should one be filed.
Benedict declined comment on the ruling, noting the grand jury investigation was far from completed. "If I was running a marathon, I just finished mile three," the prosecutor said. "My legs are working, and I've got a long way to go."
Linda Kenny, an attorney specializing in privilege matters retained for Skakel's defense, said Stodolink's ruling came as no surprise, referring to the special prosecutor's investigation for which President Clinton's closest advisers were successfully subpoenaed. "We expected it," Kenny said. "We assumed that in this day and age of Ken Starr, the court does not recognize privilege."
Skakel's defense lawyer, Michael Sherman, said Stodolink appeared to have bowed to public opinion in making his decision. "I'm not saying there was prejudice on the part of the judge, but Judge Stodolink couldn't ignore the fact there is tremendous pressure on the court to uphold the state's position," Sherman said. "And when you're talking about a high-profile murder, often the court is reluctant to make a ruling that would allow someone to get away with murder because of a perceived loophole."
Michael Skakel and his older brother Thomas are suspects in the murder, which occurred Oct. 30, 1975. The 15-year-old Moxley was beaten and stabbed to death with a 6-iron police said came from a set of golf clubs owned by the Skakel family, her neighbors. The brothers, who were 15 and 17 at the time, have maintained their innocence. Michael Skakel was admitted to Elan School as a condition of dismissal of a 1978 drunken-driving charge in Windham, N.Y.
The hearing on the privilege issue was prompted by Elan School owner Joseph Ricci's refusal to answer questions when appearing before the grand jury Sept. 21. That same day, Benedict applied for a court order compelling Ricci's testimony, but the order was delayed when Skakel's attorneys filed their injunction.
After declaring testimony about the alleged confession was admissible, Stodolink said, "It is ordered that Joseph Ricci testify before the grand jury as to his knowledge of any statements made by Michael Skakel . concerning Michael Skakel's knowledge, if any, of the circumstances surrounding the death of Ms. Moxley."
Because of the motion to stay Stodolink's ruling, prosecutors automatically are barred from calling on Ricci to testify before the grand jury for 20 days.
Sherman said he did not immediately know if the ruling would be appealed, however, because even if the grand jury is allowed to consider the disputed testimony, he does not believe it would incriminate his client. "We will make the decision whether to appeal fairly soon - within the next two weeks," the attorney said. "Everyone is saying there is some great smoking gun - smoking artillery, in fact - that's out there, when that's not the case at all."