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Burden of Proof

Murder in Greenwich: Media Request Postpones Trial; Juvenile Court Remains in Question

Aired February 9, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

MICKEY SHERMAN, MICHAEL SKAKEL'S ATTORNEY: If there was evidence pointing to the Skakel family, it has been 25 years. They would have had an arrest warrant before now.

DORTHY MOXLEY, VICTIM'S MOTHER: I can't give up. Martha was, you know, she was very special. I had two children, and to lose one was a major, major thing, and I am just not going to give up.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Murder in Greenwich. A court date for murder suspect Michael Skakel is postponed as the judge considers a petition for media access. After nearly 25 years, will the public get inside the courtroom? and what court will eventually hear the case of the murder of Martha Moxley?

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Hello and welcome to BURDEN OF PROOF.

Yesterday, in a Stamford, Connecticut juvenile court, a high- profile murder case was postponed to March 14, as the judge weighed a request from the media. The case involves the 1975 murder of Greenwich teenager Martha Moxley, who was found bludgeoned to death on her family lawn.

GRETA VAN SUSTEREN, CO-HOST: Five newspapers have requested access to the proceedings of suspect Michael Skakel, a former Moxley neighbor. Skakel and his lawyer want the proceedings open. Defense attorney Michael Sherman said he and his client resent the delays, quote: "It's been 25 years. We're ready to get this case going."

COSSACK: And joining us today from New York is Mark Fuhrman, author of "Murder in Greenwich." Also in New York, reporter Leonard Levitt of "Newsday."

VAN SUSTEREN: In Hartford, Connecticut, criminal defense attorney Richard Silverstein, and former federal prosecutor Jeremiah Donovan. And here in Washington, Rob Wiznewski (ph), Angela Glenn (ph), and Jennifer Gillmore (ph). And in our back row, Amy Cinco (ph) and Michael Weinstein (ph).

Let me go first to you, Len. Len, what happened yesterday in that Connecticut courtroom?

LEONARD LEVITT, "NEWSDAY": Well, there were five newspapers who tried to get access to Skakel hearing, and the judge said before she would hold the hearing she had to make a decision on the media, so she put off his arraignment while she considers what she's going to do about letting the media into the hearing when it happens.

VAN SUSTEREN: Len, what's the position of the prosecution, as to whether or not the hearing should be open or not?

LEVITT: The prosecution took no position. They didn't oppose it, but they didn't really care, they said.

VAN SUSTEREN: Did the judge indicate in any statements made yesterday which way the judge is likely to go on this issue?

LEVITT: No, she didn't. I couldn't get a sense of what she is going to do here. You know, the thing in Connecticut that is so bizarre is that because this happened 25 years ago, and because Michael Skakel was 15 at the time, he is being tried in juvenile court, so that there are issues of privacy for juveniles. And here you have a 39-year-old man tried as a juvenile. The whole thing is truly bizarre.

COSSACK: Mark, you wrote a book in which you outline the evidence against Michael Skakel. What is some of that evidence, and what is your thoughts on this case?

MARK FUHRMAN, AUTHOR, "MURDER IN GREENWICH": Well, the evidence is pretty clear. The police initially did connect up the golf club to the home, and the Skakel boys, both of them had some connection with Martha in the last hour she was seen alive. The evidence from there gets to be kind of complicated, but it all comes from the defendant and the defendant's family, attorneys and private investigators, numerous confessions, changes of stories, placing himself at the crime scene at the time of the death, accountability or trying to make excuses for the possibility of DNA on Martha's body, book proposals that admit wearing signs about admission to killing Martha Moxley, numerous people that he's confessed to. You know, it just goes on and on.

VAN SUSTEREN: Mark, let me dissect some of this for a second, the laundry list you have gone through. First of all, there is no DNA, as I understand it in this case; is that correct?

FUHRMAN: I'm not sure that is correct. Dr. Wecht was on "Geraldo" last night, and he made some overtures that the single hair that we know exists, there is new testing that they can do without the hair follicle to make an absolute DNA connection to someone else. So I think this is the same technology that is used to identify missing in action or killed in action servicemen.

COSSACK: But there is no DNA now, though, is there Mark?

FUHRMAN: There is a hair that's...

COSSACK: But there is nothing been identified, is there Mark? There is nothing that's been identified?

FUHRMAN: To this point, I don't believe so. I think, you know, before DNA, we still had to try cases, and before DNA, when the suspect or the defendant that was never a suspect or defendant makes confessions and places himself at the crime scene and initially lies to police the very first day the body is found, this is powerful evidence, especially when the murder weapon comes from your home.

VAN SUSTEREN: OK, Mark, a lot of people have access to the club, so the murder weapon may not be such strong evidence. But let me go back to this hair. Do you know if any request has ever been asked of Michael Skakel to provide DNA sampling, number one; and number two, do you know if it has been established whether this hair is actually Martha Moxley's or even the two dogs that were roaming around that night, or any or her friends that night?

FUHRMAN: To both of those I would say no. I think the power of any hair evidence is where it was found it. If it is on the clothes or any place that someone in a casual contact with the victim could have left it, and sitting in the Lincoln Continental, I think it becomes something that is maybe corroborative evidence of his own admissions. If it is a hair that is found inside the clothing on her naked body in some kind of private area, I think it becomes very powerful evidence.

VAN SUSTEREN: Except for the fact, and let me go to Len on this. Len, according to the many stories that you have written on this, is that there was some sort of sexual contact, at least at some point in the evening, between Martha Moxley and Michael's older brother; is that right?

LEVITT: That's correct.

VAN SUSTEREN: And let me ask you one other aspect of it, Mark has said that there have been changes in the story. Now, that relates to a 1993 interview of Michael and Thomas. They changed their version of events on the night of the murder. What did they say and what was the reason for changing that?

LEVITT: Well, I think Mark is right in what he is implying, that they were trying to hide something. I think the fear that they may have left some kind of DNA evidence, and they both, well, originally Tommy's story was he left Martha at 9:30, went home, and he never went out again.

In 1993, that is 18 years after the murder, he tells his own private investigators that he did go out again, met Martha and for 15, 20 minutes they engaged in I think what he termed mutual masturbation. He left her alive, he said, went home. And the police believe she was killed maybe perhaps minutes, moments afterwards.

Michael's story was that he went to a, I think, the home of a cousin at about 9:25. He returned home at 11:00, went directly to bed.

In 1993, he tells private investigators that around midnight he went out, climbed a tree outside Martha's window, threw stones at her window to awaken her, masturbated in the tree, and then ran past what turned out to be the murder scene, where he said he heard voices but he saw nothing.

VAN SUSTEREN: Now they gave an excuse as to why they changed their story though; right?

LEVITT: Well, the excuse of Tommy's, I'm not sure what Michael's was, but Tommy's excuse was that he didn't want his father to know anything about sex. Now, I don't know that Michael has offered an explanation.

COSSACK: Mark, let me just interrupt for a second. You talk about these various confessions and admissions, and yet, I don't know of any confessions that this Michael Skakel has made. There are supposedly these statements that went on at the Elan School, but the headmaster at the Elan School says that they don't know anything about that?

FUHRMAN: Well, that's like saying, you know, that somebody that owns a corporation knows that somebody didn't make a mistake on the factory line, that's crazy. Joe Richie (ph) could no more say that Michael confessed or did not confess to a roommate or a fellow inmate or student there than the plan on the moon. That's crazy.

What we do know is, one man, Harry Cranick (ph), by computer e- mail, actually contacted me in July of '98 and said that he was in school with Michael at Elan and he confessed that he murdered Martha Moxley, and he did this on the porch. This was not in group therapy.

There is two other people that testified in the grand jury. Michael, by his own admission, has a book proposal where he said he is wearing a sign that said: I'm a rich arrogant brat. Ask me why I killed my friend Martha.

Now that is a pretty clear-cut admission for the defendant to wear, and ironically it also puts himself at the scene. And Greta, asks something that is real important. Why would Michael make this statement? Why would he change his story since he was never a suspect, even up to the point when he made this statement in 1992-93. He was never a suspect. He has never been in Greenwich police station about the murder of Martha Moxley until he was booked for it just January 20 of this year.

So let's be very clear about this. He had no reason to do this, except to account for physical evidence that he thinks might surface, not knowing what he left at the scene.

VAN SUSTEREN: Up next, will the case against Skakel work its way out of a strip-mall juvenile courtroom? and will an expired Connecticut statute become a cornerstone for the defense? Stay with us.

(BEGIN LEGAL BRIEF)

A 14-year-old boy originally charged as an adult in the shooting death of a man has been waived back into Milwaukee, Wisconsin's juvenile court system.

It is believed that this is the first case in which a juvenile was "reverse waived" to children's court since the current state juvenile code was adopted in 1996.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log onto www.cnn.com and click your way to the BURDEN OF PROOF link. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand.

VAN SUSTEREN: The court proceeding for murder suspect Michael Skakel has been postponed until next month as Judge Maureen Dennis considers a request for media access. Skakel is accused of killing 15-year-old Martha Moxley in 1975. Skakel was also 15 at the time of Moxley's death, which is why prosecutors have brought the case in juvenile court.

Rick, before we talk about the juvenile court issue, let me ask you about the statements that Michael Moxley -- Michael Skakel allegedly made. What kind of cross-examination would those who apparently may have heard these statements -- what would they be subjected to because they're from this Elan school?

RICHARD SILVERSTEIN, CRIMINAL DEFENSE ATTORNEY: Well, from what I understand, there was some type of rehabilitation treatment center. I would think that the defense would request all their medical records, psychiatric records. And I think that the judge would probably have to do an in-camera inspection of those to determine whether or not they contain any information that bears on the credibility of those witnesses.

VAN SUSTEREN: What about the fact that these statements, if they were made -- and obviously a trial would determine that one way or another -- but that they're so old? They're from going back to the late '70s.

SILVERSTEIN: I'm not aware of any law that would prevent an admission of any type not being admissible because of the operation of time. I think, essentially, their case is going to hinge on those alleged admissions.

COSSACK: Mark, you mentioned to us that you had a question that you were pondering about the juvenile part of this case?

FUHRMAN: Well, it's interesting. Since we have all these attorneys assembled, I think I'm going to take this opportunity. Maybe I can get an answer. If we have this juvenile proceeding -- now, there's an arraignment going to be set. Now, the arraignment does not state that you have to enter a certain plea. The defendant can obviously enter any plea that they want.

Now, if this is in open court with reporters and a camera there, and let's just hypothetically say, not necessarily Michael Skakel, but anybody in this position enters a guilty plea, waives time and wants immediate sentencing date, do you see how, now that you're in juvenile court and you've pled guilty in juvenile court, how can it go to superior court and how can the punishment be very much for a 39-year- old man in juvenile court? And how could you say, no, we're sending this to superior court because you have now eliminated the ability of this man to have a fair trial?

VAN SUSTEREN: Jeremiah, that's a good question for you, but let me add into the fix that once he hit 21, that the juvenile court, I assume, can't sentence him, so if he does plead guilty, that that would certainly be a factor. But, also, what about a no-contest plea?

JEREMIAH DONOVAN, FORMER FEDERAL PROSECUTOR: Well, I think there's no doubt whatsoever that this case will be transferred to the superior court.

VAN SUSTEREN: But what if there's a plea before it gets transferred?

DONOVAN: Well, I don't think the juvenile court would permit the plea to take place.

FUHRMAN: Well how can they not permit it when they're arraigning somebody? Are they saying that you can't plead guilty?

DONOVAN: Well, because the juvenile court judge would simply say, look, I have the discretion to transfer this to superior court and I'm not going to let you plead guilty here.

VAN SUSTEREN: But if the arraignment occurs -- does the arraignment in Connecticut occur before the consideration of the transfer or does it occur after?

DONOVAN: Well, the arraignment may take place before the consideration of the transfer, but the judge is not going to allow a no-contest plea to be made during the course of that arraignment if she is considering transferring it to superior court. I mean, if you take a look at the factors she has to consider: Are they youth facilities that are appropriate for the fellow? You know, is there -- is it likely that he would pose a danger to the community after his maturity? Is the superior court a more appropriate venue in order to determine his guilt or innocence? And all those factors strongly militate toward transferring to superior court.

What's interesting is whether it will get transferred to superior court in Bridgeport or in Stamford because the jury pools in those two places are very different.

COSSACK: Jeremiah, perhaps I can suggest something: Suppose that the juvenile court just came out and said, look, we -- I've made a decision: We do not have jurisdiction anymore and I'm transferring this matter right now to the adult court. Then, there would be no way for Michael Skakel to enter a plea. Wouldn't that be the case?

DONOVAN: And that's probably exactly what will happen, although I think this judge is very thoughtful. I mean, the fact that she's taken some time in order to determine whether to allow media there is important. I'm sure she wouldn't, at the arraignment, say, I'm transferring. But she would just not allow a plea to be entered before she had made a determination as to whether he should be transferred.

VAN SUSTEREN: Rick, we've discussed it before on our show, the issue of statute of limitations. At the time of this murder, there was a five-year statute of limitations on murder. Subsequently, a year later, Connecticut changed it: no statute of limitations on murder. What's going to happen here?

SILVERSTEIN: Well, I think if they do a strict constructive analysis, the law in effect at the time of this murder, it acts as a complete bar to a prosecution in this case. There was a window from October of '73 till April of '76 where this is a category of a crime where a statute of limitations can be asserted as a defense. And there was a case in Connecticut, a murder case, kidnapping, that resulted in a dismissal on a similar motion.

VAN SUSTEREN: Len, can you describe what it was like in the courtroom yesterday -- describe Michael Skakel and the lawyers? I mean, put us inside the courtroom.

LEVITT: Well, I didn't see Michael. Michael Skakel wasn't in the courtroom. It was just a group of -- it was an attorney for the five newspapers, group of reporters and the judge. It was really a very low-keyed kind of business. The judge introduced -- asked everybody to introduce himself. She spoke very softly. I mean, it was not much of an event.

COSSACK: All right, let's take a break. Up next: Can Michael Skakel get a fair trial in the Greenwich area? And should his counsel seek to move the case? Stay with us.

(BEGIN Q&A)

Q: According to lawyers arguing in New Mexico for juvenile court records to be kept from the media, how many states do not release names of arrested juveniles?

A: Twenty-six.

(END Q&A)

(COMMERCIAL BREAK) COSSACK: After nearly 25 years, Connecticut authorities believe they finally have the killer of teenager Martha Moxley. Former neighbor Michael Skakel has been brought back to his home town to face charges in the Moxley murder, but can Skakel, now 39, get a fair trial in Greenwich?

Well, Rick, can he get a fair trial in Greenwich, and if not Greenwich, where else?

SILVERSTEIN: Well, I think he can. I think that no matter where he goes, with the type of coverage people are going to be educated as to the allegations. I mean, his name is a national name. I don't see where moving this case to Rockville or any other part of Connecticut is going to allow him to escape media attention.

COSSACK: What kind of problems is he going to face because of this media attention?

SILVERSTEIN: Well, in Connecticut we have individual voir dire, where attorneys are given, both the prosecution and the defense, an opportunity to ask questions to perspective jurors in an individual basis, and I would assume that jury selection will take a long, long time in this case.

VAN SUSTEREN: Jeremiah, I assume, but I might be wrong, that this is going to be transferred to adult court. But two questions. One is, if this is left in juvenile court, do you have juries in juvenile courts in Connecticut. And number two, what is the jury pool like in the area where the case will be tried, if it's transferred?

DONOVAN: Well, if you want to -- if you want to see what a Connecticut juvenile court is, even though the proceedings are a secret, you can watch the TV show "Judging Amy." I think superior court judges may not have quite so much romance as in that show, but that process that they show, where she's in a courtroom that's more like an office than a courtroom, where they're concerned about the interests of the child rather than punishment, that's what a Connecticut -- that's what a juvenile proceeding is like in Connecticut; it's pretty accurate.

Now, I think probably if this case gets transferred it will be transferred to superior court not in Stamford but rather in Bridgeport. Under the rules as they were back in -- at the time of the murder, it would definitely go to Bridgeport. This was a case investigated by the states attorney in Bridgeport. Under the rules as they are now, it would go to Stamford. Stamford is undoubtedly -- undoubtedly has jury veneers (ph) that are composed of the richest and most conservative people in the United States. I think the defendant has a much better chance of acquittal being tried in Bridgeport. Bridgeport's one of the poorest cities in the United States, it draws in from suburbs that are middle class rather than extraordinarily rich. You just get much -- many more acquittals in Bridgeport.

COSSACK: Rick, wouldn't that perhaps work against Skakel? I mean, If you have poor people sitting on the jury, or people who have -- or difficulties and income problems as opposed as looking at someone who's wealthy and privileged, wouldn't that work against them?

SILVERSTEIN: Well, it might, but, you know, you're talking about a variable that really you cannot say with any degree of certainty he's better off being tried in one area than the other. Defense lawyers all have their theories on which venues are more advantageous. I really don't put a lot of stock into the idea that one venue is much more beneficial to my client than another. I think, you know, the cases are tried on the merits in a courtroom with a jury that I select along with the prosecutor, and hopefully my questions to them gives me some feeling as to whether or not they can sit fairly and partially.

VAN SUSTEREN: Len, we always look for the juror who doesn't know much about the case. I assume that's an impossibility in the Connecticut area, would even be as far as Washington, D.C. But tell me, what is the community. Is the community as interested in this case as we are nationally?

LEVITT: I think they are in Greenwich. Certainly, the coverage of the case now in the "Stamford Advocate" and the "Greenwich Time" has been extensive and thorough, and...

VAN SUSTEREN: Do you have, like, a lot of satellite trucks outside of the courthouse? Is it one of those media events?

LEVITT: Oh, it was definitely a media frenzy, yesterday. There must have been from 50 to 100 reporters and cameras and God only knows what else. It was wild.

COSSACK: Do they -- are they going to have cameras in that courtroom, Len?

LEVITT: Well, first of all, if the media's not allowed in then obviously they're not going to have any cameras, and, you know, that's something way down the road that just has not come up yet.

VAN SUSTEREN: That's all the time we have for today. Thanks to our guests and thank you for watching.

Today on TALKBACK LIVE, computer hackers try to shut down some of the nation's most successful Web sites, and now the FBI is trying to track down the hackers. That's today, 3:00 p.m. Eastern Time, noon Pacific.

COSSACK: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

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