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Burden of Proof

1975 Murder in Greenwich: Connecticut Judge to Decide if Michael Skakel Will Stand Trial for Murder of Martha Moxley

Aired June 30, 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)

DOROTHY MOXLEY, MARTHA MOXLEY'S MOTHER: I think that whoever killed Martha needs to be punished. It was not something she asked for, I am sure. It wasn't anything that needed to happen. She was brutally murdered. It was savage.

JONATHON BENEDICT, PROSECUTOR: And he admitted to three witnesses that he admitted being at the scene of the crime on the night of the murder.

SARAH PETERSEN, MICHAEL SKAKEL'S SCHOOLMATE: It was brought up a lot in therapy, in general meetings, in signs that he was forced to wear. He was told again and again, "we know you killed her, we know you killed her," and he always said he didn't.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Twenty-five years after the death of Martha Moxley, a Connecticut judge will decide if Michael Skakel will stand trial for her murder. But will Martha's former neighbor be tried as an adult, or a juvenile?

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

COSSACK: Hello, and welcome to BURDEN OF PROOF. Greta is off today.

Prosecutors in Stamford, Connecticut, say Michael Skakel confessed to killing Martha Moxley, and those alleged confessions are enough to warrant a murder trial. But Skakel's attorney says witnesses who described those supposed admissions lied on the witness stand. On the final day of a pretrial hearing Wednesday, Skakel's cousins, Douglas and Robert Kennedy, Jr., appeared at Stamford Superior Court to support him.

This week, the Skakel defense presented witnesses who countered claims of a drug rehab confession. The testimony focused on alleged tactics at the facility to break Skakel down.

(BEGIN VIDEO CLIP) MICKEY SHERMAN, ATTORNEY FOR MICHAEL SKAKEL: The program is designed apparently to break kids down, and to come forward with information that they may have, or admit to crimes or some type of behavior that they don't want to admit. And that's what they were trying to do with Michael Skakel, rightfully or wrongfully. And apparently, it did break him down to the point where he finally said, "You know something, I'm not going to deny it anymore, I don't know, and leave me alone," and they left him alone.

(END VIDEO CLIP)

COSSACK: Joining us today from New York is the attorney for Michael Skakel, Mickey Sherman. Here in Washington, Elizabeth Adams, former federal prosecutor Steve Berk and criminal defense attorney Billy Martin. In the back, Sara Poll (ph), Bryan James (ph) and Catherine McCoy (ph).

Let's go right to Mickey Sherman.

Mickey, you have just finish a hearing in Connecticut on this matter. What kind of a hearing was this? and what are they supposed to decide and when do you think you will hear the decision?

SHERMAN: It was a reasonable cause hearing, a hearing where the judge heard evidence from both sides as to whether or not she should transfer this case from the juvenile court to the adult court. She had to find four things, or at least three out of four things. Firstly, that in fact, Michael Skakel, there was reasonable cause to believe he committed this evidence. And that was, in essence, a mini- trial. And the other three thing relate to whether or not, if, in fact, she found that: Is he more suited to be dealt with in the juvenile court or in the adult court, in terms of rehabilitation and other facilities.

COSSACK: Mickey, what is the standard of proof? Now, this is a -- I want to make it clear to our viewers, this wasn't a trial that went on, this was, as you say, a reasonable cause hearing to see whether or not he would be tried as a juvenile, tried as an adult, or tried at all. What did the prosecutor have to prove, and beyond what standard?

SHERMAN: Well, certainly, it's a very minimal threshold, and I'm the first to concede that, but by the same token, I think there still should be credible evidence, not sketchy evidence, to support this case being continued. And when I use the word sketchy, I'm not paraphrasing, I'm quoting the words of the state's attorney in his closing arguments.

COSSACK: Well, Mickey, but what I'm suggesting to you is, we agree, it's not beyond a reasonable doubt, but is it beyond a preponderance of the evidence, is it if there is any evidence whatsoever?

SHERMAN: No, I think it is close to a preponderance standard.

COSSACK: So this is just to decide whether or not this case goes on to some other jurisdiction or perhaps stays in juvenile court?

SHERMAN: I expect we will have a decision, by the way, within a month, could be tomorrow, could be within a month.

COSSACK: All right, let's talk about the evidence that was put in against your client and how you attempted to rebut it. Initially, the police thought that perhaps it was Michael Skakel's brother, Tommy Skakel, that was involved in this matter. Isn't that the correct -- the initial investigation?

SHERMAN: When you say initial, we are talking that initially was going on for about 20 years. They also thought it was the tutor. They also thought it was a transient. For at least 20 years, they focused on Michael's brother and they gave many statements and many indications that, yes, that's the guy Tom Skakel, or maybe Ken Liddleton (ph), the tutor. Only in the last three or four years have they decided, no, no, we were wrong for the last 20 years, this is really the guy.

COSSACK: All right, but the reason -- some of the reasons, or at least one of the reasons that the police say they changed their mind and began to focus on your client was that stories began to change that the Skakel brothers were giving to the police and to investigators. And that in 1975, for example, they began to change their stories. How do you counter that?

SHERMAN: Not in '75, you are talking about 16 or so years later when they allegedly gave different versions of the activities that evening to their own investigators, and that -- those investigators did what they called a worst-case scenario, which is more or less an essay almost, but was based on the statements given by our clients, my client, confidentially.

Those statements were stolen and given over to Dominick Dunne, who gave them to Mark Fuhrman, who wrote a book, and the spin went from there. They were not admissions, they were not confessions. I am not even saying that they are different stories, I say they are amplifications. We'll deal with it when the time comes.

COSSACK: All right, so the issue, then, of the fact that the allegations, at least, that your client and his brother began to change their stories when they talked to their own investigator, do you dispute that changed their stories?

SHERMAN: I'm not saying it is necessarily a change in story. Either way, they are not confessions, they added facts that they had not added before. When they were initially interviewed, they were 15, 16, 17 years of age, there is reasons why something may have been left out. What was left out was in no way a confession or an admission or anything relating to culpability, and that's the key.

COSSACK: Mickey, when I used to practice and be in your position, the prosecutor, when I would give an answer like that, the prosecutor would always look back at me and say; What do you mean, your client's memory improved with age? The further he got away from it, the better he was able to remember? How would you answer something like that?

SHERMAN: I would answer it by asking the same questions, which I did last week, of the state's witnesses, those people who came in and claimed that my client confessed to them 20 years ago. And they have great memories of that now, but they don't remember who they were with, where it happened, when it happened, and who else was present.

COSSACK: Well, what about your own client's amplification of the statement several years after the events happened. How are they better able to remember then than they were originally?

SHERMAN: When the time comes, he'll say why he said what he said in the appropriate form. It is not for me to paraphrase right now.

COSSACK: OK, let's talk about the witnesses who testified last week at this hearing. The prosecution brought on a couple of witnesses who said that they heard your client actually confess to these crimes, while they were students at this drug rehab center. Your client, apparently at one time, did have either an alcohol or a drug problem or perhaps both. What about those people?

SHERMAN: Well, the gentleman whose face is now on the screen, he is a really good citizen. He, 20 years after the crime, 20 years after the time he believed that he heard my client confess, he heard from a friend that there was a $50,000 reward that was offered that was reported in "People" magazine. So he called up his friend, they then call a TV station, they don't call the authorities, they don't call Mrs. Moxley, they don't call the state's attorney's office, and then Mr. Higgins doesn't even give his name.

Finally, Inspector Gar (ph), from the state's attorney's office, works for the state's attorney here then and now, he found out about this through the call to the station. He goes out and interviews Mr. Higgins. Mr. Higgins lies to him. I'm not characterizing that myself. Mr. Higgins admitted on the stand at least seven, eight, nine times to the officer when he came out there, because he had some reason to do that. When he came to the grand jury, he gave one statement. And then, finally, when he came into court just last week, he lied as well, and he admitted it.

COSSACK: All right, Mickey, there are several motions that you possibly could have made, motions meaning requests to the court, regarding standards, or constitutional standards in this case. For example, one of the problems is is that the law that was in place 25 years ago, having to do with capital punishment was declared unconstitutional. Another problem they may have is, look, 25 years later, you could argue that it is impossible for me to get a fair trial and find witnesses who could defend my client. Have you made any of these requests to the court to have the case dismissed on constitutional grounds?

SHERMAN: We did. We have made a motion to dismiss. We have not ask that it be heard at this point, and we will make other appropriate motions, once this hearing process is over. Don't forget, Roger, he has never even been put to plea. He hasn't even pleaded not guilty yet, we are that far behind the procedure. So when the time comes to file these motions, we'll file them. But then again, I don't want to win -- I know it sounds obnoxious, I don't want win this case on motions. I don't want people to say: Yeah, he got away on a technicality. I would rather win this case on the merits. We'll file the appropriate motions, I'll cover the bases, I will do what I got to do, but I am very happy that we went through this process at this point.

Because people can see, those transcripts of that hearing and the cross-examination and direct, those lies, they're all on the Web, they are all on the Internet. You can find them on the site. And these people are now locked into those statement. More importantly, the public, the media and the world can see what we are dealing with, and that is why I would rather win it on the merits than on some motion. But I will do what I have to do.

COSSACK: All right, let's take a break.

Up next, trying a 25-year-old case amid the potential for foggy recollections and enormous advances in forensic science. Stay with us.

(BEGIN LEGAL BRIEF)

In 1997, Michael Skakel was questioned by the Norfolk County district attorney about the statutory rape case against his cousin, Michael Kennedy.

Skakel reportedly told the D.A. that Kennedy had sex with his babysitter at least four times before she turned 16 years old.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers: you can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to CNN.com/Burden. 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. You can also interact with our show, and even join our chat room.

(BEGIN VIDEO CLIP)

BENEDICT: ... have to show that Mr. Skakel is still a danger to the community, having already demonstrated to the court with our evidence last week, that there's no appropriate juvenile facility for him. Well, we pretty much could have rested there, but I also argued further that any time anybody commits the crime of murder, he poses a danger to society for the rest of his life.

(END VIDEO CLIP)

COSSACK: Fifteen-year-old Martha Moxley was murdered and left on the lawn of her family home on Halloween night, 1975. A quarter- century later, former neighbor Michael Skakel could be tried in the killing. Whether the trial takes place in juvenile or adult court, father time is sure to play a role.

Mickey, couple of questions, one of the big pieces of evidence, I think, in this case, is the fact that they were able to trace the murder weapon back to at least the family of the Skakel family. Now, is there any DNA that plays a role in this case or physical evidence that plays a role in this case?

SHERMAN: The only physical evidence is the existence of that golf club which clearly seems to be -- having been located originally in the Skakel household. The detective who testified, by the way, in this hearing, also stated very plainly that it was common knowledge that the Skakel family left their golf clubs around the lawn. So anybody could have picked it up. But that's the only physical evidence. There's no DNA that I'm aware of, there's no other physical evidence, there's no forensics that is going to tie Michael Skakel to this crime.

COSSACK: All right, let's go to Steve Berk. Steve, I'm going to give you, apparently. a tough job in this case, prosecute this case for me a little bit.

STEVE BERK, FORMER FEDERAL PROSECUTOR: Well, Roger. it's monumentally tough, I mean, it is tough on so many different levels. Obviously it's a very old case. If I was prosecuting this case, I think the first thing you have to start with is obviously the heinous nature of it and the brutal nature of the crime. You have -- and it's sad to say, but you have a dead body. And really, that's what the prosecutor is going to focus on.

The second part, it seems to me, is the circumstantial evidence that Mr. Skakel was there, he was in the area, the golf club was a member of his family's. And Mr. Sherman makes some good points about it possibly, you know, not linking him personally to the crime, but at least have you that circumstantial evidence.

I think the prosecutor, though, has to be very careful about using these admissions or alleged admissions or these statements by these witnesses, that said there was a confession years later. It's a slippery slope, because for every person that said he may have confessed, there's probably hundreds if not thousands of people that said he didn't confess.

So I think, as a prosecutor, you've got to focus on the heinous nature of the crime and the circumstantial evidence; and only sort of as a kicker, that -- these confessions or alleged confessions after the fact.

COSSACK: Billy, I'm not going to ask to you second-guess Mickey Sherman, but as a defense attorney that you are, what do you do in a situation like this when you know you have, at least, witnesses, whether they're good witnesses or bad witnesses, coming in saying: Hey, look, your client confessed?

BILLY MARTIN, CRIMINAL DEFENSE ATTORNEY: Roger, for a lot of reasons, Mickey's between a rock and a hard place. He's representing a defendant in a very high-profile case, in a high-profile family and they want to clear the air. What happened here is 20 years, 25 years after this alleged incident. Trying to clear the name of the Kennedy sons during the trial of William Kennedy down in Florida, they opened this thing back up. They need to clear the name, that's all he's trying to do.

I disagree with him on the speedy trial issues and the constitutional issues. I would argue loud and clear that there's no way that my client can get a fair trial 25 years later, witnesses are missing, witnesses have died. The penalties have changed, it's too late. Justice requires a speedy trial, and there is no way in this case he can get a fair trial 25 years later.

COSSACK: Mickey, you hear Billy Martin?

SHERMAN: You know, you misunderstand, I'm not giving up on those issues, I'm just saying that we'll fight them when we have to fight them, which will be once this hearing process is over.

MARTIN: Mickey and I agree, you and I agree, right?

SHERMAN: Yes, absolutely, I'm not going to let it go by the boards, but by the same token, I didn't want to fight that now. I'd rather expose the nature of this case and the very poor quality of the state's case now, before I do that. Because otherwise, it's going to look like another quote, unquote, Kennedy-kin whitewash and that's just not the case.

COSSACK: All right, let's take another break.

When we come back, let's talk about that impact of having courtroom drama covered on the front page. Does it change how prosecutors and the defense do their jobs? Stay with us.

(BEGIN Q&A)

Q: How did President Clinton sign the e-signature bill that gave an online "John Hancock" the same legal status as one signed on paper?

A: With an ink pen. Clinton also signed the bill online.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Part of the Kennedy clan arrived at Stamford Superior Court Wednesday to support their cousin, Michael Skakel. He's facing charges of murder in the 1975 killing of his neighbor, Martha Moxley. The case has been the topic of two books and is getting national exposure not only because of its 25-year mystery, but because of the Kennedy connection.

Mickey, let's talk about that Kennedy connection and your client. Helpful or hurt?

SHERMAN: You know, the jury's still out on that. You know, there are so many people who think that there's Kennedy scandals out there, yet there are so many people who love the Kennedys. All I can go is by the reaction to the visit of Bobby and Doug Kennedy, came to court this week, and it was nothing but positive. So, you know, on balance it's -- it neither helps us nor hurts us a lot, and I'm just going to let happen whatever is going to happen with the respect to the Kennedy family.

COSSACK: All right, Steve, go back to play prosecutor for me. You are dealing with the Kennedy family in New England. This is obviously a well-known and probably well-beloved family. Does that -- what do you do to factor that in in your prosecution?

BERK: Well, Roger, I mean, it seems to me you've got to play it low-key. I mean, you really don't want to highlight that. I think what happens in cases like this, though, is the family is able to afford, you know, one of the best defense lawyers in the country, and so, really, the prosecutor has to worry not so much about the Kennedy name and the Kennedy family but the quality of the defense, because that's really what that brings to the table, in some instances.

COSSACK: Well, Billy, you are known for handling high-profile cases. You know, in terms of this kind of case, in terms of your own experience, what would you do in this kind of case? And what have you learned from your own experience in handling high-profile cases?

MARTIN: Roger, one of the -- I think your words are absolutely right: There's a good defense here. The defense is that Skakel allegedly confessed 20 years later, allegedly confessed, and it comes to light 20 years later while he's in rehab. Now, if you talk about attacking the credibility of those statements, there is not a strong case here.

In terms of the high-profile nature, what I would do is argue that this case would never have been brought but for the fact that he is related to the Kennedy family. I would argue that up and down so that the jury understood that not only is the evidence questionable, the reason and the motive for the prosecution bringing this case is also questionable.

COSSACK: But isn't -- Mickey, isn't it there all the time that -- don't you have to confront -- let's suppose you end up in front of a jury. Don't you have to confront people on that jury, sitting there saying, uh-oh, another Kennedy getting away with something, a lot of money, you know, money talks, this kid just getting away with it?

SHERMAN: You do, but, you know, there are some things that are going in our favor here. As someone pointed out, the Kennedys can hire any lawyer in the world, and who'd they hire? They hired the local guy. Not that I'm some schnook, but by the same token, we don't have the high-priced "dream team" in there. There's myself and a young fellow who's worked for me -- who's been out of law school less than a year. So we're not treating it as this great, big rich-man's- justice-paid-for defense, they're treating it very low-key -- at least I am.

With respect to embracing the Kennedys, hey, they're his family. So be it, OK? And I really have more faith in our jurors that we'll have, that they're going to be able to disassociate themselves from any problems that they ever had with the Kennedys for or against. And when they see the quality of the evidence, as we've already seen so far, I think that they'll be able to make up their mind without any worry or concern that this is a Kennedy case or not a Kennedy case. It's not. It's a simple case of murder. A very scary, very evil, very heinous crime, but Michael Skakel wasn't the one who did it, and I think they'll come to that conclusion.

COSSACK: Steve, in terms of prosecuting this case, what -- you have Michael Skakel on one hand, but you also have that picture of that young Martha Moxley, this young girl who never was allowed to grow up and was brutally murdered. How do you deal with that? How do you play that to a jury?

BERK: Well, I mean, you sort of -- in your question you assume my answer, which is you focus on that young woman and you focus on her a lot, and you focus on bringing her into the center of this case as opposed to a peripheral player. And that's really the best you can do here. Tough case, though; very tough case.

COSSACK: And Billy, as a defense lawyer, now the prosecutor is holding up this picture of this young girl who everyone knows was brutally murdered, and perhaps this jury is thinking that, you know, this rich guy is going to get away with it. What do you do when you voir dire or when you question the jury? Do you go right after that and ask them what you're thinking about?

MARTIN: Absolutely. And Mickey called it: He's going to have confidence in the jury, he's going to ask -- try to select a jury, if we get to that point. This still may be handled in juvenile court. But if he gets to the point where you have a jury, he's going to ask that jury, put this out of your mind; think about this case only on the evidence. And Roger, the evidence that is in this case -- even the prosecutor, to use his words -- it's sketchy. And if you take a sketchy case to the jury, you want to hammer the evidence and not the peripheral information.

COSSACK: Well, Mickey, you said you want to win this case on the merits...

SHERMAN: Yes.

COSSACK: ... perhaps not even -- you know, you'll file the motions, but you want to win this case on the merits. I then have to ask you, then, I suppose that means that your client will be testifying.

SHERMAN: I'm not about to answer that question, but I'm known for doing things like that. I'm not one of these lawyers who says, no, my client will never take the stand. You know, the question that you asked initially is, well, how do we deal with a high-profile case...

COSSACK: Mickey, I...

SHERMAN: ... and how is it affecting everything? COSSACK: I'm sorry, Mickey, go ahead. Go ahead.

SHERMAN: This is a unique phenomenon. I've been through high- profile cases, but never at this level. This is of O.J. proportions, if you will, and it does wear on all of us. It's exhausting. But by the same token, this is a case where I'm probably going to be in favor -- in favor of cameras in the courtroom; and not for my own self- aggrandizement, not because I want to be a TV star, but simply because I've seen what happens in the courtroom now. Those last couple of days with the witnesses testifying against my client, the cross- examination, the direct, it was horrible. These people admitted they lied, yet I pick up the paper the next day and it's like I was in a different courtroom. No matter what happens in that court, the only way that the public -- forget about the jury -- the only way that the public is ever going to appreciate and have confidence in the verdict of not guilty, which will come, is if they see what happens and if they see those words directly out of the witness' mouth.

COSSACK: All right, that's all the time we have for today. Thanks to our guests and thank you for watching. Join us again for another edition of BURDEN OF PROOF.

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