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Burden of Proof

Connecticut Prosecutors Prepare Case Against Michael Skakel 25 Years After Murder of Martha Moxley

Aired February 1, 2001 - 12:30 p.m. ET

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

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF, 25 years after the murder of a Greenwich teenager, Connecticut prosecutors prepare a case. And a former neighbor, a teen himself at the time of the killing, will be tried in adult court.

(BEGIN VIDEO CLIP)

MICKEY SHERMAN, ATTORNEY FOR MICHAEL SKAKEL: Michael Skakel's been convicted in the public, same as Richard Jewell was. And I choose that analogy very carefully. Everyone assumes he's guilty. A jury trial will expose the evidence to the public, to the local and national public, and they'll see what the evidence is and what it's not, and they'll separate all the BS from the truth.

DOMINICK DUNNE, JOURNALIST: I think there's great satisfaction for the Moxley family after all these years that, number one, Michael Skakel was indicted; and that, number two, the judge ruled that there was enough evidence to go to trial; and number three, that she decided that he should be tried as an adult and not a juvenile.

(END VIDEO CLIP)

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.

A superior court judge in Stamford, Connecticut has ruled that the state's case against Michael Skakel will be transferred to an adult court. Skakel, now 40 years old, is accused of killing a neighbor in October of 1975 when Skakel was 15 years old. The body of 15-year-old Martha Moxley was found bludgeoned to death on the lawn of her family's Greenwich home. Prosecutor Jonathan Benedict said a date for Skakel's presentment had not been set, and that there would likely be a probable cause hearing in the case.

Joining us today from Hartford, Connecticut, Attorney General Richard Blumenthal. And from Atlanta, criminal defense attorney Ed Garland. In New York, "Newsday" reporter Leonard Levitt. Here in Washington, Elizabeth Nuland (ph), Brian Jones (ph) and Katherine Dunagan (ph). In the back, Alex Puzy (ph) and Chris Kenny (ph). Len, let me go first to you. You've covered this case for a number of years. What's the reaction in the community, the fact that this case is now apparently going to be transferred from juvenile court to adult court?

LEONARD LEVITT, "NEWSDAY": Well, I can't tell you the reaction of the community. I can tell you the reaction at the "Greenwich Time" and the "Stamford Advocate," and that is a feeling of great satisfaction. This case, of course, has tormented everybody in Greenwich and Stamford locally, and I think it's now the endgame.

VAN SUSTEREN: Len, take me back. Give sort of a -- outline for us the prosecution evidence against Michael Skakel.

LEVITT: Well, they have -- what we've seen at a probable cause hearing is not their full case. What we do know is that they have people who say that Michael confessed to them, to the killing. We have a neighbor and friend who says that Michael told him he was in the tree above which Martha's body was found the night of the murder at that time, masturbating in the tree. But we don't know a lot of what the prosecution's case is because they have not presented their strongest case as of yet.

VAN SUSTEREN: Len, there's going to be a lot of discussion about these statements. They're made by people who I think were in some sort of drug rehabilitation program with Michael Skakel many, many years ago. But let me go to the evidence. Let me ask you a question about is there any physical evidence that might not have a reason to lie or exaggerate that ties Michael Skakel to this horrible murder?

LEVITT: I don't believe that they have physical evidence. I think that's going to be one of the problems of the case. And there are problems with the case. There was supposedly going to be DNA evidence, but I'm not -- I don't believe that they have DNA evidence.

VAN SUSTEREN: Well, let's go to the telephone. We're joined by Mickey Sherman, who is the lawyer for Michael Skakel.

Mickey, first of all, let me ask you a question: The ruling to transfer it to adult court, is that a ruling that can be appealed at this point? And if so, do you intend to do so?

SHERMAN: Good question. It's probably appealable. We haven't really made that call at this point. It's too early. We just got the decision yesterday. So we'll check into that and make our move and make our options known very soon.

VAN SUSTEREN: What would be the argument, though, against making such an appeal? I would think that that would be something you would -- that you would do after you look at everything.

SHERMAN: In all likelihood that's the case. But then again I don't want to unduly delay this thing. I really don't. We're as anxious to get this case resolved as anyone is. And there's also some benefit in having a jury trial. I'd rather have a proper cleansing. I'd rather have the validation that you get when a jury looks at all the evidence and says, not guilty.

VAN SUSTEREN: Mickey, have you spoken to your client since the decision came down yesterday? And if so, what was his reaction?

SHERMAN: His reaction was the same as mine: mildly disappointed, but by the same token, focussed on getting this case over, getting an acquittal, whether it be a jury trial or a court trial.

VAN SUSTEREN: You also have pending a motion to dismiss the charges. Now, the judge who ruled that the case shall be transferred to adult court didn't reach that particular motion. And that motion's based on the statute of limitations. What is that motion and who's going to rule on it?

SHERMAN: Well, we actually just filed that motion merely to file it and made that quite known to her. We did not expect her to rule on that motion. That was basically by agreement. So that was no shocker to us. And that will be heard by whatever trial judge winds up with this case in the very near future.

VAN SUSTEREN: All right, let's go to the attorney general for the state of Connecticut.

Let me back up. We don't have the attorney general. He's not joining us.

Let me go back to Len.

Len, what do we know about this superior court judge. Has it been assigned to a new judge?

LEVITT: I don't believe it has yet. So far as I know, this decision just came down yesterday, and I don't believe that they've selected a judge.

VAN SUSTEREN: Mickey, one of the issues in the case is statements, statements that are allegedly made by your client a number of years ago. And Len mentioned that the prosecution tends to use it. What's the thumbnail sketch of the defense response to those statements?

SHERMAN: It's not a thumbnail response, it's a cross- examination. I don't want to start characterizing what they said. It's available on the Internet in any number of sources, the cross- examination, the direct examination. I'd rather let people just log on on the Net and judge for themselves. I kind of put my foot in it by naming them as liars at that little press conference, so I'm shying away from characterizing them anymore, at least outside the courthouse.

VAN SUSTEREN: All right, let's go to Ed Garland down in Atlanta.

Ed, you've been a defense attorney for a number of years. We've seen your work in some famous cases, including recently the Ray Lewis. What do you make of the fact that this case has been transferred from juvenile court to adult court? ED GARLAND, DEFENSE ATTORNEY: Well, I'm sure it's been well briefed. There's something fundamentally unfair, it seems to me, that the law that applied to the accused at the time of the alleged crime and the treatment he should receive is being taken away from him. And that seems to be a denial of equal protection and due process.

VAN SUSTEREN: Well, wait, Ed, Mickey makes a point. And we lawyers always much prefer a jury -- because that's 12 -- over a juvenile court judge, who is only one. I mean, in some ways, you know, facing a jury you have 12 chances that someone might be -- maybe you get all 12, but you need one to hang a jury. What about that?

GARLAND: Well, I know that Mickey enjoys a jury more than just a judge, as a trial lawyer does. And I agree with him. He may well be able to expose the deterioration of memory, the lack of the accuracy of memory, the motive and other things that destroy this case in front of a jury. And if a judge is leaning one way or the other, you don't have as many opportunities to present your side. So I agree with Mickey. If I were in his shoes, I'd want a jury.

VAN SUSTEREN: All right, we're going to take a quick break. Up next, a look at the evidence in this case a quarter century after the crime. Don't go away.

(BEGIN LEGAL BRIEF)

On this day in 1790, the United States Supreme Court held its first session in the Royal Exchange Building in New York. The first six justices of the court were confirmed by the U.S. Senate two days after President Washington appointed them.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DUNNE: The main thing is the golf club murder weapon that belonged to his mother. He and his brother, Tommy, were the last people to be seen with her. I mean, I think that after all these years, that there certainly was enough evidence that they came up with after the grand jury for the case to go to trial.

(END VIDEO CLIP)

VAN SUSTEREN: More than 25 years after the body of teenager Martha Moxley was found on the lawn of her family's home, the murder case is finally heading to trial. Connecticut prosecutors will be using evidence which is a quarter-century old. But will 21st century forensic technology aid their case?

Let's go to John Moxley, the brother of Martha Moxley, who was murdered back in 1975.

John, what's your reaction to the case being transferred from juvenile to adult court? JOHN MOXLEY, BROTHER OF MARTHA MOXLEY: Well, my mother and I are both, you know, very happy with the decision and, you know, very much appreciative of all the efforts from the state of Connecticut for us. You know, we couldn't be -- you know, it's a milestone for us and it's a step -- you know, it's not an end in itself, but it's a step in the right direction.

VAN SUSTEREN: John, do you think the case has been ignored for 25 years or -- I mean, what does your -- what do you and your mother sort of think about the fact that it's been 25 years and the case at least still hasn't gone to trial?

MOXLEY: Well, I think -- you know, I really can't tell you what happened during the first 10 years because my father was alive and he's the one that handled it and I really wasn't that involved. But in '88 when my father died, my mother and I, you know, got more involved on a day-to-day basis. And I can tell you since '88, '89 that I think that, you know, the Greenwich police have done everything that they possibly could, or they've, you know, they've put in a sincere effort.

I think, you know, Frank Garr has been fabulous, stayed with it all the time. And if you talk to him, you'll find out that this is something that he's not being told he has to do, it's something that he wants to do. And I think it's the same way with, you know, everybody we've met recently in the state of Connecticut's law enforcement.

VAN SUSTEREN: John, let me ask you sort of a difficult question. Michael Skakel, like any other accused, is entitled to a fair trial with a presumption of innocence. Do you think that a jury can be found in light of all the publicity over the years that can presume Michael Skakel innocent and look at all the evidence?

MOXLEY: Sure. I mean, you know, I -- yes, I do. You know, that's all we want, too, is a fair trial. And we've got a lot of questions. The grand jury was secret so we don't know everything that came out in that. When they had the probable cause hearing in juvenile court, we heard things that we'd never heard before. And, you know, we've got new questions that we'd like to see answered. Michael, by his own words, puts himself at the right place in the right time. We always knew the golf club came from his house. We always knew that there was, you know, some infatuation with Martha. But it's Michael's own words that put him in the right place at the right time. So, I mean, we want him to explain that.

VAN SUSTEREN: Let's go to Dick Blumenthal, the attorney general for the state of Connecticut.

Dick, explain to us how it's sort of this bizarre situation. Here's a 40-year-old man who is accused of committing a crime when he was 15, was a juvenile. What's with Connecticut law that we're sort of struggling with this? What do we do with this situation.

RICHARD BLUMENTHAL, CONNECTICUT ATTORNEY GENERAL: Well, remember first that the law applied here is the Connecticut law that was in effect at the time of the alleged murder; that is, the statute that provided for a transfer from juvenile court to superior court, a court of general jurisdiction, at the time that the murder allegedly occurred. So the judge applied that law and said, you know, we don't have a facility where this 40-year-old man could be kept if he is found to have committed this crime.

VAN SUSTEREN: Well, let me ask you another question, then. We've seen so many cases where they're pushing down the age of these trials. What if -- and let me say hypothetically -- Michael Skakel had been 8 at the time of this alleged murder. Would it make a difference to you now in terms of whether he should be tried as an adult or a juvenile?

BLUMENTHAL: It would very definitely make a difference, because the statute then in effect provided he had to be at least 14 years old if the case was going to be transferred. But there are two very practical ramifications of this transfer. One is, as has been mentioned, there will be a jury, but it will be public, as would not have been the case if it had been a juvenile proceeding.

So I think there's a very important public interest that's been vindicated by this decision. And the second, obviously, is that there will be the possibility of some punishment. If he had been tried as a juvenile, the longest that he could have been committed is four years, and that in a juvenile facility. There is none that could have accommodated him. So, really, a trial would have been a nullity in the event it had not been transferred.

So I think the judge sort of applied not only the statute, but a common sense approach as to what the legislature would have intended. And, of course, now we see all the time that children or people who are under the age of 14 or 12, in many states, are transferred to courts of general jurisdiction.

VAN SUSTEREN: Ed, do you have the sense that trying this man as an adult is the right thing? I mean, set aside sort of the hairsplitting we do with the statutes. Should he be tried as an adult or a juvenile?

GARLAND: It makes sense to me. It doesn't seem to do any good to kind of hide it in a juvenile court proceeding and not expose it to the public. And in that environment, given the high publicity, you'll have a hard time being able to get a fair jury. But I assume, if the judge is careful, he eventually can.

VAN SUSTEREN: All right, Len, the issue of a fair jury. How much -- how saturated is the public in Greenwich with this case?

LEVITT: It's very saturated, there's no question about that. But I agree with John Moxley. I don't think there should be any problem, though, in getting a fair jury.

VAN SUSTEREN: Over the years that you've been the reporter gumshoe, so to speak, on this, you've talked to people. Have people fixed opinions on guilt or innocence at this point before hearing the evidence? LEVITT: No, I don't think so. I think that, you know, the case itself -- Tommy was a suspect for many years. I think Michael Deserves the presumption of innocence. I think we're learning new things about the case with every new revelation.

And if I could just pick up on something that John Moxley said, I think we're going to see now the role that was played by Detective Frank Garr in this case that we have not seen before. A number of people have taken credit for solving this case -- Mark Fuhrman, Dominick Dunne -- and I think we're going to see now that it was a lone detective who was denigrated by a lot of people who hung in there year after year, even fighting his own superiors on this thing, and finally brought the case to where it was.

VAN SUSTEREN: All right, we're going to take a quick break. Trying a case with the news media breathing over your shoulder: We'll talk about that when we come back.

(BEGIN Q&A)

Q: Why was a Colorado ski lift operator sentenced Wednesday to 90 days in prison?

A: He was convicted of negligent homicide for a skiing collision that killed a Denver man in 1997.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back.

Ed, let me go to you. Mickey Sherman is a defense lawyer, high- profile case. Any advice? I mean, in terms of high-profile cases, what do you do as a defense lawyer?

GARLAND: Well, you're very careful about what you say, because the first thing that happens to you if you make a mistake is you see it played back to you on the evening news. I think, secondly, you have to know what it is you intend to say before you start talking. And, thirdly, you have to keep from being sucked in to issues that you're not prepared on and don't want to talk about.

VAN SUSTEREN: All right, Dick Blumenthal, you've had your share. You're the attorney general who's been on the tobacco case, Microsoft. What advice do you have for the prosecutor?

BLUMENTHAL: Well, I think essentially more or less the same as is given to the defense attorney: Think before you talk, before you act, you know preparation. There is just no substitute for thorough and comprehensive foresight based on preparation. And I think that being very, very cautious in what's said publicly. particularly on the courthouse steps in a case like this one where the evidence at best will be a challenge to use in a conviction. And certainly there'll be all kinds of appeals. So I think caution in public statements is very much called for. VAN SUSTEREN: Dick, do you have cameras in the courtroom in Connecticut.

BLUMENTHAL: We have them where judges permit them. There's no right to a camera in the courtroom. There is no right, obviously, in federal courts or in our courts of appeals without, also, special permission.

VAN SUSTEREN: Len, what has Michael Skakel been doing since this case has sort of come back up on the radar screen?

LEVITT: I think he's been trying to get money from his father. I don't think he's been doing much of anything. It's been a tough road for him now. You know, he's in divorce court with his wife. His wife just announced last year that she was going to divorce him. I don't think he has a job. I think he's hurting.

VAN SUSTEREN: Has he had any sort of form of employment in the last, you know, 20, 25 years?

LEVITT: Oh, yes. He worked for Joe Kennedy up in -- when he was running for governor. He work for Citizens Energy -- whatever committee he had up in Boston. And then they had a falling out. And I don't know that he's done anything since of subsequence. I think he's hurting.

VAN SUSTEREN: Ed, you know, we're just getting little pieces of what the evidence is, but it seems like -- that there's no -- very little physical evidence linking Michael Skakel other than a golf club, for which I assume many people had access. So it seems to focus on statements that he allegedly made to people in rehab. What is a -- and that it was some time ago. What does a defense lawyer do with those statements?

GARLAND: Well, a defense attorney is going to attack memory where that has been degraded, accuracy and credibility, motive, whether these people in the facility were suffering from mental illness, drug use, whether they had a motive or dislike for the defendant. They will be a fertile day there -- as well as, can they actually remember? Do they actually know what their mind is now telling them they think they know? It's a fertile field for attack and reasonable doubt can be generated on that kind of testimony.

VAN SUSTEREN: Ed, what's the advantage to the defense, the fact that some of them, at least, testified at an earlier proceeding under oath and it's contained in a transcript at this point?

GARLAND: Well, that obviously will be used as a prior inconsistent statement if they contradict that. It also allows the defense attorney to know what to expect of the testimony, if they don't grant him an interview.

VAN SUSTEREN: Dick, I think it's a pretty tough case if it turns out for the prosecution no physical evidence, no fingerprint, no blood, no DNA, nothing short of statements. I think that's a tough case for a prosecutor, is it not? BLUMENTHAL: It is a tough case. I think the prosecutor has made clear, Jon Benedict, who's a very able, vigorous prosecutor, that he regards it as a challenge. But I do think that there will be a fair trial. I don't think people, the jury pool, has really made up its mind on this case for exactly that reason: the evidence simply suggests that there are two sides to this story.

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

Today on "TALKBACK LIVE," Super Bowl surveillance tactics: How Tampa security combed for criminals before the kickoff. Tune in at 3:00 p.m. Eastern time.

And tonight on "THE POINT," harsh words from his former Senate colleagues as John Ashcroft prepares to take over the Justice Department. As attorney general, what can we expect? And what will happen with the Microsoft case? Tune in at 8:30 p.m. Eastern time.

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

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