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Burden of Proof

Michael Skakel: Should He Be Tried in Juvenile or Adult Court?

Aired March 5, 2001 - 12:30 p.m. ET

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

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: the 1975 killing of a Greenwich, Connecticut teenager. Prosecutors prepare a case against 40-year-old Michael Skakel for a crime he allegedly committed when he was 15 years old. Where will it be tried: juvenile or adult court; and in Stamford or Greenwich? Stay with us.

(BEGIN VIDEO CLIP)

MICKEY SHERMAN, ATTY. FOR MICHAEL SKAKEL: The folks in Bridgeport, like East Haddam and God knows where else in Connecticut, will give Michael Skakel every bit of a fair trial as they will down here. It's not that I'm worried about the demographics or what jobs they have or what color clothes they have. It's just artificial to send the case to the state's attorney's backyard so they don't have to battle the traffic.

JOHN SMRIGA, SUPERVISORY ASST. STATE'S ATTY.: We are prepared to try this case in whatever courthouse we're told to try it in. If that's here, we'll do it here. If it's in Bridgeport, we'll do it there. We'll make whatever logistical arrangements we have to make.

(END VIDEO CLIP)

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

Somewhere in Connecticut, Michael Skakel will stand trial for the 1975 murder of his neighbor, Martha Moxley. But the question is: Where? Last month, a judge ordered the case transferred from juvenile court to adult court. But Skakel's attorney is appealing that ruling. Both Skakel and Moxley were 15 years old at the time of the killing. In addition, the state's attorney's office in Bridgeport has requested that the case be sent to that city, because that's where felonies were heard when the crime was committed more than a quarter century ago.

But Skakel wasn't charged until last year. Well, the judge presiding over the case says he'll issue a written decision on the venue -- that's where it's going to be tried -- before April 18. That's the date of a probable cause hearing.

And joining us today from Stamford, Connecticut is the attorney for Michael Skakel, Mickey Sherman. And from New York, we're joined by former state prosecutor Jonathan Nelson -- here in Washington Chris Kenny, criminal defense attorney Ron Sullivan and Katie Suto (ph). And in the back: Austin Stoub (ph) and Rina Benitez (ph).

I want to go right to you. Mickey, you have appeared on this show several times and said that all you really want to do is get to the facts in this case. Yet you are appealing a ruling that would put you in adult court where you could have a jury trial, as opposed to staying back in a juvenile court where the penalties are much less and you wouldn't get a jury trial. Why?

SHERMAN: Well, that's true. I'm very much interested in getting this case tried. And one thing I've done in making the appeal from the judge's decision, I have not asked for a stay, Roger, which is my right, and I'm sure most defense attorneys would probably criticize me very severely for. I want to keep this process moving. And if I lose with the appellate issues, so be it.

But I have not asked that this case be delayed, by any means. And so we are kind of going down both avenues at once.

COSSACK: But why would you ask that this case be transferred out of an adult court and into a juvenile court? In an adult court, you will have a jury; in a juvenile court, you won't.

SHERMAN: No question. And I've got to tell you, there's so much of me that wants to lose this appeal, because I do -- I would much rather have a jury trial. But you still cannot ignore the fact that the stakes are just a tad bit higher. In the adult court, the stakes are between 10 and 65 years in prison. And in the juvenile court, it's virtually nothing. So I can't ignore my client's rights.

And I can't ignore that scenario, as unlikely as it may be. But by the same token, it's kind of a left-handed battle.

COSSACK: Mickey, doesn't this open you up to some criticism, though, the kind of criticism that I have implied here? Because you have said all along that all you want to do is get to trial -- I mean, what difference does it make because -- not just because you are going to win on a technicality, but because your client is not guilty.

SHERMAN: Yes.

COSSACK: Why do you even care about juvenile court? I mean, I know what you have said. Why don't you just get there, if you are going to win this case, go in there and win it?

SHERMAN: You know, I wish I could. But by the same token, I do have an obligation as a criminal defense attorney to protect every possible right my client has. And, in fact, he did have a right and does have a right to be tried as he was when the alleged crime occurred. He was 15 years old.

And even though I may want to ignore that fact, and even though I may want to have him tried immediately or sooner by an adult jury, he still enjoys that right. And it is not my function to disregard it.

COSSACK: All right, joining us now by telephone is Martha Moxley's brother, John Moxley.

John, the family's reaction to what these legal events have brought forward?

JOHN MOXLEY, BROTHER OF MARTHA MOXLEY: Well, a: Obviously, we are pleased that a number of judges now have found probable cause and that we are going to have a trial.

In terms of moving the venue, I don't think we care where it is. I think the motivation behind Jonathan Benedict's motion to change it is simply that it is a matter of convenience. I don't think it makes any difference to Michael Skakel in terms of commuting. He can get a hotel, or whatever he is going to do, staying in Bridgeport just as easy as he can in Stamford or wherever else it is going be. So -- and it makes no difference to my mother and I.

COSSACK: What about the notion of where this case is tried: in an adult court or a juvenile court? Does your family have any feelings about that?

MOXLEY: Oh, he should be -- for an adult crime, he should be tried as an adult. In 1975, you could move a case like this to an adult -- to a superior court. They are doing everything by the book. It should be in a superior court.

COSSACK: So is it your feeling, then, your family would be disappointed if this case was tried -- if Mr. Sherman was successful in his appeal and this case was tried in a juvenile court?

MOXLEY: Oh, absolutely. Yes, we would take our pleasure sadly that it would be tried, but you'd want -- we want to see it in superior court, where there's real penalties. But if it's not going to happen there, you know, we'd hope that they would did it in juvenile court.

COSSACK: Mickey, what about this issue of where this case gets tried? The prosecutor says they want to try it at a different city than where the crime was committed. You have put your foot down on this one and said, no, no, let's stay where you are. Some argue that, in fact, you feel you have a better chance being in a rather upper- class, wealthier area than a blue-collar area -- your response?

SHERMAN: No, people love to make that demographic argument, but John Moxley and I agree that's it's really not a big issue. And we also agree it's really one of more convenience. But, you know something, the crime occurred down here, this is where juvenile court judge ordered it tried -- it's now the state who's trying to in some way artificially manipulate it to put it in their backyard.

Basically, born out of convenience -- I'd like to think that they're not trying to monkey around with the demographics, that they're not trying to get a jury pool that would be more sympathetic to them. Many people posit that; I've got more faith in them than that.

But by the same token, why should we, you know, fight the traffic to go up I-95 just so that they can try it in their backyard. Case happened here -- you're tried by a jury of your peers; this is where the trial should be had.

COSSACK: All right, more on this when we come back. Let's take a look at the evidence in this case. How will a 25-year lapse between the crime and a trial impact the case? Don't go away. And we'll find out some more about this change of venue, too. Stay with us.

(COMMERCIAL BREAK)

COSSACK: In January 2000, after a quarter century, Michael Skakel was charged with the murder of his former neighbor. The 1975 killing of Martha Moxley, in Greenwich, Connecticut, occurred when both Moxley and Skakel were 15 years old. A probable cause hearing is set for late next month.

Let's talk with Jonathan Nelson.

Jonathan, you know, we've heard both sides in this case describe the notion that this change of venue is just being done for the convenience of the prosecutor, but I suspect that there may be another reason behind it, because you're going to find two different sets of jurors in these different towns. Do you think that has any effect in any play? One is an upper middle-class area, Greenwich, Connecticut, where the crime was committed, and one is Bridgeport, which is a much blue-collar -- I have a feeling the prosecution's trying to get away from those Greenwich, Connecticut, jurors.

JONATHAN NELSON, FORMER NEW YORK STATE PROSECUTOR: You know, Roger, I couldn't agree with more. I mean, if it was just about the traffic, I'm sure the prosecutors and the defense counsel would make other efforts. But I think here there's better chance of achieving a prosecutorial victory in the Greenwich area: It's a more affluent neighborhood. They definitely tend to be more sympathetic -- actually, I'm sorry, just the opposite, a defense victory would be more apt in the Greenwich area. The jury's going to be more sympathetic towards Michael Skakel in that area. There's just no two ways about it.

COSSACK: Mickey, in the sense of how your client would play -- I mean, the notion that this is a man from affluent family who's had his problems that have been well documented -- and the terms of how that plays in a wealthy, affluent area as opposed to a blue-collar area -- come on now, as a lawyer, you know as well as I do you don't want your client in front of that blue-collar area.

SHERMAN: Yes, but you know, it's like in a race issue, where there's no race card to be played. It's the same thing with affluence here: everybody except for the lawyers here -- myself and Mr. Bennett -- they're all affluent. The Moxley family is from the same neighborhood as well as the Skakel family. So it's kind of a constant here. I don't see it being that big of an issue, I really don't. I love when everyone spins it against the state's attorney, and I'm certainly not going to interrupt any of that action, but I really do have faith in the jury system, no matter where it's going to be tried.

COSSACK: Mickey, I have to interrupt you for a second.

We have to go to Atlanta.

(INTERRUPTED BY BREAKING NEWS)

COSSACK: We're back. And we're talking about the Skakel murder case, the death of Martha Moxley, 25 years ago.

Ron Sullivan, as defense lawyer in this case, one of the things that we know is that there's going to be, perhaps, another probable cause hearing that will be held at the adult hearing.

What's the -- what is a probable cause hearing? And why do you need another one after there's already been one at the juvenile level?

RONALD SULLIVAN, CRIMINAL DEFENSE ATTORNEY: Well, a probable cause hearing is a hearing to determine whether there's sufficient evidence to go forward on the case. The court makes a determination whether there's a probable cause, whether it's more probable than not that the crime happened, and where there's more probable than not, that the defendant committed the crime.

If it's answered in the affirmative, then the case can go forward. If it's answered in the negative, then the court is saying there's not even enough evidence at that low-standard probable cause for the case to -- for the case to continue.

COSSACK: Mickey, you put on a probable cause hearing at the juvenile court level. You were unsuccessful. Every lawyer knows it is a low level. You -- the prosecution does haven't to prove much.

What are you going to do that was different at time at the adult probable cause hearing? Are you going to put on more of defense?

SHERMAN: No. Maybe, maybe not. And I don't know that we were that unsuccessful. If you ever look at the transcripts which are available on the Internet, we didn't do so bad, granted we didn't win, but that was a very low threshold for the judge to get past.

Now, we are in adult court. It's a different venue. And I don't know about you, but I've won these probable cause hearings before. Not whole heck of a lot, but I've won maybe three of them in a murder case. And I think that the judge is going to be hard-pressed to listen to the quality of the evidence that we saw last time, and put this case down for trial. I'm optimistic.

COSSACK: Where is the prosecution's case weak, Mickey?

SHERMAN: In the lack of evidence. There's, as you know, no DNA. There's no physical evidence, save the golf club which is attributable to almost anyone around the neighborhood, according to the police officers who testified. And then you have these witnesses who were in the Elon program. And I'm not going to comment any further on what they said. You can see their testimony and their cross-examination on the Internet. COSSACK: Jonathan, as a prosecutor, are you concerned with what Mickey says, that he has brought up some good points in terms no DNA, no real physical evidence in this 25-year-old crime?

NELSON: Well, let's face it, Roger. A 25-year-old crime is going to be difficult to prosecute in any event.

In this case, the prosecutors are going to be relying mainly, if not exclusively, on testimony and testimonial evidence. But that's simply and conclusively as persuasive as DNA, as fingerprints, especially in light of there's some news that Michael Skakel even may have admitted to one or more people that he committed this crime.

COSSACK: Ron, how do you go about defending this case along with your fellow defense counsel, Mr. Sherman? What do you do here?

SULLIVAN: Well, it's a lot of avenues that are right there. No -- there doesn't appear to be a whole lot, if any, physical evidence. There are some statements attributed to Mr. Skakel.

And there're two options, and I'm sure Mr. Sherman has explored both of them. One to say that witnesses were somehow mistaken in their recollection of what Mr. Skakel said; or to say that they were affirmatively fabricating because they had some motive to fabricate.

And time will tell.

COSSACK: Mickey, what do you do about this image of your client? A kid who is a wealthy kid, who had a drug problem, who was irresponsible, who ended up in a drug rehab place, made some statements that may make you believe them, maybe you don't believe them. But he is charged with this kind of a crime. It gives off that feeling of at least being 20 years ago, being an irresponsible kid who may have been under the influence. How do you get around that?

SHERMAN: Well, you know, it -- that doesn't hold heck of a lot of water, when you think about it. Maybe he was irresponsible 26 years ago, 25 years ago...

COSSACK: Mickey, we've got to go back to Lou Waters in Atlanta.

(INTERRUPTED BY BREAKING NEWS)

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