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American Morning

Judge to Decide Admissibility of Taped Evidence on Ken Littleton

Aired May 13, 2002 - 09:13   ET

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

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
PAULA ZAHN, CNN ANCHOR: "The Big Question" at this hour: Did Ken Littleton, the one-time Skakel family tutor, admit to having killed Martha Moxley? Well today begins the second week of the murder trial of Kennedy cousin Michael Skakel. And Skakel, as you know, is charged with murdering his teenage neighbor Martha Moxley in 1975 when they were both 15 years old.

Now when the testimony gets underway this morning, the defense will begin its much anticipated cross-examination of Kenneth Littleton, Michael Skakel's former tutor, and at one time a suspect in the case.

Well on Friday, the jury was given the day off so two sides could discuss a very controversial piece of evidence. And joining us now from outside the courthouse in Norwalk, Connecticut, our own legal analyst, Jeffrey Toobin -- good morning, Jeffrey.

JEFFREY TOOBIN, CNN LEGAL ANALYST: Hey, Paula.

ZAHN: So what did they hash out in those meetings? What is the jury going to get to hear?

TOOBIN: Well certainly this is one of the more strange episodes in law enforcement history. What they heard last Friday was that over the past several years the investigators in this case asked the ex- wife of Ken Littleton to tape record conversations with him and try to elicit from him, try to get him to say that he had admitted killing Martha Moxley.

Now over the course of the taped conversations, he never did exactly admit it. But the conversations were sufficiently ambiguous that Mickey Sherman, the defense attorney, wants to play them and let the jury decide for itself whether these tape recordings incriminate Ken Littleton as opposed to his client.

ZAHN: So, Jeffrey, has the judge made a decision about what portion of this the jury might hear?

TOOBIN: You know, interestingly, the judge really left everyone on pins and needles. The judge said, "I'll decide this morning" -- that's inside of this hour when court resumes -- how much of this he will let Mickey Sherman get into. And what's interesting about the judge's decision is he's really pulled by two competing considerations.

On the one hand, it really is a basic principle that if someone else possibly confessed to the crime, the defense should be allowed to point that out in front of the jury. But this story is so complicated and it went on for so long and the tape is so extensive, that judges also don't want to confuse jurors and don't want to get them involved in sidetracked issues that have nothing to do with the guilt or innocence of the person on trial. So he's going to have to weigh those two competing factors.

ZAHN: Well listen, Jeffrey, I'm confused and I've read just about everything I can read about this testimony.

TOOBIN: OK.

ZAHN: Let's talk about the ex-wife's testimony on Friday. Didn't she more or less indicate that her husband never made that admission? That the defense says it did on this tape?

TOOBIN: She did, that's right. Well I mean the tape speaks for itself, and the tape is pretty much ambiguous about -- they talk about what he did say in the past, and it's really not clear. But she said very emphatically in her testimony that he did not confess. But Mickey Sherman tried to impeach her by saying in the past that she had suggested that he had confessed in the past. But she was certain on Friday that he never had confessed.

ZAHN: So what does Mickey Sherman put Ken Littleton through today? The jury already knows this guy is highly dependent on meds and has had some problems in the past.

TOOBIN: And Sherman has to walk a fine line here, because on the one hand, he's got to suggest that possibly this is the real killer. But, also, he doesn't want to elicit sympathy for Sherman because -- for Littleton, because Littleton is a somewhat sympathetic person. You know he has had all these problems, he has had, you know, problems with bipolar disorder. He's had problems with drinking in the past. There have been blackout episodes.

So he's got to sort of suggest to the jury that this may be the real killer, but do it in such a way that they don't just think Sherman is blowing smoke at them and blaming an innocent man.

ZAHN: All right. Now also throw into the mix Michael Skakel's brother Thomas, who we learned last week actually was about ready to be served some sort of a subpoena as a potential suspect in the case. I guess that was never signed. Is he going to testify? And if he does, what will he say?

TOOBIN: Well he is on the witness list for this week, possibly as early as tomorrow. And Ken Littleton, in his direct testimony, provided the prosecution with a very important benefit. He said that at the time that everyone seems to believe that the murders took place, that Littleton and Tommy Skakel were together watching "The French Connection." Tommy Skakel has not cooperated with law enforcement for some time, but in the past he has. And he has denied any responsibility. It will be interesting to see if he says, "Yes, I was watching 'The French Connection' with Ken Littleton." You know, if they corroborate each other. But since he hasn't said much to investigators in recent years, we don't know whether he will until he takes the stand.

ZAHN: But, Jeffrey, if he says that, wouldn't he essentially be saying, My brother did it? I mean gone would be the alibi.

TOOBIN: That's what's -- well, that doesn't dispense with the alibi entirely. There are still other people who may say that Michael Skakel was at the cousin's house at the time. So it's not completely ending the alibi. But that's the incredible drama of Tommy Skakel's testimony, because he has to walk the line of not incriminating himself, but not incriminating his brother. Whom, by all accounts, he remains close to.

So that's why Tommy Skakel's testimony will be such a dramatic moment. Just even think about them over the prosecution calling one brother to testify against another. That is -- that's what we're waiting for later this week.

ZAHN: Well good luck. You'll be our eyes and ears in there, and only a former prosecutor could have the insights you do. We look forward to hearing your reports filed all week long -- thanks, Jeffrey.

TOOBIN: I'll be here, Paula.

ZAHN: And, you know what? You can get out of the rain now.

TOOBIN: OK.

ZAHN: I was just wondering, can they pull out that shot? Are you standing under an umbrella, or are you out there with no protection over the head?

TOOBIN: No we're out here under a sort of tent-like structure.

ZAHN: Oh good.

TOOBIN: Our crack crew here is protecting me and doing a better job of protecting me than protecting themselves.

ZAHN: Oh good -- yeah, we can't afford to have you get sick during this. Take care, Jeffrey -- thanks.

TOOBIN: OK. Bye, Paula.

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