Burden of Proof
Murder in Greenwich: Juvenile Court Judge to Hear Arguments on Media AccessAired February 8, 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, VICTIM'S MOTHER: I'm going to be happy and I'm going to experience whatever it is. I'm going to, you know, the ultimate, when I can see an indictment, a trial, a conviction.
FRANK GARR, CHIEF INVESTIGATOR: The two biggest obstacles that we faced from day one with this investigation was, first, a lack of physical evidence, and, second, cooperation from the Skakel family.
JOSEPH RICCI, ELAN SCHOOL OWNER: I have never, ever heard of anybody at any time at Elan ever talking in any way about a murder of anyone.
(END VIDEO CLIP)
GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: It took nearly 25 years for authorities to charge anyone in the death of Martha Moxley. Now Michael Skakel appears in court on charges of murder. But will the case against Skakel remain in juvenile court? And will the press gain access to the courtroom?
ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.
VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.
This afternoon in Stamford, Connecticut, a small courtroom in a strip mall will play host to a high-profile murder case. Fifteen- year-old Martha Moxley was found dead on the lawn of her family home in 1975. She had been beaten to death with a golf club.
ROGER COSSACK, CO-HOST: Today, her former neighbor, Michael Skakel, now 39-years-old, will appear in court to face charges of murder. The proceeding will take place in juvenile court since Skakel was just 15 at the time of the killing. But before the proceeding takes place, Judge Maureen Dennis (ph) will hear arguments on access by the media.
VAN SUSTEREN: Joining us today from New Haven, Connecticut is criminal defense attorney Richard Silverstein. And in Hartford, former chief state's attorney Austin McGuigan. COSSACK: And here in Washington, Sherry Lareaux (ph), criminal justice law professor John Copacino, and Gary Farris (ph). And in the back, Chris Trebone (ph) and Lee Urban (ph).
Let's go right to you, Austin. There is an application by the press to be able to cover these proceedings. Will they be successful?
AUSTIN MCGUIGAN, FMR. CHIEF STATE'S ATTORNEY, CONNECTICUT: I believe they will be. I think the state will probably not have an objection. I know the defendant wants an open hearing. The statute seems to preclude it because it basically bars parties that are not necessary. It's hard to see why the press is really necessary, but I think, all in all, the judge may go along with allowing the press in.
COSSACK: Austin, it seems to me that there's two issues here. One is the notion of having an open proceeding in a juvenile matter, and the second would be the kind of access that one would generally have to a trial. So what I'm suggesting is, is it just that -- are they just discussing whether or not the press can be in in a juvenile matter or across the board?
MCGUIGAN: No, they're discussing whether it's a juvenile matter. And because it's juvenile, the statute says only parties who are necessary. That implies that the parties can't waive. I believe that, that is, they can't have the press in because they want them. But I think the judge is probably going to rule that since the defendant wants them in, and I'm not sure the state will object, that under the circumstances, she may conclude that this is a necessary party.
VAN SUSTEREN: John, why the difference in juvenile cases? Why does it seem that they are almost always closed and adult are open?
JOHN COPACINO, CRIMINAL JUSTICE LAW PROFESSOR: Well, the whole idea between juvenile court is the rehabilitation of the person and not the punishment. So the idea is to keep it private so that we don't stigmatize people by exposing to the world that they, in fact, are charged, that if we keep it confidential, we can have the rehabilitative processes go on. Of course, that doesn't really apply to this case. Michael Skakel's been stigmatized about as much as you can be.
VAN SUSTEREN: So would that defeat any sort of reason to keep this quiet at this point since we all -- I mean, everything's out in the open, or at least a lot of it is?
COPACINO: Sure it does. I mean, it goes against the reason behind the privacy in juvenile court. You know, I don't know about the Connecticut courts, but juvenile courts in general maintain that privacy very seriously. They don't allow names to be published in the press and that sort of thing. So I would be surprised if it would be open to the press even though the reason is gone.
COSSACK: Austin, let's assume that the press is going to be allowed. First of all, will there be a camera in the courtroom? MCGUIGAN: Oh, I don't believe there'll be a camera. This is simply to allow the news -- press people to be allowed in, but there'll be no cameras in this courtroom.
COSSACK: All right, now let's assume that the press gets to go inside. What will go on in there? What will they see?
MCGUIGAN: This will be an arraignment today, so they'll read the charges and enter a plea, probably. And then they'll...
VAN SUSTEREN: In juvenile court in Connecticut -- let me just interrupt you for one second -- is the first proceeding in a juvenile case called arraignment? Because I know in many courts they don't use the sort of adult-type terms.
MCGUIGAN: Well, I call it an arraignment, and basically he's going to be informed of the charges against him, and the issues will be where -- what form is appropriate to try this case.
COSSACK: How will that arise? What will -- will the state make a motion to say, perhaps, you know, your honor, we believe this is not -- this shouldn't be a juvenile case, or how will this work?
MCGUIGAN: I believe the state will make a motion to move it to adult court. The gentlemen is 39 years old and it certainly appears that a juvenile institution isn't suitable for him. And I believe, under the circumstances, it'll be moved fairly quickly to the regular court.
VAN SUSTEREN: John, is it so unusual if cameras would be allowed in juvenile court? Is it sort of a black and white rule or does it sometimes happen?
COPACINO: I've never heard of it happening. You know, this is an unusual case in all respects. I mean, I think this is a case the first time anyone 25 years later has been arrested. But I have never heard of cameras being allowed in juvenile court.
VAN SUSTEREN: And if you were the judge in this case, if you had the ability to open it up, if the defendant wants it open, what would you do?
COPACINO: If the defendant wanted it open, I would open it. The privacy is to protect the defendant, and if the defendant waives that right to privacy, there's no reason not to open it up.
COSSACK: Austin, if it's such a sure thing that this is going to be moved rather quickly to an adult court, why are we starting off in a juvenile court? I mean, it would seem to me that if, presumptively, you're ending up -- you're starting in juvenile court, you have to have some reason to get it into adult court, and obviously his age is -- everybody knows what his age is.
MCGUIGAN: Well, it's two things. It's a class-A felony, it's a murder case. So, I mean, those are the reasons, but the standards are simple: You have to appear if the crime was committed while you were a juvenile there, and a determination is made to move the case to adult court. Under the present system now in effect, the case would automatically -- a class-A felony, a murder case, would move automatically. But I believe they'll use the old standard.
VAN SUSTEREN: You know, Austin, I'm struck by the fact that the description we're hearing of the courtroom is that the courthouse is in a strip mall in Connecticut. Do you have any -- I mean, am I right? Is that where it is?
MCGUIGAN: That's right, but that's where juvenile courts are. They're normally not part of the -- for good reason they're not part of the main court buildings. They don't want juveniles to be brought into that system and to be associating with the full court process. They want to protect their privacy, and so that's why they've done that.
VAN SUSTEREN: You know, John, in some ways, that sounds like a good idea, but, you know, not to belabor the point much, but, for some reason, a strip mall isn't likely to scare a kid as much, I don't think, as the court. One of the reasons is sort of to scare the kids straight, is it not, in some ways?
COPACINO: Well, yes and no. I mean, the idea is rehabilitation. Part of rehabilitation is getting people to take responsibility and be deterred by the consequences of it. But rehabilitation has a bunch of different aspects, too: treatment, figuring out what it is that led to the crime and dealing with that.
COSSACK: John, in the sense of an automatic moving, what Austin seems to be talking about, will it be or should it be that, just based on the fact that so much time has gone by?
COPACINO: You know, whether it will or not I'm not sure. I don't think that it should. The idea behind juvenile court is rehabilitation. What they should be doing is taking a look at whether treatment can be offered in the juvenile court, and I think not merely through juvenile institutions. Juvenile courts always go outside of their own institutions when a higher resource is necessary for the rehabilitation of the child, when they can't meet it. And so those are the kinds of things that I think the judge should be looking at.
VAN SUSTEREN: Unfortunately, I think it probably seems rather absurd to have a 39-year-old man...
COSSACK: That's the problem. You hit it right on the head.
VAN SUSTEREN: ... and we're talking about juvenile and rehabilitation.
COSSACK: Yes, I think that's exactly what the problem is.
Let's take a break. Up next: Should the case against Michael Skakel be moved out of juvenile court? And will the defense argue that the statute of limitations has run out on this murder charge? Stay with us.
(BEGIN LEGAL BRIEF)
On this day in 1924, the first U.S. execution by lethal gas took place in Carson City, Nevada. Tong Lee, a member of a Chinese gang, was convicted of murdering a rival gang member. Lethal gas replaced hanging, firing squad and electrocution as a more humane way of carrying out death sentences.
(END LEGAL BRIEF)
VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to www.cnn.com and click you way to the BURDEN OF PROOF link.
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COSSACK: Today in Stamford, Connecticut, 39-year-old Michael Skakel will appear in a juvenile court on charges of murder. The charges stem from the 1975 murder of Greenwich teenager Martha Moxley. At that time in Connecticut, the statute of limitations on murder was five years. But in 1976, the state legislature eliminated any time limits on serious felonies, and the Connecticut Supreme Court has ruled that the crime of murder is always subject to prosecution.
Well, Austin, tell us about that Supreme Court ruling. You have a statute that's in place in 1975 that would appear to bar the prosecution of Skakel, because the time limit has gone by. Then you change the law, thereafter, and then, what, send it back, and say: OK, well, we rally meant 1975, even though that wasn't the law?
MCGUIGAN: Well, they're not going to rule that the '76 change is the effective law. What the issue is going to revolve around an interpretation of the murder statute in effect in 1975. And a reading of it would indicate that there's a five-year statute of limitations and the Supreme Court of Connecticut actually ruled in a case that had a five-year statute of limitations. But I think that two subsequent cases...
VAN SUSTEREN: Ruled which way, though?
MCGUIGAN: They have ruled that cases committed originally between '73 and '75 had a five-year statute of limitations. But in two subsequent cases, they have backed off of that. They found an exceptions if it was a potential for a capital felony. And the original ruling was a bad case from the Supreme Court.
VAN SUSTEREN: Austin, when you talk about capital killing, you are talking about a death penalty case?
MCGUIGAN: Death penalty cases always carry no statute of limitations, you have no limitations.
VAN SUSTEREN: All right. Now, a single homicide in most jurisdictions, as deplorable as it is, usually isn't enough to get you the death penalty. It usually has to be done in the course of another felony, or as a multiple murder. Would a single homicide in Connecticut be a capital case?
MCGUIGAN: This is not a capital felony. I looked at it. It is not going to qualify. So it is not going to be under that exception. The Supreme Court has made exceptions for cases, which potentially are capital. But I think, when you look at the intent of the law, that they're going to reverse the other Supreme Court decision, and say they never intended to have a statute of limitations for murder.
COSSACK: Austin, I know what the intent of the law was. It is clear that in 1976, they wanted to erase that five-year statute of limitations. But how are they ever going to go back and say then, if there is a case that is in effect that says, you know, but now we're going to go back and make it 1975. I mean, it just seems to me that you have got a gap here in this law in Connecticut?
MCGUIGAN: You have a two-year gap in the law. But I believe that the interpretation of the law the Supreme Court is clearly going to conclude that nobody ever intended that murder would have a statute of limitations. Murder at common law doesn't, and I think that's what they'll rule.
VAN SUSTEREN: With all due respect to Austin and the Connecticut Supreme Court, most penal statutes are to be construed strictly. The words are what the words are. How do you interpret this, John?
COPACINO: Well, from what I understand on the issue -- I am going to have to defer to Austin on what the Connecticut statute is -- but from what I understand, at the time of the offense, there was a five-year statute of limitations, and that the legislature subsequently changed that. And if that's the case, then the issue is whether that is an ex-post-facto law.
VAN SUSTEREN: Whether it can be applied retroactively.
COPACINO: Exactly, well, whether they change -- It is clear that under the ex-post-facto clause, they can't make something a crime that wasn't a crime before and then charge someone with a crime committed before the change. And they can't increase the punishment after the crime has been committed.
So the issue becomes, and it is by no means clear, whether this change creates a crime or increases the punishment. And I think the defense has a very good argument that it does.
COSSACK: You know, John, I'm not sure ex post facto is a statute of limitations. I don't know if that is creating a crime by a procedural bar. I don't want to get too technical here. I mean, it's not like you've created a new crime, you just said: One time you can tried for it and one time you can't.
COPACINO: Exactly, and the issue is whether it is substantive and procedural, whether it creates a new crime or whether it increases the punishment because there are some procedural matters which do qualify. It's by no means clear, but I think that they'll go ex post facto.
VAN SUSTEREN: But let me ask you, John, I look at it even a little bit differently than ex post facto, is that when an offense is committed, you look at statutes that are alive and well at the time, and you don't read intent into penal statutes, you read the strict words, and either you are in, or it is out. You don't have room for the so-called interpretation because it's a penal statute.
So, in that case, if I'm right, it would seem that the defense would be in a better position than the prosecution.
COPACINO: Sure, and the issue is, Greta, whether they can go back and change that statute later on, and whether that change, in fact, increases the penalty in some way.
VAN SUSTEREN: Someone is going to be in the court of appeals on this particular issue, in this case.
COSSACK: You know, we never get to say ex post facto on this show.
VAN SUSTEREN: We need to take a break. Up next: What's next for Michael Skakel in Connecticut criminal justice system? Stay with us.
Q: A bill before the Arizona state legislature could wipe out a 1901 ban on what behavior?
A: Unmarried cohabitation. Arizona is one of 16 states with laws against living together, adultery and sodomy.
VAN SUSTEREN: Michael Skakel was arrested on January 19th for the 1975 murder of his neighbor, Martha Moxley. In attempting to prove its case, the prosecution will be relying on evidence gathered by a Connecticut judge's grand jury probe.
Austin, at what point does the prosecution in Connecticut have to turn over to the defense what we call "discovery," which means evidence it has against Michael Skakel?
MCGUIGAN: He'll be filing a motion at the arraignment. Within 60 days most of the evidence will be turned over. But most prosecutors have an open file system in Connecticut, so they may have already turned it over or will be turning it over shortly.
COSSACK: Is there reciprocal discovery in Connecticut, Austin?
MCGUIGAN: There is reciprocal discovery pursuant to a motion. There are no depositions.
VAN SUSTEREN: John, how important is the discovery in any criminal case, and in particular this one for the Skakel family?
COPACINO: Well, I mean, it's always important. The government has to tell what evidence they have. I don't know about Connecticut; in some states they don't have to tell you the witnesses, but they certainly have to tell you the physical evidence.
VAN SUSTEREN: And they also have to tell if they have any evidence, don't they, that would tend to show that Michael Skakel didn't do, they have a constitutional duty?
COPACINO: Sure. They have to turn over what's called Brady evidence.
COSSACK: Austin, I know that we disagree on this issue of the statute...
VAN SUSTEREN: Here we go.
COSSACK: ... the statute of limitations. I know you feel that somehow the state of Connecticut giveth and has the ability to taketh away. Is that..
VAN SUSTEREN: Even retroactively.
COSSACK: Even retroactively. Is that right?
MCGUIGAN: No, at common law there is no statute of limitation, so that unless the state has granted an exemption of time to a defendant he has none. In this case they're going to interpret that there was no grant and so there's no ex post facto issues.
COSSACK: But in -- but I under -- and I would agree that perhaps it's not ex post facto, but in fact the state of Connecticut did agree at some time by the legislature that's elected by the people to give that statute of limitations, and then they decide to take it away. They just can't go back and pretend that it never existed, can they?
MCGUIGAN: No, they didn't agree. It was -- it's a -- basically it was a question when the death penalty was abolished by Furman versus Georgia, that was when the statute of limitations question arose whether or not they intended murder, which was not punishable by death, to still have no statute of limitations. And I think when they take the case they're going to say they never intended anything different.
VAN SUSTEREN: And John, you know, it -- what always is so interesting is that when the crime underlying these sort of legal issues is so serious you always worry that the court's going to, quote, "interpret it in a manner most liberally" to sort of hook the defendant into the prosecution, right?
COPACINO: Sure. I mean, they're not supposed to. They're supposed to look at the law coldly, without having the facts of the case affected them. It's...
VAN SUSTEREN: It's tough for a judge to throw out a murder case on something this.
COPACINO: Well, no, Greta, I don't think so. Yes, it is. I mean, it's a big case, there's a lot of publicity, all the eyes are upon it, but it happens: Judges throw out cases because they violate the statutes.
COSSACK: Austin, can Michael Skakel get a fair trial in Greenwich with all the publicity that's attendant to this case?
MCGUIGAN: Michael Skakel will get a fair trial in Greenwich. He'll get a fair trial in the state of Connecticut.
VAN SUSTEREN: When's he going to get this trial, because it looks to me, Austin, like you've got issues of whether he should be tried in juvenile court, adult court, whether there's a statute of limitations, whether there's not a statute of limitations, the defense is going to try to get that case up in the court of appeals and add another 25 years onto this case before it hits trial. When do you predict this could go to trial?
MCGUIGAN: I would predict it will be in trial in 18 months.
COSSACK: How long? I'm sorry?
MCGUIGAN: Eighteen months.
COSSACK: But in terms of the issues that Greta has just raised, and I think they're good -- you know, I hate to agree with Greta...
VAN SUSTEREN: Thank you, Roger. So kind of you.
COSSACK: ... but I mean, it seems to me there's some real serious legal issues in this case, just you and I discussing the statute of limitation, plus all of the delay in the trial, whether he's going to be -- I mean, how do you think this is all going to be solved within 18 months?
MCGUIGAN: I think the trial judge is going to deny the statute of limitations issue, and I'm not sure it's going to give you an appeal at that point. As far as the juvenile ruling, if appealable, I think it will be an expedited appeal and will move this case along.
VAN SUSTEREN: John, he talks about the appeal. If the prosecution loses the statute of limitations issue, it will go up on an appeal, probably. I mean, I assume the state will appeal it. If the defense loses the statute of limitations issue, can the defense appeal prior to trial or is that one of those issues they have to wait until after, John.
COPACINO: Probably not. All that depends upon the statute. But in general those kinds of issues aren't appealable until after the trial is over. But the juvenile issue as to whether he's amenable to juvenile court generally is appealable beforehand.
COSSACK: All right, that's all the time we have for today. Thanks to our guests and thank you for watching. Today on TALKBACK LIVE, interact with the wife of presidential candidate Bill Bradley. Ernestine Bradley takes your calls and e- mails today at 3:00 p.m. Eastern Time, noon Pacific.
VAN SUSTEREN: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.
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