February 7, 2000 -- NYT -- Moxley Murder Case Is a Circumstantial Challenge for Prosecutors

It took a quarter-century for the police to make an arrest in the killing of Martha Moxley, the 15-year-old Greenwich girl bludgeoned to death with a golf club on the evening of Oct. 30, 1975.

But as lawyers prepare for a Tuesday hearing for Michael Skakel, arrested at age 39 in a murder prosecutors say he committed as a 15-year-old, the question is whether those 25 years produced enough evidence for a conviction.

There is no guarantee that the case will ever be tried before a jury; Mr. Skakel has been charged as a juvenile, and a judge must decide whether he should be tried as an adult.

But if State's Attorney Jonathan C. Benedict succeeds in getting the trial moved to State Superior Court, he will depend on a mix of physical and circumstantial evidence and incriminating statements -- including some physical evidence not yet publicly revealed.

The evidence includes:

*Two sections of a bloodied 6-iron golf club, part of a set owned by the Skakel family, that the killer used to beat and later stab Miss Moxley to death. One segment of the club, the handle, was never found.

*Sworn testimony from former neighbors and acquaintances of Mr. Skakel. Several former classmates from a school for troubled youths that Mr. Skakel attended more than 20 years ago have told a Connecticut grand jury that they heard Mr. Skakel confess to killing Miss Moxley. Neighbors of Mr. Skakel testified that he told them he had had a sexual relationship with Miss Moxley before her death, according to a retired Greenwich detective.

*A confidential report from 1995 in which Mr. Skakel and his brother Thomas, himself a former suspect in the murder, significantly changed the accounts they gave to Greenwich detectives in 1975 about where they were when the killing is thought to have occurred.

*Nine hours of audiotapes subpoenaed from a writer who helped Michael Skakel create a 38-page memoir over the last few years in which he professes romantic feelings for Miss Moxley, according to people who have read a transcript of the tapes.

Mr. Benedict also has physical evidence that is not yet known to the public. In a recent interview, Henry Lee, director of the Connecticut State Police and an authority on forensic crime investigations, said he had ''some forensic evidence'' from the crime, though he provided no details.

And late last month, a person in law enforcement with detailed knowledge of the investigation said prosecutors have other physical evidence against Mr. Skakel.

The person, who spoke on the condition of anonymity, said the undisclosed evidence was not DNA, and on its own would probably not be enough to convict Mr. Skakel.

Though much of the prosecution's case is circumstantial, some trial lawyers say it combines physical evidence tying Mr. Skakel to the crime; a motive, jealousy; and a changed alibi that undercuts Mr. Skakel's credibility.

Mr. Skakel, who now lives in Florida with his wife, child and father, has consistently maintained his innocence and has declined to discuss the case.

Interviews with legal experts drew a wide range of views about the evidence.

''I don't think they can prove this case beyond a reasonable doubt; they don't ha,ve the evidence,'' said Alan M. Dershowitz, a law professor at Harvard University and a well-known defense lawyer.

But Elliot Peters, a former federal prosecutor in New York, noting the origin of the 6-iron used to bludgeon Miss Moxley, disagreed.

''Whoever killed this girl was in this guy's house or backyard,'' Mr. Peters said in a recent interview. The fact that the murder occurred in Belle Haven, an exclusive and private neighborhood in Greenwich where the Moxleys and Skakels lived, ''limits the universe of people who could have done it to a very small number.''

The blood-flecked golf club -- which the police believe was deliberately broken into three segments by the killer, who used one piece to repeatedly stab Miss Moxley -- is perhaps the most concrete but not the most powerful evidence in Mr. Benedict's arsenal, legal experts said.

With no fingerprints or other definitive forensic evidence, experts said, the two fragments are not sufficient to incriminate Mr. Skakel or the two other men who have also been viewed as suspects -- Thomas Skakel, now 41, and Kenneth Littleton, who arrived in the Skakel household as a 23-year-old live-in tutor the day Miss Moxley was killed.

The most incriminating evidence Mr. Benedict is expected to bring against Michael Skakel, aside from any new physical evidence, is the sworn testimony from Mr. Skakel's former classmates, according to several lawyers familiar with the case. Those statements, given to a grand jury convened 20 months ago, contend that Mr. Skakel confessed to killing Miss Moxley, said people who have spoken to these classmates.

Mr. Skakel, who attended a school for youths with alcohol and behavioral problems from 1978 to 1980, has denied ever confessing.

Other sworn statements from former neighbors describe a romantic link between Mr. Skakel and Miss Moxley, said Stephen X. Carroll, a retired Greenwich detective who investigated the Moxley murder.

Using grand jury testimony and accounts from friends that Miss Moxley had often flirted with Mr. Skakel's brother Thomas, prosecutors may try to prove that Michael Skakel killed her in a jealous rage, legal scholars said.

Investigators say they have little doubt that Miss Moxley knew her killer. Still, many defense lawyers said a case based largely on circumstantial evidence would not be strong enough to win a conviction, especially after so much time has passed. ''It seems to fall short of a precise pinpointing of who did it and how it was done,'' Mr. Dershowitz said.

Other lawyers, particularly experienced prosecutors, described the case against Mr. Skakel as difficult but winnable.

''Cases based on circumstantial evidence can be as powerful as cases based on physical evidence,'' said Joan McPhee, a former federal prosecutor in New York who is now in private practice in Providence, R.I. ''The strength of the case turns on how many interlocking pieces of evidence the prosecutor has.''

If the case goes before a jury, the job of Mickey Sherman, Mr. Skakel's lawyer, will be to hammer away at the details prosecutors are said not to know about the murder. He would be expected, for instance, to focus on uncertainties about the precise time of death, which the Greenwich police estimated to be 10 p.m. (others have put it at an hour or more later), and on the lack of witnesses who could place Mr. Skakel at the murder scene at that time.

In his original statement to the police in 1975, Mr. Skakel said he was at the nearby home of his cousin James C. Terrien at 10 that evening, watching television with his brothers Rushton Jr. and John and with Mr. Terrien. Mr. Terrien's sister Georgeann corroborated this account. Mr. Skakel went on to say that he arrived home after 11 p.m. and went to bed, though an edited copy of the Greenwich police file on the murder shows that no witnesses substantiated that portion of his account.

But a 1995 report by investigators hired by Mr. Skakel's father, portions of which were obtained by The New York Times, reveals that Mr. Skakel, at age 35, changed his account.

After returning home, according to the 1995 report, he sneaked out of his bedroom window around 11:30 p.m. and walked to the Moxley home, where he climbed a tree and tossed pebbles at Miss Moxley's window. When she did not respond, Mr. Skakel said, he masturbated in the tree and began to walk home. As he approached the area where Miss Moxley's body was later discovered, he told investigators, he heard a noise, threw something in its direction and ran home.

James C. Terrien, the former Los Angeles police detective who wrote a book about the Moxley murder suggesting that Mr. Skakel was the killer, called the revised story ''a well-crafted attempt to account for everything'' prosecutors might have found at the murder scene, including his hair and semen, and to explain his presence if any witnesses had seen him running from the scene. Mr. Fuhrman said he believed that the murder occurred closer to 11:30 p.m.

But if prosecutors want to link Mr. Skakel to Miss Moxley's death, Mr. Sherman said, ''it's incumbent on them to change the time of death. For many years the state has known that he has a very solid alibi for where he was at the time of the murder.''

Miss Moxley's autopsy, conducted a day after her body was found, estimated the time of death to be between 9:30 p.m. on Oct. 30, 1975, and 5 the next morning. Beyond the fuzzy timing of Miss Moxley's killing, Mr. Sherman would be likely to challenge the use of depositions from Mr. Skakel's former classmates as inadmissible, said Dante Gallucci, a criminal defense lawyer in Fairfield.

''Without those admissions, their case gets a hell of a lot weaker,'' Mr. Gallucci said. ''They're almost back to 1975 and they got nothing.'' The fact that nearly 25 years have passed since the murder would probably also help Mr. Sherman create reasonable doubt in a juror's mind, Mr. Gallucci said.

The absence of physical evidence has hounded the Moxley investigators from the beginning. For many years, Michael Skakel was not considered a suspect.

Suspicions fell first on his brother Thomas and then on Mr. Littleton. Thomas, the last person seen with Miss Moxley, originally told the police that he had left her at 9:30 p.m. the night of the murder and had returned home to write a school paper on Abraham Lincoln. The police, however, could not find any teacher who had assigned him such work.

In the 1995 investigative report commissioned by his father, Thomas Skakel also changed his story about his movements that night, saying he had left Miss Moxley about 9:50 p.m., not 9:30 p.m., after the teenagers had masturbated together near the area where her body was later found.

The revised account would have put Thomas, 17 at the time, in Miss Moxley's company only about 10 minutes before the time the police estimate she was killed. It would also account for any semen samples Dr. Lee, the state's forensic investigator, might have found when he reconstructed the killing in 1991.

Thomas Skakel's attorney, Emanuel Margolis, said his client was no longer a suspect.

The only other suspect investigated by the police was the Skakels' former tutor, Mr. Littleton, an athletic man who, some say, was the only person near the crime scene physically able to have beaten Miss Moxley so forcefully. Questioned continually over the years, Mr. Littleton has struggled with drug and emotional problems since 1975 and in 1976 was found to be untruthful on major questions about the murder in polygraph tests, according to the police file on the Moxley case. He was granted immunity in exchange for his grand jury deposition in 1998 and is no longer a suspect, investigators say.

A friend of Michael Skakel's, someone who has heard Mr. Skakel discuss the events of Oct. 30, 1975, time and again, said he was innocent.

''They have the wrong person,'' said the friend, speaking on the condition of anonymity.

''He didn't do it. If he had done something like this,'' the friend went on, describing Mr. Skakel as garrulous to a fault, ''he'd talk about it. He couldn't help himself.''

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