A Miscarriage of Justice

Celebrity trials can turn into media lynchings. Last year a Connecticut jury convicted Michael Skakel of killing his neighbor Martha Moxley twenty-seven years ago, even though the prosecution had no fingerprints, no DNA, and no witnesses. The author, a former New York City prosecutor, argues that his cousin's indictment was triggered by an inflamed media, and that an innocent man is now in prison
 
by Robert F. Kennedy Jr.
 
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Ignoring the fact that Littleton has changed his alibi five times, Fuhrman boldly concludes, "While other suspects have had trouble with their alibis, Littleton has always stuck to the same story." He explains Littleton's failure to pass five lie-detector tests over a period of sixteen years by arguing, "If Littleton is a paranoid, psychotic, bipolar alcoholic, then how could [Greenwich police] expect him to pass any kind of polygraph?"

Garr dismissed Fuhrman's book to the New York Daily News as a cut-and-paste rewrite of old newspaper stories and police files, and the Greenwich police said that the book was "riddled with inaccuracies and contains no new information." Nevertheless, the book lit a fire beneath Connecticut law-enforcement officials. On July 10, 1998, one month after its publication, Connecticut authorities convened a one-man grand jury consisting of Judge George Thim. The state's attorney Jonathan Benedict took over the Moxley case and began a multimillion-dollar effort to convict Michael Skakel.

A banner on the paperback of Murder in Greenwich advertises it as "the book that spawned the Connecticut grand jury investigation." "I firmly believe," Dunne wrote in the October 2000 issue of Vanity Fair, "Murder in Greenwich, for which I wrote the introduction, is what caused a grand jury to be called after 25 years."

Right up until the convening of the grand jury, according to Fuhrman, the Greenwich police and state investigators still considered Ken Littleton to be their primary suspect. Why did they give him immunity? The state might have concluded that a prosecution of Littleton—especially if it failed, and any prosecution twenty-three years after the crime stood small chance of success—would not end the public debate over their competence and integrity but instead would inflame Fuhrman and Dunne, who had already accused the police of giving the Skakels a pass by making Littleton the fall guy. The only way to still the criticism was to prosecute a Skakel. And they would need Littleton to testify without taking the Fifth—an action that might suggest to the jury that the witness rather than the defendant was guilty. The only way to compel Littleton to testify was to first grant him immunity. The case against Michael was weak, but by indicting a Skakel investigators could at least quiet Fuhrman's charges that they were "sycophants" and "cowards." Dunne had already sent signals that his objectives would be satisfied short of a conviction, as long as Michael was indicted. "I just want to see this guy with handcuffs—humiliated," he told Burden of Proof.

According to Fuhrman, members of Benedict's staff told him that they planned to use Murder in Greenwich as the blueprint for the prosecution. In fact, the state followed the book practically line by line. Michael's fuller account was to become the crux of the state's case against him. Adopting Fuhrman's theory, the state argued that Michael fabricated the masturbation story after learning that Henry Lee, the forensic scientist, was about to conduct DNA testing (which was not available in 1975) on evidence from the crime scene. According to Fuhrman, Michael took this precaution to explain the presence of his semen on Martha's body should any be found. In fact there was no semen found, Michael's or anyone else's.

There are numerous problems with Fuhrman's theory. First, the tree in which Michael said he had attempted to masturbate was a football field's length from where Martha's body was found. The story would therefore not have explained the presence of semen on or near Martha's body had any been found. Second, Michael did not invent the story in the early nineties for his Sutton interview; he has been telling it consistently for at least twenty-three years. Michael told the story to his aunt, Mary Ellen Reynolds, a former nun, in 1979; to his psychiatrists, Stanley Lese and Hyman Weitzen, in 1980; and to many friends before the 1990s. I heard him tell it several times, beginning in 1983. The prosecution's own witness Michael Meredith testified that he heard the story from Michael in 1987 while staying at the Skakel home. Michael's explanation for his failure to tell the story to the police in the first instance—adolescent embarrassment and fear of a wrathful father—is plausible. As Jay Leno suggested, referring to the Skakel trial, many people would rather be found guilty of murder than be suspected of masturbating in a tree. Oddly, Michael's lawyer, Mickey Sherman, never defended Michael against the accusation that Michael had recently invented the story. I told Sherman several times during the trial that I would testify about Michael's pre-Sutton recounting, but I was never called.

Taking their cue from Fuhrman, prosecutors argued that Michael had killed Martha in a drunken, jealous rage after seeing his older brother kiss her. But Michael says, and other Skakels agree, that he was in love at the time with a family friend, Francine Ziminsky. "Martha was cute," he told me when I visited him in prison last September, "but every girl was cute to me." Michael says that he was unaware of any romance between Martha and his brother. "I never knew about Tom and Martha," he told me on the same visit, "until I heard it on TV in 1998."

The next challenge was Michael's alibi. Connecticut law-enforcement officials had in 1975 consulted the nation's pre-eminent forensic pathologist, Joseph Jachimczyk, who established the time of Martha's death as 10:00 P.M. He based his conclusion on the condition of Martha's bladder and the contents of her stomach. Martha had eaten a grilled cheese sandwich at around six o'clock, Dorthy Moxley said, and ice cream later; three ounces of undigested food was found during her autopsy. The stomach normally clears most food in two to three hours. That put the time of death between 9:30 and 10:00. The Connecticut police consulted Detroit's medical examiner, Werner Spitz, and two New York City deputy chief medical examiners, Michael Baden and John Devlin. All of them generally concurred with Jachimczyk. The police also relied on nonmedical indicators: barking dogs, Martha's curfew, and Dorthy Moxley's testimony that she heard Martha cry out around 10:00. For twenty-five years the police operated under the assumption that the murder occurred around 10:00 P.M. Michael's account for that time had been consistent since 1975. Three witnesses—John Skakel, Jim Terrien, and Rush Skakel Jr.—all maintained from the first time they were questioned that they had left with Michael for the Terriens' house at 9:30, when Martha was still alive, and had returned at 11:20. John passed a polygraph test that the police felt covered all four.

"For Michael's accusers to be correct, the time of death had to be moved up" in order to get around his 10:00 alibi, Michael Baden, who later served as the chief medical examiner for New York City, recently told me. While consulting with the Connecticut police in the Moxley case, Baden had become friendly with the Moxley family. At Dorthy Moxley's request, he acted as a liaison between the Greenwich police and Mark Fuhrman, who despised each other, while Fuhrman was researching Murder in Greenwich. In his book Fuhrman solved the problem of Michael's alibi by simply asserting that food can remain in the stomach for as long as six hours, and that the murder might therefore have occurred as late as 1:30 A.M.

At the trial Connecticut's former chief medical examiner, Elliot Gross—who had performed the autopsy and had been called to testify for the prosecution—was never put on the stand. Instead, while the original medical examiner sat idle, Connecticut's current chief medical examiner, Wayne Carver, was called as the expert witness on a case he had never worked on. Based on his reading of Gross's autopsy report, Carver testified that the murder might have occurred as late as 1:30. Sherman's cross-examination was anemic and brief. He asked Carver a single question: Could the murder have occurred at 9:30? Carver answered yes. Sherman sat down. When he read the transcript, Baden told me, "I was very surprised. He never asked Carver the key question: What was the basis of his opinion that the time of death could be both 9:30 and 1:30?"

Prosecutors relied heavily on the Fuhrman-Dunne view of the Skakels as conducting a coordinated cover-up. Both writers assume that all the Skakels concluded from the outset that one of the boys had committed the murder, and immediately circled the wagons. Fuhrman says in his book that the Catskills trip was an "opportunity for the Skakels to confer away from Belle Haven and the Greenwich police." He writes, "If Littleton had committed the murder, I doubt the Skakels would have brought him up to Windham ... Since the hunting trip was most probably a legal confab, Littleton was brought along because he knew something—or the Skakels thought he knew something—that was very important." This theory became crucial to the prosecution's case—even though Littleton testified at the trial that it had been his idea to drive the boys to the Catskills for the weekend, to get them away from the ghoulish scene in Greenwich.

The theory of an intricately organized Skakel conspiracy is comical to anyone who knows the family—as neither Fuhrman nor Dunne does. Jim Terrien and Rush Jr. would have been critical to any such conspiracy, as would Tom Skakel. But neither Jim nor Rush was at Windham, though both Fuhrman and the prosecutors implied otherwise. Rush drove to Washington, D.C., on Halloween morning for a Georgetown University homecoming—unaware that Martha, whom he had never met, was dead. The prosecution's theory supposes that Michael killed Martha in a jealous rage toward his "nemesis," brother Tom, who then helped Michael to cover up the murder of the girl with whom he'd had a sexual encounter only hours before. The theory requires that Michael, a drunken teenage murderer, had the clarity to clean himself up, dispose of the murder weapon, and take an active role in maintaining a conspiracy that remained drum-tight for nearly thirty years.

The Skakel clan may be troubled—alcoholism runs in the family, and although they are kind and generous to a fault, some family members can be impulsive, irresponsible, and reckless. They have made a series of disastrous decisions about how to handle this case. But they are not murderers or conspirators. They are deeply religious and lack the moral bankruptcy to carry personal loyalty to the level of depravity—much less the organizational discipline and the cohesiveness to either form or perpetuate such a conspiracy.

I have spoken to all the Skakels about the murder, and they are as confused as various investigators have been over the years about who committed the crime. I have heard different Skakels speculate about the possible guilt of a diverse list of suspects. (Interestingly, most of them told me they have long believed that the strongest evidence points not to Ken Littleton but to Franz Wittine, the former Skakel gardener. After the police and private investigators turned their attention from Wittine to Littleton, early in the case, they never returned intensively to Wittine.) All of the Skakels want to see Martha's killer in jail. None of them ever imagined that Michael would be charged, much less convicted of the crime.

But none of them would lie to protect Michael. Even when during the trial Julie understood Sherman's instructions as a "request to lie" under oath, she refused with the full support of her brothers. At the trial Andrea Shakespeare (now Renna) testified that the night of the murder, before being driven home by Julie Skakel after dinner, she was "under the impression" Michael was still in the Skakel house after the older boys had left for Jim Terrien's—highly ambiguous and uncertain testimony that nonetheless gave jurors reason to doubt Michael's alibi. According to Julie and Stephen Skakel, on the morning that Julie was to testify at Michael's trial, Sherman assembled the two of them; Sherman's legal assistant, Jason Throne; and his son, Mark, who is also a lawyer, at Julie's home. Sherman told Julie, she says, "You have to say that you remember that the boys were still at the house when you took Andrea home." Julie replied, "I can't, that's not true." Sherman admonished her, "You have to—it's the only way." Julie again refused. Stephen later found her weeping outside the courthouse. According to Stephen, she was devastated by the prospect that her refusal to lie might put Michael in jail. Stephen told me that he found Jason Throne and begged him to get Sherman to back off. "I told him, 'You can't do this, she's going to have a nervous breakdown.'"

Sherman denies that he ever told Julie to lie. "We would never have asked her to perjure herself," he told me. "I just asked her to add two and two and come up with four, not five or seven." He explained to me that the Skakels were difficult witnesses, refusing to testify even to obvious facts unless they had clear memories. He cited the example of Rush Jr., who clearly remembered Michael's being at the Terriens' but refused to testify that Michael was in the car that went to the house: twenty-seven years later, he had no clear memory of who was in the car. John Skakel refused to testify about any of the events that night, because he had no independent memories of the details of the evening. John would agree only to testify that he told the truth to the police in 1975; the police report records his saying that Michael was in the car and at the Terriens' house. "They were impossible to deal with," Sherman told me. The children's scrupulousness might have worked against Michael: post-verdict interviews quoted jury members as saying they regarded the Skakels' memory gaps not as the product of rigorous honesty but as obfuscation.

Connecticut prosecutors still had the problem of evidence. They had no fingerprints, no DNA, and no witnesses. There was a good deal of physical evidence, but none that could be tied to anyone. Where were the prosecutors to find witnesses to flesh out the Dunne-Fuhrman speculations?