MEDIA ADVISORY

STAMFORD, CT -- The Hon. Maureen D. Dennis has issued the following decision in the matter of IN RE MICHAEL S.

MEMORANDUM OF DECISION

PROCEDURAL HISTORY

This matter comes before the Superior Court for Juvenile Matters on a non-adjudicatory hearing pursuant to Connecticut General Statutes, Section 17-60a (Rev. to 1975).1 The requisite statutory hearing occurred on June 20, 21 and 28, 2000. The now thirty-nine year old respondent is charged as a delinquent due to his age (fifteen) at the time the underlying, charged offense of murder is alleged to have occurred in October 1975.2 The state has presented evidence seeking a finding of reasonable cause that the respondent committed the act for which he is charged and further seeking an order of transfer of this matter to the jurisdiction of the Criminal Division of the Superior Court for prosecution as an adult. The respondent has presented evidence for purposes of rebuttal.

LAW

Interpreting another statute that included a provision directing an investigatory function, our Supreme Court has stated: "[T]he term 'reasonable cause' as used in §46a-83 is synonymous with the term 'probable cause.' . . . " Probable cause is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. . . . It deals with probabilities, and the application of the factual and practical considerations of everyday life on which reasonable and prudent men act.'" (Citation omitted.) Dufraine v. Commission on Human Rights & Opportunities, 236 Conn. 250, 261, 673 A.2d 101 (1996). The trial court's role in determining probable cause in an evidentiary hearing is similar to its role in other fact-finding proceedings. See In re Keijiam T., 221 Conn. 109, 125, 602 A.2d 967 (1992). The court must consider all of the evidence before it, including any frailties disclosed by cross-examination, draw whatever inferences from that evidence that it considers to be reasonable and logical and decide whether that evidence, including any inferences, would warrant a person of reasonable caution to believe that the respondent committed the crime as charged. See id. Notably, the level of certainty required in a probable cause hearing is considerably lower than in other proceedings. See id. "The quantum of evidence necessary to establish probable cause at a preliminary hearing is less than the quantum necessary to establish proof beyond a reasonable doubt at trial. . . . In making its finding, the court ha[s] to determine whether the government's evidence would warrant a person of reasonable caution to believe that the accused [had] committed the crime.

. . . The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction." (Citations omitted; internal quotation marks omitted.) State v. Patterson, 213 Conn. 708, 720-21, 570 A.2d 174 (1990). "Proof of probable cause is not as demanding as proof by a fair preponderance of the evidence." In re Keijiam T., supra, 221 Conn. 125. See also Ledgebrook Condominium Assn., Inc. v. Lusk Corp., 172 Conn. 577, 584, 376 A.2d 60 (1977); Newtown Associates v. Northeast Structures, Inc., 15 Conn. App. 633, 636, 546 A.2d 310 (1988).

In addition to applying the appropriate standard of proof, the court, for purposes of this hearing, sits as the trier of fact. The "trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . As such, the trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility." (Citation omitted; internal quotation marks omitted.) State v. Fernandez, 52 Conn. App. 599, 603-04, 728 A.2d 1, cert. denied, 249 Conn. 913, 733 A.2d 229 (1999). See, e.g., State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S.Ct. 1455, 79 L.Ed. 2d 772 (1984); State v. Wiener, 58 Conn. App. 203, 215, 753 A.2d 376 (2000); In re Martin K., 56 Conn. App. 10, 11, 741 A.2d 10 (1999); In re John G., 56 Conn. App. 12, 19, 740 A.2d 496 (1999); In re Tricia A., 55 Conn. App. 111, 114, 737 A.2d 974 (1999); In re Danuael D., 51 Conn. App. 829, 838, 724 A.2d 546 (1999) and State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).

In assessing the testimony of witnesses regarding conversations occurring nearly a quarter century ago, the court must also necessarily consider the effect, if any, of the passage of time on the witnesses' recall of particular words. "The precise words which were employed have generally faded from the memory.

The impression which they give may remain, and it is the impression justly to be derived from them which is material." Spencer's Appeal, 77 Conn. 638, 643, 60 A. 289 (1905).

The respondent is charged with violating Connecticut General Statutes §53a-54a (Rev. to 1975).3 The element of intent to cause death may be inferred from circumstantial evidence, such as the type of weapon used, the manner in which it was used, the type of wounds inflicted and events leading to and following the death. See State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d. 207 (1981); see also In re Keijiam T., 221 Conn. 109, 119, 602 A.2d 967 (1992); In re Edwin N., 215 Conn. 277, 284, 575 A.2d 1016 (1990); and In re Daniel H., 47 Conn. App. 308, 314, 703 A.2d 1173 (1997). Intent may also be determined from incriminating details related to others. See State v. Rollinson, 203 Conn. 641, 666, 526 A.2d 1283 (1987).

FINDINGS OF FACT

Based on the evidence deemed credible, the court finds the following relevant facts:

(1) The respondent was fifteen years of age in October of 1975.

(2) In October of 1975 and for sometime prior thereto, the respondent was attracted to and/or infatuated with the victim, Martha Moxley.

(3) In October of 1975, the respondent's home and the victim's home were located in the residential section of Greenwich, Connecticut known as Belle Haven, a "gated community" with few access roads, and its own special police under the supervision of the Greenwich Police Department.

(4) In October of 1975, there was a large detached shed or outbuilding on the grounds of the respondent's family home, which stored lawn maintenance equipment and some sporting equipment.

(5) The victim's body was found, partially concealed, under a large evergreen tree on the grounds of her family home at approximately 12:30 p.m. on October 31, 1975. The victim's buttocks were bare. Her blue jeans were pulled down near the calves of her legs and her panties were also pulled down and stretched between her knees. She was officially pronounced dead at approximately 5:30 p.m. on October 31, 1975.

(6) On November 1, 1975, an autopsy was performed on the victim by Dr. Elliot M. Gross, Chief Medical Examiner for the State of Connecticut. The cause of death was multiple, severe fractures of the skull and severe brain damage. Dried grass, leaves and twigs were present about the face, trunk and lower extremities of the victim. External lacerations and avulsions were found in various areas of the face and scalp including the left forehead, the front hairline, the left ear, the left tempo parietal region and the right and left occipital regions. Three scalp lacerations were so severe that fragments of bone and brain tissue were found in the victim's hair. Dirt was present in the depth of some of the wounds. An additional perforating wound of the neck included transfixion of the hypopharnx. Punctate lacerations were present over the junction of the nasal bone and the bone was fractured. Fractures of the skull were found in various locations, including the occipital, parietal and sphenoid bones, and fracture lines extended into the foramen magnum. There was diffuse subarachnoid hemorrhage over the cerebral convexities as well as at the base of the brain. The cerebral convexities on the superior surface and the occipital poles, the undersurface of the frontal lobes and the dorsal surface of the cerebellar hemisphere all showed extensive contusions. There were also lacerations of the arachnoid.

(7) The instrument used to cause the injuries, resulting in the death of Martha Moxley, was a Tony Penna number 6 iron golf club. Three sections of the golf club were located. Two pieces, the club head and an approximate 8" section of shaft were located in close proximity to one another, within the circle encompassed by the Moxley semi-circular driveway and Walsh Lane. Traces of blood were found on these items. Another approximate 7" section of shaft was located on the other side of the driveway. At this location, there was pooling of blood and the beginning of a drag pattern.

(8) The victim's body was dragged 60-80 feet leaving a trail of blood approximately 14" wide, leading up to the pine tree, on the Moxley property, where the body was ultimately discovered.

(9) The three aforementioned sections of the Tony Penna number 6 iron golf club did not comprise the entire club. The remaining portion(s), which would have included part of the shaft and the handle with grips, was/were never located.

(10) Another Tony Penna golf club, a number 4 iron, was located in the respondent's family home. On this club, a label on part of the shaft read "Mrs. R.W. Skakel, Greenwich CC, Greenwich, Conn." The Tony Penna number 6 iron golf club, which was the instrument used on the victim, and the Tony Penna number 4 iron golf club, which was found in the respondent's family home, were "brother and sister clubs."

(11) In the late 1970s, the respondent attended the Elan School in Maine, a residential facility for troubled and/or substance abusing youths and adults, which provided both therapy and education. Therapeutic modalities included group sessions and primal scream sessions. Group sessions were held every week day and on some Saturdays, with approximately 12 to 15 participants. Primal scream sessions were conducted approximately once a month, with a maximum of 8 participants, and a staff "facilitator".

Elan 3 was a coed facility, but the sleeping quarters for the women were in the main lodge while the men's dormitory was a separate building. There were, therefore, substantial periods of time when the male and female residents were separated. During such time periods, the female residents were neither part of nor privy to conversations and/or activities occurring in the male facility.

Student residents were involved in the supervision, policing and oversight of one another. These assignments were made by staff, based upon levels of trust of the resident assigned. In particular, the position of "night owl" was responsible for watching the campus and other students during an overnight shift, including conducting a physical check or "headcount" every half hour of all residents in a particular area, and making sure that no one ran away. Females served in this capacity for the women, and males for the men. The "night man", a very trusted resident, would go between the male and female night owls for periodic checks. A "personal overseer" was responsible for guarding one individual during a designated period of time.

There was a hiatus in the responden's residency at Elan when he was on runaway status for several days and/or weeks. Upon his return to the facility, he was placed under "personal overseer" surveillance on a stage at the end of the dining room in Elan 3, for approximately three days.

(12) Gregory Coleman, a state witness, attended Elan in approximately 1978 and was 16 years of age at the time. He arrived at the school while the respondent was on runaway status. When the respondent returned to Elan, Coleman was assigned as a "personal overseer" for the respondent and guarded him on the dining room stage. While assigned as "personal overseer" of the respondent, Coleman noted that the respondent was afforded special privileges, such as a stereo and records. Coleman commented in the respondent's presence, "This guy can get away with murder." The respondent replied, "I am going to get away with murder, I am a Kennedy." The respondent also told Coleman that he was trying to make advances towards this girl, that she was not complying with those advances and that he "drove her skull in," with a golf club. The respondent further stated in Coleman's presence that the assault occurred in a wooded area around his home and that he subsequently returned to the body and masturbated on it. At this time, Coleman was one of two people assigned as "personal overseer" to guard the respondent. Although Coleman does not recall the name of the other "personal overseer," he believes that this individual heard the respondent's statements.

(13) In his capacity as a resident at Elan, Coleman was present at a primal scream session in which the basic content of the group discussion was what the respondent had done with reference to a murder, prior to arriving at Elan. In this session, the respondent was directed to scream about his involvement in and guilt associated with the incident. Although uncertain, Coleman believed that Alice Dunn may have been the staff "facilitator" of this session. Coleman was able to recall this event because he was assigned to copy the "dailies" or recorded reports of that day's activities at Elan, and remembers copying a report of this primal scream session.

(14) While at Elan, Coleman made no formal or informal, contemporaneous disclosure or report of the aforementioned remarks of the respondent. Many years later, while watching television coverage regarding the murder of Martha Moxley, which focused on the respondent's brother as the perpetrator, Coleman commented to his wife that it wasn't the brother, it was Michael. In the summer of 1998, after seeing another related broadcast on MSNBC, Coleman reached the local NBC affiliate in Rochester, New York and reported that the person they were looking for was Michael Skakel, not the brother. Subsequently, Coleman was contacted by an investigator of the Connecticut State's Attorney's Office.

Coleman's delay in coming forward was, at least, partially based on his perception of Elan as an environment where wealth was synonymous with power and could save embarrassment of family and even avoidance of prosecution for a crime. Moreover, Coleman thought that the respondent was hidden away in a facility protected by federal regulations of confidentiality.

(15) John Higgins, a state witness, was approximately 14 or 15 years old at the time he attended Elan from approximately 1977-1979. One night the respondent and Higgins were assigned as "night owls" and were together on a porch of an Elan housing dormitory. They had a lengthy conversation, lasting more than an hour, regarding the respondent's involvement in a murder. The respondent told Higgins that he remembers looking through a garage for a golf club, taking a club out of a bag and running through woods with the club in hand. The respondent further related to Higgins that he remembered seeing pine trees. The respondent initially stated that he didn't know and/or couldn't remember if he committed the murder. However, the respondent ultimately admitted committing the murder. No one else was present during this conversation. Shortly thereafter, Higgins related the content of this conversation to Harry Kranick, the "night man" on duty. At some time subsequent to his discharge from Elan, Higgins also related the substance of his conversation with the respondent to a friend, Chuck Seigan.

Higgins did indicate an extreme reluctance to come forward and did not wish to be involved in this matter or these proceedings, but said his "hand was forced" when Seigan contacted the authorities and told them about the disclosures made by the respondent to Higgins.

(16) Andrew Pugh, a state witness, was 14 years of age and a friend of the respondent in October of 1975, living in the same neighborhood as the respondent and the victim. As childhood friends, the respondent and Pugh climbed a particular large tree on the Moxley property, which they referred to as "the tree." Andrew Pugh identified the tree under which the victim's body was found as "the tree." In the early 1990's, Pugh and the respondent had a phone conversation in which the respondent related that he had been on the Moxley property on the night of October 30, 1975, in that tree, masturbating.

(17) Alice Dunn, a witness for the respondent, became a resident of the Elan School in 1976 at the age of sixteen. After her graduation from the program, she remained on staff for a period of three to four years. At the time of the respondent's return from runaway status, Dunn was a staff member. In that capacity, she facilitated a single primal scream session where the respondent was the subject of discussion. In that particular session, she "believe(d)" the issue the respondent was working on was the death of his mother and his guilt over a conversation they had prior to her death. Based upon the evidence presented, the court cannot find that this was the same primal scream session described by Gregory Coleman.

Although Dunn was not present during the aforementioned conversations between the respondent and Coleman or Higgins, she and the respondent did discuss the murder on more than one occasion. While not specifically mentioning the victim's name, the respondent indicated to Dunn that either he or his brother was responsible for the murder. Later, the respondent conceded to Dunn, that as far as he was concerned, he might have committed the murder. The respondent also admitted to Dunn that the golf club, involved in the murder, belonged to his family. As in his conversation with Higgins, the respondent also made reference to pine trees during a conversation with Dunn.

(18) Angela McFillin and Sarah Petersen, witnesses for the respondent, were residents at Elan in the late 1970s. Neither McFillin nor Petersen was present during the aforementioned conversations between the respondent and Coleman or Higgins.

DISCUSSION

In evaluating the credibility of John Higgins, Gregory Coleman and Andrew Pugh, the court has considered the frailties and inconsistencies brought about through cross-examination as well as the testimony of the respondent's witnesses offered by way of rebuttal. The court has also taken into account the substance and subject of the conversations and the many years which have intervened since they occurred, as well as the challenges raised concerning the delays in reporting these conversations. In that regard, the court specifically finds that no remuneration was offered, given or promised to Gregory Coleman and no reward was applied for by John Higgins. Higgins failure to come forward, until "his hand was forced," although not laudable, was believable considering his pattern of evasiveness during the investigatory stages of this matter and his continuing palpable disinclination to be involved, even at the time of this hearing. Having observed the conduct, demeanor and attitudes of these witnesses, the court finds them each to be credible. None of the respondent's witnesses specifically or directly refuted the essence of Higgins', Coleman's and/or Pugh's testimony.

From the evidence presented, a reasonable and prudent person of caution could logically infer that the respondent retrieved the Tony Penna number 6 iron golf club, the instrument used to murder the victim, from his family home and/or the outbuilding thereon and ran through the woods and pine trees near his home, to the Moxley property. A person of reasonable caution could further infer and deduct that the respondent was at the location where the murder took place and at a time when it occurred, giving the respondent the opportunity to commit the act with which he is charged.

Moreover, the respondent himself has acknowledged to at least two individuals that he was at the scene where the body was found. It is also more than mere coincidence that twice, once to Coleman and, more than a decade later, once to Pugh, the respondent made statements, concerning his masturbating either on the victim, or in the tree on the Moxley property on the night the victim was murdered. Although the time of the masturbation as reported by Coleman was questioned, neither statement regarding this distinctive and individual act by the respondent was rebutted. Of even greater import is the fact that the respondent has, twice, made admissions that he committed the murder, and, once, even bragged that he was "going to get away with murder."

Considering the multiple and severe injuries to the front, side and back of the victim's head, the additional perforating wound to her neck, piercing her hypopharnx, the location of the pooling of blood, and the distance the victim's body was dragged to its ultimate terminus, partially hidden under the large pine tree, in conjunction with the statement made by the respondent that he "drove her skull in," the court finds that the specific element of intent to cause death has been proven well beyond a mere suspicion.

CONCLUSION

Having considered all of the state's documentary, photographic and testimonial evidence, as well as the respondent's submissions for purposes of rebuttal, the court finds, pursuant to Connecticut General Statutes §17-60a (1) (Rev. to 1975), that there is reasonable cause to believe that the respondent has committed murder, the underlying act with which he is charged. The court hereby directs that an investigation be made pursuant to Connecticut General Statutes §17-66 (Rev. to 1975) for the court's consideration on the issue of the requested transfer to the jurisdiction of the Criminal Division of the Superior Court.

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DENNIS, J.

1 General Statutes §17-60a (Rev. 1975) provides: "The juvenile court shall have the authority to transfer to the jurisdiction of the superior court any child referred to it for the commission of a murder, provided any such murder was committed after such child attained the age of fourteen years. No such transfer shall be valid unless prior thereto the court has caused a complete investigation to be made as provided in section 17-66 and has found, after a hearing, that there is reasonable cause to believe that (1) the child has committed the act for which he is charged and (2) there is no state institution designed for the care and treatment of children to which said court may commit such child which is suitable for his care or treatment or (3) the safety of the community requires that the child continue under restraint for a period extending beyond his majority and (4) the facilities of the superior court provide a more effective setting for disposition of the case and the institutions to which said court may sentence a defendant are more suitable for the care or treatment of such child."

2 The Connecticut Supreme Court has recognized, within the juvenile delinquency context, that the law is applied as it existed on the date of the offense, regardless of its procedural or substantive nature. See "In Re Daniel H"., 237 Conn. 364, 377, 678 A.2d 462 (1996).

3 General Statutes §53a-54a(a) (Rev. to 1975) provides in pertinent part: "A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person. . . ."