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
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Michael Skakel

The person who murdered Martha Moxley was a demon—mean and vicious. Dunne and Fuhrman's portrayal therefore required that Michael be demonized. Dunne depicted Michael as a spoiled rich kid with unlimited money and a lavish lifestyle, and claimed that his father had feigned mental illness to avoid testifying in court. In fact Rushton Skakel suffers from debilitating and progressive dementia, diagnosed in 1992. Except on rare occasions he is unable to recognize his children. His attorneys and his children are now selling Rushton's house, liquidating trusts, and pooling family funds to pay Michael's legal bills. Since the conviction the family has come together, taking an active interest in the quality of Michael's legal representation and becoming thoroughly familiar with the details of his case. They hired the firm of Santos and Seeley to represent him in his appeal, which most likely will be heard in September.

Rather than being someone who "wallowed in" self-pity, as Dunne suggests, or is overwhelmed by his troubles, Michael remains highly motivated. He got sober in 1982, at age twenty-one, and has given his life to service ever since. Dunne portrays a man riding on his relationship with the Kennedys. But Michael never identified himself as a "Kennedy cousin." On the contrary, the Kennedy and Skakel families were never close. The Skakels were Republicans who took steps against my father that my mother considered hurtful, and the families' relationship was distant for many years. I rarely saw the Skakel boys growing up, and would not have been able to identify Michael or his brothers in 1975. The Skakels have a rightful pride in their own family.

When I finally did get to know Michael, he was struggling with addiction. For twenty years I have watched him overcome, with notable personal strength, his genetic and cultural burdens and make himself a productive member of society. After getting sober he went back to school, fought an uphill battle against dyslexia, and graduated from Curry College. Despite his bulk, he is a superb athlete, and his hard work and brutal training regimen earned him a place on the U.S. national speed-skiing team in 1993. In October he celebrated twenty years of sobriety without any slips. His primary passion is helping other alcoholics in recovery.

Almost nothing the press wrote about Michael was true. Dominick Dunne made himself the arbiter in virtually every public discussion about the Moxley case: he promoted his agenda in Vanity Fair and on practically every talk show on the air. He branded Michael with a new first name, "Kennedy cousin," and drove the national press into a Lord of the Flies frenzy to lynch the fat kid. Unfortunately, the national press corps, seduced by a celebrity trial, rarely questioned Dunne's mischaracterizations. Dunne boasted on Larry King Live the week after Michael's conviction that the case, along with his coverage of previous high-profile crimes, had made him a celebrity. He told King that his new status afforded him front-row seats in the courthouse and acknowledgement from judges and accolades on the street for a job well done, which he said were what he most enjoyed. A New York Times article from the same day quoted him as saying, "Ever since I was a kid I wanted a famous person's life." The article observed that covering these crimes gave Dunne the opportunity to indulge "his fascination with celebrities and high society" and "his vengeful streak." And the Skakels were hampered in defending both Tom and Michael by their principled unwillingness to point the finger at another suspect.

As someone who grew up revering the American justice system as nearly infallible, I share Dominick Dunne's indignation that a skillful defense lawyer, in the service of a wealthy client, can get a guilty defendant acquitted. However, it is even more dismaying that, as every district attorney knows, a skillful prosecutor can persuade a jury to convict an innocent man—a fact attested to by the numerous DNA exonerations of death-row inmates in recent years. As Dunne and Fuhrman know, juries make mistakes. The law acknowledges the power of a prosecutor's office in the doctrine of "prosecutorial discretion," which allows prosecutors to refuse a winnable case if they believe that injustice might result. A prosecutor has a duty to exercise independent judgment and not cave in to public opinion or the goading of a celebrity journalist. But sometimes political heat leads a prosecutor to proceed with a case when his better judgment tells him to take a pass.

In the Moxley case, after resisting the temptation to prosecute for twenty-three years, Connecticut gave Littleton full immunity and then spent millions to convict Michael. The prosecution had so little faith in its underlying case that during the trial Dorthy Moxley had to make a public plea for more witnesses to come forward, and Jonathan Benedict made a last-minute attempt to add to the original charges a manslaughter count, which carried the possibility of no jail time. But that was before Benedict's brilliant summation. During the last ten minutes Benedict unveiled a dramatic and sophisticated multimedia display that some legal analysts have since criticized as deceptive and prejudicial. The display superimposed Michael's statements, out of context, on gruesome pictures of Martha's slain body. In a 1998 taped interview with a ghostwriter for what was to be an autobiography, Michael had described his reaction when he was awakened in a daze on Halloween morning by Dorthy Moxley. "Michael, have you seen Martha?" she asked. Michael did not then know that Martha was dead; he said on the tape that he was panicked that Mrs. Moxley might have witnessed his masturbating—a context never explained by the prosecution when they played the tape for the jury. "And I was like, 'Oh, my God, did they see me last night?' And I'm like I don't know and I remember just having a feeling of panic, like, oh shit you know like my worry of what I went to bed with, I don't know. You know what I mean, I had a feeling of panic."

As the prosecution played the audiotape, Michael's words appeared on a giant screen, turning red and exploding in size. Each time Michael said the word "panic," the display flashed a crime-scene photo of Martha's body. Observers, including Dominick Dunne, credited Michael's conviction to this dramatic summation.

There were at least four other suspects against whom the state could have marshaled enough circumstantial evidence to indict. With Benedict's brilliant techniques and a jury eager to give the Moxleys justice, any of those suspects might have been convicted. The desire for closure apparently trumped the critical principle that guilt must be established beyond a reasonable doubt. It was Mickey Sherman who pointed out that the case was like musical chairs, and that Michael Skakel got caught standing when the music stopped.

"Notorious crimes have to be very carefully prosecuted," Michael Baden, New York's former chief medical examiner, recently told me, "because it is so easy to get a conviction without physical evidence. This is the very time to be more cautious, not less cautious, so that a bad decision isn't made because of an inflamed public. Look at the five kids in the Central Park jogger case. There was no trace evidence—but with notorious cases, jurors can find you guilty anyway."

Dunne continues to make an industry out of the Moxley murder. Most recently he parlayed his role in the case into a new Court TV series he hosts—Dominick Dunne's Power, Privilege and Justice. Mark Fuhrman has also done well: the USA Network last fall aired a highly fictionalized docudrama based on Fuhrman's Murder in Greenwich, lionizing Fuhrman for his role in solving the Moxley murder. According to press reports, Fuhrman's newest book is a far-fetched effort to link the death by alcoholic overdose of a man named Christopher O'Connor, last seen being beaten by bouncers outside a Queens nightclub, to the Kennedy family.

Dunne's objective since 1991 has been to link the crime to a "Kennedy cousin," whether it was Will Smith, John Kennedy, Tom Skakel, or Michael Skakel. Describing the day of Michael's guilty verdict, Dunne crowed in Vanity Fair, "The whole courtroom stared at [Michael], transfixed by his humiliation. This trial has ruined a once proud family. Their besmirched name will outlive them all." In Vanity Fair's December issue Dunne makes the wild claim (which he repeated on Larry King Live) that he has information from a mysterious source that four others were involved in cleaning up the crime scene with Michael.

Dunne says he has "contempt for the behavior of the Skakel family" because they came from privilege and abused it. Fuhrman echoes him: "[The Skakels] lived a privileged existence" and they "frequently abused that privilege." But the capacity to write, to publish, and to hold public attention are privileges that Dunne and Fuhrman have abused. The media have duties too.

At its best, every profession—law, science, medicine, journalism—is a search for the truth. But personal bias can distort and pervert that mission. As one who has experienced the murder of family members, I sympathize with Dunne's anguish over his daughter's murder. But the worst dishonor to her memory is that her death has inspired not a search for justice but a campaign of revenge, with an innocent man its victim.

Robert F. Kennedy Jr. is an environmental attorney and a professor at Pace University Law School.
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