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?
Every Kennedy is painfully familiar with the attention seeker who fashions a chance encounter with a celebrity into a disparaging anecdote. Michael's notoriety made him a magnet for such people—and a February 1996 television program helped prosecutors corral a group of them. In an effort to invigorate the twenty-year-old investigation, Frank Garr arranged for NBC's Unsolved Mysteries to film a segment on the Moxley murder and to provide a telephone number for viewers with information on the crime. The phone calls came in—not about Tom or Littleton but, as Leonard Levitt later reported, about Michael. The calls came from former students at the Elan School who were eager to point the finger at him. Following a drunken car accident at age seventeen, Michael had, at his father's behest, been forced into Elan, which practices a controversial behavior-modification program that relies on peer confrontation. It turned out to be a snake pit where Michael was regularly beaten during the two years he was a resident.
Garr was aggressive in recruiting his witnesses, according to Diane Hozman, a therapist in California and a former Elan resident in whom Michael had confided during his time there. Hozman recently told me that she contacted Garr to help clear Michael of the charges when she realized he was investigating the crime. He flew her to Connecticut four times, once with her son and another time with her boyfriend. She said that she thought Garr was bullying and pressuring her into saying that Michael had confessed. "I felt they were desperate to blame Michael," she told me. "Garr took everything I said out of context to make it fit into his puzzle. He definitely didn't want to hear anything good about Michael. I'm sorry I even talked to Garr." The night before she was to testify, Hozman told the prosecution again that she did not believe that Michael had ever confessed. They sent her home without calling her to the stand.
The state called a total of seven Elan witnesses. Of them the two key witnesses were Gregory Coleman and John Higgins. Coleman, who bullied Michael and was assigned to guard him after a foiled escape, told the grand jury in September of 1998 that Michael had introduced himself to him by saying, "I'm going to get away with murder and I'm a Kennedy." This highly unlikely statement became tabloid fodder and colored public attitudes toward Michael Skakel.
Coleman told the grand jury that while at Elan he had heard Michael confess to the murder five or six times. At Michael's probable-cause hearing, two years later, Coleman amended that estimate to two times. To explain the discrepancy, Coleman said he had shot heroin an hour before his grand-jury testimony. He admitted to shooting twenty to twenty-five bags a day and said that he was on methadone during the probable-cause hearing. He was incarcerated at the time and had made two requests to Connecticut authorities for cash and a reduced sentence in return for his testimony. Coleman swore that Michael told him he had killed Martha with a driver and had gone to visit her body two days later. In fact the golf club used to murder Martha was an iron, and the police removed her body the next day.
Coleman died of an overdose before the trial. But the trial judge, John F. Kavanewsky Jr., allowed his earlier testimony to be read to the jury, although there would be no opportunity for Michael's attorneys to cross-examine Coleman at the trial or for the jury to view his ruined demeanor. The confession Coleman described is inconceivable to anyone who knows Michael, beginning with Michael's alleged declaration "I'm a Kennedy"—a phrase no Skakel would be caught dead saying. Coleman's recollection is similar to a National Enquirer headline shortly after Michael's arrest, which quoted Michael as allegedly telling Harry Kranick, another Elan character, "I killed that chick ... it got me excited." Kranick denied that he ever heard Michael Skakel make any of the reported statements; otherwise the police would certainly have made him testify. Judging by his behavior, Coleman himself never expected to testify. He had waited twenty years to tell his story, and did so in an anonymous call to a local NBC affiliate. The station got in touch with the Connecticut police after tracking Coleman through caller ID.
John Higgins was another Elan bully. At the trial Higgins said that he had been on guard duty with Michael when Michael spontaneously began relating his memories of the Moxley murder. According to Higgins, Michael recalled a party that night at the Skakel house, after which he rummaged in the garage for golf clubs; he remembered running through pine trees afterward and waking up at home. That story is obviously contrived. There was no party that evening, and there has never been a garage at the Skakel house. Higgins refused to sign a formal statement, take a polygraph, or allow the police to tape his phone calls to them. They recorded him anyway, and used the tape to force him to testify at the trial. Higgins later admitted to lying to Garr about his knowledge of Michael's confession.
Other Elan witnesses testified that they had never heard Michael confess while at Elan. Higgins "had a reputation for not being truthful," one witness said, and "seemed to really like making Mike Skakel's life miserable." For two years Michael was continually spat upon, slapped, and deprived of sleep. He was serially beaten with hoses and by students wearing boxing gloves, forced to wear a dunce cap and a toilet seat around his neck, and subjected to a long inventory of other tortures. Upon Michael's arrival at the school, its owner, Joseph Ricci, who came from a town neighboring Greenwich and was aware of the Moxley murder, told him he would never leave the facility until he admitted that Tom Skakel had committed the crime. Elan's administration encouraged students to accuse Michael himself of Martha's murder as part of the school's humiliation therapy. Students like Coleman and Higgins had incentives to report such confessions; they would have been rewarded with extra privileges and elevated status and power. Their claims that Michael had confessed while at Elan and that they then kept his secret are, according to other Elan witnesses, incredible. Referring to Coleman's and Higgins's testimony, Joseph Ricci told Time magazine that "the notion of Michael's confession is just preposterous." Ricci said, "I was there, and I would know." The facility had only a hundred students, and if Michael had confessed, "two things would have happened," Ricci said. "Everybody in the facility would have known and talked about it. And we would have called our lawyers to figure out our obligations. Neither happened." Unfortunately for Michael, Ricci died immediately before the trial, so the jury never heard his testimony.
Geranne Ridge, not an Elan student but a self-described "part-time model," testified that in the spring of 1997 Michael was at a party she alone remembers, in her apartment—which Michael and a mutual friend of Ridge's and Michael's say Michael never visited. Ridge claims that she overheard Michael saying, "Ask me why I killed my neighbor." That is the exact wording of a chin-to-ankle sign Michael was forced to carry for two months at Elan. The sign was thoroughly discussed in such tabloids as The Star, The National Enquirer, and the Globe. Ridge admitted on the stand that she had lied when she told a friend in a conversation that he secretly taped that Michael had confessed to the crime. She admitted that her story of Michael's confession was "BS" invented to impress a friend. She acknowledged that she had come forward only because the friend had handed the tape to the police.
Finally, the prosecution produced Matthew Tucciarone, a hairdresser from the Golden Touch Salon, in Greenwich. Tucciarone claimed that Michael, Rush Jr., and Julie came for haircuts in the spring of 1976. As Tucciarone clipped his hair, Michael conversed with his siblings and said, "I'm going to get a gun and kill him." To this, according to Tucciarone, Julie responded, "You can't do that." Michael then said, "Why not? I did it before. I killed before," and Julie reportedly answered, "Shut up, Michael."
Tucciarone described Julie as having a ponytail and showing her navel. At that time Julie had short hair and would never have exposed her navel. "Dad would have grounded her for a year," Stephen Skakel told me. "Absolutely not," Julie said when I asked her if she would ever have dressed that way. Moreover, Julie testified that she, Rush Jr., and Michael would not have gone for haircuts together during that era. The Skakel siblings went to Mike's barbershop as youngsters and later used Subway Barber. No Skakel, the family told me, has ever been to the Golden Touch Salon or met Tucciarone. Coincidentally, according to Tucciarone, Michael's confession occurred on the one day of the week Tucciarone was working alone in the salon—a holiday when the entire Skakel family always left town. Tucciarone waited twenty-six years to tell his tale: he came forward only after casually relating it to one of his customers, a Stamford sheriff, who urged him to report it to the state attorney's office.
These witnesses have so little credence that it's hardly worth describing them. In many cases they had changed or retracted their stories before the trial began, but were called to testify nonetheless. And the jury believed them. In each case the witness did not initially go to the police but bragged about the story to an acquaintance or to the media, who then notified the police. How likely is it that Michael Skakel, who endured years of torture at Elan during which he refused to admit any guilt, would suddenly "confess" to these crackpots but never to any person he knew or trusted?
Prosecutors also relied heavily on another alleged confession—one with which I, as it happens, am familiar. Many years ago Michael told me a story with his customary honesty and humor. At age sixteen he had once draped himself in a dress of his late mother's and fallen asleep in his room. His father discovered him and went wild. Michael called a family handyman who sometimes drove the children and asked to go to his psychiatrist's office, in New York City, although he did not have an appointment. The driver testified that during the ride Michael said "he had done something very bad and he either had to kill himself or get out of the country." On the way back to Belle Haven, the driver continued, Michael tried to jump off the Triborough Bridge. The prosecution offered that statement as a confession to the Moxley murder. In fact, despite widespread press reports to the contrary, Michael never said he was the murderer—to the driver or to anyone else. The handyman never intended to come forward with the story, but not long before the trial he offhandedly told his bank manager, who reported it to the authorities.
Michael's problems were aggravated by an overconfident and less than zealous defense lawyer who seemed more interested in courting the press and ingratiating himself with Dominick Dunne than in getting his client acquitted. To defend Michael the Skakels had hired Mickey Sherman, a high-profile partner in a small Stamford law firm, at the recommendation of Emanuel Margolis, Tom's lawyer—a recommendation Margolis now deeply regrets. Sherman promoted himself as a public-relations expert who could undo the damage to the family's reputation caused by nearly a decade of Dunne's accusations. His appetite for the limelight turned out to be as voracious as Dunne's—but he was a much less effective spokesman.
Soon before the trial began, the Greenwich Time quoted Sherman as saying that his relations with Court TV had turned him into a "television lawyer." "We make fools of ourselves," he was quoted as saying, "in return for limo rides and cheap doughnuts in greenrooms." (Sherman now says he "disavows" that report.) The family was distressed by Sherman's seeming lack of attention to the trial, what they saw as his failure to prepare them adequately before their testimony, and his undisguised friendship with Dominick Dunne. On at least one occasion Sherman arrived at court in a limousine with Dunne; he spent at least one evening at Dunne's house, at a party. The day after the conviction Sherman told me that he was going to a Court TV party for Dunne. When I questioned the propriety of his attending, he said, "We're friends. What can I say, I'm a kiss-ass." (He now claims not to remember making this remark, but he recently said, "I make no apology for being cordial to Dunne. I got valuable information from him over the years.")
Following Michael's conviction Sherman startled CNN staffers with an unscheduled greenroom appearance to visit Dominick Dunne and Dorthy Moxley as the three awaited separate Larry King Live interviews. He told Moxley that he was "happy" for her. Dunne instantly reported the remark. At Michael's sentencing Sherman, quoting a probation report, said that Michael was "an entirely different person today than he was at fifteen." Both statements left public doubt that Sherman believed in his client's innocence—although Sherman protests that this was not his intent and told me he is certain that Michael is innocent.
Perhaps in recognition of Dunne's solicitude toward Ken Littleton, Sherman refused, Julie said, to allow her or the other Skakels to testify about the strong evidence against Littleton. When I asked Sherman during the trial why he was not aggressively questioning Littleton, he said, "He's a pathetic creature. I don't want to look like I'm beating up on him." When Sherman called Jack Solomon to the stand, Solomon appeared with a three-ring binder containing nearly three decades' worth of police information about Littleton and a summary of the state's case against him. That information might have proved critically valuable to Michael's defense. Sherman did not have the binder marked as an exhibit or placed in evidence.
Even before the trial began, Sherman failed to make an interlocutory appeal based on Michael's strongest legal argument—that the court no longer had jurisdiction to hear a case against anyone who was accused of a murder that took place in 1975, because at the time the statute of limitations for murder was five years. Sherman says that he thought the right time for such an appeal was "after the final judgment." (A state supreme court decision on the statute of limitations is now pending.) "The whole point of an interlocutory appeal," however, as Hope Seeley, the lawyer in charge of Michael's appeal, recently explained, "is not to have to wait for a final judgment—or endure the expense and emotion of a lengthy trial." An early victory in such an appeal would have deprived Sherman of the nationally publicized trial he expected would boost his career.
By the time Sherman's behavior became worrisome to the Skakels, it was too late to change lawyers, Julie told me: "We'd already paid Mickey a million dollars, and at that point it was too much." The family had originally been persuaded, they said, by Sherman's charm and confidence, and especially by his frequent assurances before the trial that he was in control and there was no chance Michael would be convicted.
Sherman allowed the seating on the jury of a policeman (unheard of in the world of criminal defense) and of someone who admitted to sharing a friend with the Moxleys. At the time, trial watchers were amazed at the speed of the jury selection and called it "unprecedented" for this type of case. Most disturbing, Sherman, as noted above, proved inept in countering Andrea Shakespeare Renna's ambiguous testimony that she was "under the impression" that Michael was in the Skakel house when she left. A more skillful cross-examination of Renna would have clearly revealed the weakness of her claim, since she could never give any explanation of her belief that Michael did not go to the Terriens'. Sherman should have objected to Renna's testimony because it was speculation not based on personal knowledge.
During the trial Sherman seemed more interested in trying to convince the members of the jury that he was affable and the press that he was television-ready. Judging by their subsequent remarks, he instead disgusted them. And despite the $150,000 the family says Sherman billed them for time he spent with the media, the public's impression of Michael Skakel couldn't have been more negative. Given the gift that every great defense lawyer yearns for, a genuinely innocent paying client, Sherman squandered a fortune and sacrificed Michael on the altar of his ego.
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.