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Skakel prosecutors, defense prepare for battle over polygraph evidence

(Court TV) -- In the 26 years since 15-year-old Martha Moxley was found bludgeoned to death on her own lawn, the list of suspects has included a pair of brothers, a tutor and even a gardener.

There was Kenneth Littleton, the live-in tutor for the Skakel family, Kennedy family relatives who lived next door to the Moxleys in a wealthy enclave in Greenwich, Connecticut. One theory surmised that a transient wandered into the area and attacked the girl.

It would take authorities a quarter of a century to zero in on one suspect, Michael Skakel, the then-15-year-old son of industrialist Rushton Skakel, the brother of Ethel Skakel Kennedy. Now that Skakel's trial is set to begin next month, prosecutors will attempt to limit the testimony of previous suspects that could potentially raise doubt in the minds of the jury.

Included in pre-trial motions expected to be filed next week by prosecutors, according to a source in the prosecutor's office, is a motion to bar the defense from questioning two previous suspects -- Littleton, and Skakel's older brother, Thomas -- about the results of polygraph tests they took years ago.

Skakel's defense lawyer, Mickey Sherman, is, understandably, opposed to any such limitations.

"Generally once someone takes the stand, most judges allow a wide latitude for cross-examination and certainly anything that bears on their credibility is often fair game," Sherman said. Lead prosecutor Jonathan Benedict declined to comment on the pending motions.

The issue is unchartered territory as far as Connecticut case law goes. Connecticut, like most states, prohibits the results of a defendant's polygraph test from being admitted in court but there is no precedent for admitting evidence about other witnesses' polygraphs to impeach their credibility.

Skakel pleaded not guilty in February 2001 to a charge he committed the brutal killing the night before Halloween in 1975 in the gated community of Belle Haven, a section of affluent Greenwich. The popular teen was killed with a golf club from the Skakel family's collection.

Many years, many suspects

Sherman has argued that the jury should be able to hear about the efforts of Greenwich detectives who over the years focused on Littleton and Thomas Skakel, and a theory that a transient picked up a golf club from the Skakel lawn and killed Martha.

Specifically, Sherman would like the jury to hear about the results of polygraph tests given to Littleton and Thomas Skakel shortly after the 1975 murder.

Littleton reportedly appeared to be lying or hiding something during four polygraph examinations police conducted over the years. Thomas Skakel was the last person to be seen with Martha while she was alive and was subjected to a polygraph examination that was inconclusive, according to published reports.

Before he died last year, retired Greenwich police Detective Stephen Carroll told the producers of a Court TV documentary on the case that Littleton appeared to be lying or hiding something when he was hooked up to the polygraph machine. "It really wasn't precise as the needles go but they knew he was lying, or probably more evasive," Carroll said at the time.

Littleton got immunity before testifying before a grand jury but Thomas Skakel did not. Both deny any involvement in the crime.

The law

Though polygraphs are commonly used as investigative tools, the results of polygraph tests have long fallen out of favor with the courts as admissible evidence because the machines have been considered unreliable as detectors of truthfulness.

The Supreme Court refused in April 1998 to hear the separate appeals of two Connecticut men -- convicted arsonist Christian Porter and convicted robber Russell Hunter -- who complained that polygraph evidence barred from their trials could have cleared them. The Connecticut Supreme Court ruled the previous year in Porter's case that polygraph results should be barred from criminal and civil trials because it tended to be unreliable and would only confuse juries.

"Mickey Sherman I know will make this argument ... It is hypocritical for the state to rely on witnesses who have failed polygraphs when the whole purpose of administering polygraphs was to see if they have credibility," said former federal prosecutor M. Hatch Norris of Hartford, Connecticut, who represented Porter in the landmark case.

"It opens the door for Mickey to say the state isn't really looking for the truth, they're picking and choosing what they want to use," Norris said.

Despite Superior Court Judge John Kavanewsky's ruling last year that the prosecution did not have to turn over documents and any tapes it may have concerning polygraph examinations, Sherman said Benedict has given him what he asked for in the discovery process.

"I have everything," Sherman said, declining to say what he has received specifically. Sherman declined to disclose whether Michael Skakel, now 41, was ever subjected to a polygraph test.

Mark Fuhrman, the former detective in the O.J. Simpson case who wrote a best-selling book that pointed the finger at Michael Skakel, said he doubts the defense will succeed given the prevailing thought of judges on the reliability of polygraph tests.

"I think the issue has been beaten to death. Littleton's [results] were inconclusive," Fuhrman said. "I don't know what the defense will say about it because so were one of Tommy Skakel's."

Kavanewsky, the trial judge, is also expected to be asked to rule on how extensively the defense can present evidence of other possible suspects and whether transcripts of pre-trial testimony from a deceased prosecution witness will be admitted as evidence.

The witness, Gregory Coleman, claimed before he died of a heroin overdose last year that Michael Skakel confessed to killing Martha when Coleman and Skakel were enrolled in a Maine reform school in the late 1970s. Sherman said either he will seek to bar the transcripts in a pre-trial motion or the prosecution will seek to have them admitted. In either event, he expects the issue will be dealt with prior to the start of testimony.

If Skakel loses his bid to bring up other witnesses' polygraph examinations and is found guilty of Martha's killing, the issue would likely end up in an appeal file, along with the issue of which court had jurisdiction over the case. Skakel lost pre-trial bids to be tried as a juvenile and to have the case dismissed based on the defense's position that the statute of limitations ran out in 1980.

Testimony is scheduled to begin May 7.