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Toobin: The twists of the Skakel trial

CNN Legal Analyst Jeffrey Toobin

(CNN) -- This spring Jeffrey Toobin joined CNN from ABC News, where during his seven-year tenure he provided legal analysis on some of the nation's most provocative cases, including the O.J. Simpson civil trial and the Kenneth Starr investigation of the Clinton White House. Toobin received a 2000 Emmy Award for his coverage of the Elian Gonzales custody saga. Toobin remains a staff writer at The New Yorker where he has been covering legal affairs since 1993. On Tuesday, he discussed the Michael Skakel trial with CNN anchor Paula Zahn.

ZAHN: Joining us now to talk a little bit more about the [Michael] Skakel trial, Monday's bizarre testimony of Kenneth Littleton, and the latest decision by the prosecution not to call Thomas Skakel [Skakel's brother] as a witness, CNN legal analyst Jeffrey Toobin, who is outside the courthouse in Norwalk, Connecticut. Good morning, Jeffrey.

TOOBIN: Hi, Paula.

ZAHN: Why would Thomas Skakel be a better witness for the defense? I guess that is what Jonathan Benedict has said, who is the state's attorney.

TOOBIN: There are two ways you can look at the prosecution's decision. On one hand, it might be a sign of confidence, that they thought that Ken Littleton, for all his eccentricity, did establish that both Littleton himself and Tommy Skakel have an alibi for the time of the murder, so there's no need to call Tommy.

On the other hand, they may just not want to take the risk. After all, this is the defendant's brother; they are still close. He has not cooperated for more than 25 years with the prosecution. So they don't want to take the risk not knowing what he's going to say. I think it is probably unbalanced, good for the defense, that he is not taking the stand because it leaves him out there as kind of a mystery.

ZAHN: Ken Littleton was put on the stand Monday as a prosecution witness, and we heard just some of the twists and turns in his testimony. In the end, was that a smart move by the prosecution?

TOOBIN: Well, I think they had to do it. He's a central figure in the case, and you can't keep that information from the jury. But, boy, I've been in a lot of courtrooms, Paula, and that was one of the most bizarre days I have ever spent anywhere. I mean, to listen the stories he was telling about how in 1982 he was arrested for [being] drunk and disorderly on the 16th floor of a building giving JFK's "Ich bin ein Berliner" speech. And when he was arrested, he gave the name Kenny Kennedy, the black sheep, he said, of the Kennedy family.

I mean, it really did show that he had mental problems and that he was somewhat obsessed with the Kennedy family. And ... this confession on tape, when he says to the interviewer in 1982, "I said I did it." I mean, I was looking at the jury. Some of them, their eyes bugged out. I mean, it sure sounded like he had confessed.

Now whether he actually did or not, I don't know. But that's pretty good defense evidence.

ZAHN: Now what is his wife saying then? That he never really did confess to her during this period -- where he was set up by her and some investigators?

TOOBIN: That's right. I mean, she's giving very good prosecution testimony [Tuesday], saying that, you know, he never confessed on or off camera, on or off the tape recorder. And ... this information about his so-called confession during a blackout, she says she planted in his mind. [Y]ou know, the juror might say, Well, how can you plan a confession in someone's mind?

You know, I think the prosecution, with the ex-wife's testimony, is making the best of a bad situation. But it is still a bad situation for them.

ZAHN: You said there was a noticeable reaction on the jurors' part, but they are going to be listening to a lot of odd testimony. Is it too early to read any great importance into what appear to be gasping on some of the jurors' parts?

TOOBIN: You know, I have learned real lessons in humility in predicting what jurors are reacting. I can only tell you how they look, and most jurors just absorb information stony faced. And so I don't want to read too much into it.

I did notice on a couple of jurors -- not all the jurors -- that their eyes were widening [at] seeing an alternative suspect essentially confess to the crime. What that means, at this point in the trial --we're probably not even halfway through the prosecution's case, maybe a little farther than that -- I can't say.

ZAHN: Was there anything in the Kenneth Littleton testimony that would have bolstered the prosecution's case, other than this alibi ...?

TOOBIN: Well, I think he was helpful to the prosecution [that] at this key moment, around the times when the dogs were barking, he says that he and Tommy Skakel, two alternative suspects, were watching "The French Connection." That is very good evidence for the prosecution. But it's worth pointing out that even though it takes other suspects out, it really doesn't put Michael Skakel anywhere near the murder.

I mean, it doesn't say anything about what Michael did. And that remains a tremendous gap in the prosecution's case at this point -- any evidence about Michael doing the murder. But it is helpful to the prosecution that he was very emphatic -- that is, Ken Littleton was -- that he and Tommy were nowhere near ... the murder scene at the time of the crime.

ZAHN: When he was asked specifically about Tommy Skakel, didn't he refuse to answer some of those questions, Ken Littleton?

TOOBIN: Well, not really. I mean ... he answered everything he knew. But Tommy Skakel was only with him about 15 minutes. He said, "We were only watching the chase scene together." So that does leave Tommy some time potentially to have been near or involved in the murder.

So it's not a total alibi for Tommy.