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Skakel prosecutors withdraw jury request

Skakel arrives for court Wednesday with his attorney, Mickey Sherman.

NORWALK, Connecticut (CNN) -- Reluctant to open the door to an appeal, prosecutors in the Michael Skakel trial Thursday withdrew a request made earlier in the day that jurors be allowed to consider what amounted to a lesser charge.

Prosecutors had asked that jurors be given the option of finding Skakel guilty of murder due to extreme emotional disturbance -- a charge essentially equivalent to first-degree manslaughter. Skakel is charged with murder in the beating death of neighbor Martha Moxley in 1975, when both were 15.

But "conflicts of the 'extreme emotional disturbance' charge with the statute of limitations and the juvenile transfer statute" raised "potential appellate problems," said State's Attorney Jonathan Benedict.

Under the now-withdrawn request, the jury, to return a conviction, would still have had to find Skakel guilty of murder beyond a reasonable doubt. But adding the "extreme emotional disturbance" consideration would have mitigated the murder conviction by reducing the maximum penalty from life to 20 years in prison.

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In effect, prosecutors said in court papers, a finding of murder with extreme emotional distress "reduces the crime of murder to the crime of manslaughter in the first degree."

Moxley was beaten to death with a golf club outside her home on October 30, 1975. Skakel, now 41, is the nephew of Ethel Kennedy, widow of Sen. Robert F. Kennedy.

The statute of limitations on bringing manslaughter charges ran out five years after the killing. Prosecutors believed that asking the jury to consider the amended charge would have gotten around that legal point, but they decided later it would have given the defense grounds for appeal.

Furthermore, they said, an appeal could have been based on the fact that the case was transferred out of juvenile court -- where it was originally because Michael Skakel was 15 at the time of Moxley's death -- only because of the murder charge.

"It's difficult ground," Benedict said. "We feel we have an appeal-proof case and didn't want to take the chance of infusing an appellate issue at this point. ... The appellate aspects of it caused us to be more cautious."

Skakel's defense team had strongly opposed the request, saying, "It's all or nothing."

Moxley beaten to death

Skakel's sister testified Wednesday that she thought she saw her brother at the time he claims he was miles away with his cousin -- the time defense attorneys contend Moxley was murdered.

But Julie Skakel, testifying as a prosecution rebuttal witness, said that although she remembered calling out, "Michael," she didn't get a good enough look at the figure she saw running past the family's driveway to be able to identify who it was.

Testimony revealed Julie Skakel told police in 1975 and a grand jury in 1998 that she said, "Michael, come back here," when the figure darted out past her car as she waited in the driveway to take a friend home.

Michael's presence at that time would indicate that he did not leave for his cousin's house.

This would contradict earlier testimony from Skakel's brothers and cousin James Dowdle that he drove with them in the family's Lincoln to Dowdle's house just after 9:30 p.m. and stayed until about 11 p.m.

The defense has built its case around the premise that the killing took place around 10 p.m., the time several neighborhood dogs began barking furiously.

Defense attorney Mickey Sherman contends Michael Skakel was at Dowdle's house during that time.

From the beginning of the trial, however, Benedict has claimed the slaying could have occurred anytime within a window of 9:30 p.m. on October 30 to 5 a.m. on October 31.

Although she testified Wednesday that she did not recall whether the Lincoln or any other cars were still parked at her house before she left, Julie Skakel told the grand jury in 1998 that "as far as I can recall, I was the only car in the driveway."

During cross-examination by Sherman, Julie Skakel said she thought Michael might have been the running figure because it was "Mischief Night" -- the night before Halloween, when her brother and other neighborhood children liked to engage in pranks.