The revelation Tuesday that Thomas Skakel, Michael's elder brother, would no longer take the stand is the latest of the prosecution's woes. "I don't know what the sense is in putting on a member of the family," said Benedict. But court-watchers reckoned that testimony by Thomas could have left him vulnerable to damaging cross-examination by the defense, who might have portrayed him as the possible killer and raise doubt about the supposed guilt of Michael. Thomas's lawyer, Emmanuel Margolis was even concerned about self-incrimination. "I was beginning to weigh the possibility of pleading the Fifth Amendment" for his client, the last person to see Moxley alive.
The prosecution's troubles are symptomatic of what is certain to be a difficult case to prove. There is no direct physical evidence, such as blood or semen, linking Skakel to the murder. After so many years, memories have faded and recollections offered by witnesses have repeatedly contradicted old statements given to police. And, while only one man is charged with Moxley's murder, there are three suspects.
One of them, former Skakel tutor Kenneth Littleton, has for the past three days been the focus of stunning testimony saying that police tried to trick him into confessing to the murder in a Boston hotel room in 1992. Investigators recruited Littleton's ex-wife, Mary Baker, to wear a recording device and lie to Littleton, saying he had told her he was the murderer during a drunken blackout. Prosecutors fought to suppress the testimony but Judge John Kavanewsky has allowed most of it. Attempting to debunk Littleton's "confession", Benedict yesterday had Baker read a 98-page transcript of the hotel room conversation, in which Littleton repeatedly denies he killed Moxley.
Rushton Skakel Senior, Michael's father, took the stand Wednesday. The elderly man has dementia and testified he remembered nothing of the events surrounding the murder. Margolis, also Rushton Senior's attorney, says his client's memory is "very, very poor." But while the Skakel father is unlikely to help the prosecution, other witnesses might. With up to a month still to go in the trial and the defense poised to make its case, Benedict appears to be saving his best until last. Michael Skakel is alleged to have boasted about killing Moxley in the late 1970s at a Maine school for troubled youths.