For now, it's true that Judge Maureen Dennis has ordered a juvenile probation officer to investigate Skakel's status before she decides whether to transfer the case from her court to adult court. But I agree with prosecutors who say that this intermediate step is just a formality before the case is transferred. Connecticut law suggests strongly that the juvenile court system simply isn't designed, or intended, to handle a 39-year-old defendant who is more than twice the age of the oldest juveniles in the state's system.
The court's finding of "sufficient evidence" to try Skakel for murder, and the looming transfer of the case to adult court, are two bits of genuinely bad news for Skakel, charged with bludgeoning Moxley with a golf club near their homes in Greenwich, Conn. Had the judge found that insufficient evidence existed, for example, Skakel could have walked away from this case, without having to pay too much more for his defense.
And a decision to keep this case in juvenile court would have given Skakel a victory in the war, even if he lost the battle at trial and was convicted of the charges against him. A reasonable reading of the state's juvenile laws suggests that Skakel could not be sent to a juvenile detention facility because he's already too old to stay in such a facility. Unfortunately for Skakel, these two dream scenarios aren't unfolding for him.
Instead, it is looking increasingly likely that he'll have to stand trial as an adult and perhaps be punished as an adult with a long prison sentence. Now, although that's not the type of news any defendant likes to hear, especially when the lawyer's clock is ticking, there are still a whole lot of things going for the defendant as this old case gets geared up to proceed.
First, a judge's finding of "sufficient evidence" is a far cry from a jury's verdict of guilt beyond a reasonable doubt. There are tens of thousands of cases each year that meet the first legal requirement but fail short of the second. Also, there is great doubt that prosecutors can make any 25-year-old murder case stick when the evidence against the defendant is not overwhelming and the case against Skakel is not bulletproof.
Several of the witnesses against him already have had their credibility skewered in court by defense attorney Mickey Sherman, one of the best in the business. And some of the forensic evidence, stowed away these many years, certainly will be subject to intense scientific scrutiny by defense experts, who just love to take hold of old things and testify about how contaminated they are.
Finally, even those witnesses who are likely to survive Sherman's direct attack on their crediility surely will have a hard time convincing jurors that they have a clear memory about something which happened on a single night during the Ford administration. This is especially true in a murder case and when the defendant may for a variety of reasons appear sympathetic to jurors.
Even though Thursday was a bad day for Skakel and his defenders, it by no means indicates that all is lost for the defense. The prosecutors still have the burden of proof in this case, and it's one made even higher by the passage of time.