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An upstate New York judge has denied an attempt by Michael C. Skakel, a member of the Kennedy family in the national spotlight since he was charged last year with a 25-year-old murder, to prohibit his estranged wife from publicly discussing their pending divorce and to cloak the procedures in secrecy. Skakel, the nephew of Robert F. Kennedy, argued that a gag order in his ongoing divorce matter is necessary to protect his criminal fair trial rights. He was charged last year with the slaying of a Greenwich, Conn., teenager, Martha Moxley, in 1975. Moxley was beaten to death with a golf club. Skakel, whose father, Rushton Skakel Sr., is the brother of Ethel Kennedy, the widow of Senator Kennedy, lived across the street from the Moxleys. Supreme Court Justice George L. Cobb of Catskill has ruled that a gag order would impermissibly intrude on the First Amendment free speech rights of Skakel’s estranged spouse, Margot Skakel. Additionally, Cobb refused Skakel’s request to change the caption on Skakel v. Skakel to Anonymous v. Anonymous. In this matter, Greene County case 19-00-9380, Cobb said that in order to overcome the strong presumption of unconstitutionality and qualify for a prior restraint order, there must be “an adequate factual showing that prejudicial pretrial publicity will threaten” Skakel’s Sixth Amendment right to a fair trial. “In the instant case, defendant’s assertions that publicity with respect to the instant matrimonial will deprive him of a fair trial in the murder trial are entirely conclusory and speculative,” Cobb wrote. “There is no factual basis whatsoever for such claims and it does not appear that facts surrounding the instant matrimonial action are likely to have any direct impact on the criminal trial as the parties were not married until more than 15 years after the murder occurred.” Cobb declined to amend the caption, finding that to do so would be pointless since the prior restraint application was denied. Also, he cited the facts that information regarding the commencement of the matrimonial litigation has already been disseminated to the news media, and that the Skakels’ child is only 2 years old and “it is unlikely that maintaining the accurate caption will have any impact whatsoever upon the child.” Michael and Margot Skakel have been married for nine years. They separated in October and are battling over child custody, support and use of the marital residence in Windham, a small town in the Greene County Catskills. A hearing has been scheduled for April 18. Currently at issue in the criminal matter is whether Mr. Skakel should be tried as an adult or a juvenile because of his age at the time of the crime, which was 15. If tried as an adult, he would face a sentence of anywhere from 10 years to life. If tried as a juvenile, he would face no more than four years under the 1975 law. FREE SPEECH RIGHTS Ms. Skakel’s attorney in this matter, Michael J. Grygiel of McNamee, Lochner, Titus & Williams in Albany, N.Y., said his client is “extremely pleased” with the ruling. Grygiel said the decision adds to a small body of case law applying free speech and First Amendment principles in the context of a matrimonial proceeding. He said there is limited authority indicating that a gag order may be appropriate in divorce cases, particularly where children are involved. Cobb cited Matter of Adams v. Tersillo, 245 AD2d 446, 1997, in stating that “a complete prohibition on all discussion is almost always improper.” He also said prior restraint is appropriate under People v. Fioretti, 135 Misc2d 541 (1987), a Bronx County case, only when “there are serious and imminent threats to the fairness of the trial.” Gossip columnists reported last month that Ms. Skakel, a golf pro, is negotiating with an agent to write a tell-all book of her life with Mr. Skakel. Grygiel confirmed that Ms. Skakel is negotiating a book deal. Mr. Skakel’s attorney is Jean M. Mahserjian of Clifton Park, N.Y.

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