Kennedy's Legal Future

The death of Mary Jo Kopechne has already become one of the most controversial fatal accidents in the history of the U.S. Last week, as the date of an inquest demanded by Massachusetts District Attorney Edmund Dinis approached, it stirred even more controversy. Disturbed by all the publicity, attorneys for Edward Kennedy appeared before Judge James Boyle in Edgartown to insist that the judge grant their client the rights of a defendant in a criminal trial. The judge refused, pointing out that inquests are not trials but investigations to determine the cause of death and to discover whether any criminal act was involved.

Kennedy's lawyers could still ask for an injunction in higher Massachusetts courts, but they have hesitated to do so, apparently wary of giving the impression that the Senator has something to hide. As for Dinis, he seems determined to go ahead with the inquest, even though he has so far had no success in persuading a Pennsylvania court to order an autopsy on Mary Jo's body.

For those who remain unconvinced by Senator Kennedy's explanation of the accident, an inquest may provide a few answers, particularly since the judge wants Kennedy himself to appear. Boyle has agreed to let lawyers for the witnesses into the courtroom to advise their clients when they take the stand, but he points out that Massachusetts law does not require him to do even that. Still, a question arises as to the fairness of the inquest. Some lawyers across the U.S. believe that there might be better ways to get at the facts.

"I hate to see the judicial process used for extrajudicial ends," says Victor Earle of New York City, one of the lawyers who argued the historic Miranda case before the Supreme Court. He was referring in part to the generally held view that Dinis' intention may be to enhance his own political career. Abraham Goldstein, professor of law at Yale, is among those who believe that Dinis should have brought the case before a grand jury, which would have conducted its hearings in secret. "The whole investigative process could be pursued more reasonably with a grand jury." says Goldstein. Professor Herbert Packer of Stanford's law school disapproves altogether of Dinis' handling of the case. "It's just one incompetence after another," he says. "What Dinis has assured himself of is maximum publicity, which is what I suspect he wanted."

An inquest is not a criminal trial. While a person may be indicted during a grand-jury proceeding, no one stands accused of a crime at an inquest. Attorneys for witnesses may not be present at a grand-jury proceeding. They are sometimes allowed at an inquest; yet they are not normally permitted to raise objections to the testimony, nor do they have the right to cross-examine witnesses. Thus, the inquest testimony can range widely, and counsel is forbidden to challenge any allegations that are made, no matter how farfetched. Kennedy's lawyers claim, however, that a recent Supreme Court decision gives them this prerogative in any hearing aimed at "exposing violations of criminal law by specific individuals."

One of the advantages of an inquest is that a judge presides over it; the prosecutor alone conducts a grand jury. The secrecy of a grand jury, however, might better protect the interests of those called to testify in a case that, like Kennedy's, attracts wide public interest. Judge Boyle has decided to open the inquest to newsmen, which is his choice under Massachusetts law.

Boyle gave Kennedy a suspended sentence late in July for leaving the scene of an accident, saying at the time that Kennedy "has already been and will continue to be punished far beyond anything this court can impose." That statement suggests sympathy for Kennedy's predicament, but the judge also seems to recognize a public interest in uncovering more details of the accident. He has declared it essential that Kennedy testify, and said that he would subpoena the Senator if need be.

Double Jeopardy? Conceivably, the inquest could disclose evidence of criminal negligence in Mary Jo's death. After Judge Boyle files his report, Dinis might go to a grand jury. If Kennedy is ever indicted, it will be difficult to find a juror who has not been "prejudiced" by something he heard on TV or read in the newspapers about the inquest. On the other hand, there already has been considerable publicity of this kind. If his lawyers do not obtain an injunction, Kennedy could invoke the Fifth Amendment at the inquest and avoid giving answers, but he is unlikely to do that because it might appear that he does not want to be completely truthful about the accident.

Some people think that Kennedy's rights are being violated. They point out that when the Senator came to the Edgartown police station to report the accident, he was not warned of his rights to remain silent and to have a lawyer. However, many law experts, including Harvard Law Professor Livingston Hall, believe that the Supreme Court's Miranda decision would not require the warnings in Kennedy's case. Hall points to a passage in the decision that reads: "There is no requirement that police stop a person who enters a police station and states that he wishes to confess a crime." Such volunteered statements, the decision goes on to say, are admissible as evidence at a trial. Nor is the inquest likely to raise an issue of double jeopardy, since the charge of leaving the scene of an accident is a different offense (and a less serious one) than negligence.

Touching First Base. At a court hearing in Wilkes-Barre last week, Dinis did not specify what he expected to learn from an autopsy on Mary Jo's body. His associate, Assistant D.A. Armand Fernandes Jr., argued that to hold an inquest without an autopsy would be "like hitting a home run without touching first base." If an autopsy had been ordered soon after the accident, it might have determined such facts as what time Miss Kopechne died and whether she had suffered a concussion that prevented her from trying to get out of the car. The Edgartown medical examiner, Dr. Donald Mills, who ruled out the autopsy initially, says that Dinis agreed on the telephone, as late as the day Mary Jo was buried, "that in view of the clear-cut evidence of drowning, no real need for an autopsy existed."

Dinis plans to call about 20 witnesses, including the five "boiler room" girls who were present at the cookout in a rented cottage on Chappaquiddick (see THE NATION). The attorney for the girls wants Judge Boyle to narrow the scope of the inquiry. Without any restrictions on the questioning, he contends, the girls could be quizzed on their entire lives.

Joseph Gargan and Paul Markham, who were with the Senator after the accident but have been silent so far, will probably be called to testify. The fact that both are lawyers complicates the matter. Unless they plead the Fifth Amendment, they will be required to report all they saw that night. If they claim that a lawyer-client relationship existed between them and Kennedy, they still must testify, but they may not, by law, be asked to relate their conversations with Kennedy unless the Senator agrees to let them. To prove such a relationship, they must show that Kennedy asked for advice on a legal matter. Even so, neither would be immune from prosecution later if any evidence should be discovered that they were co-conspirators to a criminal act.

Whatever negligence may have been involved, an inquest does not seem to be the most efficient way to gather the evidence of it. The public has a legitimate interest in knowing whether or not Kennedy misrepresented the facts of the accident, but a U.S. Senator, like any other citizen, has a right to be protected from prejudicial publicity that may affect some future legal matter. Unless Judge Boyle keeps the testimony within bounds, the inquest could turn into a circus that would be unfair to Kennedy and the other witnesses as well.

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