KENNEDY: RECKONING DEFERRED

What are my marching orders?" asked District Court Judge James Boyle on the telephone from Edgartown. "Halt," replied the clerk of the Massachusetts Supreme Judicial Court in Boston.

Last week, 17 hours before the inquest In Re: Mary Jo Kopechne was to begin on Martha's Vineyard, the state's highest court intervened, delaying the proceeding for at least several weeks and temporarily awarding Edward M. Kennedy a legal victory. Justice Paul Reardon ordered a postponement until the full seven-member supreme court, now in recess, could hear arguments on whether an inquest governed by Judge Boyle's ground rules would be a violation of Kennedy's constitutional rights.

Thus, for the first time since his black Oldsmobile tumbled off the Dike Bridge on Chappaquiddick seven weeks ago, Kennedy gained a measure of legal control over the case that, in the midst of his own silences and the elaborate speculations of practically everyone else, had been careering toward what he feared would be, in effect, an officially sanctioned trial by rumor.

Unchallenged Thesis. The postponement, of course, did nothing to halt his unofficial trial by popular opinion. Kennedy foresaw that his petition for delay would prompt talk about a "Kennedy power play" and "wealth and influence thwarting justice." But his lawyers increasingly feared that the inquest, under Judge Boyle's terms, could take on some aspects of a kangaroo court. Boyle opened the inquest to 103 reporters and denied that the hearing represented an accusatory proceeding. Hence, ruled Boyle, lawyers for the witnesses--including Kennedy and the others who attended the Chappaquiddick cookout--had no right to cross-examine or challenge testimony on the grounds of irrelevancy.

What, then, if John Farrar, the scuba diver who recovered Mary Jo's body from the bottom of Poucha Pond, were to take the stand to promulgate his theory that the girl probably lived, breathing in an air pocket, for some time after the accident? Under Boyle's strictures, Kennedy's attorneys would not have been permitted to produce expert testimony to challenge Farrar's thesis or his qualifications. Meantime, every news story from Edgartown would recirculate the Farrar version, enveloped this time in the dignifying aura of a legal proceeding.

General Inquisition. In the hearing before Justice Reardon in Boston's Suffolk County Courthouse, Kennedy Attorney Edward Benno Hanify argued: "It is difficult to see in the inquest something other than a general inquisition into his reputation and conduct over and above that to which he has already pleaded guilty [leaving the scene of an accident]. I submit that the rights of which he has been deprived present grave constitutional questions."

The single supreme court justice sitting to hear petitions in the absence of the full bench was Paul Reardon. Three years ago, Reardon drew up the American Bar Association's stringent Fair Trial-Free Press code, which, among other things, recommended excluding reporters from all pretrial proceedings or hearings that do not take place before a jury. "Hearsay can be introduced at any inquest," Reardon said last week, "even hearsay on top of hearsay." After granting a postponement, Reardon pointedly implied that District Attorney Edmund Dinis and other authorities involved in the case had been speaking too freely. Such statements, he warned as Dinis sat grimly in the courtroom, "carry the seeds of prejudice against more than one party."

Four Alternatives. The Massachusetts Supreme Court is scheduled to reconvene early in October, although Reardon indicated that it might meet earlier in special session if Dinis and the Kennedy lawyers are prepared for a hearing. There are at least four decisions that the court might reach:

1) It could find that Judge Boyle's ground rules are legally sound. Traditionally in Massachusetts, the very loosely formulated procedures of an inquest are left to the presiding judge, who may or may not exclude the public and press. Precedents on inquests in the state are vague. Only two inquests have been held on Martha's Vineyard in the past 40 years. One, in 1932, concluded that a man named Valdimer Victor Messer evidently sat on a keg of dynamite wired to a battery and dematerialized himself.

2) The court could find that an inquest is not designed to deal with the extraordinarily publicized Kennedy case and that any action must be left to a grand jury--an inquiry held in secret. District Attorney Dinis, however, would prefer to avoid a grand jury investigation, since he himself would be in charge and the press would be excluded.

3) The court could rule that the inquest is appropriate, but that it should be conducted in secret.

4) The justices could agree with Kennedy's lawyers that Boyle's rules are inappropriate and that counsel for one or all of the witnesses should have the privilege of crossexamination, subpoenaing witnesses and so on. Some lawyers regard this as a remote alternative, since the inquest is not a trial.

Some legal experts believe the most likely outcome is that the inquest will be canceled--leaving Dinis the option of calling a grand jury--or that it will be held in secret to protect the rights of Kennedy and the other witnesses. In either case, the public, which is presumably a court to which every politician must appeal, would be denied an open and formal explanation. Kennedy might have gone ahead with the Edgartown inquest, risking rumors on the record in order to account for his conduct clearly once and for all. Now he has for a time formalized his silence and only postponed his day of reckoning with the public--a day that must surely come if he intends to remain in public life.

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