GG71: Why Alex Murdaugh Deserves a New Trial

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:01 Clip: All rise. Court is now in session. Court is reconvened. I may be seated. Maintain order. The federal rise to face the jury and harken to its verdicts.

0:00:25 Thomas: Gavalin, Gavalinos, I'm Thomas, and joining me, at least for the intro, is Lydia. How you doing? Yeah, you never miss an intro. Well, sometimes, but if you can help it, you'd never miss an intro

0:00:31 Lydia: Hi, I'm here for the intro. I've missed it a couple times. Not too bad. Yeah, I love these. I love being able to say hi to my, my gavalinos. Yeah.

0:00:40 Thomas: Hates the podcast, but just loves the intro. Yeah, yeah,

0:00:46 Lydia: Yeah peace out on the rest of it but no, no I'm happy to, happy to be here to chat about what we got going on in these next couple episodes.

0:00:53 Thomas: Yeah. We we're in a mid -season sandwich trial break. We'll we'll talk more about that maybe next episode when we have time, but we don't have time this episode because I've got Liz Skeen coming coming on to give us a breakdown or give me a breakdown of the, yeah, yeah. But Lydia was sick for a while and wasn't, wasn't on this one.

0:01:01 Lydia: Episodes I'll be listening I'll get it too yeah sure

0:01:13 Thomas: Yeah. But, uh, but wanted to be here for the intro out of, of good gavelsmanship. I don't know. Liz is going to be explaining the recent Murdaugh thing that happened. If you watch that Netflix documentary, or I don' know, there's probably some other ones by now. There's a million documents. Any crime has 50 documentaries about If you watch that, it's a crazy story. We covered it a little on OA, but there's actually more to it, including an issue that I didn't even hear about. I didn' t see really on the news and we didn't cover it on OA. So there's a lot to talk about with this Murdaugh trial. And love Liz. It's always fun to get someone who has tons of just day in, day out experience defending people in criminal court. Really cool. And she's going to break down the Murdauch decision that happened. And of course, this is, well, she'll give the basics and everything, but I'm sure people saw it in the news. Pretty crazy, pretty crazy what happened. So she's going to take us inside the appeal and all that and take us through the documents and the decision.

0:02:12 Lydia: Can't

0:02:13 Thomas: All right. Well, until next intro, we meet. All right, well we'll take our usual break. Hey, support the show, patreon.com/gavelpod. There is going to be a very, very fun bonus very soon. FYI, I'll plug it more when it comes out, but there's goingto be. So we'll takethebreak. You can skip the ads and get that bonus, which you're going to want. patreon.com/gavelpod. All right. We'll take a break and then I'll be on with Liz.

0:02:16 Lydia: Wait farewell

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0:02:46 Thomas: Liz, welcome back to the show. It's been far too long. How are you doing?

0:02:50 Liz: I am so glad to be back on. I am doing well. Well, as well as one can be doing in our current, I feel like you have to caveat that in these times. Things are good in New York. It was a million degrees today. Tomorrow is my birthday. And yeah, my dog is doing well."

0:03:07 Thomas: Oh, happy early birthday. Yeah. We may hear a little, a little from the law dog. I forget. Do we have a different nickname for your dog on the show? I can't remember.

0:03:15 Liz: No, but we can call him Law Dog. That's funny.

0:03:16 Thomas: Law dog works.

0:03:17 Liz: I mean, his name is Walter, but you know.

0:03:19 Thomas: Yeah. Walter. Uh, Walter's good. I like Walter's solid name. Let's go with Walter. We may here a little bit from Walter. I couldn't remember if we'd come up with a nickname or not, but a gavel dog, you know, know, maybe like a

0:03:28 Liz: He does think that when I talk, that's a license for him to talk, but he did get a very, very good treat right now. Trader Joe's has great, great dog treats. So he'll be quiet for at least a little while.

0:03:33 Thomas: Typical man. Love it. We have a lot of stuff to talk about. I'm so glad you're back on and we couldn't even decide where to start, but you want to talk about the Murdaugh or as you might call him Murdaug.

0:03:52 Liz: Yes. I couldn't help myself by saying Murdoch. I guess I read so much about this case and I don't actually really watch that much about it. I did watch the old Netflix documentary, but that was a couple of years ago and somewhat regretted it. But I have really enjoyed reading all the South Carolina Supreme Court decision and also the extremely lengthy the defense motions and state motions on this. And it's a really interesting decision. It's the sort of decision that I would put into potentially a criminal law casebook. Yeah.

0:04:24 Thomas: Wow. Yeah, that's awesome because we touched on it on our way, but I know for Gavel Gavel we wanted to get way more in depth. So, well, let's start with that one. Where do you want to begin? I guess there may be people who didn't, you know, see the news or didn't see the documentary so we can you know reset the the facts somewhat I'm sure yeah

0:04:38 Liz: Yeah, so let's do a little factual reset. So Alex Murdaugh was a very prominent South Carolina attorney. He was an attorney out of Greenville at a plaintiff's law firm that seemed to be reasonably successful. He came from a successful wealthy family, or it was a successful, wealthy family that I guess everyone wanted to be like. And then his son killed someone in the course of a sort of boat drunk driving incident.

0:05:05 Liz: Yeah, it's very sad. And that's the catalyst that kind of leads everything to go wrong. What ends up happening with that is the subsequent litigation over the wrongful death and suing the Murdoch family ends up resulting in circumstances where it also is unveiling Alex Murdaugh's own very extensive financial fraud with respect to his law firm. So as I said, he had a plaintiff's law firm, and apparently he was stealing a lot of money, I think, from other partners, from clients. He might have been making changes to settlement agreements.

0:05:05 Thomas: So sad oh yeah that's right

0:05:38 Liz: I didn't focus on, for this episode, going through all the extents of these crimes, but it is quite extensive and documented financial crimes. And so these two things are kind of heading toward each other. That is to say the wrongful death suit for his son and his financial crimes that are happening. And what he decides to do or pardon what the state alleges that he does is in order to distract from, you know, almost certain discovery of these financial crimes, he kills both his son and his wife.

0:05:55 Thomas: Holy shit I don't think I remembered that that was the real wow oh my god this was this guy holy moly I think I remember correct me if I'm wrong I think I remember something about like turns out he had a drug addiction he was trying to fuel

0:06:26 Liz: I mean, the other thing that's the drug addiction that he's trying fuel ostensibly was the reason why he was stealing all this money. Yeah. And I mean, actually, now that you mentioned it, I mean I remember this anecdote from the Netflix documentary that he was doing something crazy like 40 Oxy pills a day. He just had such an expensive drug addiction.

0:06:31 Thomas: Stealing initially. Yeah. Yeah. Yeah. And then like still, like you said, altering settlement where it's like he's winning settlement for people, for victims, but then like changing it so that telling them they got less money than they got. And then he's like stealing, like just crazy stuff like that. Like absolutely horrific stuff.

0:06:58 Liz: Or exaggerating expenses, other stuff like that. So just really, really extensive. Wow.

0:07:00 Thomas: Yeah. I did not remember that the murders might allegedly have been to just like cover up and distract from that. Wow.

0:07:07 Liz: That's the key to the prosecution's theory. And we'll actually talk talk about this because this comes up in the decision from the South Carolina Supreme Court. So that's the background of all this. And the other sort of key evidence that's worth noting that the prosecution comes forward with is there's a pretty damaging video. So Alex Murdaugh says he's not on the premises when this murder happens. And then there's pretty damaging video from The Sun that shows basically Alex Murdahl was on the scene. And he said that, no, I was never in the on the scene. I was never at these kennels. They're shot by these kennel is these dog kennels on their massive property. And then there's this video that comes from all things the the sons, the now deceased son's phone that the prosecutors use to place Alex Murdaugh at the scene so that's also particularly devastating.

0:07:54 Thomas: Holy crap. It is really one of the craziest stories, like just crazy. I mean, the way that that all happened and all, you know, this like first inciting incident, then that leads to this whole unraveling of this horrible person's life. And then this, like it is, I mean if there's anything that's ever made for Netflix, it is this.

0:08:13 Liz: It really is. So that's sort of the case there and it is a case that is entirely based on what I guess people sometimes criticize as circumstantial evidence. And what is circumstantial evidence. We don't mean direct evidence or forensic evidence. So we don't mean a witness testified, I saw Alex Murdaugh shoot Paul, right? The other sort of bit is there's not forensic evidence that they use to say that Alex Murдаugh's DNA was all over his son's wounds or something like that.

0:08:49 Liz: Or not in a way that... So circumstantial evidence is this theory that I said, that is this person was facing almost certain financial calamity, public disgrace, all of these issues, this law firm confrontation, likely jail, and this lawsuit concerning the boat crash concerning his son. All of these things he decided, well, what is it I'm going to do? I'm going to distract from all of this and get this all off my back by killing my wife and son. And then really buoyed by this video showing that it has his voice, but it shows that that Alex Murdoch was on the scene when he had said, you know, repeated a plea to the police, I was not present. So that's the case there. The state brings this case. It's a pretty extensive trial. It goes on for several months. And one of the key things that they use, as I've already previewed, is this financial crime evidence. And what I mean to say is they bring in evidence as to the financial crimes that Murdochs was doing in order to engage in, basically in order or two as they claim to prove their motive.

0:09:53 Thomas: So so that could be tricky when we talk about evidence stuff. It's like, well, you're not usually just allowed to bring that in. Possibly correct me if I'm wrong to say like this guy sucks, you know, but it's like no, no, this is vital because it's part of the motive possibly for the crime. So then it can get in. Is that basically right? Hmm.

0:10:04 Liz: Yes, that is right. And let's just put a pin in that for a second, because this is one of the things that it got a little bit less publicity, but that the decision addresses from the South Carolina Supreme Court.

0:10:20 Thomas: Oh, yeah, I didn't I didn' hear about that component at all. I'm glad we're covering it.

0:10:23 Liz: Oh, we will. And so putting a pin that Murdoch gets convicted, he appeals, the appeals go on for about three years after. And finally, his, you know, his lawyers submit this very comprehensive brief. It's like like 130 pages. It lists all these different reasons for why the verdict should be overturned. And two of them include, one, the sort of misuse of the financial crime evidence, again, putting a pin there. And the other is this thing that happened with Becky Hill, who is the court clerk. And so what's that? Let me just step back for a second and just talk a little bit about the jury. What is the concept of a jury? What's the concept of a Jury Verdict? Because I think it's really important to understand that. And I think there's a phrase sometimes used that there's sort of a black box around a jury verdict. And the idea is, is that in only very rare and specific circumstances, after a jury has rendered its verdict, can a judge really make any inquiries into the verdict itself, right? Right. You can make inquiries into, OK, the this evidence was not presented to the jury correctly. This evidence should have been admitted. This you can do all of those things, but you're not it's not proper to like ask the jurors, how'd you get there? You know, talk about what happened in the room. There are a couple of exceptions to this. And it just in broad terms, one of them is you can sort of start to inquire into this if there's evidence of, for example, tampering in some capacity or improper influences on the jury. Now, how are you ever going to get that?

0:11:21 Thomas: Right yeah yeah now I don't know that you've been able to listen to oa but it turns out based on a lot of movies we did for some reason matt looked this up in the uk it's called knobbling so we've been saying jury knobbling and it's the funniest term there could possibly be so that's so that'S That's called jury nobbling.

0:12:09 Liz: I mean, I'm kind of obsessed. So yeah, so there was some allegations of jury nobbling. How do you even, the jurors were nobbled. Wow, that's really good. I should like get a t -shirt.

0:12:15 Thomas: Allegations of nobblin. There's signs of a nobbling. That's so funny.

0:12:23 Liz: My new DJ name, juror nobbler, DJ nobblar.

0:12:25 Thomas: DJ Knobbler. DJ Jury Knobler. Yeah, J. Knobber.

0:12:29 Liz: I have this thing where I want to have, I mean, I've never actually learned to DJ, but I love DJs, but I keep coming up with like more and more obscure legal terms that like one person will ever get for my DJ name. Yeah. So DJ Nobblers is pretty, is pretty good.

0:12:37 Thomas: Has a DJ name. Yeah, that's good. That's good, that is.

0:12:42 Liz: So anyway, that moving on from that, I think it's important to understand how you even get this sort of evidence because it's not, it's, it'S not necessarily easier happens. And the way that you get this is I like to talk to jurors after the end of a trial. I'm not going to, you know, go up to jurors and say, did anyone nobble you? Were you tampered with?

0:13:01 Thomas: That's great. Have you been nobbled? Ma 'am, did you get nobbLED?

0:13:04 Liz: Exactly. But it's a good practice. And it's not to the end of just filing some sort of motion to appeal on the basis of a nobbling incident. It's good to get feedback, right? And you'll see this on both sides. And it's totally optional on behalf of jurors when they want to talk to you.

0:13:20 Thomas: So it's almost like you're doing like exit interviews with with jurors. That's interesting. And so you try to do that from time to time. Like if I were in your job, I would think that's like the best thing you could do is like find out if you win or lose. You'd want to be like, why did that happen? What did I do right or wrong? Yeah, yeah, yeah. Yeah. Now, dumb question. It's not as though there's like a transcript of jury deliberations or anything. Right. Mm hmm. So but just to clarify, it's not because it could be like, oh, there is a transcript, but we only reach in on these circumstances like

0:13:30 Liz: Yeah. It is super Super helpful. Exactly. It's really helpful. And once in a while, perhaps a juror volunteers something that causes you to scratch your head.

0:13:48 Liz: Oh, absolutely not. And that goes back into black box of juror. No, no,

0:13:57 Thomas: Limited circumstances. This is like, no, there's not even it's just going to be based on. So any nobbling evidence or whatever is just going TO be based ON like testimony of jurors, I imagine. Right?

0:14:00 Liz: Exactly. So it's going to be based on some after the fact conversation that a jurors has with an attorney and the attorney staying in contact with that juror and submitting affidavits on behalf of that jurors and potentially getting a post -trial trial evidentiary hearing where the juror testifies to this misconduct, to this sort of nobbling, this tampering. And I don't know how it is that Murdaugh's lawyers figured this out here. That being said, this was a really prominent case and a prominent trial. And so it's not as though, and they have like quite a bit of resources. So certainly they had the ability to not just, they probably didn't like me, for me, the end of a trial, the verdict happens, I like run out to try to find my jurors before they go to the elevator before they, you know, and then I never see them again.

0:14:57 Liz: I imagine those jurors were amenable to a contact. Obviously, you know if the juror says I don't want to talk to you, you're not going to do that. But some way or another they figured this out. And what did they figured out? They figured out that this individual named Becky Hill, who was the elected county clerk of the court of Culleton

0:15:17 Thomas: Pure nobblin. Just pure knobbling unadulterated knobbling

0:15:21 Liz: County, Like just commentary all over the place, unadulterated nobbling. Not only that, but she'd also sort of like stated her like intent to nobble in the sense that she'd told another clerk who'd helped her with these proceedings because it had been going on, like, because this has been, had been a lot of work. She'd stated that clerk that she was writing a book and it would be better if, if Murdaugh was convicted because that would sell more copies.

0:15:44 Thomas: So freaking crazy because first of all I don't know that as I said on oa I don't even know that that's true lady like why would that be like your book would probably still do well if he wasn't convicted it could be like how the guy I got away with it or something, you know?

0:15:52 Liz: I just have a lot Of questions. Exactly. One, is that even true? Unclear. Too. She just should have known. I mean, I don't want to comment on this woman's cognitive reasoning, but she just should've known better in every respect. This is key to her job training. She's a career elected county clerk and you just don't do these things. And I say this because this is not like, I mentioned some stuff about kind of like how jury verdicts are viewed and this sort of black box, but I want to say there's a lot of white gloves. This istill an area, I don't know. I see, you know, the degrading of any sense of rule of law in this country.

0:16:22 Thomas: It's crazy. Hmm.

0:16:40 Liz: But juries are really treated incorrectly by judges, by court staff, by the attorneys as with really white gloves to make sure that there's no undue influence upon them. Like people go to these measures. And, you Know, I wanted to give an example I was thinking of, which was, you know, I had a case a couple years ago, which I tried with a colleague of mine, and he had had some odd interaction. First off, the attorneys for both sides aren't supposed to talk to jurors at all under any circumstances during the course of the trial, right? Even if you see them in the elevator, you don't say hi, nothing, right, again, just to avoid any influence. And this juror had done something odd, I think, and I think he had said hi to my colleague in the restroom, even though they were all warned that my colleague can't say high back. And so my colleague, in the interest of just full disclosure, disclosed to the court saying, this jurors had said hello loaded me in the restroom. I didn't respond. And everyone was okay with that. And I just say that because everybody knows you just don't do this sort of stuff with jurors.

0:17:36 Thomas: But you tell the judge just to make absolutely sure, right?

0:17:40 Liz: Yes. Even something like that, which was so de minimis. And things that we're always careful of is when I'm leaving a courthouse, when I's on trial, if I'm with a colleague, I don't talk about the case. The other day I gave a tour of the courthouses to some college students from my alma mater. Matter. And there were obviously some jurors in the hallway while there were others jury selection happening in the courtroom. And I was really careful with the students. I was like, you know, we're not going to talk about this case right here. We can answer some questions somewhere else. So you're just, you're always careful to just avoid any undue influence on the juror. And that's something that the court staff knows just as well as the attorneys.

0:18:17 Liz: Like this is not, and this person, you live this, you Know, like this is part of your training. This is part everybody knows you don't do this. Except Becky Hill, I guess she couldn't, I don't know, she couldn't help herself.

0:18:24 Thomas: This lady, yeah, it's pretty pretty crazy.

0:18:30 Liz: Another thing to note about Becky Hill is she ends up pleading guilty to, among other things, yeah, well, it's also some perjury. She actually doesn't plead guilty to nobbling. She pleads guilty to perjure because she does all this other stuff. She does favors for the media. So she apparently, she claims initially that she did not give the media a special access to like sealed exhibits and things like that. And then in fact, she later pleads guilty to that, to perjury for that, because in fact apparently she did.

0:18:37 Thomas: Aggravated knobbling. Oh yeah. Wow. Yeah.

0:18:59 Liz: I mean, she's just not credible. And so she's doing all this stuff on this. I means, she's treating this case like, I mean like it's her retirement plan and trying to, you know, cozy up to the media and all this.

0:19:10 Thomas: Really bad.

0:19:10 Liz: It was really, truly wild stuff. So somehow defense counsel, as I say, they figure out that Hill had been engaging in some jury nobbling. And they asked the trial court, and they file a motion on this with affidavits provided by some of the jurors testifying to the nobblin or swearing to the knoblin. They asked for a hearing from the trial court in order to get a new trial, basically. And in particular, there are a couple of affidivits from different jurors that are really notable. The decision here goes through these affidabits. The most notable one is the one from Jersey. Jersey is how they refer to the different jurors. Jersey affirmatively says that she believes that Becky Hill's comments actually had impacted her. And so one of the things that she says that Becky hill says to her is Becky Hill told the jury in quotes, not to be fooled, which she understood to be in reference to the evidence presented by Murdaugh's attorneys. She tells the jury to, quote unquote, watch him closely in reference to Murdaug testifying, to, unquote, look at his actions, to look at His movements and, you know, sort of indicates she understood this to mean that he's guilty. Another thing is Jersey says that when the jury starts deliberations, Hill says to the jury, this shouldn't take long.

0:20:33 Liz: Jersey says, I had questions about Mr. Murdaugh's guilt, but I voted guilty because I felt pressured by the jurors. And then she also says that she felt that her verdict was influenced by Becky Hill.

0:20:36 Thomas: Man. At this point, conspiracy theory is Becky Hill trying to get him off. Cause like, you know, I don't really think that, but like, it's almost as though

0:20:53 Liz: I mean, it's so crazy. And there's so much else. Apparently at one point, Becky Hill gives a juror a ride home during the trial.

0:20:57 Thomas: During the trial, she could be heard saying cough murder murder says what hmm

0:21:06 Liz: Yes. I mean it's just like totally, totally wild stuff. And there are other jurors that also affirm this and other pretty bad statements all to the effect of of implying that the guilt of Mr. Murdaugh. Only one juror, however, which is this juror Z, says that this impacted the verdict from her perspective. Other jurors are sort of like, well, yeah, this happened, would have been guilty anyway.

0:21:24 Thomas: Interesting or something

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0:21:40 Liz: So the trial court, they do this hearing and ultimately they rule against the defense and they say there's not going to be a new trial. And the reason why they do that, which ist worth noting because, well, they get overturned, is they say that the burden is on Murdaugh here to show the external influence that it impacted the jury verdict. And they say, you know, Jersey's comments are just too ambiguous.

0:22:04 Liz: And so that's, that's kind of where it gets left until three years later, South Carolina, they come around with their decision and they say they totally overruled the trial court. And they say the trial Court is absolutely wrong. And THEY say the Trial Court analyzed it in the the wrong way. And they say that these comments in and of themselves were enough to, you know, absent any additional evidence from the state that there was not influence is enough to overturn the verdict.

0:22:33 Liz: And the other thing they say, and we can go into more details on that because it's a really interesting issue the way they analyze it. The other thing They say is, you know, we're not going to decide any of the other bases issues for, you know, a new trial that are raised in Murdoch's motion, because there are many, but we are going going to address one thing and we're going to dress the use of the financial crimes evidence. What they say is, and this is kind of a short one, so I'll go through this quickly. If you can remember how we were talking about, they use this financial crimes evidenced in order to prove motive, right? So they had people come and testify as to the nature of these financial crimes that Murdoch was involved in, in order say this, the potential disgrace and embarrassment, the financial stress, all of this was motive for him to kill his wife and his son. And apparently Apparently this constitutes 12 and a half hours of testimony during the course of a 10 day trial. And what they say is it was too much.

0:23:26 Liz: And their analysis is really interesting. They look at two rules of evidence. From what I can see, it looks like South Carolina has adopted the federal rules of evidence as their state rules of evidenced. So interestingly, for people who know the federal rules, these appear to be the same. And that happens with certain states. It doesn't happen with New York state.

0:23:43 Thomas: Some states are lazy and like we're just gonna copy their homework like I don't feel like coming up with our own thing sounds

0:23:47 Liz: Exactly. Or New York just doesn't have codified rules of evidences, which is a different nightmare. And so the two rules are federal rule 404B and federal rule 403. 404(b) is the federal rule, whether or not you can include certain types of past crime evidence. And the idea of 404(b) is you can't ever use someone's evidence of past crimes for propensity purposes, right? So just because he committed a financial crime doesn't mean that he killed two people. I mean, that's more relevant if

0:23:54 Thomas: Hard yeah

0:24:27 Liz: It's multiple financial crimes, but just because he even admitted one financial crime, doesn't it mean that that he's more likely to commit another financial crime. But the thing about federal 404 rule B is if you just explain the reason you're using something that isn't just to be like, Oh, just cause he's a criminal, he's likely to be a criminal. And you come up with a good enough reason. Many judges will admit that evidence. So in this instance, they said, we want to admit the financial crimes evidence to show what? Motive. So that was totally fine. You can admit financial crimes evidence to shows his motive there. The South Carolina Supreme Court had no problem with that. However, the other rule that they looked at was Rule 403. 403 is the classic evidentiary rule of balancing what's probative versus what's prejudicial. The idea being that some evidence you know, might have probative value, but it might be too prejudicial. And what they're saying here is, yes, the financial crime evidence was probative, but 12 and a half hours of it was just overwhelmingly prejudicial, and they give an example of testimony from someone who, you know I had bullied, I believe was one of the people that was defrauded by Mr. Murdaugh, and you know this person mentions that their brother has a disability, so on, so On, and it's like, how

0:25:43 Liz: Is is that relevant? You know what I mean? He didn't kill his wife and son because of this person's sad disability.

0:25:48 Thomas: That's just and these crimes were so bad but really if you're just sticking to the stated reason why you're doing it it should just just be like he wanted to cover up these crimes so you just really what do you need to establish that they're crimes essentially do you really need to established much more than that their crimes and he probably did

0:26:06 Liz: I think that's about it. Suffice that there are these crimes, he was facing certain loss of potentially his liberty, he was chasing investigation. Establish that, but don't go into the like, look how sad these people are that lost all this money. I mean, 12 and a half hours on financial crimes is quite a lot. So point one is trial is reversed. And when they do the retrial, they have to limit themselves considerably more on the financial crime evidence. But I think it makes sense to go through their reasoning as to why they reversed the trial court here. And so what they did was they relied on, they relied very heavily on a number of Supreme Court cases. And they also relied on Fourth Circuit, so the federal court precedents here. One of the things they note in their decision is it seems like there might be some conflicts with South Carolina case law on this. And basically they say, listen, guys, this is the test moving forward. We might not have always followed it, but we are now. So interesting little line there.

0:26:13 Thomas: Them yeah wow yeah

0:27:12 Liz: And what they say is, okay, so what do you need to do? The Fourth Circuit establishes this three -step test for considering extrajudicial contacts with a jury. And the test is one, the person who's attacking the verdict bears the initial burden burden of introducing evidence that extrajudicial communications or contacts were more than innocuous interventions. So by that, I mean, what's an innocuous intervention? You know, a juror saying hi to my colleague in the bathroom in all likelihood, right? You know, some sort of thing where, you know, maybe, maybe someone is, you know, communicating with a jurors, but it's not like a, it's not to the end of maybe Becky Hill did give a ride back to the the juror, but nothing happened. That's the kind of there. Okay. But once you show that it's more than an innocuous intervention and what's more than innocuous prevention, all this sort of stuff about like, don't be fooled by Murdaugh and his lawyers.

0:28:04 Thomas: All of this yeah I

0:28:07 Liz: Then there's a presumption. They call it the Remmer presumption, that's the name of the Supreme Court case. And then the burden shifts to the other party to prove that there's no reasonable possibility that the juror's verdict was influenced by an improper communication.

0:28:11 Thomas: See so they applied the wrong end of that they they applied for some reason hey you have to show that this definitely would have changed the thing. That's interesting. Now, I know that like for all the non -lawyers listening, this kind of stuff, these appeals, this post -conviction relief stuff is a pretty low success rate, right? I mean, for the most part, yeah, you're filing this stuff and you're like, there's no chance, but you're going to try. And I do feel like a lot of it is under that standard, just generically speaking. Maybe you could fill this with more detail, but I do felt like in the past when I've learned about this, it's like, yeah. You pretty much got to show this definitely would have changed the trial, you know, one way or the other, whether it's like evidence allowed in or not, or Brady violations too. I think that's another one where I think you pretty much have to prove the burden is kind of on you to prove that this definitely would have made a difference. Could argue about whether or not that's how it should be, but that tends to be how it is. But this, it sounds like if this decision is right

0:28:39 Liz: Exactly, very, very low. Yeah. Yeah, exactly.

0:29:18 Thomas: Is, hey, no, this is kind And it should be.

0:29:20 Liz: And they are really clear on this and they do have, as I say, kind of a throwaway that's like, we might not have always followed this, but this is the rule.

0:29:27 Thomas: We're not going to point fingers, but is

0:29:29 Liz: Exactly and they give an example of another Supreme Court case called Parker v. Gladden and that's an old one. It's from 1966. And there, apparently the bailiff said, and I quote in front of the jury, oh, that wicked fellow, he is guilty.

0:29:44 Thomas: That an old timey one? Do we get an old timey ones?

0:29:47 Liz: Yes, 1966.

0:29:49 Thomas: Oh, that's Dave. Okay. That was, that guy was talking old time even for them. I'm sorry. Yeah.

0:29:54 Liz: Well, fair enough, actually. Oh, that wicked fella. Yes.

0:29:57 Thomas: The jury was like, what's this weird 1800s guy saying? Did anyone care?

0:30:02 Liz: And they use that in particular to establish, I think, some status stuff here, which is also helpful. And They being the South Carolina Supreme Court, they note what what the Supreme Court said here, which is responding to the state saying the state said, well, there's no actual prejudice. There's no proof that there's real prejudice from this. And the Supreme court, US Supreme court in the old timey case says that argument overlooks the fact of the official character of the bailiff as an officer of the court, as well as the state, which again is another Becky Hill, what were you doing?

0:30:33 Thomas: Yeah.

0:30:33 Liz: Carries great weight with a jury that he's been shepherding for eight days and eight nights. And I think there is of course an understanding that like, yeah, if someone like at the sort of official court level is kind of engaging in this, jurors might even give it more weight, right?

0:30:47 Thomas: Yeah.

0:30:47 Liz: You know, this is the being, being a juror is a very unique experience and kind of getting comment. Maybe this is something that, you know, that you just come to respect the people that you're working with, the judge, the bailiff, anyone else. And, you know here, you Know, the unauthorized conduct of old timey bailiff involves such a probability that prejudice will result that it is deemed inherently lacking in due process.

0:31:09 Thomas: Oh, I love that.

0:31:09 Liz: So they cite that. And so they cite those decisions. They cite the Fourth Circuit test I mentioned, and then they go through and they apply.

0:31:16 Thomas: And I like that too, because I think just human psychology wise, people are not very good judges of why they did anything. So I think that's another reason this is good. Cause you like, it's really hard, even like if you're just a total honest juror and you're trying to do an accounting, it'S really hard. And I think psychological experiments have also kind of borne this out that there's many that are like, Hey, why did you do that thing? And someone will have a story of why They did that thing or chose a certain option. And it turns out the experiment was geared such that it's like, no, they directed them to do that. Like there's going to be an obvious reason. There's a lot of those that I've talked about in the past. So I like that this is kind of consistent with that too, where it's like, it's unfair to try to have to say like, oh no, this juror would have definitely changed their decision. It's really hard to know.

0:31:59 Thomas: Like once you decide someone's guilty, I'm sure you sort of rewrite everything to be that. It was guilty all along. I knew he was guilty a long, but I don't think that's totally accurate, you know, necessarily. And so I think, I think that makes make sense.

0:32:12 Liz: I completely agree. And it's not like there's a point or scoring system or something. And like, okay, well, five points for

0:32:17 Thomas: Yeah. Yeah, that put him two guilt points over the line there, yeah.

0:32:22 Liz: Becky Hill influencing me. I mean, even then, also one couldn't ever effectively really analyze that. But I think it's good because it just says it really respects the rights of defendants in saying, we're not going to be able to tell, but we're going to err on the side of defendants here. So that's the overarching reasoning. Then they go through to this case and they analyze, okay, how does it apply to this place? I mean, at that point, once they go through their reasoning, you know where it's going. But they go to this piece and they say, first, we need to look at what comments Hill actually made to the jurors. And the reason why they say that is the state kind of has, in my view, a little bit of a nasty argument, which is they say the South Carolina Supreme Court can only consider the remarks that Hill made to the jurors that are in the trial court's decision, not the remarks that are sort of were in the hearing and not the marks that were in affidavits from the juror's. So, you know, some of the jurers testified at the hearing and then some of them, you, know, there were also additional affidaviats submitted. And they say, oh, you could only use the ones in the decision because those are like the only ones the trial Court found to be like true or credible. And the South Carolina Supreme Court is kind of like go to hell to that argument. They really don't care for it. And they say, you know, it wasn't as though the trial court made some sort of evidentiary finding in its decision.

0:33:38 Thomas: I got to imagine you're presuming that jurors are going to pretty much be honest at this point, right? I mean, you're not presuming but like, oh, we need to prove that that we need to put that juror on trial for whether or not what they're saying is true.

0:33:43 Liz: Yeah, exactly. And also, conversely, by the way, Becky Hill's a perjury conviction, right? So I mean, this is, you Know, and I just and and also, if the trial court had thought that certain, you know, allegations made by jurors were contradictory or untrue, there was recording evidence and they would have made those findings, or they would have made credibility findings, and they didn't do that. So the Supreme Court first kind of dismisses that argument and more or less says that they're going to consider the whole world of evidence that was brought in as to what Becky Hill said based on the affidavits and the hearing that the trial court held after the trial. Okay, so we decided that. It's all those comments. Second, we must decide whether those comments were more than innocuous interventions, which is also going to be my DJ name. And maybe I would never, actually, I don't think anyone would we want to see DJ innocuous interventions, but of such a character as to reasonably draw into question the integrity of the verdict. And they say, yes, her comments are pretty similar to the ones from old timey bailiff, right? Like that's what these look like. You know, this is in that vein. So they're more than innocuous intervention.

0:33:53 Thomas: Yeah good point. Mm hmm. They're nocuous. Very nocious. Yeah.

0:35:02 Liz: They are innocuous. They're innocuous nobbling.

0:35:07 Thomas: DJ Nocuous Nobbler. That's we got it. We got there.

0:35:09 Liz: Exactly. And then step three is the last consideration is, did the state meet its heavy burden to prove that there was no reasonable possibility that the verdict was affected by Hale's comments? And the answer to that is no.

0:35:28 Thomas: How would you prove that, I wonder?

0:35:30 Liz: I think you would have to have really unambiguous testimony from every juror saying this was totally inappropriate, but, well, Well, maybe, maybe not with the commentary, you know, this happened, but in no way it affected my, my jury decision, you know, my decision and them sort of being cross in that saying, yes, this happened, but it did not affect my decision. I think you'd have to have just fully unambiguous statements from the jury, which you don't have here.

0:35:55 Thomas: Yeah, now, practically speaking, at this point, once there's like a battle over this, are they allowed more access to the jurors? Or is it still just like, well, hope someone will talk to you?

0:36:06 Liz: I mean, it's still kind of hoping someone will talk to you.

0:36:09 Thomas: Hmm. That's interesting.

0:36:10 Liz: I mean they could subpoena the jurors for this hearing. I don't think you're going to want to subpoen a juror that is sort of repeatedly telling you that they don't want to talk to you and not giving you information. Right. Right. So I think, you know, there's certainly a heavy hand that you could take as an attorney, but ultimately I think there is a lot of, if someone is saying, I don't want to talk to you, I'm not going to answer any questions. It would be very risky for either the state or for the defense to just call someone like that to trial. I mean, that's the only way you could, you could subpoena them to the hearing.

0:36:37 Liz: So that's The Decision there. It's pretty interesting. And again, it really is a kind of a classic, I would say almost like if you wanted to have like a criminal case and a textbook sort of type of case. It's a real classic. A bar exam question, just understanding the sort of, because the rule that you learn in criminal procedure or in your criminal law classes, jury verdicts are these black boxes and we're not going to sort of inquire into the jury verdict. But there are exceptions where you may be making these inquiries. That's where we find ourselves. And that's why they've ordered a new trial. So yeah, that's the Murdaugh decision.

0:36:47 Thomas: Yeah. Like a bar exam question. Yeah, pretty wild.

0:37:15 Liz: And I think it's interesting to think about what is going to happen. One thing that's notable I found, I think this was filed yesterday, Alex Murdaugh sued Becky Hill for civil rights violations for violating his right to a fair trial. Obviously, he did that not because Becky Hill necessarily has any money. Well, truly, I don't know how her book did. But also because they're going to argue that they're gonna have some sort of theory to basically bring in the state of South Carolina and the considerably deeper pockets of South Carolina in saying his fair trial rights were denied. That's the sort of interesting lawsuit. I saw a clip the other day with Alex Murdaugh's attorneys who seemed very smart saying that they were essentially doing this pro bono or at least the appeal stuff for free. And they were sort of like, yeah, it's a loss leader, but we're doing it. And well, I mean, I think there could potentially be an interesting civil settlement here. I mean this is very bad.

0:38:08 Liz: I'm not a civil rights lawyer, but it's, It's certainly something that is not great and really not something that you see very often. I mean, I've never encountered anything like this in my practice, nor have my colleagues to, you know, I can't think of anything like this. Yeah, that's where we find ourselves. Really, really crazy. So we'll see what happens. It's being sent to retrial. The other thing that'll be notable when they retry it is they're going to be limited in terms of the financial crimes evidence that they can use.

0:38:22 Thomas: Yeah pretty crazy.

0:38:37 Liz: The prosecution's case is already fully known or almost fully known by the defense. The defense might do different things this time. Maybe they won't have Alex Murdaugh testify. I think he got pretty raked over the coals for lying.

0:38:36 Thomas: Hmm yeah good to get a free redo on that.

0:38:53 Liz: Yeah, exactly. For lying that he was not on the scene when he was. And yeah, I mean, I don't know. It's very hard to predict what happens in a jury room. It is a black box, but we'll just have to see what happens.

0:39:06 Thomas: Yeah probably still gonna be convicted but who knows and he's and he also as we covered he's still still would would be in jail anyway for the uh the financial crimes he played he pleaded guilty to right or pled guilty to

0:39:16 Liz: I mean there's not much of a case there. Yeah.

0:39:21 Thomas: Yeah so confirmed by this uh attorney this was weird this is weird as

0:39:27 Liz: Really, really weird. Really stunning. I think a really good, well -reasoned decision by the South Carolina Supreme Court because yeah, I mean, how else otherwise are you going to show as defense counsel, how are you supposed to show this, right? Like it just putting all the burden on them is really, no, you should have the burden to show the nobbling, right. But not to prove the nobbling impacted the verdict. I mean, that's just like an impossible feat.

0:39:41 Thomas: Shit yeah and when you've been nobbled you shouldn't have the burden put on you you know when they're yeah and and and it's always yeah yeah sure sure yeah yeah you know obviously this guy's as evil as they get but it's also like the principle is important due process for people is important it's not like a celebration of this guy getting a new trial it's more like hey who knows next time who this is maybe it's an innocent person that gets put away because of because of this nobbling a nobbling epidemic yeah

0:40:08 Liz: No. Yeah. Absolutely. Exactly. Yeah, I mean listen, this conduct by Becky Hill is so outrageous and egregious. It makes me wonder why she felt so comfortable doing this. Was this the first time you think she nobbled? I don't know. I'm not making an allegation here. It just seems unusual usual that she felt so good being this chatty Kathy? No. Yeah. It's just, it's really wild to me. And again, it just begs some questions. I would be totally curious and this is totally speculative, but if I were someone who is, you know, if I were at a South Carolina

0:40:28 Thomas: Is this your first knobbling ma 'am yeah it really does it's not like she was I mean was she hired that day you know it's not like it's crazy I I was blown away by that as

0:40:58 Liz: Law office and I saw this decision and Becky Hill had been the clerk of the court, when a client whose case on appeal was convicted, I would immediately start contacting all of my jurors, especially if I were an appeal lawyer.

0:40:58 Thomas: Well right right yeah put up a billboard have you been nobbled for

0:41:14 Liz: Have you been nobbled, right? Because it would certainly be a basis to, you certainly want to, I think, try to at least do some investigation, particularly on serious cases that are on appeal to see if this is something this person has done before.

0:41:27 Thomas: Sure yeah have you ever had to do a like a full retrial yeah

0:41:31 Liz: I almost had a retrial about a year ago. And this was a case where the verdict went, according to the jurors, when I talked to them, it was 11 not guilty, one holdout for guilty. And we were going to do a retrial. And then on the eve of trial, we got a misdemeanor offer with no jail. And although my client maintained his innocence and I still believe his innocence, we were like, let's do that. So.

0:41:56 Thomas: Yeah, interesting. Interesting. Gosh, that's gotta be, it would feel like, I can't imagine, especially if it's like a long involved trial. I can't imagine being like, all right, reset everyone. Like, God damn, that must be weird as a lawyer. But on the other hand, it's also like, well, I can clean up some stuff I messed up.

0:42:04 Liz: Oh, totally. It's definitely that. I mean, I also was in reviewing my notes in preparation for that. But I will say like reading yourself on a transcript is very similar to hearing your voice on a podcast.

0:42:25 Thomas: Your honor, I'd like to bring in Thomas Smith to edit me as I go.

0:42:29 Liz: Exactly. Or just remembering these awkward moments and things. But it was really interesting. I mean, we had both sides. Because the jury hung, the jurors were happy to stick around and everyone had long conversations with them. Nothing indicating any nobbling, to be clear. But there was a prosecution witness who I thought it was very obvious this person was a total hack. Apparently, the jurors thought she was great.

0:42:56 Thomas: Yikes. Boy, that's important to know.

0:42:59 Liz: Really important to know and just getting fresh perspective on things and hearing some of the stuff that they volunteered to me that they were thinking about. Again, all voluntarily, but I think we spoke to them for something like almost 45 minutes or an hour after the verdict, both sides.

0:43:15 Thomas: That's cool. I would do that if I were a juror someday.

0:43:17 Liz: It's really fun to do that. And it's funny because they have a little bit, it is this kind of moment where that's the first time you're allowed to talk to the juror. It is the first time the jurors are allowed to talk to you and it's definitely like Hi, I've seen you. Yeah, I thought you did a really good job with this. Exactly.

0:43:28 Thomas: Yeah. Nice to put a name to a face. No, I don't know. Face to it, voice to it. Yeah, that's funny.

0:43:38 Liz: It really is

0:43:47 Ad: [Ad break 3 — ad music]

0:43:47 Thomas: All right. Well, we actually have even more with Liz because she's going to break down what happened with Luigi Mangione. Next episode. Surprise, more Liz. It's going to be fun. And then also in next episode, more Lydia, because we're going to talk about, yeah, we're gonna talk about what's going on, what's the plan for the show and all that next episode. So thanks so much, Gavalinos. And Gavel out. Nothing. You're not going to sign out. You're gonna...

0:43:47 Lydia: Man more lydia uh gavel drop gavel well you took gavel out that's a good one what's another good gavel

0:44:17 Thomas: It's true. I don't know. You only got to be here on the intro and outro. I figured you'd have something saved, something ready.

0:44:47 Liz: Did anyone nobble you