By admin 
Friday’s pretrial hearing for the upcoming second murder trial of Alex Murdaugh is set to feature a host of contentious issues and opposing arguments by prosecution and defense attorneys.
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One divisive issue was settled Monday — state Judge Debra McCaslin ruled Murdaugh will be allowed to wear civilian clothes and be unshackled. McCaslin found that the defendants in criminal cases have the presumption of innocence and that requiring Murdaugh to wear prison garb and be shackled in televised pretrial hearings interfere with that right.
“There is no justifiable reason to require Defendant to appear in prison clothes and shackles,” McCaslin wrote. However, she addressed prosecution concerns about security, adding that “less visible security measures are available that adequately protect public safety and courtroom order.”
Otherwise, McCaslin — who has a reputation for efficiency in dealing with complex issues — will have her hands full.
She is scheduled to possibly hear spirited arguments as state Attorney General’s prosecutors and defense attorneys clash on subjects as varied as DNA, Murdaugh’s previous financial fraud convictions, Murdaugh’s phone records and whether Murdaugh’s testimony from his first murder trial can be introduced at his second trial, according to court filings.
A possible change of venue from the historic 206-year-old Colleton County courthouse to another locale could also be discussed.
The defense prefers Charleston. Prosecutors assert for numerous reasons including downtown congestion and not enough parking, that Charleston pose the most problems of any other county in the state.
However, it may not be possible to air and settle every issue that may potentially arise Friday.
The hearing will begin at 10 am Friday, Aug. 14, in the Lexington County courthouse.
At the last hearing, June 29, as might be expected for one of America’s highest-profile criminal cases, more than 40 media people from print, broadcast, documentary and social media were among the audience in the nearly packed fourth floor main courtroom. Court TV broadcast nationwide the first hearing and will do the same for this hearing.
More than 20 books have been written on the case, in which Murdaugh, a once-successful fourth-generation lawyer from a prominent legal and political family, is accused of murder in the 2021 execution-style killings of his wife, Maggie, and his son Paul. In 2023, he was convicted of the murders by a Colleton County jury. He has also been disbarred from practicing law.
In May, Murdaugh’s murder convictions were overturned by the S.C. Supreme Court, whose five justices unanimously cited jury tampering by former Colleton Clerk of Court Becky Hill as their reason. Justices ruled her tampering denied Murdaugh the right to a fair trial, a right guaranteed by the U.S. Constitution.
A new murder trial is tentatively set for April 5, 2027. Murdaugh, who is serving a lengthy prison sentence on numerous fraud convictions, has admitted his thefts, which involved stealing from his law firm and embezzling millions from clients who had earned big settlements in legal cases.
But he denies killing his wife and son.
Detailed filings in the Colleton County clerk of court’s office show issues possibly on tap for Friday include:
Phone digital evidence
Prosecutors led by senior assistant attorney general Creighton Waters are seeking to conduct a fresh review of evidence on Murdaugh’s cell phone. Although prosecutors reviewed Murdaugh’s phone evidence in 2021, since then “there have been developments that permit a more careful review,” Waters wrote in a motion filed Friday.
Prosecutors will also seek a ruling from the judge to compel defense attorneys to turn over phone digital evidence that they collected during the defense investigation of the case.
“The defense has and has always had more of the phones than the investigators and prosecutors on the case do, including unredacted phone dumps with thousands of messages from the phones (that) the State does not,” Waters motion said.
“Moreover … the defense has a phone extraction from (Murdaugh) taken near the murders for which the State seeks it to produce,” Waters’ motion said.
Defense attorneys are expected to oppose the prosecution’s effort.
Murdaugh’s prior testimony — admissible?
Prosecutors are seeking a ruling from the judge to let them use the testimony Murdaugh gave at his first trial.
In that trial, Murdaugh waived his Fifth Amendment right against self-incrimination and took the stand, admitting at length how he “lied repeatedly to law enforcement, his family, his friends … and about his whereabouts during a crucial period on the night of the murders.”
Murdaugh spent more than a day on the witness stand, undergoing emotional direct examination by his attorney Jim Griffin and then a grueling cross-examination by Waters.
During his testimony, Murdaugh also admitted to stealing from clients and his law firm.
If the judge does decide to admit portions of Murdaugh’s testimony, she will have another decision to make: whether to allow the jury to see video or hear audio of Murdaugh’s testimony or have a transcript read to the jury.
Dismiss murder indictments?
In a filing Monday, Aug. 10, Murdaugh’s attorneys moved to dismiss the murder indictments on the alleged grounds that a former South Carolina Law Enforcement agent admitted — following Murdaugh’s 2023 murder trial — that he gave false testimony to a Colleton County grand jury in 2021 that led to Murdaugh’s murder indictments.
The filing said that more details will be presented in a future memorandum to the court elaborating on how former SLED agent David Owen allegedly admitted during the first trial that he presented false physical evidence the grand jury that indicted Murdaugh.
The attorney general’s office is expected to contest the significance of any alleged false testimony by Owen.
Prosecutors have not yet replied to that motion.
Evidence of Murdaugh’s motive
In Murdaugh’s first trial, prosecutors were successfully able to introduce evidence of financial pressures on Murdaugh they said led him to kill his wife and son.
To do so, they put up numerous witnesses who testified that Murdaugh was on the verge of being discovered for using his job in his law firm to steal from clients and law firm over a 10-year period.
They want to put up the same kind of evidence at Murdaugh’s second trial.
In a Monday, Aug. 10, filing, prosecutors wrote, “Murdaugh has been charged with murdering his wife and son — two integral members of his own immediate family. Since people are naturally expected to love their wives and sons instead of brutally gunning them down, why Murdaugh did what he is accused of doing will unquestionably weigh on any rational juror’s mind when deciding whether the state met its burden of proof.”
Moreover, prosecutors wrote, Murdaugh himself brought up the idea of motive when he told the first law officer who arrived on the scene that whoever killed Maggie and Paul may have been seeking revenge for a 2019 fatal boat crash Paul Murdaugh was involved in.
In the Supreme Court’s May 13 decision that overturned Murdaugh’s convictions, justices wrote that the trial judge had let the jury hear more than 12 hours of evidence about Murdaugh’s financial crimes.
That amount of testimony was too much, wrote the Supreme Court, advising that the testimony could have presented “in a fraction of that time.”
It will be up to Judge McCaslin to make a decision on how much financial crimes testimony will be presented to the jury, and in what form.
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Change of venue
At the June pretrial hearing, McCaslin asked each side for suggestions on where a new trial should be held. Colleton County, the site of the first trial, has not been ruled out.
On Friday, defense attorneys filed a 29-page motion urging McCaslin to transfer the case to Charleston County, where the main courthouse building sits in his historic downtown section across from the federal courthouse and city hall.
Citing a tsunami of publicity, defense attorneys said, “This prosecution has generated publicity without precedent in the history of this State — no fewer than seven television documentary series, films and dramatizations distributed on the Nation’s largest platforms; a podcast that attained the No. 1 ranking in the world; gavel-to-gavel live broadcast of the first trial; and new productions released to the present day.”
All that publicity has “saturated” the five counties of the 14th Judicial Circuit, which includes Allendale, Beaufort, Colleton, Hampton and Jasper, defense attorneys said. And the 14th Circuit is a venue where Murdaugh’s family occupied the solicitor’s post (circuit prosecutor) for “the better part of a century,” they said.
Moreover, of the 76 witnesses who testified in Murdaugh’s first trial, roughly half were 14th Circuit government and law enforcement officials, and many of the jurors and witnesses knew each other and were “one another’s neighbors, relatives, customers and co-parishoners,” defense attorneys wrote.
The saturation of such a small venue by prejudicial publicity gives rise to a presumption of prejudice,” defense attorneys wrote.
Nearby Charleston County is a fit place to secure an impartial jury, defense attorneys wrote. It is just 50 miles from the Colleton County courthouse in Walterboro, its population is 11 times that of Colleton County, and it has “a demonstrated record of impaneling impartial juries in causes of national prominence,” defense attorneys wrote.
Charleston would also impose “the least travel burden” on witnesses of any suitable county outside the 14th Circuit, defense attorneys wrote.
Prosecutors say no to Charleston
On Wednesday, prosecutors filed a 10-page response to defense lawyers, outlining in detail their objections to Charleston, saying it is the “most logistically challenging county of the entire state of South Carolina.”
Charleston is of course the State’s oldest city and one of the premiere cities in the nation for industry, business, the arts and tourism. But considering logistics and expense, the ‘Holy City’ makes Charleston the most difficult county in the State to handle this particular matter,” prosecutors wrote.
The downtown area is beautiful and historic, but traffic and parking there are already extremely difficult on a normal business day without the massive influx of jurors, witnesses, attorneys, staff, media and onlookers that this case would bring,” prosecutors wrote.
The retrial is now set to begin in the spring, and Charleston’s “spring tourist season is already the busiest time of the year” in that city, prosecutors wrote.
“A review of hotel rates indicates the expense of staying in Charleston reasonably close to the courthouse would be more than double or triple the costs of comparable areas,” prosecutors wrote.
“Unfortunately, heavy spring storms and king tides can and all too often do completely paralyze the already heavily congested downtown area with flooding,” prosecutors wrote.
n Murdaugh’s first trial, it only took two days to pick a jury in Colleton County, prosecutors wrote. “And frankly, the publicity then was as much, if not more so, than now,” prosecutors wrote.
In the modern era of the internet, publicity is pervasive and the true test of picking an impartial jury will be if the juror can set aside their own opinions and be fair and impartial jurors, prosecutors wrote.
Prosecutors said they were open to discussing an alternate location and named Spartanburg, Newberry, Lancaster, York or Florence courthouses as alternate locations. Richland, Lexington and Aiken would be difficult venues because Master’s golf tournament is being held in the first part of April, prosecutors wrote.
DNA evidence
A potentially contentious issue is whether the defense can have DNA from underneath one of Maggie Murdaugh’s fingernails analyzed by a private lab. The DNA is from an unknown and unrelated male and is not consistent with DNA from any known party, including her husband or sons, defense Murdaugh’s attorneys have told the judge.
Such evidence would indicate that someone other than Alex Murdaugh was close enough to her to have participated in her killing, defense attorneys contend.
Defense attorneys also contend that SLED has already examined the DNA sample and it is time for the defense experts, who use a different method of testing, to do their own examination.
In the first trial, SLED was unable to analyze the DNA, but science has made significant advances in the technology since then, defense attorneys assert.
In an Aug. 7 filing, prosecutors made these points about the DNA sample:
- Even the defense scientific expert acknowledges that the DNA sample is so small that testing would be a “high risk” procedure and that there is little likelihood of getting a conclusive analysis from the sample.
- Testing would “permanently consume” the sample.
- Prosecutors have offered to process and quantify the sample, but stop before any testing to consult with the defense. This would ensure “consultation” and access for both sides. But the defense has rejected that approach, prosecutors assert.
Murdaugh’s new clothes
The last time Murdaugh was seen in civilian clothes was on the night of Thursday, March 2, 2023.
That was when a Colleton County jury found him guilty of two counts of murder and two counts of possession of a weapon during a violent crime.
The next day, Murdaugh entered court in a light brown jail jumpsuit. Judge Clifton Newman, now retired, sentenced him to two consecutive life sentences. Since then, Murdaugh has worn prison garb when pleading guilty to financial crimes in state and federal court after his murder trial, and he is, in fact, a convicted felon who would be expected to wear a jumpsuit.
“Murdaugh is not just a pre-trial detainee; he is an inmate serving a very long sentence,” prosecutors argued in a recent filing.
In her four-page clothing order allowing Murdaugh to don civilian clothes McCaslin noted the excessive media attention to his case and wrote, “Considering the media coverage, keeping the Defendant in prison clothes and shackles for (the fraud) convictions not before the court presents a risk of prejudice, jury-pool contamination, and threatens to erode Defendant’s presumption of innocence in this (murder) case,” she wrote.
Properly fitted civilian clothes for Murdaugh must be delivered to the courthouse 24 hours before Friday’s hearing and be inspected by security personnel, she wrote.
In his previous trials, Murdaugh favored a stylish but relaxed country club look — blue blazer, well-fitting khaki pants and a button down dress shirt, open at the neck with no tie.
“Nothing” in the judge’s order limits the Lexington County sheriff’s office or the S.C. Department of Corrections to ensure safety, she wrote.
Defense attorneys on the case are Dick Harpootlian, Jim Griffin, Phil Barber, Andrew Hand and Maggie Fox.
Besides Waters, the state attorney general prosecution team includes Don Zelenka, John Meadors, Melody Brown, Walt Whitmire and David Fernandez.
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