It would be premature of me (or anyone, really) to say Alex Murdaugh should receive the death penalty prior to hearing an evidenced-based narrative from police and prosecutors regarding the particulars of the grisly homicides he stands accused of committing on June 7, 2021.
We all know what the disgraced, disbarred former attorney is accused of doing in connection with the ‘Murdaugh Murders’ crime and corruption saga, obviously … and there are plenty of theories as to why and how he may have done it.
As of this writing, though, police and prosecutors have not divulged any information tied to the murders of 52-year-old Maggie Murdaugh and 22-year-old Paul Murdaugh. Nor, for that matter, have they released any of the evidence which reportedly links Murdaugh to the savage slayings of his wife and younger son.
Until such information is provided, speculation about whether S.C. attorney general Alan Wilson may or may not seek the death penalty against Murdaugh is definitionally uninformed. Certainly, I have no plans to editorialize one way or the other prior to seeing the evidence.
Also, there is an even bigger issue to consider: In the event Murdaugh were to be sentenced to death … would South Carolina be able to execute him?
The Palmetto State has not carried out an execution since May 6, 2011 – and recent changes to its capital punishment laws are currently tied up in court.
On the surface, though, this certainly has all the appearances of a slam dunk capital case for Wilson.
(Click to view)
(Via: South Carolina Attorney General)
Some background: South Carolina provides for the death penalty in murder cases provided a “statutory aggravating circumstance is found beyond a reasonable doubt.” These aggravating circumstances are specifically enumerated in the S.C. Code of Laws (§ 16-3-20) – and are determined on a case-by-case basis in proceedings which are held separately from the murder trial once a guilty plea or verdict has been entered into the record.
If a defendant in a capital case pleads guilty before trial, the sentencing decision falls to a circuit court judge. If a defendant is found guilty by a jury of his or her peers during a public trial, the decision is made by the same trial jury which heard the original case. Like the determination of a defendant’s guilt, any aggravating factors must be proven “beyond a reasonable doubt” for the death penalty to be imposed.
Now that we are all familiar with the ground rules … what are the factors which could move the needle one way or the other?
There are twelve aggravating factors listed under the law – although the first factor encapsulates eleven separate crimes which, if committed alongside murder, would elevate the latter charge to a capital case. Those crimes include criminal sexual conduct, kidnapping, human trafficking, burglary, robbery, larceny, drug trafficking, poisoning, torturing, dismemberment and arson.
The other aggravating factors deal specifically with the defendant, his or her victims, the crime itself and the motive for committing it. And as you might imagine, several items on this list could conceivably factor into the Murdaugh proceedings.
First, “receiving money or a thing of monetary value” via the commission of a murder is considered an aggravating circumstance. So is murdering “a witness or potential witness … for the purpose of impeding or deterring prosecution of any crime.”
Was there a financial motive associated with these murders? Or were they an attempt by Murdaugh to circumvent one or more of the various criminal inquiries swirling around him?
Prior to being charged with murder last week, Murdaugh was already indicted by a statewide grand jury on 79 criminal counts alleging that he and his co-conspirators defrauded multiple victims out of nearly $8.5 million. He is also at the heart of an ongoing obstruction of justice inquiry related to a fatal 2019 boat crash – the incident which thrust him and his family onto the statewide stage (and which continues to drive a high-profile civil case involving the Murdaughs).
Spouses cannot be compelled to testify against their significant others in the vast majority of criminal and civil cases in South Carolina … but they are not prohibited from doing so, either.
If a spouse wishes to testify against their husband or wife in open court … they have that right.
Theories abound as to whether Alex Murdaugh was trying to silence his wife and/ or son … or attempting to profit from their deaths … but there is one aggravating circumstance which prosecutors should have absolutely no trouble proving.
Under the law, a case becomes eligible for the death penalty when “two or more persons were murdered by the defendant by one act or pursuant to one scheme or course of conduct.”
Those last three words – “course of conduct” – could ultimately prove decisive in Wilson’s decision to seek the death penalty.
Based on a barely intelligible remark made in his 9-1-1 call on the night of the murders, there is considerable speculation Alex Murdaugh was not expecting his son to be on the family’s sprawling, 1,700-acre hunting property on that fateful evening last June. Many believe Paul Murdaugh – who was staring down a trio of felony charges related to the aforementioned boat crash at the time of his murder – was collateral damage during a premeditated killing of his mother.
Assuming there is some legitimacy to those theories – and I am not saying there is – prosecutors could conceivably argue Paul’s murder was part of a “course of conduct” undertaken by Murdaugh, even though it may not have been part of his original “scheme.”
On the flip side, expect Murdaugh’s attorneys – led by Dick Harpootlian and Jim Griffin – to argue one or more of the “mitigating” circumstances which could lead a judge or jurors to opt against the death penalty. Among those? A defendant being “under the influence of mental or emotional disturbance” or acting “under duress.”
Harpootlian and Griffin could also argue Murdaugh had no “prior criminal conviction involving the use of violence against another person,” which is another mitigating factor under the statute.
Ultimately, the decision on whether to seek the death penalty in this case falls on one person: The attorney general. He will more than likely consult with his senior advisors, the prosecutors on the case and the family of Maggie Murdaugh – but the final decision is his alone and based on what he believes he can prove in court.
What can he prove? Hopefully, that will become clear based on the evidence that begins filtering out over the course of the coming days, weeks and months … perhaps as soon as this week’s bond hearing for Murdaugh in Colleton County on the two murder charges.
Assuming Wilson seeks the death penalty – and a judge or jury obliges him – the S.C. Department of Corrections (SCDC) currently has no way of carrying out the sentence. Earlier this year, the S.C. supreme court halted a pair of scheduled executions after death row inmates challenged the Palmetto State’s new capital punishment law – which permitted executions by electrocution (or firing squad) in the event lethal injection was unavailable.
Lethal injections typically involve a three-drug cocktail: Pentobarbital (which sedates an inmate and acts as a painkiller), pancuronium bromide (which inhibits muscular function) and potassium chloride (which produces cardiac arrest). The companies which manufacture these drugs aren’t selling them due to philosophical objections to the death penalty, however. Also, due to issues with this “cocktail” approach, several states have opted to use high doses of sodium thiopental – a barbiturate – to execute inmates via a one-drug method. The federal government executed eight people in 2020 using pentobarbital exclusively.
Until the court rules on the legality of these various methods, though, capital punishment will remain effectively outlawed in the Palmetto State.
ABOUT THE AUTHOR …
Will Folks is the founding editor of the news outlet you are currently reading. Prior to founding FITSNews, he served as press secretary to the governor of South Carolina. He lives in the Midlands region of the state with his wife and seven children.
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