South Carolina circuit court judge Clifton Newman became a national sensation during the six-week murder trial of disgraced Palmetto State attorney Alex Murdaugh. Newman’s even-keeled demeanor, keen knowledge of the law and unassailable integrity were widely lauded by media outlets across the world – including this one.
“Having been in the courtroom for the duration of the six-week double homicide trial – and having covered all of its pre-trial motions and post-trial press conferences and status hearings – my admiration for Newman is widely known (and has been consistently and effusively expressed),” our founding editor Will Folks noted last week. “Indeed, I often wrote how his handling of this case was single-handedly restoring the public’s faith and trust in South Carolina’s badly broken system of justice.”
The universal adoration heaped upon Newman – and the high esteem in which he is held within the legal community in the Palmetto State – made this week’s petition from Murdaugh’s lawyers targeting him very unusual. And unusually risky.
But the question remains: Do Newman’s detractors have valid arguments?
Newman, 71, is scheduled to retire on December 31, 2023. He could conceivably remain on the bench after that date, however. Regular members of our audience will recall Newman was hand-picked by S.C. chief justice Donald Beatty in September 2021 to preside over any and all cases tied to the ‘Murdaugh Murders’ crime and corruption saga.
That sprawling maze of criminality has brought down the “House of Murdaugh,” a Lowcountry legal dynasty which ruled the S.C. fourteenth judicial circuit like a fiefdom for more than a century. Three generations of Murdaughs – including Alex’s late father, Randolph Murdaugh III – held the post of S.C. fourteenth circuit solicitor between 1920-2006. Murdaugh himself was a badge-carrying assistant solicitor – and past president of the influential S.C. trial lawyers lobby.
This week’s petition – submitted by Murdaugh attorneys Dick Harpootlian, Jim Griffin, Phillip Barber and Margaret Fox – seeks to prohibit Newman from adjudicating Murdaugh’s pending motion for a new murder trial. It also seeks to bar him from presiding over any future trials which include the internationally notorious convicted killer as a defendant. In fact, the 265-page filing (.pdf) not only makes the case for Newman’s removal from any further Murdaugh-related matters – it also convincingly lays out the defense’s case for a new trial.
On March 2 of this year, Murdaugh was convicted of killing his wife, 52-year-old Maggie Murdaugh, and younger son, 22-year-old Paul Murdaugh, on June 7, 2021 at Moselle – the family’s hunting property. Newman sentenced him to life in prison the following day.
The primary focus of the filing was Newman’s potential status as a witness to seismic jury tampering allegations leveled in early September against Colleton County clerk of court Becky Hill, whose office managed Murdaugh’s double homicide trial earlier this year.
“Judge Newman has personal knowledge about the clerk of court’s conduct which will undoubtedly be disputed at an evidentiary hearing,” Murdaugh’s attorneys noted.
The defense’s latest argument goes far beyond the story of the famous egg juror – who was dismissed during closing arguments for allegedly discussing the case out of court against Newman’s explicit instructions. As we reported at the time, her removal paved the way for the guilty verdicts.
In addition to identifying Newman as a potential witness to the jury tampering allegations, Murdaugh’s attorneys pointed out how the judge made numerous statements after the verdicts in violation of the S.C. Code of Judicial Conduct (.pdf) – statements which require his disqualification from presiding over further proceedings in this matter.
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That Newman has expressed his views on the case in the aftermath of the verdicts is indisputable.
“You’ve engaged in such duplicitous conduct – including here in the courtroom and on the witness stand,” Newman addressed Murdaugh during his sentencing hearing.
In an especially chilling moment, Newman suggested Murdaugh’s dreams would be haunted by his victims “in the nighttime when you are attempting to go to sleep.”
“I am sure they will come and visit you,” Newman said.
Newman affirmed his belief that Murdaugh’s victims would haunt him during a June 21, 2023 interview with Craig Melvin for NBC’s Today show.
“Oh, I think so,” he said. “It has to be. I cannot imagine him having a peaceful night knowing what he did.”
In the weeks following the trial, Newman traveled to his alma mater, Cleveland State University, where he made additional comments attesting to Murdaugh’s guilt.
“I don’t believe that he hated his wife, and certainly I did not believe that he did not love his son, but he committed an unforgivable, unimaginable crime, and there’s no way that he’ll be able to sleep peacefully given those facts,” the judge said during his remarks at Cleveland State.
Impartiality – and the appearance of impartiality – are fundamental tenets of our judicial system. By publicly expressing his opinion of Murdaugh’s guilt, Newman was clearly surrendering the appearance of impartiality – something he surely had to have known he was doing.
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Does this mean Newman is in violation of the code? Not necessarily. That all depends on his future role with respect to Murdaugh-related matters. Since making these comments, Newman has held a status hearing on Murdaugh’s admitted financial crimes. He has not been called upon to be a trier of fact related to any Murdaugh matters, though.
Not yet, at least …
That could change very soon, however, as the S.C. court of appeals recently stayed Murdaugh’s appeal of his murder convictions – sending the case back to the circuit court to conduct an “evidentiary hearing” into the jury tampering allegations. Since then, a motion from Murdaugh’s attorneys for a new trial was filed in Colleton County – where it was ironically received by the very clerk of court who has been accused of impropriety in this case.
Hill, incidentally, has denied the allegations against her – and as we have previously reported there appears to be some substance to her denial.
But should Newman be the one to make that determination?
An expert affidavit attached to the latest defense filing stated that Newman and Hill are the only two witnesses to some of the facts regarding the alleged jury tampering – another reason he should be removed from the case, according to the petition.
“Judge Newman is likely to be a material witness to disputed facts that only he and the accused wrongdoer know personally,” said Dr. Gregory B. Adams of the University of South Carolina school of law. “Thus he may not hear the motion, and doing so would be judicial misconduct.”
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On October 18, 2023, Harpootlian sent Newman a letter asking him to recuse himself – citing his status as a material witness regarding allegations of jury tampering and previewing the defense motions which were filed earlier this week.
“The motions (do) not suggest that you did anything improper during the trial as the presiding judge,” Harpootlian wrote. “Unfortunately, however, Ms. Hill’s actions make you a material witness regarding her conduct.”
On October 25, 2023, in response to this letter, lead prosecutor Creighton Waters submitted his own letter to judge Newman regarding Harpootlian’s request. According to Waters, “nothing in the law or defense counsel’s allegations or speculation would require recusal.”
The defense’s motion to remove Newman – filed exactly two weeks later – is a clear indication the judge was not going to consent to recusal. In fact, there is no indication he responded to the defense’s letter at all.
WRIT OF PROHIBITION
A writ of prohibition is often described as a “drastic remedy.” Such writs are typically used in situations where a lower court is found to be acting outside its legal boundaries. A writ of prohibition is the legal equivalent of an injunction. It is only granted in the event the petitioner has no other adequate means of relief.
Given the apparent lack of response from Newman to the defense’s letter, it appears Murdaugh’s lawyers determined pursuing a writ of prohibition was their only option.
“Mr. Murdaugh’s right to have his cause heard by an impartial judge will be violated if Judge Newman proceeds to hear his motion for a new trial,” they noted. “Ordinary appellate proceedings will not be able to remedy the violation after it occurs. Thus, Mr. Murdaugh’s only recourse to preserve his rights is an extraordinary writ of prohibition from this court to prevent the violation from occurring.”
CODE OF JUDICIAL CONDUCT
While the jury tampering allegations were the primary focus of the petition, Murdaugh’s defense team added weight to its filing by claiming Newman’s aforementioned comments violated the Code of Judicial Conduct. According to its preamble, this document is “designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through disciplinary agencies.”
The code establishes ethical standards for Palmetto State judges. It is comprised of several broad statements – called canons – with specific rules set forth within each canon.
Below is a review of the relevant canons in this case …
A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where the judge has… (b) personal knowledge* of disputed evidentiary facts concerning the proceeding.SC Code of Judicial Conduct Rule 501 Canon 3 Section (e)(1)
While Murdaugh’s defense team has not accused Newman of impropriety in his role as a judge, they insist the jury tampering allegations put him in an impossible position.
“Ms. Hill’s actions make Judge Newman a material witness regarding her conduct,” they noted, specifically referring to a Facebook post allegedly made by Juror #785’s ex-husband.
This, of course, is another reference to the “egg juror” saga.
According to the petition, “Newman’s personal knowledge of (Hill’s) actions about Juror #785 is relevant to the Clerk’s credibility if she disputes the representations made by other jurors that she engaged in inappropriate communication with them.”
In other words, Newman could be compelled to testify as to whether things he witnessed during the trial implicated – or exonerated – Hill. Either way, he would be incapable of providing such testimony and then sitting in judgment over the facts of the dispute.
“The facts Judge Newman has knowledge of therefore are ‘disputed,'” Murdaugh’s attorneys noted. “They are ‘evidentiary’ facts because they are evidence regarding Ms. Hill’s attempts to influence the jury’s verdict. Judge Newman therefore has personal knowledge of ‘disputed evidentiary facts.’ It is his personal knowledge of these facts that disqualifies him from impartially weighing evidence probative of them.”
“MANIFEST BIAS …”
A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability or age, and shall not permit staff, court officials and others subject to the judge’s direction and control to do so.SC Code of Judicial Conduct Rule 501 Canon 3 Section (b)(5)
According to the petition, Newman violated this canon during his comments at sentencing – showing personal bias regarding Murdaugh and his family that allegedly went beyond the “general attitudes common to the public.”
They further argued Newman showed personal bias by expressing his opinion that the death penalty would be desirable in this case while sentencing Murdaugh.
“And this case qualifies under our Death Penalty Statute based on the statutory aggravating circumstances of two or more people being murdered by the defendant, by one act, or pursuant to one scheme or course of conduct,” Newman told Murdaugh. “I don’t question at all the decision of the state not to pursue the death penalty, but as I sit here in this courtroom and look around the many portraits of judges and other court officials and reflect on the fact that over the past century, your family, including you, have been prosecuting people here in this courtroom, and many have received the death penalty, probably for lesser conduct.”
Murdaugh’s attorneys further claimed Newman’s comment that “law enforcement has been maligned for the past five or six weeks” evinced a personal bias against Mr. Murdaugh – and against his counsel. Defense lawyers have a duty to challenge the quality of the investigation that generates evidence against their clients.
And in this case, it appears some of those challenges were well-founded.
“WHILE A PROCEEDING IS PENDING …”
Rule 501 Canon 3 Section (b)(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require similar abstention on the part of court personnel subject to the judge’s direction and control.SC Code of Judicial Conduct Rule 501 Canon 3 Section (b)(9
Murdaugh’s attorneys pointed to multiple interviews given by Newman as evidence the judge violated the code of judicial conduct, stating “it is almost unheard of for a judge to give interviews about a pending case, even cases in other jurisdictions.”
Yet Newman did … on multiple occasions.
The petition went on to claim “it is categorically inappropriate for a judge to give interviews about a case pending before him, which includes a case on direct appeal that may, as here, appear before him again for further judgment.”
Indeed, the canon makes it clear the prohibition against public comment from judges “continues during any appellate process and until final disposition.”
“Judge Newman is not free to express his views on the merits of Mr. Murdaugh’s case outside of judicial proceedings,” Murdaugh’s attorneys argued. “Because he did so, his recusal is required ‘to protect the sanctity of the judicial process.'”
WHAT HAPPENS NEXT?
The petition filed by Murdaugh’s attorneys made it abundantly clear a writ of prohibition from the supreme court was necessary as Murdaugh had no other remedy available to him.
“If Newman hears the motion for a new trial, his decision cannot be meaningfully reviewed for bias on appeal,” they noted. “If the factfinder (on the bid for a new trial) is a judge who has denounced Mr. Murdaugh on national television, the decision on the motion for a new trial will be un-reviewable and forever suspect. The bell cannot be un-rung on appeal. Mr. Murdaugh’s right to an impartial judge can only be preserved by prevention, not remediation, which is available only from this court.”
Those facts are difficult to argue against …
The five justices of the supreme court will review the petition and determine if a writ of prohibition is warranted, but until then, the defense team has also filed a motion to stay trial court proceedings. If granted, this stay would place Murdaugh’s November 27, 2023 trial for financial crimes on hold while the court considers Newman’s status. Justices have not indicated whether they intend to stay the proceedings – or whether they intend to hear oral arguments related to Newman’s status.
Our founding editor has already published an opinion piece on this matter, concluding Newman “has expressed his bias … stating for the record his lack of objectivity for any future proceedings.”
“Given his status as someone who has now clearly articulated his views on the matter – thus creating for himself a stake in the outcome of this hearing – surely Newman must see he can no longer sit impartially in judgment of Murdaugh,” Folks wrote.
Stay tuned to this media outlet for the very latest on Murdaugh’s motion for a new trial – and all Murdaugh-related legal drama.
Researcher/ reporter Callie Lyons contributed to this report.
ABOUT THE AUTHOR …
Jenn Wood is FITSNews’ incomparable research director. She’s also the producer of the FITSFiles and Cheer Incorporated podcasts and leading expert on all things Murdaugh/ South Carolina justice. A former private investigator with a criminal justice degree, evildoers beware, Jenn Wood is far from your average journalist! A deep dive researcher with a passion for truth and a heart for victims, this mom of two is pretty much a superhero in FITSNews country. Did we mention she’s married to a rocket scientist? (Lucky guy!) Got a story idea or a tip for Jenn? Email her at [email protected].
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