Murdaugh Tampering Ruling: Three Strikes Against Jean Toal

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The presumption of innocence is fundamental to our system of criminal justice. In America, those accused of crimes must be convicted by a jury of their peers – an impartial jury – prior to being declared guilty and punished. Faith in this bedrock component of due process is eroding in South Carolina, however, after convicted killer Alex Murdaugh was not granted a new trial earlier this year – despite clear and compelling evidence of jury tampering during his double homicide trial last year.

While Murdaugh is by no means a sympathetic figure – and while most following his case (including me) remain convinced of his culpability for the murders of his wife and younger son – process matters. Constitutional rights matter. Liberties matter.

Oh, and judicial integrity matters.

If the question of whether Murdaugh’s rights were violated was decided by a judge who had already made up her mind – or was acting on the instructions of someone eager to protect a specific outcome – that’s a far bigger scandal than the one currently swirling around disgraced Colleton County clerk of court Becky Hill, whose tampering has landed us all in this mess.

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Hill was first accused of tampering with Murdaugh’s jury last September. Multiple jurors confirmed the allegations under oath in January – including one who made it abundantly clear the tampering impacted her verdict. Additionally, Hill appears to have been an integral cog in an alleged conspiracy to rig Murdaugh’s jury ahead of the verdicts.

I’ve weighed in on this unfortunate miscarriage of justice on several prior occasions, most recently turning my attention to the retired supreme court justice who denied Murdaugh a new trial.

During a hearing on the jury tampering allegations earlier this year, former S.C. chief justice Jean Toal had the chance to right a glaring wrong. Actually, she had three chances.

She failed… all three times.

“The fix was in, people,” I noted last month. “Through Toal, the judiciary made it abundantly clear that protecting a verdict – and the reputation of one of its most beloved judges – was more important than upholding the Sixth Amendment right of the accused to a fair and impartial jury.”

In this article, I break down the egregiousness of the “fix…”

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STRIKE ONE | THE FEDERAL STANDARD

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Toal’s first chance to fix the tampering issue came at a status hearing held two weeks before her fateful decision to deny Murdaugh a new trial. At that hearing, she controversially narrowed the scope of the proceedings – ruling against the defense regarding the standard of proof she would be following at the retrial hearing.

While there is currently no nationwide federal standard for presuming prejudice as it relates to incidences of jury tampering, the case most often cited – Remmer v. United States – is the accepted standard in most federal circuits, including the U.S. fourth circuit court of appeals (which has jurisdiction over South Carolina appeals).

Decided in March of 1954, Remmer deemed any improper communication with a jury to be “presumptively prejudicial,” placing an affirmative burden on prosecutors to demonstrate that the contact was “harmless and could not have affected the verdict.”

“The presumption is not conclusive, but the burden rests heavily upon the government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless,” the court found.

Toal completely flipped Remmer on its head.

“Prejudice must be proved, not presumed,” Toal told Murdaugh’s attorneys at the status hearing in January. “For the purposes of what the defendant must show, the presumption – simply by the contact, which we don’t have any sworn evidence about… is not the way to examine this issue but rather specific evidence of what was said, when it was said and how it impacted the jury.”

According to Murdaugh’s attorneys, Toal’s decision not only ignored existing sworn statements, more importantly, it flouted the Remmer presumption – which they noted was the “binding precedent of the U.S. supreme court.”

Not to mention the binding precedent of the appeals court which decides Palmetto State cases.

“The fourth circuit continues to adhere to a Remmer presumption when the contact goes beyond the innocuous,” its judges noted two years ago in the case of United States v. Lee Elbaz.

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STRIKE TWO | THE STATE STANDARD

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Toal’s second chance to fix the tampering issue fell by the wayside when she grossly misapplied a South Carolina case – State v. Green – to the facts at issue in Murdaugh’s bid for a new trial. In the Green case, the state supreme court determined that improper post-trial contact by a bailiff in response to a juror’s question – i.e. what would happen in the event they were unable to reach a verdict – failed to trigger the Remmer presumption.

“Not every inappropriate comment by a bailiff to a juror rises to the level of constitutional error,” justice John Kittredge wrote in that case. “The bailiff’s actions here — though improper — did not touch the merits, but dealt only with the procedural question of how the judge might handle a jury impasse that apparently never materialized.”

“Here, the jury deliberated approximately four hours before reaching a verdict,” Kittredge continued in his Green ruling. “The jury never indicated it was at an impasse. At some point in the deliberations, a juror asked the bailiff what would happen if the jury were not able to reach a verdict. The response by the bailiff, while inappropriate, did not rise to level of a violation of petitioner’s Sixth Amendment right to a fair and impartial jury.”

Did Hill’s comments “touch the merits” of the case against Murdaugh? Absolutely…

They also demonstrably impacted something which clearly did materialize… two guilty verdicts against Murdaugh.

Nonetheless, Toal interpreted Green as some sort of all-encompassing, precedent-setting rebuke of Remmer – arguing from the bench that Kittredge’s decision “said very clearly (that) we do not go by the guidance” of Remmer.

“He said it straight out clear as a bell can be,” Toal added, upon being challenged by Murdaugh attorney Dick Harpootlian.

With this erroneous interpretation in hand, Toal established the (faulty) ground rules for her hearing to determine whether Murdaugh should receive a new trial.

“I am not conducting a Remmer hearing,” Toal said. “I rely on the South Carolina decision of our supreme court authored by justice Kittredge, State v. Green, and the Green decision specifically says that Remmer is not the guidance that South Carolina trial judges should look to in conducting hearings on after-discovered evidence.”

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STRIKE THREE | THE TOAL STANDARD

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Of the three strikes against Toal in this case, the third and final strike is the most damning because it involves the veteran judge repudiating… well… herself.

For the sake of argument, let’s assume Toal was correct in ignoring Remmer‘s presumption of prejudice in South Carolina (even though Palmetto State judges are obligated to follow the Fourth Circuit’s definition of “clearly established” federal law related to the rights of defendants). Let’s also assume Toal correctly interpreted Green as a sweeping state-level repudiation of Remmer (even though justice Kittredge expressly identified tampering which “touches the merits” of a case as triggering its presumption of prejudice).

Even so, Toal’s decision to deny Murdaugh a new trial fell short of the standard she established for the hearing – the standard of “proven prejudice.”

Multiple jurors not only confirmed Hill tampered with the jury, one said the tampering impacted her decision to convict him.

That should have been the end of it right there…

Toal’s own ruling, in fact, confirmed the nature and scope of the tampering.

“She made comments about Murdaugh’s demeanor as he testified, and she made some of those comments before he testified to at least one and maybe more jurors,” Toal concluded.

Again… that should have been the end of it right there.

Nonetheless, Toal inexplicably decided the standard had not been met – because according to her, Hill’s statements to jurors were “not overt as to opinion.”

The only problem with that conclusion? One of the jurors who heard Hill’s statements specifically testified that the tampering “made it seem like (Murdaugh) was already guilty,” to which Toal replied on the record “I understand that’s the tenor of the remark she made.”

Strike one, strike two… strike three.

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EPILOGUE…

Some have been reticent to criticize Toal’s decisions related to this hearing, arguing such criticism is akin to shooting the messenger. The prevailing theory is Toal was given her marching orders on the Murdaugh hearing from former chief justice Donald Beatty – who was purportedly eager to protect the reputation of former S.C. circuit court judge Clifton Newman, Murdaugh’s trial judge.

That may be true… and judging by ongoing delays, suppression of evidence and lingering conflicts of interest related to Hill’s criminal investigation and (non-)prosecution, it wouldn’t surprise me one bit to discover the existence of a broader institutional conspiracy related to these matters.

But does that get Toal off the hook for her decisions?

“In the Murdaugh case, (Toal) flagrantly flaunted the law – and not just ‘the law,’ but her own narrow interpretation of it – for what appears to have been the expressed purpose of reaching a preordained outcome,” I noted last month. “Based on that, how on earth is she still allowed to sit in judgment over cases?”

Indeed…

Just as the presumption of innocence is fundamental to American jurisprudence, so is the presumption that justice is blind… that decisions are made based on evidence and arguments, not politics and “marching orders.” If Toal cannot be trusted to render verdicts based on the law in this case, how can she be trusted to uphold the law in other cases?

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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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