Alex Murdaugh’s Appeal: The Key Arguments

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The 132-page brief filed with the South Carolina supreme court this week on behalf of convicted killer Alex Murdaugh brought no surprises to those closely following this multi-layered legal drama. Nor did the document (.pdf) – which serves as Murdaugh’s formal appeal of his murder convictions – likely change anyone’s mind.

Opinions as to whether Murdaugh deserves a new trial are all over the map – a testament to the enduring captivation and contention this case has sparked.  

Once the untouchable scion of one of South Carolina’s most prominent legal and political dynasties, Murdaugh – and his empire – collapsed during the summer of 2021. His dramatic unspooling – which culminated in his convictions for murdering his wife, 52-year-old Maggie Murdaugh, and younger son, 22-year-old Paul Murdaugh – garnered international media attention. Seismic allegations of jury tampering raised in the aftermath of the trial have only further sharpened opinions about the case.

For now, though, the only opinions that matter belong to the five justices of the court as they review Murdaugh’s filings to determine whether his two murder convictions should be overturned following a trial his defense team insists was “infected with unfairness.”

Earlier this year, the state’s appellate court shot down Murdaugh’s bid to hold his broader appeal in abeyance while his lawyers challenged former chief justice Jean Toal’s controversial denial of his bid for a new trial on the jury tampering allegations. As a result, the filing submitted this week by attorneys Dick Harpootlian, Jim Griffin, Phillip Barber and Maggie Fox is his last chance to get a new trial at the state level – meaning Murdaugh’s defense had to lay all of its cards on the table.

Those cards included two key arguments upon which Murdaugh’s defense based his appeal – the denial of Murdaugh’s constitutional right to a fair trial due to the jury tampering and “reversible error” related to the introduction of improper character evidence and other irrelevant and unfairly prejudicial evidence. As predicted, Murdaugh’s attorneys are challenging the controversial decision by former S.C. circuit court judge Clifton Newman to allow jurors to hear evidence relating to financial crimes committed by Murdaugh.

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STATEMENT OF FACTS

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Before presenting its arguments, the brief lays out a “statement of facts” – providing an overview of the investigation, indictment, trial and jury tampering allegations. The defense team’s view of the case – which began three-and-a-half years ago on a dark, late spring night at ‘Moselle,’ the family hunting compound in Colleton County – gives the impression of an investigation and prosecution which began and ended with a singular goal in mind: Indicting and convicting the only individual ever suspected of the crime.

“From the moment the investigation began, Alex was the one and only person within this investigative circle and the agents did not eliminate him.”

Defense Initial Appeal Brief (p. 7)

The appeal zeroed in on what Murdaugh’s attorneys believed were key mistakes and missteps by investigators from both the Colleton County Sheriff’s Office (CCSO) and the South Carolina Law Enforcement Division (SLED). Among those purported errors? The failure of SLED crime scene forensic agents to even “attempt to lift fingerprints from the feed room doors, doorknobs, or entrance area where Paul was murdered” and the decision not to submit DNA from an unknown male found under the fingernails of Maggie Murdaugh to the national DNA database (CODIS) for a potential match.  

The filing also addressed SLED’s failure to search the residence of the home and property of Murdaugh’s mother in nearby Varnville – where the killer traveled in the immediate aftermath of the brutal murders. Furthermore, it noted “SLED agents only conducted a cursory search at Moselle, which did not reveal any evidence linking Alex to the murders.”

Of the evidence investigators did collect, Maggie Murdaugh’s iPhone – which featured prominently in the prosecution’s case during trial – was botched when investigators failed to place it in a Faraday bag. This misstep became evident eight days after it was recovered, when investigators found the location data from the night of the murders had been overwritten and erased. As a result, they were only able to recover six days of data.

Focusing on the indictment, the filing further notes two material statements made by lead SLED agent David Owen to the grand jury that were later proven to be false. The defense’s cross-examination of Owen during trial about these statements became one of the few moments where they appeared to be making headway.

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THE STANDARD APPLIED

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As expected, jury tampering allegations against former Colleton County clerk of court Becky Hill featured prominently in the appeal. The filing asserted Murdaugh “was denied his constitutional right to a fair trial by an impartial jury free from outside influences” and that evidence of prejudice created by the meddling of Hill, among others, was “proven” at a January 2024 evidentiary hearing.

In assessing the impact of the tampering, Murdaugh’s attorneys argued Toal identified the wrong legal standard when she controversially narrowed the scope of a January inquiry into the allegations. As they have insisted all along, Murdaugh’s lawyers argued Remmer v. United States was the standard Toal should have followed.

“When a state official communicates with jurors about a criminal case during trial, the law presumes the tampering was prejudicial to the defendant’s right to a fair trial,” they noted.

Had it been applied, the Remmer standard would have shifted the burden to the State to prove the communication between Hill and the jurors was harmless.

The trial court, however, rejected the correct legal standard and applied an erroneous standard of its own invention: that Murdaugh, in addition to proving that Ms. Hill did tamper with the jury about the merits of his case during trial, must also prove what the verdict would have been but for that tampering. 

Defense Initial Appeal Brief (p. 32)

In the appeal, Murdaugh’s attorneys hammered Toal’s contention that a South Carolina case – State v. Green – instructed Palmetto State judges to ignore Remmer.

“If the Remmer presumption of prejudice ever applies, it must apply where, as here, an elected state official advocates for a guilty verdict in the jury room during trial so that she can personally profit from selling books about a guilty verdict,” they wrote. “That is not an ‘innocuous intervention.'”

By proving Hill communicated with at least one deliberating juror about the evidence presented at trial, Murdaugh has established he is entitled to a re-do, per his attorneys.

As FITSNews founding editor Will Folks recently noted, last month’s decision by the U.S. fourth circuit court of appeals to vacate Murdaugh-related convictions of accused fraudster Russell Laffitte – and to grant Laffitte a new trial – was another key point raised by Murdaugh’s defense. The fourth circuit ruling (.pdf) “held that the trial court’s removal of a juror during deliberations violated (Laffitte’s) right to an impartial jury because there was a reasonable possibility that the removal was related to the juror’s views on the merits of the case.”

Murdaugh’s case is distinct from Laffitte’s, his lawyers noted, but only “in that Ms. Hill’s jury tampering is so far beyond the pale that the court should have no reason to be reluctant to conclude that her conduct constitutes structural error in the trial.”

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‘NUMEROUS EVIDENTIARY ERRORS’

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In addition to arguing Murdaugh deserves a new trial based on the jury tampering allegations, the defense laid out its case relating to the evidence allowed in by judge Newman – asserting the beloved jurist made “numerous evidentiary errors” by repeatedly admitting evidence over objection “that was irrelevant, unfairly prejudicial, or otherwise prohibited by the South Carolina Rules of Evidence.”

The appeal noted when standing alone, these were “reversible errors,” but combined they created “a due process violation because they rendered Murdaugh’s criminal trial fundamentally unfair.”

Among those errors? The admittance of evidence related to Murdaugh’s financial crimes which allowed prosecutors to admit “improper character evidence and other irrelevant and unfairly prejudicial evidence.”

“The state’s theory that Murdaugh murdered his wife and son in cold blood to distract his law firm from investigating alleged financial improprieties is illogical, implausible, and unsupported by the evidence,” the attorneys wrote, arguing “any probative value of the evidence concerning the alleged prior bad acts was substantially outweighed by the unfair prejudice that resulted.”

The appeal also argued Murdaugh did not waive his right to “challenge the lower court’s erroneous decision to admit this evidence” when he took the stand.

After making these arguments, Murdaugh’s attorneys turned to the physical evidence presented during the six-week trial – including evidence ostensibly related to the weapons used to murder Paul and Maggie.

Those weapons have never been discovered, incidentally.

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SLED’s firearms examiner provided “irrelevant, unreliable, and confusing opinion testimony,” Murdaugh’s attorneys argued, adding that the introduction of “multiple guns seized from Murdaugh’s residence when no evidence linked the guns to the murders” was improper.

The introduction of these “irrelevant” weapons into evidence was especially prejudicial because it served to “confuse and mislead the jury into believing one of the weapons about which the SLED firearms examiner could not reach a conclusion was likely the murder weapon that the state in fact never recovered.”

Murdaugh’s attorneys further argued Newman committed “reversible error” in allowing prosecutors to “introduce evidence of an unscientific experiment performed by an unqualified Charleston County Deputy in its rebuttal case.”

That’s a reference to the testimony of Paul McManigal, who sought to prove that Murdaugh threw his late wife’s cell phone from the window of a moving vehicle shortly after committing the murders. According to the defense, it was “highly prejudicial” of Newman to allow McManigal to testify because he wasn’t an expert and his “experiment” with the phone was admittedly unreliable.

Specifically, the defense argued its repeated objections regarding McManigal’s expert qualification with regard to the phone were “ignored” – and that the detective himself admitted on the stand his investigatory method of “sitting alone in an office throwing a phone on the floor without recording any data about it” was not sound.

Why does this matter?

“Without his inadmissible testimony, the state would have been forced to admit that someone other than Murdaugh was present at the scene of the murders when they occurred, had taken Maggie Murdaugh’s phone from her dead body, and had left the Moselle dog kennels with it and threw it onto the side of the main road leaving Moselle while Murdaugh was still at home,” the attorneys argued. “The state could not have convicted Murdaugh with that admission and therefore could not have convicted Murdaugh without sergeant McManigal’s inadmissible testimony.”

Speculation that someone else was present at Moselle on the night of the murders continues to run rampant.

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WHAT’S NEXT?

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Unless an extension is granted, prosecutors in the office of S.C. attorney general Alan Wilson have thirty (30) days to file their response to Murdaugh’s appeal. After that response is filed, the court will set a date for oral arguments which sources say is likely to be scheduled sometime in the fall of 2025. In the meantime, all eyes are on the ongoing saga tied to Becky Hill.

As previously reported, Hill has yet to be charged with jury tampering – or in connection with a host of other alleged ethical violations and criminal acts. Meanwhile, Wilson’s office has been criticized for failing to refer her case to an independent prosecutor.

Another case linked to the never-ending Murdaugh drama has recently brought additional scrutiny to Wilson’s office. Last month, Murdaugh’s attorneys criticized the attorney general’s “failure to prosecute” former Murdaugh fixer Curtis ‘Eddie’ Smith on more than a dozen pending charges. Harpootlian questioned why Wilson’s office was refusing to move forward on the “massive crimes” Smith is accused of committing in connection with this saga.

On September 14, 2021, agents of the S.C. State Law Enforcement Division (SLED) issued an arrest warrant for Smith which alleged that Murdaugh “provided (him) with a firearm and directed (him) to shoot him in the head for the purpose of causing Mr. Murdaugh’s death and allowing for the payment of a stated death benefit to a beneficiary of the insured.”

Smith has been accused of cashing more than 400 checks totaling at least $2.4 million at the behest of Murdaugh – funds which prosecutors claim supported “a myriad (of) unlawful activities” between 2013 and 2021. Smith is further staring down a slew of drug trafficking charges tied to Murdaugh – which were filed in an indictment in June of 2022.

The biggest headlines involving Smith, though, were generated in October of 2022 when Murdaugh’s attorneys accused him of being the murderer of Maggie and Paul Murdaugh based on a failed polygraph examination. Smith’s attorney flatly refuted that allegation – and challenged investigators to test his DNA with evidence found at the crime scene.

According to Harpootlian, the state’s failure to charge Smith after more than three years indicates they have an interest in keeping him “on the hook.”

“All of the evidence would indicate Eddie was the source of the millions of dollars in drugs – and he was accused of laundering the money,” Harpootlian said. “His crimes were integral to the murders… why isn’t he being prosecuted?”

“I think the attorney general owes the public an explanation,” Harpootlian said. “Either schedule the case or drop the charges.”

According to Griffin, “one theory why (prosecutors) haven’t disposed of Eddie’s case is that they are expecting the Murdaugh case to come back for a retrial.”

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THE BRIEF…

(S.C. Supreme Court)

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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 jenn@fitsnews.com.

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