RICHLAND COUNTY, S.C. — Former Chief Justice Jean Toal decided on Monday that convicted double murderer Alex Murdaugh will not be getting a new trial. As News 19 reported, Murdaugh’s defense team said it plans to appeal the decision.
So, what comes next?
The goal of the evidentiary hearing was to find out if Murdaugh deserves a new trial after the defense’s claim that the Colleton County Clerk of Court Becky Hill tampered with the jury. After a full day of testimony on Monday, Toal decided that Hill was not credible and may have made inappropriate comments to the jury ahead of Murdaugh taking the stand in his own defense, but Toal said the defense did not prove that her comments affected the jury’s verdict.
“It's going to go to the appellate court and we believe strongly that we will win,” Defense Attorney Dick Harpootlian said, addressing media after Toal’s decision.
“Early on, [Toal] acknowledged and we all acknowledged this was not going to be the final say so on the law. That's going to be determined by the appellate courts,” Attorney Jim Griffin added. “No matter who wins today, it’s just one step in the process. We would not have a trial next week or next month. It would all be wrapped up and going up to the Court of Appeals and the Supreme Court.”
Many News 19 viewers asked what exactly that means, so we reached out to Jay Bender, retired law professor and media attorney.
“This is the trial of the century, but I hadn't expected to be involved for the whole century,” Bender smiled. “Journalists always ask the question, how long will it take? And the answer is almost as long as it takes the court to decide the question.”
In his experience, Bender says decisions in appellate cases can be made in any length of time, varying from minutes to years. While Bender is not a criminal law attorney, he has been the media liaison during both Murdaugh’s murder trial and evidentiary hearing.
“The court of appeals has several avenues with respect to its decision: it could affirm the trial court, it could reverse the trial court and remand it for a new trial. And then either side that loses in the court of appeals could ask the US Supreme Court of South Carolina for a review,” Bender explained. “Then once the Supreme Court of South Carolina makes a decision, if there is a constitutional question, and the defense in this new trial motion made an effort to raise a federal constitutional question, then, a petition for writ of certiorari could be filed with the United States Supreme Court. The Supreme Court does not consider appeals from state law matters, unless the appeal implicates a federal constitutional issue and here that issue would be a fair trial.”
“I will hold the record open,” Toal said in court after reading her decision. “I direct that within four business days of receipt by the attorneys in this matter of a transcript of these proceedings a proposed order by the state denying the defendant’s motion for a new trial with citations be sent to me and to opposing counsel. I will allow the defendant four business days from receipt of the state’s proposed order to lodge objections and/or submit an alternative proposed order. Upon receipt by the court of all proposed orders, I will finalize this record, submit a written order and I will at that time transmit the written order of the Court of Appeals, the court which has remanded this matter to me.”
When it comes to how often appeals are filed, Bender says they are common in cases like this.
"Where the sentence was two consecutive life terms, it would probably be malpractice not to file an appeal, so I would think an appeal in those circumstances would almost always be filed," Bender shared.
When it comes to whether it's likely for appeals to be granted, Bender said he thinks "there's less than a 50% chance of success by a defendant appealing a determination of guilt particularly in a murder case."
As for Becky Hill, her co-author Neil Gordon was in court and reacted to Toal’s decision.
“I was like, ‘Oh my goodness,” Gordon explained. “I just sort of saw everything unfold. And they were poking holes in what she was saying. And I just felt awful because you’ve got to understand, I mean, for months and months, got to know somebody you thought and felt very close to them and your families and you hate to see a trainwreck happening.”
Gordon says they haven’t talked recently after it was discovered Hill plagiarized a part of their book, which was brought up in Monday’s hearing.
“I didn't realize even the book was going to be mentioned,” Gordon said. “I had the impression that it wasn't going to be considered because the book was written after the actual trial, but when they started to ask questions about it and put her back during the trial with her mindset about thinking about writing the book and supposedly wanting a guilty verdict, which was never discussed with me, it was again, surreal.”
News 19 asked Bender about this.
“Is it a crime to plagiarize a foreword for a book? No,” Bender said. “Plagiarism really is an academic concern.”
When it comes to Toal’s determination that Hill isn’t “completely credible,” Gordon says he’s “worried” for Hill.
“I don't know what comes of this and whether there's some sort of fine or sanctions,” Gordon shared. “I really have no idea. But I know that she has a tough road ahead of her and I just, I pray for her. It's going to be very difficult.”
The South Carolina Law Enforcement Division (SLED) is currently investigating Hill for ethical violations in her position, but Bender says that’s a separate issue from yesterday’s hearing.
“If you bribe a juror and it changes the outcome, that would certainly be criminal,” Bender detailed. “To make a comment, as Toal described it, ‘foolish,’ I don't think that's a crime. And I don't think Becky Hill could be prosecuted for that.”
The ethical concern SLED is investigating has to do with whether Hill used her elected position as Colleton County Clerk of Court for personal gain.
“I told her that if there were any money changing hands for giving tours of the courthouse, that money had to go either to her office account or to the county treasury, that that was not hers and to accept that would in fact, in my view, constitute a violation of state ethics laws,” Bender said about his advice to Hill. “
As for what Bender thought about Hill’s decision to write a book, Bender says Hill asked him whether it would be a South Carolina Ethics concern. Bender says he told her “that in my view it did not,” which he says lines up with advice from the State Ethics Commission.
While Hill’s credibility was brought up during the hearing, Toal made it clear at an earlier status conference that it was not going to be “the trial of Ms. Hill.”
In the evidentiary hearing, Toal questioned 12 deliberating jurors, one alternate juror, Becky Hill and the Barnwell County Clerk of Court to make her ruling.
“I want you to focus your attention as you answer the questions I'm going to ask you on your six weeks of experience as a juror in this case and on the point in the trial where the judge charged you and on your verdict as you rendered it on March the second 2023,” Toal said to the jurors. “The questions I’m asking are about that time and not about this time. There's been so much drama about this matter since the verdict was rendered. And my heart goes out to everyone, the lawyers and you who are in this trial, that I can't help.”
Ultimately, two deliberating jurors and the alternate juror said they heard Hill make comments ahead of Murdaugh’s testimony, such as “watch his body language.”
One juror, known as ‘Juror Z,’ said that impacted her verdict, the other said it did not.
The other 10 jurors said they never heard Hill make any comments, and thus, their decisions about the verdict were not influenced by Hill.
Toal decided to question the one juror who said she was influenced by Hill further. During that questioning, Toal referenced an affidavit from August 2023 that was written by a member of the defense’s team and signed by Juror Z. After more questioning by Toal, Juror z said it was actually pressure from the other jurors that influenced her verdict.
“I had questions about Mr. Murdaugh's guilt, but voted guilty because I felt pressured by the other jurors,” Toal read from the signed affidavit while questioning Juror Z. “Is that an accurate statement about your verdict?”
“Yes, ma'am,” Juror Z responded.
Juror Z was dismissed from the stand, but shortly after, her attorney Joe McCulloch sent an email to the court.
Toal discussed the email, which contained an additional signed affidavit from Juror Z, but decided not to use it.
On Tuesday, News 19 got ahold of a redacted affidavit, in which Juror Z said she wanted to clarify her testimony.
In part, the affidavit reads, “As I testified, I felt influenced to find Mr. Murdaugh guilty by reason of Ms. Hill's remarks, before I entered the jury room. Once deliberations began as I stated in paragraph 10 of my earlier affidavit, I felt further, additional pressure to reach the guilty verdict.”