Weekend Recap with EB – March 2, 2024

TRANSCRIPT

EB:

Good morning everyone. EB here with my wife Renee, we’re in Colorado. Say good morning Renee.

RENEE:

Morning, everyone. 

EB:

Really excited to talk to you this week. We had the Kenny Kinsey interview. We’ve had a couple things develop in the Murdaugh case that I’ll talk about, and we’ll talk about some legal terms. But first, let’s talk about the Kenny Kinsey interview that Liz Farrell and I did last week. It was well received by our audience. Kenny Kinsey’s just a rock star. He was the shining star of the Murdaugh murder trial. He came out of nowhere. I knew of him a little bit before this trial, but he had not been a cottage industry expert witness, so to speak, somebody that you know of that would always testify in use of force cases or excessive force cases against police departments. There are some experts that you know, routinely you hear their name. As Kenny said in his interview, he originally was not supposed to be a testifying expert in the murder case. He was just supposed to review and consult. And once I guess, Creighton and his team heard Kenny talk and how he explains his opinions and he does them in such a digestible manner in a way that you can understand and relate, they had to put them on the witness stand. And, you know, if you recall, during the trial at that time, it was, you know, kind of 5050. You know, there were a lot of people saying that the state wasn’t proving their case. And so they put Kenny on at a time when they really needed to put their foot on the scale, the State, to meet their burden of proof and Kenny just shine d. The first time he testified was perfect and then they brought him back again in redirect after the defense presented their case.

You know, the hallmark of an expert is to be able to educate a jury and do it in a way that you’re not talking down to the jury. Kenny has a way of making you feel good about listening to an expert witness. He’s talking with you he’s not talking at you. He makes a real connection. Some experts are stilted, a little cold. You know, they have an elite arrogance to him that they feel like they know the subject matter and so you should automatically listen. I think you saw the way that the jury was rapt attention to what he was testifying to. And, you know, when we interviewed him, I was surprised to learn that his personality has evolved over his career, that when he was younger, he was a real “firebrand” he said. It really was a rewarding interview for me. I’ve interviewed a lot of people, I’ve deposed a lot of interesting people in my career. But I just found that he made me start looking at myself, and how I canport myself and how I talk to people. And I really, I got a lot of benefit about myself out of the interview. 

He talked about the Steven Smith case and he talked about how he didn’t look at the photos of Steven from the highway department report that was released the file. He talked about starting the investigation from scratch and for him it’s about touching the soil and putting his feet on the ground and he tried to recreate the route that Steven took before he was found in the middle of the road.

He told us that there was no way that he could have walked through the woods because of the fencing and the dense foliage and some of the creeks, that it would just be nearly impossible to do that in the middle of the night at 2:30 in the morning. So that was enlightening. I don’t think Sandy Smith ever said that Stephen was going to walk through the woods and not walk along the road. I think what Sandy said was that if a car was coming, Stephen would have hid on the side of the road behind a tree if he was walking on the road; that he was smart enough not to leave himself exposed. 

He believed that Steven was killed at the scene where he was found because of the amount of blood loss and the way that the blood flowed by gravity. I think the one thing that Kenny didn’t talk about is his theory on how Stephen was killed. Was he killed by a moving vehicle? The question could be yes.  Was Stephen struck by the vehicle itself? I think that question is no, I think Kenny Kinsey and some other people have concluded that something was protruding from the vehicle, whether it was something metal, whether it could have been a trash container that was overhanging, something that was protruding that hit Stephen so hard to drive him into the ground. I think that that is the theory that Kenny is going with, he didn’t really talk about that. But I feel like that he is onto something. It could have been, you know, if it was a baseball bat, that is not something that is fixed, it probably would have jerked the person’s arm back, whereas something that is welded to a truck, and he believes that was a truck, something that is welded, that is fixed, would hit Stephen and not bend back. So you know, if it’s a force against the human against something metal, especially going in the opposite direction towards you and you’re leaning into it, you know, obviously that piece of metal or whatever it was that hit Stephen would win. 

So I implore you to listen to the interview. For Premium Members, I know that there’s going to be at least another 35 minutes more. We interviewed Kenny for a total of an hour and 30 minutes. Kenny, again, just an amazing guy. I learned a lot. I think you will too, and I think you will enjoy it. 

This week we are expecting the response from Team Murdaugh to the federal probation and parole pre-sentence report that is done in connection with Alex Murdaugh’s federal sentence that is going to come in front of Judge Gergel for his plea that he did in September. They asked for 30 extra days, they’re going to file their objections to it. This is going to be a big tell for Judge Gergel and the federal court system in what sentence Alex Murdaugh’s going to get in connection with him pleading guilty to the crimes that he did in late September; a multitude of felonies. As you recall, Judge Gergel gave what would everybody considered to be a very lenient sentence to Cory Fleming. Judge Newman cleaned up that spare and gave a nine year sentence. Whereas Judge Gergel gave Cory Fleming less, I think, than 48 months, they felt that the you know, a number of people, me included, felt that that was a light sentence. So I think Judge Gergel is going to have a chance here to kind of change the public opinion on how he sentencing and I think he’s going to, and it’s my hope that he gives a larger sentence to Alex Murdaugh. Enough of a sentence that if He ever lives out his sentence in state court, he will go right At the state prison in his 70’s.

So now we’re going to move to the Law Library and we’re going to talk about two legal terms. The first is an injunction. an injunction simply means that you are preventing somebody from doing something, if somebody’s cutting down foliage, and it’s hurting your view, meaning you had this very secluded view in your property, and this person is cutting down foliage and there’s an argument, who’s an adjacent property owner, that they’re cutting down your foliage or foliage that’s on your property, you wouldn’t go to court and get an injunction, you would move for an injunction. And an injunction means that a court will stop the conduct. And that will say that, look, if I don’t do this, and you go forward, and Sue, money damages enough, money damages won’t be enough to give you a remedy and make you whole, that ordinarily, if money damages are enough, then they won’t grant an injunction and an injunction is granted. If there is an irreparable harm that will likely take place, meaning that it’s irreparable, that harm can never be modified, rectified, or remedy to that there is a likelihood to succeed on the merits of your claim. So if you’re suing somebody who is harassing you, or harassing your kid, or sending out bullying messages over the internet, you have a likelihood that you would be able to succeed on the merits of that claim. And then, the third prong is that there’s a balance of equities that the court would say, there’s a more equitable way to give an injunction that it’s in favor of the party who’s moving forward, that that party has clean hands, and that the party that the injunction is going to be against has dirty hands, it’s an equity when we talked about equity being just fairness and right. It’s not necessarily based on law or case law or statutes. It’s more about what feels right. And so if an injunction is going to be granted, you have to meet those requirements. So it’s often done in a civil case, you really don’t get an injunction in a criminal case. In a criminal case, you would get what’s known as a protective order, or some kind of order from the court that would prohibit a party from doing something. And then so in a criminal context, that would be a protective order. 

The next thing is an interesting term. I remember from my first year of law school when we were talking about evidence, and the case was called one song, one song versus the United States, I think, and there was a term in there called fruit of the poisonous tree. Tree. What does and you probably heard that term if you’ve listened to a lot of legal shows, But the fruit of the poisonous tree means that if a police officer fails to mirandize, somebody fails to give them their right to remain silent, that they have a right not to incriminate themselves, that they have a right to an attorney if they cannot afford one. And they give them these instructions. And the person talks, then whatever you get from that disclosure from that target defendant is good evidence, whether it’s they show you where the drugs are, they show you where the body is of somebody who was murdered. That is good evidence that is good fruit, that is fruit from a good tree. However, the fruit of the poisonous tree is if the police officer or the investigating law enforcement agency doesn’t comply with the law, doesn’t give those Miranda rights or puts somebody in custody. and they don’t afford them the right to a lawyer, then if that person confesses, or that person tells them where the body is, or tells them where the drugs are, or if a law enforcement officer doesn’t get a warrant, if there’s not exigent circumstances, edge, urgent circumstances mean, you don’t have time to get a warrant, somebody’s going to be killed, and a warrant, meaning a search warrant or an arrest warrant, somebody’s going to be killed, there’s something that’s going to happen, that doesn’t give you the time to go get that warrant and you break into an apartment, you find all these drugs. Well, if there’s not that exigent circumstances, and you did have time to go get a warrant from a judge, or you should have given those Miranda warnings, then everything you recovered, all the evidence, all the drugs, the money, the bought the victim, that is the fruit of a poisonous tree. And if it’s a fruit of a poisonous tree, what it means is if the tree is poisonous, then the fruit is as well and you cannot use that fruit. You cannot use that evidence, the murder weapon, the money, the body, the drugs in prosecuting that individual. So it is an interesting concept. So law enforcement officers are pretty mindful of giving those Miranda rights before they get a confession before they start interrogating. Or if they have time, they’ll go get that warrant because they want the fruit that they recover to be admissible in court. And so that is the fruit of the poisonous tree. 

So I want everybody to have a great week. Look forward to a great weekend. And with that EB out.

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