Weekend Update with EB – January 19, 2024

TRANSCRIPT

Happy Thursday Premium Members, EB here. We had an amazing week this week. We’ll talk a little bit about Mandy and I interviewed Noah Pines this morning, but earlier this week, we got our first real taste of what’s coming up on January 29, January 30, January 31 for Alex Murdaugh’s motion for a new trial based on jury interference. 

We were introduced to the former Chief Justice Jean Toal. I thought it was a very enlightening hearing from a number of levels. One I you know, I said on our podcast this week Cup of Justice that I was wrong about Justice Toal. She was more reserved than I expected her to be based on my past interactions with her. I think she absolutely controlled the courtroom, as I said that she would. You know, there’s no question that she is a towering intellect, probably one of the smartest Supreme Court justices we’ve ever had, if not the smartest. She comes totally prepared and what ends up happening is it really unnerves the lawyers and I think you saw that on the defense’s part. She can put you back on your heels very quickly. 

In short, the defense got trumped. There’s no other way to say they walked into that hearing like they were lions, they were the cock of the walk, and they left like a lamb. And I know they left like a lamb because I was outside giving an interview to Court TV and Dick Harpootlian came out with the entourage and actually Matt from Court TV, who was interviewing me, stopped the interview and went up to Dick as he was walking and said, you know, can I have your thoughts on today’s hearing? Did it go as you expect? And Dick said no comment. And then he kept asking questions and Dick said louder, no comment. And he actually gave five no comments which, if anyone knows Dick Harpootlian, that is like seeing a unicorn– it just doesn’t happen often. Because you shove a camera in front of his face or a microphone, and he’s going to give you a quote. And I think they were absolutely shocked. I think even the prosecution was shocked at the rulings that Justice Toal pronounced from the bench about how the hearing is going to proceed. 

The defense came in believing that there was going to be really the burden was going to be on the prosecution, no other way to say. They felt that if they raised the issue that Becky Hill had made more than a ministerial statement on material statement, not just a ministerial statement, but a material statement, they went to the subject matter of the trial. And the allegations were that she said to a number of jurors, three, at least, watch Alex’s body language, don’t believe that defense, Alex is lying, yada, yada, yada. And different things that would indicate that she wanted a guilty verdict. That was the presumption that had been met and the burden of proof would then have to shift to the prosecution to show that those statements were not material and not harmless error, and therefore, they would get a new trial. The defense believed that they did not have to show that anything that Miss Becky said would have an impact on the verdict. And contrary to what they thought, and I think a little bit of what Creighton Waters thought, Justice Toal said no, we’re not going to follow federal law, the Supreme Court case. We’re going to follow the South Carolina law which says that the burden stays with the defense, and that you have to show that not only that the statements were made, but that they were prejudicial, and that they actually influenced and impacted the jury’s verdict, the jurors who rendered their verdict those are are the ones that have to be scrutinized. And, you know, they put a lot of their weight into the so-called egg lady juror and Justice Toal immediately said the only testimony that she’s going to hear from and take is from the jurors that rendered their verdicts. And I represent along with Ronnie Rector fout of those jurors, and Becky Hill, she was not going to entertain any testimony from the egg lady from any alternate juror or any dismissed juror. And she was not going to permit witnesses to come in and impeach the credibility of Becky Hill. 

She made a statement from the bench that she said, Becky Hill is not on trial here. And what she said is we’re going to focus on what was told to the 12 jurors, when they rendered their verdict, she was not going to entertain anything that happened after March 3, after the verdict was rendered. And that’s all of these so-called bad acts of Becky Hill, the allegations that she plagiarized sections of her book from BBC, the allegations regarding her son being arrested for wiretapping, the two Ethics Commission investigations that were ongoing on backhand regarding the abuse of power in her position. And now the two potential criminal investigations that are going to be going on, she was going to leave this to be what happened from the start of the trial to the verdict. And she is only going to ask the jurors the following: what is it if anything that you heard from Becky Hill that was not ministerial, the things of what time you have to show up, what can you wear, what should we eat for lunch, when’s court done, and do you have to go to a doctor, but true substantive things. And that if you heard any material, substantive statements, did they impact your verdict? Meaning, did you take your verdict from a not guilty to guilty. And we know that no one yet who has submitted an affidavit has said anything that their verdict was impacted by anything that Miss Becky said, one of the jurors said that she felt pressured in rendering her verdict to change it to guilt. But when she was polled, she obviously said this is a verdict of my own free will without coercion or duress. 

So the defense felt like they were walking in and it was going to be automatic that this hearing was going to yield the result of a new trial. And the mountain just got taller and the climb on that mountain just got much taller for the defense. I would not be surprised if the defense tries to do something before the 29th so that this hearing doesn’t go forward. Dick Harpootlian in the middle of the hearing when he saw that it was not going in his favor, even asked Justice Toal to continue the hearing and she said she would not do that. It wouldn’t surprise me if they do something, such as going to federal court to have the federal court direct that there has to be the application of this United States Supreme Court, federal law or they do something to slow this down, almost like when we were in the fall when we were going to go forward with the Satterfield financial crimes trial in state court on November 27 and I said, you know, there’s no way that trial is going forward, Harpootlian’s going to cut his leg off or his foot off if he has to do it.

Dick Harpootlian was admonished hard by Justice Toal. He made the statement that Becky Hill had told an assistant clerk of court that a guilty verdict would help with her book sales. And he said it I think twice and on the third time that he tried to say, she said Mr. Harpootlian, I know what you’ve said. I’ve made my ruling. She said I’m capable of being the judge and the jury in this matter. And I think what you saw is the difficulty that the law has to overturning a jury verdict that was rendered by 12 jurors who sat and diligently listened to a trial. We can’t have a system where you can so easily overturn. Now, if there was this kind of influence and it did impact the verdicts, and that is yet to be seen, then Alex may end up being entitled to a new trial. Look, we’ve heard from 11 of the jurors who rendered a verdict. But there is a free agent out there, there is a juror who has not talked to the defense or talked to the prosecution. And that juror is going to have to come into court. And we’ll see if that juror says that anything that was said by Becky Hill influenced their verdict. 

At the end of the hearing, my partner and I got up. And Ronnie and I spoke and I said, look, you know, we were retained by these jurors and we have essentially three functions: to preserve their anonymity, to make sure that they are not harassed by the public, and that the verdict that their conscience rendered to be upheld. Now immediately, everybody says, well, Eric, you always wanted a guilty verdict and you’re going to do everything you can to make sure that at least your four jurors keep the guilty verdict. While it is true that I believe that Alex Murdaugh is guilty of killing his wife and his son, and it is true that I think that that was a just verdict, if my clients had voted not guilty, then I would be just as striding in trying to preserve their not guilty verdicts without having the influence of my own feelings to infect the decision that these jurors made this morning.

And we’ll get into it, we interviewed Noah pines and he gave a great example. I asked him, you know, how do you represent?somebody who does spousal abuse or child abuse and he said, look, I’m no different than the ER doctor who sits in the ER when somebody comes in who’s shot. It could be a housewife, or could be a you know, a drug dealer.. They do their job. They try to save their lives. And that’s what a defense attorney does.

I think what you saw was Dick Harpootlian was shocked at Justice Toal’s certaint and resolute decision making in what she was going to go forward. I was a little surprised that Dick was not more prepared. She listed four issues that she was concerned about and Dick got up and spoke. And he made the mistake of telling Justice Toal I forgot the four things that you talked about, which she talked about basically one minute before he got up. And he kind of meandered on for about a minute and a half and was wandering in his word salad and he turned it over to Jim Griffin. Jim Griffin got up and pronounced the law and she said to him, that is not the law. That’s not the law of our state. That’s not the law that I am going to apply. And I think you saw Jim just absolutely stone cold knocked out, because you never heard really from him again for the rest of the hearing. 

This is what is going to happen on the 29th, and on the 29th she is going to hear on Monday from the 12 jurors, she’s going to hear their testimony under oath, each juror, without the public seeing their face or being videotaped. The public will hear their voices but she’s going to do the questioning, it’s not going to happen in camera, which means in chambers, it’s going to happen in open court. But Harpootlian is not going to be a participant and neither is the prosecution. It’s going to be done by Justice Toal herself and she’s going to answer those two questions: What was said to you by Becky Hill, if anything, and how did it impact your verdict? And she’s going to go through all 12. 

Now Harpootlian said I want to be able to submit questions, I want to be able to respond by giving you questions. Justice Toal said that’s not going to happen. And when Justice Toal told Harpootlian that he can’t have witnesses to impeach Becky Hill, which means if she says something to impeach her credibility to challenge it or to put on other witnesses, including these alternative jurors and dismissed juror, Harpootlian said I have to make a proffer. Proffer means put forth whatever but who the judge ruled out what they’re going to say so that there’s a record for appellate purposes. And usually that’s done in open court and you take the jury out, and you put the witness on the stand and you ask the questions, they give the answers and now it’s preserved on the record. Justice Toal said you will be able to make your proffer, but you’re not going to do it in open court, you’re going to spend the next two weeks submitting to me, your proffers in writing. And then I’ll make them part of the court record. And that was a very, very clever way of making sure in Justice Toal’s words, that this is not going to be a circus. She did not want this to be a circus, she wanted it to be streamlined. And these defense attorneys are going to spend basically the next two weeks preparing for almost an appeal. And you heard what Harpootlian said. He mentioned the word appeal a number of times and even said Federal Court, which is ultimately going to be a habeas corpus motion after you exhaust all of your state appeals, you go to federal court. Habeas corpus means in Latin for bring the body before the court, and then raising ineffective assistance of counsel, and you actually heard Harpootlian use those words. Justice, if you make me go forward under these guidelines and directives that you said, I will be ineffective. And that could come back to haunt him. 

We offered to the Justice that because the jurors numbers and some of their names associated with their numbers have been released in those emails, the jurors be re-numbered one through 12. And Justice Toal was receptive to that. So Monday, on January 29, you’re going to hear from the 12 jurors, Becky Hill I suppose will be the next witness on Tuesday. And I would be shocked if it does get into Wednesday, the third day. A lot has been written about it. A lot of the news media as Mandy and Liz and I said, you know, said it was almost a foregone conclusion that there was going to be a new trial. That is not the case right now, not to say that he isn’t going to get a new trial and not to say that even under these restrictive measures, that Justice Toal is still going to order a new trial, but it certainly is a lot harder. 

This morning, Mandy and I interviewed Noah Pines, who’s a criminal defense lawyer, told us an amazing recitation about a case that the Innocence Project in Atlanta. A man did almost, I think it was like 15 years and they were able to get him a new trial. And ultimately, the charges were dropped. Really interesting how he was one of the first and early listeners to Murdaugh Murders Podcast, how he talked about the how he’s seen how Mandy has matured and the different things in her podcasting and her legal knowledge, and it just was a wonderful interview from a really, really great guy. So that’s what happened this week. I want everybody to stay warm. Get ready for what’s going to be a very interesting process. You’re gonna see an old school judge, as they say. Justice Toal, don’t forget, was a trial lawyer for 20 years before she went on the Supreme Court. She was a legislator who jumped right to the Supreme Court, and you’re gonna see some pretty good skills on her part. So with that, EB out. 

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