Weekend Update with EB – March 30, 2024

TRANSCRIPT

Hey there EB here. Good morning Premium Members. This coming week, April 1, not only is April Fools but it’s the day that Alex Murdaugh will find out his fate in front of Judge Richard Gergel, United States District Court federal judge, in Charleston, who will be sentencing Alex in connection with his September 2023 pleas of guilt to 22 federal financial crimes. We thought it was just going to be a routine sentence but a couple things have taken place in the past week. One is we were given notice that Judge Gergel gave notice to the defense and the public that he would consider an upward enhancement on the sentencing for Alex Murdaugh’s crimes. And what that means is he would consider additional years above the statutory amount under what is required for the crimes that he’s pled guilty because either as Alex was not cooperating in his plea agreement like he said, or some other violation in the plea agreement. Well, we found out what that violation was because two days ago Emily Limehouse, the lead prosecutor, filed notice that Alex Murdaugh had breached the terms of his plea agreement with the federal system because he failed a polygraph test. It was a prerequisite in his plea agreement that he pass a polygraph test. 

What she clearly said is that Alex was asked about where is the $6 million or so that is unaccounted for? What happened to that money? And according to the filing, the polygrapher found that his answers were evasive. Also, for the first time she mentioned that there were questions asked of Alex of an unnamed attorney that he was not truthful about. Now, go figure. A liar is going to lie. Alex lied in his testimony that he gave in the murder trial, Alex lied his entire last 16 years. Alex lied when he spoke to the police who are investigating the murders of Maggie and Paul. Alex lied when he was confronted by his law partners. Alex lied about the roadside shooting. I mean, to think that all of a sudden Alex is going to come forward after a lifetime of lies, that it’s almost his MO at this point to lie. I mean, he lies when you don’t even have to lie. It’s just ridiculous to think that the federal government would believe that he would be truthful in what he was going to be asked in his polygraph. And so the filing now was they want to vacate the plea agreement, which is fine by me as the attorney for six of Alex’s victims, I’m sure it’s fine by Justin Bamberg. I did speak with him, he agrees. And I’m sure Mark Tinsley would feel the same way. They are going to, the federal government, say that Alex breached the terms of his plea agreement because he lied on the polygraph. The defense is going to come forward and say no way. We have an enforceable plea agreement, Alex gave his answers to a polygraph. We deny that he lied on that polygraph. More importantly, it Everybody knows that polygraphs are not admissible in a court of law. And we think the polygrapher got it wrong and that Alex’s answers were not lies, that they were correct or that he genuinely doesn’t know the answers to those questions. So Harpootlian is going to be screaming from the rooftops to enforce the plea agreement. Harpootlian is going to be screaming from the rooftops to not permit Judge Gergel to do an upward enhancement. He’s going to say that he cooperated in his plea agreement. Emily Limehouse now is going to say that the plea agreement is vacated, or void and should be vacated because of his either lack of cooperation or failing the polygraph test or both. And I’m going to be screaming that I do not believe, if there is going to be a sentence imposed, that it should be concurrent with the state court sentence. 

So what did I learn? The Federal Court sentence is supposed to be concurrent with the state court sentence, which means runs at the same time. The other term that we would want instead of concurrent is that it run consecutively, which means he finishes out his state court sentence. Remember, he pled guilty in November of 2023 and got 27 years, which means he’ll have to serve 23 years day to day, no time off that 23 years, no parole. And we thought that at the end of the 23 years, if he lives, obviously, he’s 55 now and you know, who knows that he can make out 23 years and maximum security prison till he’s 78. Remember, this is all predicated that the two life murder sentences are vacated. He’s appealing those, and we’ll talk about those in a second. But let’s say those are reversed and remanded and vacated and the only thing that’s on the books is this 23 year sentence that Judge Newman imposed in November of last year. Concurrent means that it’s served at the same time, even though he’s not in federal prison, he’s in state prison, whatever sentence he has runs concurrently with his state prison for the 23 years for the financial crimes, and then when that 23 years is over that’s it. He’s done. So the question now will be, is Judge Gergel going to enforce the plea? Is he going to make a sentence concurrent? Is he going to say, well no, you know what, I’m going to give him 60 years, and I’ll let 23 of those years run concurrent with the state prison but he’s going to have additional time. I think it’s a slap in the face to the victims, to let that federal sentence run concurrent or at the same time as his state courts sentence. And why do I say that? Because they spent a ton of money. And they had him dead to the rights on these financial crimes. And they have the ability to either go to trial and load him up. Remember, we want to make sure this dangerous, narcissistic man never gets out of prison and breathes a fresh breath of air ever again. And so, yes, we were happy with the double murder sentence, some of us who believed that he was guilty. Yes, we’re happy with 23 years that Judge Newman gave, but we also wanted the belt and suspenders on the back end to get that large federal sentence so that there would be no situation where Alex could ever get out of prison. 

Now, this for us, you look at the plea agreement and the plea agreement says his federal time will run concurrent with the state court crimes that he pleads guilty to for the same conduct it says. So now the question needs to be is the stuff that he pled guilty to in front of Judge Newman, all those financial crimes, the same conduct that he’s pleading guilty to in the federal court, those 22 crimes. I think there’s some differences. So there can be an argument that it doesn’t run concurrent because the conduct was not the same. Harpootlian’s gonna say it’s all the same conduct; he stole from the Satterfields, he stole from the Badgers, he stole from the Pinkneys. So it’s all the same. 

The question is going to be well, look, what are the odds that the murder convictions are going to be reversed? I think they’re not good. However, the Supreme Court of South Carolina is going to have to determine whether Justice Toal was correct when she applied the state law, which said anything that Becky Hill said or did had to influence the jury in their decision making process and rendering the verdicts. And we all heard that 11 of the 12 Jurors said nothing that Becky said, some said I didn’t hear anything, but nothing that she said influenced my decision at all in the verdict that I rendered. The defense was arguing you got to apply the Supreme Court standard, which says you never get to the issue of whether what was said influenced the jury’s decision if you’re able to show that the Clerk of Court Becky Hill, made a statement that was not ministerial, didn’t deal with food and deal with transportation, didn’t deal with when court ends, but actually touched on the merits of the case where she talked about Alex or she talked about testimony or evidence, if you can show that and prove that you get a new trial. 

So let’s say there is a new murder trial and he goes back and he gets a not guilty verdict. Well, now we’re only left with the state court 23 years, if indeed the federal court sentencing runs at the same time concurrent. So you say okay, 23 years, that’s good. It’s good enough. I mean, you know, maximum security prison, food’s bad, you know, the medical care you get is bad, he won’t live to 78. However, what happens in four or five years if he decides, you know what, I’m going to cooperate. I’m going to really cooperate. I’m going to cooperate like Jeroid Price did last spring. Remember the Jeroid Price matter with Byron Gibson and Judge Manning and Todd Rutherford, where his 35 year murder sentence, which was day for day no parole, was commuted down because he provided valuable information. What if Alex provides information about other lawyers, about businessmen, about politicians or judges, and he cuts a deal to cut his time in return for that, and that is done and that is permissible as long as the Attorney General gets notice of it. What then? What happens if his sentence of 23 years gets cut down to 10? Now we have Alex out at 65 years old. So that is my concern of why the federal sentence on April 1 should run consecutively and not concurrently and we are going to argue vociferously for that. 

The other thing that happened this week is lo and behold Becky Hill resigned her position as clerk of court. Longtime coming.Obviously after Justice Jean Toal said that she found her to be a less than credible witness, her days were numbered. I’m sure that our Chief Justice at the time, Don Beatty and our incoming Chief Justice Kittredge, were very disappointed in Becky’s conduct. I think Becky lost the credibility and trust and confidence of her office, of her subordinates. Some of her subordinates obviously provided some evidence and some statements against her interest in what she was doing during the trial and possibly before. You know, there’s three investigations that are going on, two involving Becky, either abusing her office. The second investigation is financial possible improprieties you know there’s allegations she charged for court tours and different things. I don’t know if they’re true. And then obviously her son was charged with wiretapping. He works for the county and they confiscated Becky’s phone and we don’t know what’s going to happen, whether Becky’s going to be implicated in that. But the point is, the position starts with the word honorable, honorable Becky, honorable, Becky Hill, clerk of court. Is she still honorable? She would contend that she is. But a lot of her constituents, a lot of people that are in the court system would contend that after Justice Toal found her to be less than credible, that she doesn’t deserve that title anymore. And so it is of no surprise that she finally resigned before having to apply and register for the upcoming election. So we’ll have to wait and see what happens with those investigations. 

And with that said, we’re going to move to the law library right now. And we’re going to discuss two terms, both are Latin. The first one’s called mens rea. M-e-n-s, space, r-e-a. And what that means is, it’s Latin for criminal intent. So when you are charging somebody with a crime, and you have the burden of proof the government, you have to show that that person acted with criminal intent that they intended to commit that crime, whether it’s an intentional theft, of burglary, or robbery, or assault and battery. You know, if I’m walking down the street, and I’m talking to my wife Renee and I just plow over an old lady, and God forbid, who’s walking because I’m looking at Renee, and the lady fell backwards and God forbid, got very you know really hurt. I shouldn’t be criminally charged, because I didn’t mean to hurt that woman. I didn’t intend to commit assault and battery. I was looking at Renee as she was talking. At worst, I was negligent. But you can’t say I had criminal intent to hurt the woman.  Now, if I’m walking down Times Square with Renee and there’s an old lady who’s in my way, who’s walking with a cart with her food. And I just look at her and I push her with both hands out of my way into the wall and she gets hurt that would be criminal intent because obviously I intended to hurt that woman, I knew that she was an older woman and I know how strong I am. And I intended for her to get the heck out of my way. I could be charged with assault and battery. So mens rea just means criminal intent. 

The next term we’re going to deal with is nolo contendere. Nolo is dealing with if somebody pleads guilty to a crime, they could plead guilty and said, look, I agree with all the elements of the crime. And I agree that you’re trying me for this and charging me for this and I’m going to plead guilty. Let’s say I plead guilty instead of aggravated battery, I just agree to simple assault. That is, I’m going to plead guilty to all the elements of simple assault. But there’s also an availability under the law to plead nolo contendere, which means I’m not admitting my guilt but I do admit that you do have the evidence to convict me if we went forward for trial. And so a nolo plea is somebody who’s saying, basically you got me. I’m not going to admit it but if you put me before a jury of 12, they’re most likely going to convict me. So it’s a way of pleading to a crime without saying I’m guilty. 

So those are the two terms this week, mens rea and then nolo contendere meaning I’m not going to say that I was guilty but I agree that I would be convicted of these charges if we went forward to trial. So with that said, we’ll report after we have the sentencing hearing on Monday of next week, listen to COJ, listen to True Sunlight, and grateful for your support.  EB out. 

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