Does Alex Murdaugh Have a Chance on Appeal?

and egocentric behavior. After hearing more than seventy five witnesses, the jury deliberated for less than three hours before finding Murdoch guilty of killing his twenty two year old son Paul with two shotgun blasts and his fifty two year old wife, Maggie with four or five rifle shots. At sentencing, Murdah maintained his innocence. I'm innocent. I would never hurt my wife Maggie, and I would never hurt my son Paul Paul. But Judge Clifton Newman handed down the harshest

possible sentence he could consecutive life sentences without parole. A sentence you to prison for murder in hand for the rest of your natural life. Those sentences will run consecutive. Defense attorneys Dick Carputlian and Jim Griffin say they'll appeal the conviction based on the judge's decision to allow in evidence of Murdaugh's past financial misdeeds. Once they got that character character information, as he's a thief, he's a liar, then it dictated this jury had to think he was

aspicable human being and not to be believed. So it was about character, it wasn't about motives. So as a result, our options were limited. Joining me as former federal prosecutor Jessica Roth, a professor at Cardozo Law School. There was no direct evidence, no murder weapon, no blood soaked evidence,

no physical evidence at all. Well, there was obviously the evidence of the crime scene, the bodies of the victims, and there was a lot of evidence introduced, i think in the nature of photographs and evidence about the autopsies

to show the state of the victims. And there was significant expert testimony dedicated to showing the kinds of bullets that were used in the trajectory of the bullet and the positioning of the victims introduced by the prosecution in part to support the theory that the victims were taken by surprise and that there was no evidence of defensive wounds to suggest that they knew their assailant, and you weren't expecting harm from anyone else. So there was evidence

sort of about the state of the victim. There was also evidence in the nature of this very important cell phone video that Paul Murdoch, who was one of the victims, the defendant's son, took moments before the time at which the prosecution placed some time of death for both victims. And on that video, which Paul took mostly of a dog that had been entrusted to the Murdoch family by

a friend of Paul. Do you hear Paul talking and showing the dog he was examining, in particular the dog's tail for his friend who was concerned about the condition of the dog's tail. And you hear Maggie, who was the other victim, the defendant's wife, speaking, and then you

also hear a third voice. And that was what was so significant about that video because numerous witnesses identified that third voice just heard, not seen, that was identified as being the defendant, Alec Murdoch, and so that placed him at the kennels which was the scene of the crime, just minutes before the murders allegedly happened. So that was probably the single most important piece of evidence in the

entire case, was that cell phone video. The coroner said that the victims were killed between eight pm and ten pm, but the prosecution used the victim's phone usage to pinpoint the time of death to eight forty nine. That was pretty elaborate, wasn't it using that data? So the time of death was pinned by the prosecution to the time when the cell phones were both victims locked for the

last time. And while it's certainly not the case that when you stop using your phone and it therefore locks, that you're necessarily dead, and that was in fact an argument that the defense made in closing that we shouldn't

accept that as meaning death. And nevertheless, I think was persuasive evidence that it is likely that the defendants died around the time that their phones locked for the last time, because the other evidence of their phone usage suggested that they were people who were using their phones fairly continuously.

And so although it's possible that they remained alive for some significant period of time after their phone locked for the last time, when one looks at their cell phone usage overall and then appreciates that the phones locked at this moment in time in the context of their overall cell phone usage, it's plausible that that was when they died,

when the phones locked for the last time. And that's particularly the case given that, as I mentioned, a moment ago, Paul had taken this video of his friend's dog, and he had been actively communicating by his phone with his friend about the dog, and the friend was asking for Paul to send him the video right away. And so given that Paul did not, and the friend then followed up with messages that Paul did not respond to, friend followed up saying send me the video that supported the

prosecution's argument that Paul's death happened. Write about them. Much has been made of the fact that Murdo took the stand. A lot of people have been looking back on this, including the South Carolina Attorney General. He said Alex Murda

taking the stand was a fatal move in his murder trial. Well, I think one other really important part of this case that I need to mention, particularly following our discussion of the cell phone video, is that the defendant had told police officers that he had not been at the Kennel's the night of the murders with his wife and his son.

And so the significance of the cell phone video was partly that it placed the defendant at the scene of the crime moments before the moment where the prosecutors contended that the murders happened, but also that the defendant denied having been there, and that was essentially disproven by the cell phone video, which he didn't know existed when he

first spoke to police officers. So he had lied on the night of the murders when he first spoke to police about when he had last seen Maggie and Paul, and then he continued to tell that lie for several months thereafter. And so it was the combination of the video putting him there at the scene moments before and his denial of having been there when he didn't know about the existence of the video that I think was

really critical to the prosecution's case here. And so when you understand in context that the defendant had denied being at the kennels repeatedly, and then several witnesses at the trial identified his voice as being the third voice heard on that video, that was so crucial because it was so close to the time of death at the place of the deaths, the defendant, or at least the defense attorneys, seemed to think that he had to offer an explanation for why he had lied about not having been there

moments before the killings. I still don't get the motive here that the prosecutors put forth. He killed his wife and son to distract from his financial crimes. So their theory of motive, I think developed over the course of the trial. It always started with this idea that there was a reckoning coming for the pendants, based in large part on his financial crimes and misdeeds. He had stolen

from his law partners. He had stolen from his clients, including people who were the young children of his former housekeeper who died while working on his estate. He had stolen from all of these people, and the moment of

reckoning for those crimes was imminently upon him. That was the prosecution's theory, and that theory was supported by not only the evidence to establish that he had committed those crimes, but also that he had been confronted by the chief financial officer of his law firm the very day of the murders, so that afternoon, he was confronted about hundreds of thousands of dollars that he had misappropriated from the firm, so that, according to the prosecution's theory, was part of

the trigger for him to react, act and try to find a way out, even if not a permanent way out, something that would distract attention and essentially get people off his back for some period of time, so that he could perhaps figure out how to sort of shift money around one more time, as he had done many times in the past, by borrowing from people or perhaps feeling from others to replenish the coffers or to satisfy some people, and the idea would be that he would be perceived

as the grieving widower and poor father whose son had been murdered, and so he would get a little bit of breathing room and forbearance. That was chiefly the prosecution's theory coming into the case. As the trial continued, they added some more layers to that theory of motive, and I think added on the idea that he was concerned about his own reputation and standing and that of his family in the community. He was from a long line

of respected lawyer years in the community. His father had been the head prosecutor in the county, as had his grandfather. He himself had been an assistance prosecutor in the county, and so part of the theories seemed to become that it was the fear of reputational harm and prestige that went into his motivations in reacting the way he did.

It was nearly six weeks of testimony from seventy five witnesses, but the jury came back in just three hours, And according to the jurors afterwards, they said that they said a prayer, they took an initial anonymous vote, and in that vote, two jurors thought he was not guilty, and one juror had not made up his or her mind.

And then they said that within forty five minutes, the jurors who wanted to vote guilty had convinced the other three they don't have to do anything, But wouldn't it seem logical to go through the evidence and, you know, look it through before deciding that a man is guilty of killing his wife and child. I was very surprised by the speed of the verdict. I truly was shocked that it came back as quickly as it did. I

did not expect that. What I thought when I first heard that they had reached a verdict at quickly and had heard what the verdict was, was that the jury must have seen this as a fairly straightforward case at the end of the day, that despite the weeks of testimony and the many witnesses and exhibits that were offered, that it came down to only a few pieces of evidence that were critical to their deliberations, And I suspected it was that video that Paul took at the kennels

that placed the defendants at the scene of the crime a few minutes before the time of death, and the defendants denial, repeated denial until he was confronted with that cell phone video and the witnesses who identified his voice as having been on that video, that it effectively came down to those two things, That why would he have denied having been there, which seems like such a crucial piece of evidence to provide to law enforcement to look for the killers of your wife and son, And that

much of the other evidence in the case in a sense was peripheral to those basic elements. And the jurors who were interviewed since the verdict came down the extent i've heard their comments, they have corroborated so there comments have supported why inferred, which was that it was really

quite straightforward to them. And I have heard one make additional comments about their deliberation, saying that there were some jurors who initially were not ready to vote for guilty, but not from a firm conviction that the defendant was not guilty, but rather that they just had some questions they wanted to work through in discussions with the other jurors and reviewing the evidence before they got to a place where they felt comfortable voting guilty, and that that

was interesting to add on to what had previously been said, because I too had heard about that initial vote and didn't understand how somebody who may have been committed to not guilty would have come around so quickly. But to now hear the additional comments, it sounds like it wasn't so much that there were two jurors committed to not guilty, but rather that they were too not yet ready that makes sense guilty, which is different. Let's talk about the appeal.

What the defense attorneys have said is they're going to appeal around the question of whether the judge was too permissive in allowing evidence of his past financial wrongdoing and lies. They said there was no significant evidence linking his financial crimes to the motive for murder, and that the prosecutors

said they needed to establish his motive. Then they ended up using it to show he was a liar in a conman, and so when he took the stand, the jurors were already convinced that he was a liar in a then because of all the evidence of financial crimes. So I think the most significant issue out appeal will be this evidence three question of whether the judge correctly allowed the prosecutors to put in the evidence about his

financial crime. It was introduced on this theory that it established motive for the crime, and the jury was I believe, instructed that they should only consider it for purposes of establishing his motives. There are a couple of issues though, in terms of evaluating the likelihood of success on an

appeal with respect to this evidence. One is, even if a reviewing court were to find that the judge did commit error in his analysis in permitting it, I think it would be subject to harmless error review, and the court would look at through the other evidence in the case, and if the court thought that at the end of the day the other evidence was overwhelming, it would not reverse even if it thought that the trial court had

committed error. The second issue is that because the defendant took the stand, evidence about, or questions about, and those other crimes to a significant extent would have been permissible

to impeach him. And so, in a sense, the issue may have been partially waived because the defendant decided to take the stand, and so the jury would have heard about these lies and frauds as a basis for impeaching his truthful character as a witness, And given that as part of the record, I think that's an additional reason why a court may be hesitant to or may not find a basis for a reversal here. Now, so the defense says, tell me if this will be considered at all.

The defense says that once all that evidence of his financial crimes came in, he had no choice but to take the stand and rebut it as best he could. That was the calculus that they made. But he could have remained silenced and held the government to its burden of proof beyond a reasonable doubt that he did commit the crime and preserve the issue more cleanly for appeal on the judge's ruling to permit the other act evidence

to come in to prove motive. Once he took the stand, I think the argument on appeal becomes much harder to make.

One of Murdah's lawyers, Jim Griffin, said he's confident they'll succeed on federal grounds if their appeal falls at the state level, and he based that on the state asking Murdah about why he didn't come forward and tell law enforcement where he was at the time of the kennel video after he was arrested, saying that US Supreme Court cases are clear that post arrest silence can't be used

against you. Is that a convincing argument? Well, I would want to read the appellate briefs before offering a firm opinion, but my initial reaction is that I don't think the

claim is that strong. It is true that prosecutors cannot comment on a defendant's silence when the defendant elects not to testify a trial, or if a defendant elects to remain silent upon arrest, but the situation is different when a defendant tells a lie before any arrest has occurred, and maintains that lie repeatedly for a period of time before any arrest. So, in other words, the case law

distinguishes between pre arrest silence and post arrest silence. The case law also draws a distinction between prosecutors using a defendant's silence as substantive evidence in their case in chief and using it to impeach a defendant who testifies, and courts allow prosecutors more leeway to use statements to impeach and also give prosecutors considerably more leeway to use pre

arrest silence. In the murder case, the defendant repeatedly lied about his whereabouts on the knights of the murders, specifically denying that he had been at the kennels where the murders took place, in a series of interviews with police, all of which occurred well before he was arrested and when he was not in custody, and he met with investigators several times over the course of those months, long before he was ever arrested for the murders, and I

believe that the prosecution referenced those lies and noted his failure to correct them primarily when they were impeaching Murdo once he took the stand at his trial, So I think it's likely that the court would view these to be permissible uses of pre arrest statements to impeach. To the extent that the prosecution also explicitly or implicitly suggested that Murdoch should have corrected his prior statements after he

was arrested. I think those comments would likely be more problematic for the prosecution and harder to defend on appeal. But I think even then, Murdo arguably opened the door to that subject when he testified that he had attempted post his arrest to reach out to prosecutors to correct his prior statement, and he's testified that they had rebuffed

his efforts to communicate with them. So I would want to look carefully at the trial record to see exactly how and when these questions were asked of murder and how prosecutors used his testimony about the failure to correct in their closing. But based on what I recall about the trial, I think that the defense likely faces an uphill battle on these arguments, primarily because the defendant took the stand and because most of the statements in question

happened well before he was arrested. The odds of getting a conviction like this overturned on appeal are pretty slim, aren't they. Yeah, I mean it is hard to overturn a conviction based on an evidentiary ruling, which is I think going to be one of the main bases for the appeal. As I said, it's going to be subject to harmless error review and also abusive discretion review in

terms of whether or not it actually was error. I do think in the context of this case, it was necessary for the government to provide some evidence that established motive, even if it was not a perfect motive or didn't fully explain the defendant's conduct. I think the question will be in significant part about how much evidence was admitted

to establish this motive. In other words, there were quite a few witnesses that went on at considerable length, and the questioning of the defendant about his financial frauds was extensive, and I could see a reviewing court looking at that record and saying this was too much or more than was necessary to establish motive. But again, there is a great deal of deference to the decisions of the trial court. Whose closest to the facts and to the trial in

making those determinations. And then again there is the harmless error review as well. Thanks Jessica. That's Professor Jessica Roth of Cardozo Law School. Another member of Sam Bankman Freed's inner circle has become a prosecution witness. Former FTX engineering chief Nishad Singh pleaded guilty last week to six criminal counts, including wire fraud, conspiracy to commit securities fraud, and a campaign finance law violation, as part of a deal to

work with prosecutors against his old boss. He was the third close associate of Bankman Free to flip against him. The plea followed a revised indictment against Bankman Freed that featured four new charges and a wealth of fresh detail focused on an alleged plot to shape US crypto policy. Meanwhile, a protracted struggle over Bankman Freed's bail conditions highlights the

growing complexity of such matters as communication technologies evolve. Joining me as Bloomberg legal reporter Crystal Mesh SBF has already angered the judge. Tell us why there's no debate about what he actually did? That he logged onto a virtual private network in late January or early February, which the government took opposition too. He says it was to watch the NFL Conference championship games in the Super Bowl. But as others have pointed out, and the judge pointed out,

these were games that were aired. You didn't need subscription to anything to watch these games, So it kind of looks weird. The judge wasn't sure, you know, wanted to know why he did this. He was definitely skeptical that he had done that. But it led to a kind of an interesting exchange between the judge and Dan Bankman Freeds lawyers, who kind of said, you know, if they don't have a TV in their house, you know, their law professors, you know, they kind of wished they had

bought them a TV at Best Buy. But it kind of illustrated the kind of technological divide between the judge and you know, the defendant and judge Kaplan is well known in the courthouse in Lower Manhattan for forbidding any sort of electronics in his courtroom at all times. So very interesting exchange. So why is the judge so concerned that Bankman Freed has access to the Internet or VPN?

Why I mean, what is his basic concern? So it seems the overarching concern, which is, you know, a common concern in most criminal cases, is his attempts to contact others involved, including the the receiver in the bankruptcy case, and possibly move assets around that they may not know are out there. So not clear that any of that

had actually happened. But the judge nonetheless was skeptical. And what was very interesting is something you know se very often is the prosecutors had kind of come to an agreement with the defense. They said, we're happy and comfortable with these kind of restrictions. The judge said, no, this is not good enough. This guy's smarter than this, and you need to kind of rate him in more athlete.

At a bail hearing in February, the judge noted that encrypted letters sent by the imprisoned Mary, Queen of Scott's had only recently been ciphered. You don't think this defendant is bright enough to encrypt something without a computer, So yeah, quite a moment. At the hearing, the proposed bail package would limit him to a single monitored cell phone and a laptop, and his lawyer said that was draconian. I mean Why isn't that enough If he were in prison,

he wouldn't even have that. Sure, many have argued that that's you know, this is a common restriction on people. Certainly many people involved in cryptocurrency related prosecutions and things like that have had kind of restrictions like this. So you know, many legal experts question whether really this was draconian indeed, and you know, several days later, the two

sides came up when an agreement. It's going to limit him to a flip phone or a non smartphone, and then he'll be able to, you know, communicate with his lawyers in order to prepare his defense, but he's going to be kind of restricted to voice calls and text messages for the most part. What is his bail package. It's a two hundred and fifty million dollars bond, but secured by his parents' home and two other parties that we've learned the identities of last month. He didn't actually

have to put up any money. Is what's called a personal recognissance bond. And you know it's only that money only comes into the scenario if he should not show up record. The prosecution and defense have jointly proposed a pair of tech consultants. What are they supposed to be doing. Yes, the judge basically suggested this during the last bail hearing. He said, well, maybe you should have somebody come in and advised me on how to structure these technical limitations

on him. And they brought in a FBI agent who spent time managing a firm of special and digital forensics. They also have another digital forensics consultant for nineteen years who kind of helped authenticate so Alex Rodriguez his text message in arbitration over his alleged use of PDSUM. So they're going to advise the judge kind of on how this should go and if there are any restrictions that

should be implemented. I mean, it appears that this whole thing has come to a conclusion for the most part, with the proposal that came out last week on Friday for him to use the flip phone. Is Sagan, it's the flip phone? And does he have access to a computer. Yes, he does have access to I believe a single laptop that he can He can he has to log on through a virtual private network that allow him access in certain two categories. You know, they've listed the certain things

Netflix or Dash make baseball. So yeah, so he will have no lack of entertainment while he's at his parents' house with the monitoring bracelet. And when's the trial scheduled? Trial is currently scheduled to start in October. Obviously that could change at any time. I wouldn't be surprised, especially as discovery starts to come in. So now let's talk about the case more broadly. The prosecution appears to be flipping keysnesses from his inner circle. Tell us about the

witnesses that have already called agreed to cooperate. Yeah, sure, so we had the early please of Gary Wong and Carol and Ellison were two key please that happened very early. It actually happened before we had seen him charged in private, and then they were later on field. But later this week Nichad Sing, the former engineering chief, leading guilty before Judge Kaplan and admitted that he you know, that he helped compose code that enabled the asset to be transferred

to almy to research. So those are very three, very big keys to the prosecutor's case. Obviously, any single cooperator who pleads and agrees to cooperate in the criminal case is a big part of the prosecution, and it is hard for the defense to overcome. But three is going to be really a tall order for Sembec than free to fight at any trial. And tell us about the revised indictment was that the result of these please, it seems like it had added. So the initial indictment was

very bare bones. Indictments only really out laid the charges against them and the elements of the charges, not really specifically what had been done that was really detailed in the SEC complaint, And this kind of was more of a comprehensive indictment that really it seemed to have taken what they learned from Ellison Wong and incorporated into the allegations. It added more allegations of fraud, more detailed allegations of

the political donation scheme. So it's a much more detailed look at what the government tends to prove the trial, Chris, we've heard Bankman Freed say many times that he didn't do anything wrong. Is there any indication what his defense is going to be not so much in detail. I mean, I think you've kind of he rowed in on what we've heard from him publicly that he didn't have the intense to do anything wrong. He wasn't doing that. But what we've learned from the cooperators and the prosecutors is,

you know, it's going to be hard for him to fight. Um, we are anxiously awaiting to hear, you know, some of the details of his defense. I'm pretty sure they need to start filing um pre trial motions next month so that those are going to give us an idea of how he attempts to fight as a trial. Certainly they're going to attempt to attack the credibility of the cooperators, which is a pretty common tactic in any criminal trial.

But it's it's questionable as to how they're going to be able to do that and what other what other defenses were going to rely on. Has there been any talk about a plea deal with him, Not that we've heard yet. You know, certainly one would assume that first has been made or at least discussed. We've heard no reports of discussions, and he's at this point is an

indicating fully intensive place to charge. So just to go back to the electronics, is the judge being stricter with him than he would another defendant who's at on bail, you know, with access to all these different kinds of devices, maybe even at home, is he being stricter with him because of his knowledge. That's hard to say. One could argue that he's certainly he's treating him kind of the way he would treat any other defendant who's kind of

accused of these kind of things. But given what he said during the bail hearings, there's another level of sophistication that the judge is indicated he thinks that Sam Banks and Freed has that might make him treat him a little princely than another defendant. But again, Judge Kaplan is not exactly known for being light handed, and it's hard to say whether he is treating him any differently than he would treat another defendant, and especially when in this

edition accused the beast kind of crime. Thanks so much, Chris. That's Bloomberg Legal reporter christ Mesh, and that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news by subscribing to the Bloomberg Law Podcast or downloading this show at Bloomberg dot com, slash podcast Slash Law. I'm June Bronze and you're listening to Bloomberg