By Scott Graber
It is Wednesday, 12:15 p.m., and I’ve just finished listening to the appeal of Richard Alexander Murdaugh.
I still have my morning coffee, a small tub of Chobani (Vanilla) Yogurt and I’m contented — contented because my laptop has delivered the various arguments of Richard Harpootlian, Jim Griffin and Creighton Waters as to whether Alexander Murdaugh got a fair trial consistent with the 6th Amendment.
All of us saw the original trial.
We sat on our respective sofas every day watching Judge Newman, Jim Griffin and Creighton Waters—not to mention an army of experts — go through a thousand exhibits dealing with automatic rifles, spent cartridge casings, cell phones, GPS data and a thousand other bits of disputed information.
And when it was over we had an opinion.
But today the question before the South Carolina Supreme Court is no longer guilt or innocence, but whether or not Murdaugh got a fair shake in Walterboro.
Did the Clerk of Court, “Miss Becky,” poison the jury when she spoke to the jurors — allegedly asking them to “watch his body language” and “don’t be fooled;” and did the State go too far when they put Murdaugh’s multiple “financial crimes” into evidence?
It seemed to this former attorney — I argued two cases in the S.C. Supreme Court — that certain of the Justices were concerned that the Clerk of Court went “rogue” when she allegedly said, “watch his actions” and allegedly made other statements to the jurors when they were in her care.
Creighton Waters characterized these comments as “not egregious” and the “overwhelming majority (of the jury) were not influenced” by the Clerk’s comments.
But a big part of the hearing dealt with Murdaugh’s “financial crimes” and whether the presentation of that evidence went too far.
The Chief Justice, John Kittredge, said that the “granular detail and the expansiveness in which everything under the sun was allowed was arguably problematic.”
Problematic?
Everyone in this courtroom knew that the underlying, unspoken question in this case was what could have driven Alexander Murdaugh to murder his wife and his son. And to this point Deputy AG Creighton Waters spent much of his allotted time talking about the so-called “boiling point” which then triggered the shootings.
Waters defended the “38 transactions” and the details connect to the millions of dollars stolen by Murdaugh in order to completely explain the “looming storm cloud;” the “slow burn;” that would eventually compel Murdaugh to shoot his wife and his son at his dog-filled kennels.
But Justice Kittredge was clearly concerned with these lengthy and granular descriptions — especially the descriptions of the disabled clients who were victimized by Murdaugh — and seemed to ponder the notion that all of this was “unfairly prejudicial.”
All of this back and forth colloquy sent my own fading and enfeebled mind back to January 23, 1979, when I was standing in front of Judge Clyde Eltzroth saying — along with my partner, Ralph Baldwin — that a Beaufort County jury should not hear certain (sexual) details that preceded the murder of a St. Helena Island woman.
Those details involved events that took place prior to the killing of Betty Gardner and would, we argued, surely “inflame” the jury against our client, John Arnold.
As soon as those inflammatory details were revealed, we said the jury would be incapable of calm, deliberate evaluation of any other evidence.
Randolph “Buster” Murdaugh — Alexander Murdaugh’s grandfather — said those details were “an intricate part of the State’s case — it shows malice on their part.”
Then, later, Ralph and I had our morning in front of the Supreme Court Justices arguing — just as Dick Harpootlian and Jim Griffin argued earlier today — that they should vacate the jury’s verdict and send it back to Beaufort for another trial.
And that Court did reverse the verdict — saying “Buster” had gone too far when he said, “I’ll never try a death penalty case in Beaufort County unless you bring back a guilty verdict in this case …”
But all of that was long ago, now forgotten, the Plath/Arnold case moldering law books, largely unread.
But what will this Court — these four men and one woman — do?
Now the Justices will retreat into their teak, leather and diploma-accented rooms — their chambers — and search for similar cases that will help them define “fairness” as relates to the facts in this case.
The State does not have to deliver “perfection;” however, it does have to deliver “fairness.”
Will we again spend our nights with Court TV?
Scott Graber is a lawyer, novelist, veteran columnist and longtime resident of Port Royal. He can be reached at cscottgraber@gmail.com.