Judging Freedom - Hot Topics & How to Sentence a Murderer

Episode Date: March 3, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Friday, March 3rd, 2023. My apologies for running a little late. It's about 12 minutes after 2 in the afternoon on the east coast of the United States. Hot topics now from abortion and Walgreens to the murder sentencing of Alex Murdaugh. We'll start with, however, something that apparently was revealed a couple weeks ago. I just learned it this morning. I think it's a serious hot topic. An American army veteran named John McIntyre, who after serving two years in the U.S. Army Infantry, joined the Ukraine Infantry and was engaged in battle with the Ukraine Infantry and against the Russians. Live battle where he shot and was shot at. And then he defected to the Russians. And he brought with him laptops and iPads and maps and intelligence information and announced that the whole time that he was with the Ukrainians, he was a Russian spy.

And he now is comfortably and safely, according to him, in Russia. This according to one of the news services that released it just the other day, but it was brought to my attention this morning by our resident expert on the ground in Kiev, Matt Van Dyke. So the question is, what becomes of this guy? Well, he's safely in Russia and he is free to do it. Is he a traitor? Well, the definition of treason is in the Constitution of the United States. The Constitution says treason shall consist only in providing aid and comfort to the enemy or in waging war against the United States. It actually says treason against the United States shall consist only in waging war against them, referring to the states as a collective, or in providing aid and comfort to the enemy. So Mr. McIntyre did not provide aid and comfort to,

well, did not wage war against the United States. Did he provide aid and comfort to the enemy? It's a technical question. While we are at war with Russia because President Biden has put troops on the ground there out of uniform and troops on the ground in uniform in Poland who are directing American missiles at Russians in Ukraine because there is no declaration of war against Russia. We are legally not at war with Russia.

So Mr. McIntyre, for all of his duplicity and craziness, he's a Russian spy. He's an American who's a Russian spy in the Ukraine military. He says he's a communist. I don't know, are there communists left in Russia today? And he hates fascists. And isn't the government of Russia fascist? You know, private enterprise, but government-controlled, whatever. He's an odd duck, but he's not a traitor because we have not declared, the American Congress has not declared war on Russia. Nor can the U.S. Congress declare war on Russia unless and until the Russian military poses a serious threat to the national security of the United States, which it doesn't.

You've heard me make this argument many times. We shouldn't be there, our equipment shouldn't be there, our money shouldn't be there. Mr. McIntyre is free to fight for any army that he chooses and free to spy for any country that he chooses. If he fights against the United States, it's treason. If he provides aid and comfort to an enemy who is legally at war with the United States, it's treason. Short of that, it's not. Treason is the only crime defined in the Constitution. Why? Because British kings define treason in any way to suit them. Henry VIII defined treason as anybody who made eye contact with him without his express request or

consent. That was actually called high treason, meaning treason on the person of the monarch, as well as treason against the monarchy and against the state. Of course, the punishment for treason in those days was horrific. Madison, in crafting the Constitution, wanted to be certain that the Congress and American presidents couldn't do that. They would have to amend the Constitution. That's why the only time you see the word only in the Constitution is the definition of treason. Treason against the United States shall consist only in waging war on them, the states. Question, did Lincoln commit treason? He waged war on the states. Another debate for another time. Treason against the United States shall consist only in waging war on them or in providing aid and comfort to their enemies.

I make no judgment on the moral character of Mr. McIntyre, but he did not commit treason as it is defined in the Constitution. Walgreens announced today that it will not sell what's called an abortifacient, that came down last June, which invalidated Roe versus Wade, leaves the question of abortion up to the states and removes it from the federal government. Federal courts have nothing to do with abortion and the Congress can have nothing to do with abortion. The Supreme Court has ruled that whatever it is or isn't, it's either a health matter or a safety matter or a criminal matter. And health, safety, and crimes, this type of crime, if it is a crime, are left in the hands of the state legislatures. Where I live in New Jersey, abortion is legal as a result of the vote

of the legislature here up to the moment after birth. In some states, it is prohibited at all times under all circumstances except for rape or incest reported to the police within whatever the time period. Some states 24 hours, some states 48 hours, some states two weeks of the incident. But it's up to the states and not the federal government. So Walgreens in New Jersey can obviously sell this pill. Walgreens in states where the pill is prohibited cannot sell it. Walgreens in states where the pill is only legal up to the first 15 weeks of a pregnancy like Texas, well, there they have a problem because they may sell it to someone during the 15 weeks, but they have no way of knowing if the person is going to use it in the 15 weeks.

Where does all this leave us? It leaves us with more litigation and probably more legislation on abortion. To me, the baby in the womb is a person, and under the 14th Amendment, the states, and under the 5th Amendment, the federal government cannot impair or permit the impairment of life, liberty, or property of any person without due process of law, meaning a jury trial at which fault is proven impossible in the case of a baby in the womb. Nevertheless, the invalidation of Roe v. Wade has put abortion into the hands of the state legislatures, and they are free to go in one direction, like New Jersey, or another direction, like South Carolina, which prohibits it under all circumstances except rape or incest properly recorded. I think Walgreens is doing the right thing. They're obeying the laws of the states in which they operate. Now, if you live in South Carolina, can you get Walgreens to mail you this pill in South Carolina?

I don't think so. Not from the announcement they made today. How do you sentence a murderer? Well, in my years on the bench, of course, I had to sentence murderers. I've sentenced more than 1,000 people in my career as a trial court judge in New Jersey. For every type of crime imaginable, not death penalty. We didn't have a death penalty at the time and not treason. It's rarely brought in state courts, but everything else imaginable. Sometimes as many as 15 sentences on a Friday, Friday after Friday after Friday. I generally remember the more severe sentences, particularly the murder

sentences, and it's not easy to look into the eyes of someone who either has pleaded guilty to murder or who has been convicted of murder. And I'm speaking, of course, of the Alex Murdoch case. And the states differ. In New Jersey, if the jury verdict came in on a Thursday evening, I would never impose the sentence on a Friday. I would wait weeks and weeks and weeks. The defendant is not going anywhere. And the probation department has to give me a report of everything I need to know about the defendant's background. Even when the sentence is mandated by the legislature, the judge wants to know everything about the defendant's background, and in New Jersey and

in most states, but I guess not in South Carolina, and I'm critical of the system, not of the judge. I thought the judge, Judge Clifton Newman, did a spectacular job. And you'll see him and hear from him in just a minute. But the judge, the sentencing judge, really wants to know as much about the defendant as possible, much more than comes out at a trial. And that's why, at least in the Northeast and certainly in New Jersey, there's a long time. It's often as much as six to eight weeks between the end of the trial, the conviction, and the actual imposition of sentencing, because there's so much material they have to give you. I've gotten probation reports which were an inch thick because there's so much information that the sentencing judge needs to know about.

Apparently not in South Carolina. One of the jurors went on national television this morning and basically said there were two people on the jury in favor of acquittal and one person was on the fence and nine were adamant about conviction. It only took 45 minutes to convict. That is a very, very short period of time. This tells me that the jury did not review all the evidence in the jury room. It would have been impossible to have done so in 45 minutes, but it does tell me that they had firm and unbending convictions in their minds about whether Alex Murdoch is to be believed, and they decided not to believe him. In fact, the juror who spoke on national television this morning indicated that a number of them hated him.

I've always cautioned juries. If you feel that you're coming to a conclusion now in the middle of the trial that the defendant is guilty, you have to tell me and I'm going to remove you from the jury because under the law, the defendant is not guilty before the trial. He's not guilty during the trial. He's not guilty until you tell me, members of the jury, and I accept it. Throughout that entire process, he's not guilty. If you and your minds have decided he's guilty before all the evidence is in, then you violated your oath as a juror because you swore to me, at least in New Jersey, that you would not form an opinion on the guilt of the defendant until all the evidence is in.

That was a solemn oath that each of you took. So if any of you wants to talk to me, send a note to my clerk and I'll speak with you in private. And we do that all the time in New Jersey. I don't know if they did it in this case. This is not something that's done publicly. The juror that spoke this morning indicated a hatred for Alex Murdoch. You don't want to be tried by a jury that hates you. He may be a horrible, despicable person, and he apparently is, but he has a right to a fair trial

by a neutral jury, not by jurors who hate him. Okay, to Judge Clifton Newman, it's about three minutes long, but it's fascinating to watch, and I'll go through it with you briefly afterwards. Here's the actual moment of the sentencing. Alex Murdoch, by the way, his real name is Robert Alexander Murdoch. If you heard that name yesterday, that's who they're talking about. So the defendant, Murdoch, was given the opportunity to address the court. I think of the thousand people I sentenced, maybe two chose not to speak to me. That is extremely, extremely rare. Mr. Murdoch chose not to address the court. The

court asked him one or two questions and he answered, there was no speech there was no plea for mercy here now judge clifton newman and the sentencing about three minutes long worth watching the sentencing of alex murdoch oh what tangle web we weave what did you mean by that? When I lied I continued to lie. And the question is when will it end? When will it end? And it's ended already for the jury because they've concluded that you continued to lie and lied throughout your testimony. And perhaps with all the throng of people here, they, for the most part, all believe, or 80%, 90%, 99% believe that you continue to lie now when your statement of denial to the court and I know you have

to see Paul and Maggie during the night time when you're attempting to go to sleep I'm sure. All day and every night. I'm sure. And they will continue to do so and reflect on the last time they looked you in the eyes as you looked the jury in the eyes. And now have an opportunity to make your final appeal as an ex-lawyer.

And it's almost, it's really surprising that you're waiving this right at this time. And if you opt to do so, it's on you. You're not compelled to say anything. But you have the opportunity to do so. And I tell you again, I respect this court, but I'm innocent. I would never, under any circumstances, hurt my wife Maggie, and I would never, under any circumstances, hurt my son Papa. And it might not have been you. It might have been the monster you become when you take 15, 20, 30, 40, 50, 60 opioid pills, maybe you become another person.

I've seen that before. The person standing before me was not the person who committed the crime, though it's the same individual. We'll leave that at that. Mr. Murdoch, I sentence you to the State Department of Corrections on each of the murder indictments in the murder of your wife, Maggie Murdahl, I sentence you for the term of the rest of your natural life for the murder of Paul Murdahl, whom you probably love so much, I sentence you to prison for murdering him for the rest of your natural life.

Those sentences will run consecutive. Under the statute involving possession of a weapon during a violent crime, there is no sentence where a life sentence is imposed on other indictments. That is the sentence of the court, and you are remanded to the State Department of Corrections. And officers may carry forth on the imposition. Yes, sir. Yes, sir. A fair and just sentence by a fair and just judge for a monster.

Honestly, I thought the evidence was not sufficient to convict. I didn't watch the entire trial. I commented on it, as many of you know, during the trial. I did watch some long parts of it. The cross-examination of the government's chief investigator showed that the evidence was gathered in a very sloppy way, which made it less than believable. And I thought that Alex made a credible denial, but the jury disagreed, and that's our system. In South Carolina, this type of murder carries a life sentence. He could have imposed 30 years, but he imposed life. I think Alex is 54 years old, so they are effectively the same imposition. It is odd that there's no pre-sentence investigation report that I was

telling you about, that thick report which tells you everything. It is also odd that the court did not go through what most of us do which is a checklist of aggravating and mitigating factors. The the behavior of the defendant in the case that made things worse or the aspects of the defendant's life which would make things better for him. Normally, judges go through that even when the sentence is statutorily fixed. I mean, the judge could not have sentenced him to fewer than 30 years. Most judges would still go through that long checklist. There's about 15 or 20 aggravating factors and 15 or 20 mitigating

factors. Most judges go through them. Most sentences, for that reason, take about 40 to 45 minutes. In a case like this, it would take several hours because each side would speak, the defendant would speak, and then the court would go through the aggravating and mitigating factors. And then the court would highlight what needs to be placed on the record from the pre-sentence investigation report. But each state is different. This is certainly constitutional. It's certainly lawful. It's consistent with the practice and procedure in South Carolina. I believe that Murdoch got a fair trial before a very fair and very patient jurist. And to the extent that going to jail for life is justice, when he blew the brains out of two people, the outcome was just. Judge Napolitano for judging freedom.