Murdaugh Murders Podcast - 'On The Record' BONUS: Alex Murdaugh Murder Appeal — South Carolina Supreme Court Oral Arguments (Full Audio)

Episode Date: February 11, 2026

In this special bonus episode, we bring you the complete audio from today's South Carolina Supreme Court hearing on Alex Murdaugh's appeal of his double murder convictions. From the defense's arguments to the State's response, you'll hear the full, unedited proceedings as they unfolded in Columbia. Investigative Journalists Mandy Matney and Liz Farrell will break down everything you heard in this bonus episode on tomorrow's episode of True Sunlight Podcast, offering the deep analysis, legal context, and accountability reporting you've come to expect. (03:07) Denial of New Trial Argument by Dick Harpootlian / Appellant (25:45) Denial of New Trial Argument by Creighton Waters / Respondent (01:01:39) Underlying Trial Evidentiary Issues by Jim Griffin / Appellant (01:33:04) Underlying Trial Evidentiary Issues by Creighton Waters / Respondent (02:06:18) Combined Reply Issues by Phil Barber / Appellant *Audio quality (but not content) has been enhanced for optimal clarity. Lot’s to learn… Let’s Dive in… 🥽   Stay Tuned, Stay Pesky and Stay in the Sunlight...☀️ Learn more about LUNASHARK Premium Membership at ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠lunashark.supercast.com⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ to get bonus episodes like our Premium Dives, Wherever It Leads..., Girl Talk, and Soundbites that help you Stay Pesky and Stay in the Sunlight ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠Support Our Show, Sponsors and Mission: https://lunasharkmedia.com/support/⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠Quince⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ - ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠Hungry Root⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ - ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠Bombas⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠https://amzn.to/4cJ0eVn⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ *** ALERT: If you ever notice audio errors in the pod, email ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠[e-mail]⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ and we'll send fun merch to the first listener that finds something that needs to be adjusted! *** For current & accurate updates: ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠lunashark.supercast.com⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠Instagram.com/mandy_matney⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠   |   ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠Instagram.com/elizfarrell⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠   ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠bsky.app/profile/mandy-matney.com⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ | ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠bsky.app/profile/elizfarrell.com⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠TrueSunlight.com⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠facebook.com/TrueSunlightPodcast/⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠Instagram.com/TrueSunlightPod⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠youtube.com/@LunaSharkMedia⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠ ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠tiktok.com/@lunasharkmedia Learn more about your ad choices. Visit podcastchoices.com/adchoices

The justice system can be intimidating, but it doesn't have to be. We all want a drink from the same cup of justice, and it starts with learning about our legal system. My name is Mandy Matney, and together with journalist Liz Farrell and world-renowned attorney Eric Bland, we create the perfect trifecta of legal expertise, journalistic integrity, and a fire lit to expose the truth wherever it leads. We all encounter a part of our justice systems at one point, so why not get prepared? while being entertained with tales from the newsroom and the courtroom. Cup of Justice has amazing special guests like Cheryl Crow, Vinipolitan, Emily D. Baker, and other experts to share their take on the bright side of the truth.

Luna Shark Media invites you to gain knowledge, insight, and tools to hold your own or hold public agencies accountable. Search for Cup of Justice wherever you get your podcast or visit Cup of Justicepod.com. All rise. Good morning. Please be seated. The case for oral argument this morning, State versus Murdoch. I believe the clerk of court, Ms. Howard, has already instructed to turn off your cell phones. If you have not, please do so.

The courts in South Carolina are open, and we appreciate those who are present and here to observe, not participate. For those present who are not arguing in this case, please do not disrupt the proceedings. Any outburst or disruption will result in sanctions for contempt of court. As we proceed with the argument, just want to notify counsel that on the primary argument, as you begin your 20-minute allotment, five minutes will be given without court interruption. so you'll have five minutes before we jump in with questions. It's going to be tough, Jeff. And we'll have to show some restraint to do that.

At the end of the first issue on the post-trial motion for a new trial based on alleged misconduct of the clerk of court. And before we get to the underlying trial evidentiary challenges in that matter, we will take a short break. and I believe Mr. Harputlin, you're going to handle the first issue. Yes, Your Honor. We're ready to proceed. Please, the court, Your Honor.

Yes, sir. Good morning. Good morning. And as I understand your instructions, I get five minutes without being interrupted. That's right. Wow. Well, first of all, I want to thank the court for I know what has been

a very diligent effort to wade through this record, a six-week trial. And then a post-transfer trial hearing that went a few days with additional two hearings, I think, with additional record. So this is not a simple matter. But before I get to that, I want to just remark on this. As I came into this courtroom this morning, I'm reminded that half a century ago, I sat right about there. as Chief Justice, Woodrow Lewis, had us stand and hold our hands up to be sworn in as new members of the bar.

All of us could fit in this room. That's how long ago that was. But one of the things that impressed me that day was the oath, and part of that oath was that we swore to uphold the Constitution. And as I stand here today, I'm honored to be arguing about how to interpret the Constitution. that Constitution, the Sixth Amendment specifically. And in my opinion, I would suggest the Sixth Amendment may be the most important amendment because the First Amendment, which gives you the right to speak without government interference, or the Second Amendment, which gives you the right to carry a weapon or have a weapon without

government interference, mean nothing without the right to a fair trial and a fair jury. So this matter we're discussing this morning, a fair trial, a jury not poisoned by outside influences. I would submit to you is 51 years ago, as I stood there, I did not realize what I was swearing to do, but I do today. And that is to defend Alec Murdoch's right to a fair trial. And I've got to admit in the 51 years since then, I've never seen a factual. pattern like this, where the clerk of court, where the clerk of court sets out to influence the

verdict, to get a guilty verdict for financial gain. Now, I do want to go to the record fairly quickly and summarize it so that there's no misunderstandings. Ronda McAleveen, who's the Barnwell clerk of court, was asked by Becky Hill, the Carlton, Court of court to assist her during the Murdole trial. She testified under oath that she was told by Ms. Hill that she might, she being Ms. Hill, might write a book because she needed a lakehouse. A guilty verdict would sell more books. That was said before December of 22. We didn't pick a jury until January of 23. The best way to sell books was a guilty verdict. A guilty verdict would be better for the sale of books. So she explained she had a financial

incentive for a guilty verdict. She also made comments to her like, don't be fooled by the evidence presented by Mr. Murdoz's lawyer. Watch him closely just before he testifies. Look at his actions. Look at his movements. Identical to the statements that I'm going to read you in just a moment by the jurors as they were questioned.

Juror P on the day Mr. Murdole was taking the stand. Becky Hill made a comment. Watch his body language. Juror X. Prior to Mr. Murdo's testimony, juror X, heard Becky Hill say, words of the effect of looks like the defendant's going to testify. This is an important day. This is an epic day. It's rare for a defendant to testify. Jurzee, watch his actions, watch him closely. In addition to that, juror Z said in an affidavit and affirmed in court

that Ms. Hill told her not to be fooled by the evidence presented by Mr. Murdoz's lawyers, attorneys, which he understood to mean Mr. Murdoch would lie when he testified. And that Ms. Hill instructed the jury to watch him Murdoch closely immediately before he testified, including look at his actions, look at his movements, which juror Z understood to mean he was guilty. Alternate juror 741. Before the defense put up their case, Ms. Hill told the jurors the defense is about to do their side. They're going to say things that will try to confuse you. Don't let them confuse you or convince you or throw you off.

Hill told jurors 741 Murdochall was going to testify before he testified. That's what the juror said under oath. That's what the clerk of court of Barnwell County said under oath. Judge Toll from the bench said at the conclusion of the hearing, asked the question, did the cork of court? Did cork of court Hill make comments to any juror which expressed her opinion as to what the verdict would be? Ms. Hill denies doing so, and so the question becomes her, denial credible is her was her denial credible i find the kirk of court is not completely credible

as a witness miss hill was attracted by the siren call of celebrity she wanted to write a book about the trial and expressed that as early as november 22 long before the trial began she denies that this is so but i find that she stated to the clerk of court ronda macklebeen and others her desire for a guilty verdict because it would sell books she made comments about murdo's demeanor as he he testified, she made some of those comments before he testified to at least one and maybe more jurors. The clerk of court allowed public attention of the moment to overcome her duty. Can we consider the egg jurors affidavit? I'd like you to.

Well, in the record, of course, you mentioned during the hearing, she's across the street. Judge Toll said, no, she's not going to testify. She let the alternate juror testify for impeachment of. Ms. Hill. That's what her stated reason for was during the hearing. What was the rationale for her not allowing the egg juror to testify? I don't know. Because as you point out, if juror 741 was to impeach Becky Hill's credibility, now she, of course, she was not a deliberating juror. Neither was the alternate. Correct. She did testify. Correct. So my question is this, and I'm sure Mr. Waters will cover this,

if the egg juror's testimony was just as theoretically impeaching as juror 70 or the alternate juror's testimony, 741, why wasn't the egg juror allowed to testify? I'm not sure that she stated a coherent region other than she wasn't going to. Remember now. But she said her affidavit is in the record,

so we know what she said, Ms. Hill said, and we now know what Ms. Hill said she didn't say. Yes. So I take that to mean that it was considered. The AgJuror's affidavit was considered by the court, and we can consider it. In our defense, when you look at the record, remember, we were starting off with no one was going to examine anyone under Judge Toll's initial order. And then it was a moving target. Then it was going to be some that were going to be examined.

We weren't going to be allowed to examine. Then we were allowed to examine. So it was an evolving process. If she, in fact, considered the egg lady's affidavit, she did not cite it in her order. Just as she did not cite juror Z or 741's statements about, do not be fooled, comments about how the attorneys are going to try to do. The state argues in its brief that Judge Cole and makes. making specific finding as to certain things jurors did say was an implicit rejection of the other statements the jurors said Ms. Hill made. What's your response to that?

Well, I would say that's wholly unsupported by the record. I mean, a judge in an order is going to say what they considered and they should say what they didn't consider and why. This implicit implicitly, I mean the statements by 741 by juror Z and by the egg lady, all had bearing on Cork Hill's credibility and what happened. It's critical. And let me say this also. Even if you didn't have what they said, if a judge, as the jury came in on the day Mr. Murdoch was going to testify, said, it's an important day.

It's an epic day. You better watch how he testifies and doesn't say that about any other way. witness except some sort of charge at the end of the case or maybe before but specifically points that out mr. harbittly and let me ask you this um judge toll placed the burden on your client uh to prove prejudice in this case does green establish um in a case with external influence on a jury a different standard and burden of proof than remer and the fourth circuit jurisprudence no it does not. It's consistent with rumor. All Green says is we're not going to go through this burden shifting or any of this until we determine whether the statement was inconsequential. I say

inconsequential or consequential. And if it is inconsequential, we're not going to go through this analysis. That's all it said. And I'd point out in Green, the process used by Judge Toll of calling all the witnesses up and asking if it had any influence, Judge Hill in a footnote in the Corps of Appeals Green decision points out that 606B, he says it's not raised in this case, but, you know, should we be asking jurors anything about verdicts? And that's another complicating factor with the process that Judge Toll used. So that's an interesting point because Rule 606B says that you can't consider the effect of something on jury.

because otherwise you're invading the thought processes of the jury. But how could the state rebut the presumption without doing that? Well, I mean, I think very simply, all the other cases that you look at, if you look at like Parker v. Gladden, where a deputy says he's an evil fellow and, you know, he's guilty. Right. They say, you can't rebut that. That's not rebuttable. And so he gets a new trial.

But in Parker v. Gladden, they talked about the prejudice. The prejudice is apparent. If you use the standard some of these cases to use, which is the hypothetical juror. Objectively, would it influence the hypothetical juror. I mean, I think that's the, and that's what the state has to do is say, these comments would not affect the hypothetical juror. But in your brief, you also say that, the presumption ought to be irrebuttable.

Are you standing by that here today? Are you wanting us to file a remer and Parker and say it is rebuttable, but you have to use the objective standard on an average juror in considering the effect? Well, it is, I would concede that it should be rebuttable, but in a situation like Parker versus Gladden, I don't know how you rebutted. I mean, it may just be, it's rebuttable, but it may not be any way to rebut it. In some circumstances, the conduct can be so reprehensible and egregious, it becomes a de facto structural error.

Well, I've read your opinion, Rivera, Court of Appeals, on structural error, where the judge refused to let the defendant testify in a death penalty case. And I've digested, or as my wife would say, digested, not digested, I'm sorry, that case and the structural error analysis. And I must say Mr. Griffin and Mr. Barber and I have had a significant discussion on whether that would be structural error as opposed to not letting a defendant testify in a death penalty case. It could be.

I don't think we need to go there for this opinion, for this case. I think the Corka Court tells everybody that will listen, I need a guilty verdict. She tells everybody so I can make money. She tells everybody so I can buy a lakehouse. And then she proceeds to talk to jurors, not about inconsequential things, but focus on how to view the defendant's testimony and to jurors Z and to jurors. and a juror 741 into the egg lady, don't believe him, don't believe his lawyers. I mean, that's, I submit, more than enough to meet the Parker versus Gladden standard or the Cameron standard or the, I think it's Bennett, the case we looked at, I just looked at yesterday. All of those are cases in which there's no question what was said wasn't inconsequential,

wasn't neutral. It was an effective influence. Is it a finding of fact or a conclusion of law by Judge Toll where she wrote on page 31 of the record? This court further finds that the improper comments made by Clerk Hill were limited in subject and not overt as to opinion. I know you say that language was put in there by the state in its proposed order. I don't want to talk about that because she signed the order. But is her finding that the statements were limited in subject and not overt as to an opinion, a conclusion of fact or law?

That's a conclusion of fact, which gives rise to a conclusion of law. But that statement is wholly unsupported by the record. And I would submit an abuse of discretion. And how about her finding that those comments were cured by Judge Newman's overall jury instruction that the verdict was to be based on the evidence presented and the law as he gave it and not on anything else? Well, then you would never have, as long as the judge gave the appropriate charge at the end of the case, you'd never have a case of jury tampering. You could have somebody bribing a juror. And according to her reasoning, they, you know, yeah, I took the money. not going to do what I said I do. I mean, it's, it's, I don't believe for a minute that,

that, uh, that that is an appropriate analysis of the law, whether I believe it or not is really irrelevant. So the allocation of the burden of proof is not dispositive in your judgment. Even if it was erroneously assigned to you, you believe you met that burden of establishing prejudice because of the nature and frequency, the pervasiveness of these comments by the clerk. if you use the analysis in both the Corps of Appeals decision of Green and then the Supreme Court decision in Green, if you look at the analysis, that's exactly what it is. We're not going to, there's not going to be any burden shifting or anything if it's innocuous, but if it is something other than that, then the burden does shift to the state.

And we've met our burden. There's no second, she had a two-prong test. Second prong was, you know, did it affect the verdict? Well, I mean, if somebody, that can't work for Rule 606B for one, but more importantly, you're asking jurors to unpack for you what influenced their verdict. How did they get there, which you can't do under 606B. And people can't do, period. I mean, if somebody had walked in there with a gun and threatened everybody and then left,

and the jurors were polled a year later saying, no, you know, I thought the evidence was overwhelming. It didn't matter whether somebody walked in with a gun or not. And overwhelming evidence is not the standard. You know, this Sixth Amendment, I was going to go somewhere historical. I'm not going to do that. But, yeah, I am. The Sixth Amendment was based on, as you know, English common law. In the trial of Aaron Burr in 1807 for treason, this is not for killing Hamilton, this is

for trying to sell part of the United States of Mexico. He was a piece of work. Justice Marshall quoted from Lord Cook or Koch who said a juror must be as indifferent as he stands unsworn. His verdict must be based upon the evidence developed at the trial. This is true regardless of the heinousness of the crime charged, the apparent guilt of the offender, and the station in life which he occupies. You can't say it any clear. And that's what the Sixth Amendment guarantees. And that didn't happen in this case. We understand that everyone, regardless of the heinousness of the offense, the character of the accused or the apparent guilt of the accused

in no manner diminishes the right to a fair trial in your effort to set up that this is a a man for all seasons moment. We understand the gravity of the situation and the entitlement of every individual to a fair and impartial trial. Your Honor, I never doubted that for a moment. I think I was saying that more from me than you because it's such a great quote. And again, came up during Aaron Burr's trial, who's such a terrible person, but even he was entitled to a fair jury. You know, we quote in our brief, and I want to expand on it just a little bit. If you look at United States v. Elbas, which is a Fourth Circuit case written by our own Jay Richardson, he details what Remmer requires, what, you know, to trigger the presumption,

the defendant must introduce competent evidence of extrajudicial juror contacts that are more than innocuous intervention. I submit we've done that in this case. But the presumptions rebuttable. The government defeats the presumption by establishing there exists no reasonable possibility that the jury's verdict was influenced by an improper communication, which was not done in this case. If you, and you should exclude, well, at least one, I would point out, a juror Z said it did. I mean, if we're going to go that way. Now, it may have been ambivalent.

Judge Toll says, I said, in the record, it can be both pressure from the jurors. and what Cork Hill said. But I don't think we need to go there because 606B and almost all the cases about external influence don't allow you to ask the jurors questions about how they got where they got. Part of Parker v. Galadden was Sixth Amendment was violated because the bailiff there who said this person's guilty, this wicked fellow, whatever, became a witness in the case. Is that what you're saying clerk kill became in this case? Well, not necessarily.

What I'm saying, Parker versus Gladden, the only needed 10 of 12 to get a conviction. And the Oregon Supreme Court said, well, we had 10 that weren't influenced by whatever the bailiff said. The Supreme Court said, very clearly, it doesn't matter. You're entitled to 12 impartial jurors. Also, that was the case in which the United States Supreme Court adopted through the 14th Amendment, the Sixth Amendment, to the states. So that's the reason I like Parker because it's got so many different levels that are very helpful in this case. And in Parker, did it take, took 10 to convict in Oregon, right? Yes, sir.

How about Judge Toll's finding that even if the state had the burden, she found any possible presumption of prejudice was overcome by the facts and the court's findings. So she did conditionally rule that if I'm wrong about the burden, then the state has overcome that burden. Well, the presumption, excuse me. Two things. One, she doesn't detail what that overwhelming evidence is. And were you going to hear from Mr. Griffin in just a moment as to how underwhelming that evidence is? number one, number two, that can't, the level of, if the level of evidence dictates whether or not you get a fair jury,

then again, we go back to what Judge Marshall said, no matter how heinous, no matter how overwhelming the evidence, you're still entitled to a fair trial. I mean, if only the people that may be innocent get a fair trial, then our Constitution isn't working. I don't care. I would submit this court shouldn't care. No one should care when there's a Sixth Amendment violation like Becky Hill committed in this case. And let me say this.

I know my time's up. We spent months getting ready for this trial, six weeks trying this trial, more months finding jurors to talk to and find out if the court could talk to her, talk to them. We had more hearings, More briefing. Nobody wants to do this again less than we do. But that's not the issue. It's not how much

trouble it's going to be. It's what is Alec Murdoch guaranteed to under the Sixth Amendment. Thank you, sir. Thank you, sir. Years before, the name Ehrlich Murdoch was splashed across every major media outlet. I was a local South Carolina journalist, and I had an instinct that something wasn't right in the country. The powerful Murdoch dynasty dominated rural South Carolina for generations. Few dared to publicly utter a harsh word against them. From the newsroom to the courtroom to the kitchen table where we recorded the number one global hit, The Murdoch Murders podcast, I invite you to learn more about my book, Blood on Their Hands. Blood on their hands is a harrowing first-person narrative

of battles against systemic subversions of the truth, overcoming institutional sexism, corruption, and threats to my personal safety to expose a network of horrific crimes and give voice to victims. Click the link in the description to order today. Visit any retailers near you or visit lunasharkmedia.com slash book to learn the best way you can stay pesky and stay in the sunlight. Good morning, Ms. Waters. Good morning, Chief Justice Kitchardge and may it please the court.

I'll start out with my five minutes and I'll start by. saying I also agree that owes are important. That's something I always talk about with juries and the importance of their oath. And I think that that's also recognized very strongly in this court's case law and case law of other jurisdictions, and that this court has expressed that jurors are presumed to take that oath very seriously, that they're presumed to be people of ordinary firmness, that they are not presumed to blow with the winds of every opinion that swirls around them. And so I think that's an important place to start when we look at this particular case. And when we look at this particular case, what we are talking about is what Justice Toll described as a few

fleeting comments. And in the face of that, we have to consider a six-week trial with almost 90 witnesses, with almost 600 exhibits, with Judge Newman, with the entire prosecution team, with the entire defense team and all of that presentation over six weeks. And to get there, to do what ultimately is the analysis, is we have to assume that at some point prior to deliberation during the presentation of evidence, with all of that going on, some jurors like, well, you know, I didn't know what I was going to do, but Ms. Becky said, you know, watch his body language, and that made the difference. And I would submit to you that that is simply not a a finding that is justified in this evidence. It's not a finding that's justified under what we know

about jurors, and it's not a finding that's justified by what the jurors said in this particular case. Now, to sort of detail my analysis and my three five minutes that I have here before the questioning comes, is we have 606, and we've got two issues. We've got number one is what happened. And then we've got number two, which is how do we analyze that particular issue? And when we start with what happened, And that is obviously a credibility and fact-finding effort by the trial court. This court is very clear that the trial court, because this is not like a trial, this is a procedure that is in the discretion of the trial court and ultimately any credibility findings, fact-finding this court respectfully would defer to.

And so to determine that, what exactly happened? And this court ultimately credited the 11 jurors. And so what do we have with those 11 jurors? We have one juror saying that Ms. Hill said this is an epic day, and the defendant is going to testify, all right? And then we have another juror who says, watch his body language. And beyond that, the court clearly did not credit Jersey. And I'll get into more about that, but there's plenty of the support in the record why the court could not credit what juror Z said. Jersey was ambivalent.

Her answers were all over the place. None of the other jurors heard all those egregious statements. She couldn't even remember all of these egregious statements when she was on the stand. She said, I don't remember them. All of these things that really would take this analysis into a different level, she didn't remember. So when we boil it down to what happened, we're talking about epic day. All right, epic day, everybody in the courtroom knew it was an epic day. That is not news to anyone.

Everybody knew it was an epic day. It is rare for a defendant to testify. That on its face is a neutral comment. That is not necessarily a comment one way or the other. And if anything, we've seen where instances of a jury in deliberation considering the fact that a defendant didn't testify, saying, you know, he must be guilty because he didn't testify. That's actually been an inference that goes more in favor of the defendant than against him, the fact that he's testifying. But again, it's rare that a defendant will testify.

That ultimately is a neutral statement as well. And then watch his body language. Again, that is what was found, not don't get fooled by his comments or anything like that. That was not what was found by the trial court, just a neutral comment of Watch's body language. And so that is the facts, the three facts that we have to ultimately assess. So when we move on from there, then the analysis is how do we analyze that? And first of all, we have the discussion of whether or not there's a presumption of prejudice. Justice Toll, of course, found based on this court's clear case law that there was,

not, but I would agree, I would submit to you that not only because of the alternative findings, but just because of a general analysis that regardless of who had the burden, that presumption of prejudice was overcome in this particular case. And I'll talk more about that in a second. But I think ultimately the legal analysis, whichever way you go, I don't think is going to be dispositive because of the relatively non-aggregious nature of these comments. They are nothing like the comments that were in the cases that have. led to reversal. So let's talk a little bit about more of the findings that were there. In looking at the evidentiary hearing that was done, we had, of course, Ms. Hill testify, and the judge found that she

was not completely credible. We had Ms. Rhonda testify. The court did not credit that testimony because Ms. Rhonda conceded over and over again that she absolutely heard nothing whatsoever. Mr. Waters, I want to stop you. right there since your five minutes is up. And talk a little bit more about Jersey. You're saying these are innocuous comments, not to be fooled and look at his actions, look at his movements. The court seems to believe Jersey when she says in her affidavit and when she testifies that these comments were made to her. However, she goes on in her affidavit to say, not to be fooled, which I understood to mean Mr. Murdoch would lie when he testified.

Look at his actions, look at his movements, which I understood to mean that he was guilty. The juror is testifying in her affidavit that the effect on her was significant. Why can the court, how can the court find that certain comments that she made take them and incorporate them in the order, but not believe what she says about the effect. Well, two things about that. I think that, first of all, Justice Toll did not credit any comment, any of the egregious comments that she didn't even remember herself on the stand, such as Won't Get Fool. The only comment that was credited was what was testified by JRP, which is Watch's Body Language.

And let me, and I want you to finish your answer, but I want to ask you this. So far as the comments are concerned, are we limited? Is this court limited to only? the comments that are included in Judge Toll's order, or are we able to consider all the comments that are included in the affidavits, even the egg juror affidavit? Well, what I would say to that is, is the case law is clear that the trial court has the discretion to conduct this hearing and ultimately make credibility findings, which under typical appellate law, this court would defer to. And so my argument to that is, is if you look

at Justice Toll's order, both her oral order and her written order, she credited the 11 and did not credit, juror Z, and did not give any credence to 741, the alternate, or the Egg Lady, which, of course, did not testify. Now, there was on page 808 of the record where she says, I think we've got in terms of what she says, Ms. Hill says, and what Ms. Hill says, she says, that's on page 808 of the record and talking about the Egg Lady, juror. But ultimately, I would submit that this court, in appellate review, does need to defer to credibility and factual findings of the trial court. And the trial court only found the 11 credible.

Well, then help us understand the ostensible inconsistency when the trial court finds portions of jurorses affidavit credible and just carves out and doesn't deal with the part that dovetels with the alternate jurors testimony, which is far more prejudicial. How do we do that? Well, so we're looking for, I would submit from an appellate court's standard of review, we're looking for support in the record for those findings. And so when you look at jurors Z, okay, and first of all, you look at the 11, which she did credit, and none of those 11 heard any of these other egregious comments or anything like that.

What do we do about the order that doesn't even mention that, that Jersey did in fact testify about the comment, don't let the defense confuse you. Well, I think that when you look at the order in her specific paragraph on Jersey, what she says is that Jersey was ambivalent, and ultimately, as she goes through the analysis of what Jersey says, she's not crediting that testimony. And again, I think there's supporting the record for that. There may be, and that may carry the day for you. Right. Assume that we find that that statement was made, do you still have a path to victory? That don't be fooled?

At the end of the state's case, before the defense presents it case, the statement was made, do not be confused, do not be misled by defense and its counsel. Right. Well, I would say, and this is like everything in this, it is a question of degree, okay? And if the clerk could come in there and held a gun to their heads and said, you better vote guilty. I'm going to shoot you all. I probably wouldn't even be arguing that's not structural error, okay?

But everything is a question of degree. I'm not going to concede that if those statements were credited and are part of the review that our path to victory is not harder. But I think you have to look at that in the context of this entire trial and when those particular statements were made. And I think context is important, too. You can, we all can cherry pick some of these that are on the surface innocuous. Epic day, big day.

And when viewed in isolation, they don't move the needle, arguably. But when those seemingly innocuous statements are considered in the aftermath of the originating statement, not to be confused and misled by the defense, those initial innocuous statements take on a very nefarious message. I could not argue otherwise that that would absolutely be a question of degree. However, I don't believe that that just ends the inquiry right there, because you still have to analyze it in the context of all of the factors and everything that went on. And so to look at that, let's look at all of the things, and let's assume that we're limiting

to what I contend, Justice Toll found, which again, when I say innocuous, I'm saying relatively not egregious. I'm not saying that the clerk should be saying watch his body language, okay? But that is a far different comment from what you're talking about right there. But even if we add that in, we're still talking about a limited, you know, number of jurors who saw that. And then we're putting that in the context of where that occurred. Okay, it occurred during the middle of the defense case, not during deliberations, not right before deliberations, but in the middle of the defense case.

It occurred during, I think we counted in the middle of the defense case. or less than 60 times that this jury was told by Judge Newman to only, you know, rely on the evidence, to not talk about the case, to not have external influence and all the rest of that. And we have to credit that. We also have to, again, put that in the context that when and if that occurred, and even assuming that there was a one bit beyond that, that it was attenuated from the actual point of deliberation by the rest of the defense case, by the entirety of the state's reply case, by all the all of the closing arguments of counsel and by Judge Newman's very detailed charge.

And so while that would be different, I don't think that that is fatal when you look at the entirety of this six-week trial. And again, go back to what I said ultimately at the beginning of my argument here, is that for that to happen, you'd have to conclude that with all of that going on, with this massive evidentiary presentation, with multiple instructions from the trial judge, with all these arguments. So you're distinguishing a day and a half long burglary third trial from this trial? No, sir. But what I am saying is that I do think time matters. I do think. But you would agree that at the end of a Berg third trial with a guilty verdict, the judge finds out that the clerk of

court was back in the jury room saying something like, well, that defendant's not going to testify. but I just want to let you know this is the fifth time he's been up here for a burglary third. So don't, I just want you to know that. Egregious or not? Your Honor, if that were the case, I would be very hard-pressed to argue otherwise. Okay, so help me out with this.

If we craft a standard based on the length of a trial, and heavens, heaven's no, nobody wants to try this case again. Again, how do we create a standard based on a lengthy trial versus a day-long trial when the constitutional right is the same? Absolutely, the constitutional right is the same. And what I'm not asking is this court craft a different standard for a long trial versus a short trial.

What I am saying is what is relevant to the ultimate inquiry that this court engages in is the timing of when these comments took place. Okay, well, let's talk about that. And I'll weave in some questions about the egg juror. Ms. McAulveen, the Barnwell County Clerk of Court said she didn't hear any of these comments made in front of jurors, but the comments made to Ms. McAuline by Ms. Hill were remarkably the same as those related by the jurors. For example, watch him closely, look at his actions, look at his movements.

Ms. Hill was saying that to staff and to Ms. McAulbeen. You agree that's what she testified. That's what she testified. That does match. almost exactly what these jurors said Ms. Hill told them, correct? It is. Okay. So explain to me how we pass go under your theory.

How do we accept the fact that Judge Toll maybe didn't mention all these things in her order, but they were supported by an impartial witness, that being the clerk of court from Barnwell? Well, two things about that. I don't think we can get past what you've recognized that clerk of court from Barnwell heard nothing going to juror or she would have brought that to the court's attention. But the consistency of the comments or the similar nature of the comments is striking. Well, and then my second part that I would say about this is that all of this arose months and months and months after trial.

And the courts have been, you know, historically reluctant because of that. passage in time because of the fact that jurors vote one day and one day only and don't have to assent to their verdict and vote him guilty every single day for the rest of their lives. And so I think that that passage of time is something that is relevant as well when this case is being talked about incessantly out and out in the world. And so I think that that's something as well that, you know, Justice Tol can consider in deciding what is what actually happened. And the best evidence of what actually happened and whether that's the evidence of what actually happened and

whether or not it is whether you look at what the jurors said about it, not to get to the 606 aspect of it, or if you're objectively standing back and making that factual finding of, this is what happened, and this is whether or not there's a prejudicial effect. That is why Justice Toll credited those 11 jurors, and that is, I would submit to you, the realm of what this court needs to consider. I want to ask you a question about this idea that you expressed that this event or these moments when the when the clerk spoke to the jurors should be considered insignificant when viewed among the entire trial, whether it's long or short trial. There's not there's no eyewitness,

there's no DNA, there's no one thing on the part of the state that they could rely, that you could rely on to show him guilty. So you had to piece together a whole bunch of different stuff. We'll talk about a lot of that stuff in the next phase. But yes. But you spent. you know, most of that six weeks was you piecing together small pieces of evidence to put together an argument that he did it. On his side, now, of course, he doesn't have the burden and doesn't even, it didn't even require to testify. But on his side, whether he's guilty or innocent boils down to one moment, one thing. And that's when Eilik sat up on the stand and said, I didn't do it. So what I'm wondering is you're wanting us to consider the statements by the clerk to be insignificant,

but those statements go to the only thing that the defendant really had. I mean, the defendant can argue that you didn't piece it all together, but really the defendant's argument boils down to the one thing that the clerk of court addressed. So we can look at all this context if you want to, but the jurors knew that if Ellett was telling the truth, he's not guilty. If he's lying, he is guilty. And that's where the clerk of court's statements appear to focus. How do you respond to that? Well, I would say that while I understand that that obviously was very important, the defendant's taking the stand, it wasn't as simple as just getting up there and saying, I didn't do it, okay? And while there was a long piecing it together of all of that,

the defendant's testimony was also very long over the course of two days. And so I don't think that, that you just view the defendant's testimony entirely in isolation of this entire trial. I don't think any analysis that has ever ever said that we're going to ignore the entirety of what went on. Certainly the defendant's testimony was important, but they had been raising all kinds of issues as to lack of motive, as to other possible motives, as to the boat case, as to the cowboys, and all these other things along the way as well. So again, saying this is an epic day, saying it's rare for a defendant to testify, those were all statements that everybody in that courtroom knew, everybody in that courthouse knew. So while I hear what you're saying, I think that

this is, you can't take out the fact that this was a complex matter with a lot of complex issues. You know, to the extent, though, that the, you've made some fine points about how we should interpret the statements. But if the statements, as in Justice Kitchens was alluding to this, if the statements kind of collectively go to the point you should not believe him, to me it's hard to separate that from the critical issue in the case. But I want to bring up one other thing. You point out in the very beginning of your argument that the trial court here found that Becky Hill was not credible. Now, that's a soft statement. That's almost like Richard Nixon or Bill Clinton, whoever it was, said mistakes were made. Sometimes people are not credible because

they didn't get a good look at what occurred. Sometimes people, people, are not credible because they don't remember what they saw. Here, if Becky Hill is not credible, it's not because she didn't see it, it's not because she doesn't remember it, it's because she's a liar. Is that right? I would say that ultimately she said she was not completely credible. And yes, sir. So there's only one way that Becky Hill can be not credible, and that is that she is a liar. I think that Justice Toll did not credit parts of her testimony as she looked at everything. Now, she didn't specifically find that she is a liar, but ultimately she didn't credit that testimony.

But what I think is important is that neither Justice Toll nor the state relies on Becky Hill. What we rely on is what is most important, and that is the 11, the overwhelming majority of these jurors who sat there and looked, Justice Toll in the eye, who judged their demeanor, who judged their credibility and who ultimately were clear as a bell that there was no sort of improper influence on their verdict. And when you look at these questions and whether or not they went beyond 606B, ultimately they were questions about impartiality. And I think there's a distinction. And Justice Toll made this distinction that when she phrased these questions, first of all, she had the four exact questions that were in green, which I understand the footnote, Justice Hill, when you're on the Court of Appeals.

But they were the same four questions from the record in State v. Green. So that was a reasonable set of questions to ask. I see them out of time. You premise your response that she relied on 11. In Etheria, this court overruled Vestry v. Orkin exterminating, and that a party is entitled, and that was a civil case, 12 impartial jurors, not 11. Yes, sir. So how do we deal with that? Because ultimately the 11 were credible and Z was not. And that is what Justice Toll clearly found. And how do we handle Ms. Hill with, as I think Mr. Harputin referred to one of the comments that Ms. Hill was attracted by the siren call of celebrity. There's another question. quote in the trial court's order. She allowed her desire for public attention to overcome her duty

to her oath of office and her oath as a witness. Yes, sir. How do we deal with that and pick and choose what parts of her testimony we accept or don't accept? We just refer to the trial court. Well, I think when we look at Ms. Hill, and again, I'm not here to justify or to defend Ms. Hill. Ms. Hill, of course, said she didn't do any of these things other than occasional, just everybody pay attention to need coffee and things like that. But so I think that ultimately, Ms. Hill is, she didn't admit to any of those things. So you have to look at Jersey. Jersey is what's really in play as to whether or not Ms. Hill went beyond what we say and what the trial court found was the area of what this court is to consider.

and whether it was something far more egregious. And even beyond that, even beyond that, even if you take some of what Jersey said, even if you take some of what Ms. Becky said, even if you take some of what Ms. Rhonda said, when you do that analysis and you put it in the entire context of thing, and when you put it in the entire context of this entire trial, and you put it in the context of where it occurred,

and everything that went on after that point, then the state has overthrown a prejudice. And as Justice Holt said, she finds it, she did not find that a full, a few foolish and fleeting comments in the entirety of this trial would be enough to have infected this verdict and to make it unfair. I completely agree that somebody's entire to all 12 jurors, but this is a credibility finding that 11 told the truth and one did not. And the 11 set the standard of what this court should consider and those comments were not

egregious. Please, yes, sir, Justice James. And we may have some other questions as well. One second, please, Ms. Waters. A few. Go ahead. No, you go ahead. The jury of 11 versus 12.

In the defendant's brief, he argues that Judge Toll studiously avoided Parker versus Gladden. And I think that's the case where it took a vote of 10 out of 12 to find somebody guilty. Correct. There is no mention of Parker v. Gladden. in this order. Is that still good law? Yes, sir, and I'm not. Okay, so, but you, you said several times, and I would too, if I were you, that 11 jurors said, no, my verdict was my verdict. Right. So that takes me, I just want to, you can respond to the Parker versus Gladden part in a moment, but you also need to explain to me about the egg juror. She was removed from this jury

on the day deliberations began. Is that correct? Yes, sir. So she was not an alternate. She was a sitting juror. Correct. And so she was there and removed minutes before they began talking about the case, began deliberating, correct? Correct. And she said in her affidavit that her ex-husband called her as she was getting on the bus to ride to the courthouse that morning. That upset her because she had a restraining order prohibiting him from contacting her. So she called or she spoke to Ms. Hill, correct? Yes.

And Ms. Hill told her, according to the egg juror, the Murdox probably got to him. You agree? That's what she said in her affidavit. That's what she said in her affidavit. Okay. And then Ms. Hill asked her if she was leaning one way or the, the other. And the juror, egg juror said, Mr. Waters closing was good, but I still have questions. And she said, what kind of questions? And she told Ms. Hill, she had questions about the guns.

I suppose couldn't find them or they were too used. And then Ms. Hill asked her, what makes you think he's innocent? And she said the video at the kennels. And then she said, Ms. Hill said, everything the defendant has said has been lies, and you should forget about the guns. They will never be seen again. Are those fleeting comments or are those egregious? Your Honor, those would be hard pressed to defend. Yes. So that would be much different from what I'm arguing this record.

And then Ms. Hill told her that the full person should just go in and ask for a raise of hands, and this will be over and done with, and everybody needs to be on the same page. So I'm struggling, number one, with why the egg juror wasn't allowed to testify, because that was directly impeaching of Ms. Hill's testimony that she said nothing, correct? Yes. And Judge Toll did say that the egg juror's affidavit is in the record, so we know what she said, Ms. Hill said. So can we consider that affidavit? Ultimately, I think that Justice Toll, when she made. her ruling and again within the discretion of the trial court as the case law allows her to do to set

the the tenor of this inquiry was only looking at the jurors who actually deliberated and I think ultimately we got to the alternate because the ultimate was there to the end the difference with the egg lady and we have to remember this too when we look at the implicit rejection of all of that is that the the egg lady was and it wasn't like she just got kicked off that morning that was the product of a couple of days of in-camera hearings that ultimately disclosed that this egg lady juror who initially said she had not talked about the case, it was ultimately discovered that she had. And all of this stuff about, you know, the Facebook and all that other stuff, Judge Newman was very clear, was not the basis for her removal. It was the basis for her removal

was her violation of the... When somebody delivered a refrigerator, correct. And they said she was talking about the case. That's correct. And that was after she denied it. And then all, and that was after she denied it. And then ultimately it came to pass that that was not the case. And Judge Newman removed her, frankly, for that misconduct. And so that in and of itself as support in the record as a basis in the record for Justice Toll's rejection of the credibility of all of that. And this is a person, again, who wrote a book afterwards and months and months have gone on when all of this stuff started percolating up. I think that's all relevant to consider as well. Justice Hill.

Mr. Waters, you talked a lot about the timing of this case and the length of it. Now, the clerk is the public official who jurors have their first contact with from the courthouse and their last. She's the administrative face of the court, essentially. Her name's on the letterhead of the jury summons that the jurors get. she swears in the jurors she swears in all the witnesses as they're about to testify she coordinates the juror's schedule she's a liaison between the court and the jury she's their guide or their Sherpa so to speak she's her point person and she reads the verdict and she signs their paychecks at the end of the trial now justice is supposed to be a blind

We all know that. But court officials, when it comes to the merits of a case, are supposed to be mute. That's the ideal. That's the aspiration. Even our Constitution prohibits the trial judge from commenting on the facts of the case in open court. Now, after a six-week trial, it's only human nature that these jurors might become bonded to this person. So you've talked about the timing, and I'd like to talk to about the source. of these comments and where they occurred, which was in the jury room. So can you comment on that?

Yes, sir. So I absolutely hear what you're saying. I think, though, that that maybe overstates, and I don't at all distinguish or disagree with you about what a clerk should do and the role that they serve and all the rest of that. But I do think that that overstates what is supposed to, what Justice Toll was supposed to do and what this court is supposed to review. And that is the specific circumstances that occurred here. And I think that that maybe overstates Miss Becky's sort of influence in all of this at this point in time. The jury, actually, the person who handled the jurors day to day was Bill Polk, not Ms. Becky. And in fact, as Ms. Rhonda testified, Ms. Becky got sick, and Ms. Rhonda was at the trial more than

Ms. Becky was. And so while certainly some of those factors may exist, I think when you look, and this is what I argued before, when you look at what was going on in this courthouse, when you look at the entirety of the specific facts here. When you look at Judge Newman on the stand, it was really, if you want to say the Sherpa, the shepherd of these jurors is Judge Newman, not Becky Hill. When you look at the entirety of this record, I don't think that while you're exactly right that the clerk has that neutral role and serves those functions that in this particular instance, Miss Becky's influence was that large, and there's no evidence of that in the record. And to go back

to what Justice James was saying is, you know, this is part of the rejection of that credibility that all of those detailed things just so above and beyond the pale that the egg lady says happened and all of that contact no other juror no other juror said anything like that and those were the jurors that justice told found credible and again that has support in the record that miss becky has just decided egg lady of all people is the person that she's going to go through all of this with and not have similar conversations or similar things like that with all of these other jurors? And again, that in and of itself is supporting the record for us to put those aside and focus on what the 11 said. Not that 11's good enough, but that 11 are credible, and that rejects these claims of the others

that all have credibility issues that have support in the record. The circumstances of this issue are not lost on us in the courtroom. We have an excellent attorney general with a very professional and competent team of prosecutors, including you, Mr. Waters. On the defense side, we have an extremely competent, top drawer representation. We've got a superb trial court judge.

And out in the hallway, we have a rogue clerk court. And even if we accept the truncated version of what you characterize as innocuous statements, even you acknowledge it was improper. perhaps not improper to the point of reversal, but you acknowledge it was improper. Absolutely. And if I could respond very quickly. Well, this, I want to make the note because in my position as Chief Justice, I have to deal with the clerks of court in 46 counties. And the overwhelming majority of our clerks of court are dedicated, conscientious public servants who discharge.

the duties of their office with integrity and do not act like this and I'll give you the final word. Thank you, Chief Justice. I think what you just said highlights and proves my point when you went through all of the players in this trial and the relative insignificance of Ms. Becky. And as I said before, with all that going on that some jurors really like, oh, well, you know, Ms. Becky said Watch's body language that that is going to make the difference. What you just said of all that went on is why, not the truncated version, and I understand your point with that, but what the record reflects and what Justice Toll found is what really happened. That was the extent of it.

I don't mean to imply they were innocuous. What I mean to imply is that they were neutral on their face, not proper, but neutral on their face and not egregious. Thank you so much. Appreciate the fine arguments on both sides. This time before we go to the... You can do the reply now? on this issue, I thought we're going to do the reply at the end. What's the, what was your understanding, Mr. Barber?

Mr. Chief Justice, the reply would be at the end of both. Okay. That's mine too. So we'll take a, say, 10 minute break. Everybody stretch their legs, restroom break, and then we'll be back in 10 minutes. Thank you. No. No. Thank you. Be seated. We moved to phase two of the oral argument. Mr. Griffin, you can be arguing the evidentiary issues. I am, John. We're ready to hear from you, sir. And good morning. Thank you. Chief Justice Kittred's members of the court. I'm Jim Griffin. I'm here representing the appellant Alec Murdoch. This appeal presents five fundamental evidentiary errors that individually and cumulatively denied Alec Murdoch a fair trial. First, the court admitted testimony from a cell phone forensic evidence who confessed that he had never actually,

done a physical experimentation like the one about which he testified and knew nothing more than anyone else in the courtroom. Two, the court admitted a gunshot residue evidence from a blue raincoat despite the fact that the only connecting witness definitively testified that what she saw was a blue tarp and could not be confused with a rain jacket. Three, the trial court admitted unfairly prejudicial evidence over six days regarding financial crimes spanning six years, the crimes that were committed by the appellant. Four, the prosecution violated Doyle v. Ohio by repeatedly impeaching Mr. Murdoch regarding

his post-Miranda silence after being arrested on the murder charges. In five, the court admitted firearms identification testimony based upon unprecedented methodology that the expert himself could not state to any reasonable degree of certainty during the counsel hearing. And the interest of time on that fifth issue, I intend to rely on the brief unless the court has any questions about that evidence. The evidence in this case did not conclusively prove defendant's guilt such that no other rational conclusion could be reached.

Therefore, none of these errors were harmless beyond a reasonable doubt. There were no eyewitnesses to Maggie and Paul's murders. The murder weapons were never found. The forensic evidence does not support Alex's guilt. All crime scene criminologist, experts testified that whoever shot and killed Paul shot him in the head, his brains hit the ceiling, and blood and brain matter would have been on the guns and on the shooter. That was without a doubt, and there was no brain or blood matter found on Alex person, his clothes inside his suburban, inside his home. They checked the bathtubs nowhere.

There were trace amounts of DNA found on Alex clothing that were covered. consistent with his explanation that he checked them for signs of life. There was minimal GSR, gunshot revenue residue on Alex, which also was consistent by the sled's own testimony, consistent with him going back to the house, getting a shotgun for personal protection and waiting for law enforcement to arrive. Alec Murdoch's interactions with others after he left the kennels that night and before he returned and called 911 with normal.

He talked to his son Buster. He talked to his brother John Marvin. He talked to another lawyer, Chris Wilson, about the case. He all said his demeanor was normal. Visiting his mother, there was nothing out of the ordinary about his demeanor. There's no time of death established. The coroner did a finger test under the armpit. The state relies exclusively on cell phone data inside the phone to establish a time of death,

which was unreliable, in our opinion. The cell phone data showed at 845, p.m. There's a kennel video. And Alec had lied about previously in his interviews about being at the kennel with his family. But there's a kennel video at 845, but there's nothing on the video that would lead someone to believe that there's a murder about to happen. It portrays a normal family. At 849, Paul's phone, Paul used his phone for the last time. It had very little battery left on it. At 855, there was some action on Maggie's phone. And at 906, Maggie's phone registered movement for the last time, some 20 minutes after Alec testified that he left the kennels. We submitted an expert on acoustical testing, and it was uncontradicted that if you're in the house with the door closed and the TV on, air conditioner on, you could not hear gunshots down at the kennels. And then Alex's testimony himself denied killing his wife and son. So this was not an overwhelming evidence case. This was a. a very close case. And the cell phone and GPS data, frankly, pointed to his innocence,

not his guilt, as I will explain in a moment. And that brings me to the first issue that I'll like to address is that the state was allowed to present expert opinion testimony about a test that was done during the middle of trial from a cell phone forensic expert, a deputy from Charleston, who had previously been testified about chain of care. custody and other issues that during the weekend after after our expert testified and it's critical to know that maggie's phone was found on the side of the road about a quarter of a mile down moselle road and 15 feet off the side of the road and when we finally got the GPS data during trial from from general motors and the own star data aleck went by that location doing 42 miles an

hour at 9.08 p.m. As I mentioned earlier, Maggie's last phone activity, orientation change in the phone was at 906. The question is, if Alec had thrown the phone out at 908, would it have registered an orientation change? Would there have been anything in the phone to record him tossing the phone out? And the testimony that the defense presented was Mika Sturgis talked about the rise-to-weight feature. He did an in-court demonstration.

I was going to bring my phone on paper. If you lift it up, it lights up. All of us have. What's your theory as to when the phone was tossed out of the window by someone? What does the timeline show? I take it your argument is that when you toss the phone, at some point, the raise-to-weight feature will activate. So my question is, on the timeline that we have,

And it's pretty, it's extensive. What is your theory as to when the phone was tossed? So, Justice James, with all due respect, I want to rephrase it. I think that's asking the wrong question. I think the right question is, would the phone turn on and record any sort of activity if Alec threw it out the window at 908? Yeah, I know you say that, but I'm talking about in the timeline that we have in the cell phone extractions that we do have, when was the phone tossed?

Well, I mean, one, I mean, the states, you know, so you could say one explanation, it was tossed at 906 because that's when it registered. Or you could say at 906, it was down at the kennel. We don't know. Honestly, we don't know. We don't know how it got put on the side of the road. There's no witnesses. But what's so critical to our defense is that at 908, when Alec Murdoch goes by that execs,

same spot at 42 miles an hour, if he had thrown the phone out the window, what would have happened? And the state says they were just replying to our expert, Mika Sturgis, who said he's not qualified to say whether the light would come on or not, whether it wouldn't register anything. Similar question. I don't think you have to have a theory. That's the state's burden. but when we're looking at your argument that Eleg didn't throw the phone out when he drove by because it didn't light up, that raises the question of how it got there. Somebody put it there.

And it never lit up. So the point that you're making is it's wrong for the state to be able to prove that it might not light up. But to me, it looks like it definitely didn't light up because whoever put it there, unless it was at 906, the phone did not light up. I'm raising the question of whether this even makes any difference. Well, it makes tremendous difference because if Alec threw the phone out at 908, when he goes by that location, our evidence, not through our cell phone forensic person, but through our accident reconstruction acoustical guy, Mike Sutton, with Accident Reconstruction

Institute in Raleigh, North Carolina says that phone at 42 miles an hour will tumble. And when it tumbles, that raised the weight feature. So we did put into evidence through two witnesses, both qualify about what they testify. I got that, but let's just hypothesize that Ehrlich didn't do it. He didn't have the phone in his hand when he rode by a 908. somebody came along at 920, these roving marauders you call them or whatever, and they killed the, Maggie and Paul, and then they put, they were responsible for getting the phone to where it ended up. Wouldn't the phone have lit up then? It depends on how it was placed there.

If we don't know whether it would have lit up then, we also don't know whether it would have lit up at 908. Well, here's why I'm asking why this even makes any difference. here's what we know at 908. Alec Carr is going by that spot at 42 miles an hour. Did the marauders go by and pull over? Maybe. Were they walking? I mean, we don't know.

There is no evidence in the record. What there is evidence in the record is he went by that spot at 42 miles an hour, didn't slow down, didn't speed up. And if he had tossed the phone out, it would have tumbled. And all that has to do is go upright, and the rise-to-wake feature would come on. And so what, to combat that, they had a guy sit around the weekend throwing a phone around his office from Friday. You cross-examined him very thoroughly.

And said, you know, he said he recorded nothing about his experiment. He wasn't an engineer. He didn't know more than anybody else. And he didn't testify to anything you couldn't look up on Google. So how, what's the harm in that? I mean, your cross-examination seemed to be very effective. Well, the harm is the expert opinion he was allowed to express that says it was possible that the phone would not illuminate have thrown from a vehicle going 42 miles an hour. The harm was when Mr. Waters gets up in this closing argument and says, Paul Matagall got up here and testified us to the issues and to the fact that there's no guarantee, in fact, more likely than not, if the phone is violently thrown or flipped out or whatever, it's going to light up.

I mean, that was critical to their defense to address, you know, our exculpatory evidence that we went by there at 42 miles an hour, and if we had tossed the phone out, it would have shown something. If they wanted to test that, they needed put an expert in a car doing 42 miles an hour, throwing out the window, and then checking the phone to see what happens and do it multiple times. But you don't sit around in office as if you're playing cornhole with a bean bag all weekend and then come to court and say, sometimes it lights up and sometimes it doesn't light up. And therefore, I conclude that, you know, it more likely than not it wouldn't have a lit up if Alan Murdoch went by there at 42 miles an hour.

This is certainly an unconventional moment at the trial. And, you know, I was reflecting back on 10 years of trying cases, none of which were six weeks long. And, you know, in the state's reply, everybody's tired, everybody's ready for the case to go to jury. It's almost like there's this unwritten rule of evidence that at that point in the trial, You can pretty much do whatever you want. But the question is, what did they do? And you're saying, when they stood up to speak to Judge Newman, they said, we got an expert. In their brief, here they talk about it simply being an experiment.

Judge Newman listens to all this, and he calls it an experiment. He doesn't call it expert testimony. He says, page 6721, he did not provide scientific testimony. He conducted an experiment and told the jury about it. And I'm just wondering, do we really need to? go through a 702 analysis here, or should we be talking about the admissibility of an experiment? Well, I believe this court's opinion is State v. White in 2009 that Justice Ketridge wrote. There's no distinction between, so it's an opinion testimony.

Well, that was an opinion. That was an opinion based on the work of a drug dog. Right. So, and here we have an opinion testimony that when Alec Mardot goes by that local at 42 miles an hour, the light may come on, may not come on, more likely that it won't come on. So that's the opinion testimony. And that is, whether it's scientific or experience, it doesn't matter under the analysis, but it had to be proven to be reliable, and it wasn't. Mr. Gershyn, I'd like for you to address the 404B issue, if you don't mind. Yes, sir. Do you believe any of the evidence about the defendant,

financial crimes could have been admitted under 404B as motive evidence? No, not a bit, Your Honor, not as motive evidence. And I have some questions, I'm sure we all do, for Mr. Waters, in terms of the expanse that was allowed under 404B. What about, like Ms. Seconder's testimony, for example, on the day of the discovery of the theft of the Ferris fees? What about the impending motion to compel hearing in the so-called boat case a few days later that would have arguably exposed the extent of his financial misdeeds? Why wouldn't that have some relevance for 404B motive purposes?

Well, we have the benefit of extensive in-camera hearing, not in-camera, but hearing outside the presence of the jury. and where all of these matters were testified to. And Ms. Secondger said that on June 7th, she went to confront Alley about, you know, this Ferris fee. Now, understand this Ferris fee is a one-off situation from all his other scams and schemes. This was attorney's fees that were due to the law firm that he diverted to himself. That's the Ferris fee. And that's what was their concern. And their testimony was they weren't concerned that he was.

stealing money from the firm. They were concerned that he was hiding money from civil discovery from the boating case. And they didn't want any part of that. She also says when she's in there talking to him, he gets a phone call. They put his dad back in the hospital and I took my CFO hat on and I put my friend hat on, my mama had on, and I started comforting him. And that was the end of it. So until the moment of the call about the impending, declining health of the father, we're in the motive territory. But once the urgency was removed by that phone call, it somehow's off the table? I still don't think it's motive because what the cases cited by the state and any case that you look to, for motive, it has to, and the cases that admit

these type evidence in a murder case is that the person murdered is either the victim, The person murdered is a threat to report the crime. The person murdered has life insurance or the murderer is bound to benefit financially to get himself or herself out of the financial hole. I mean, none of those typical motive issues are present. What was present is this claim of sympathy, which in West Virginia v. McGinnis, And that really is the closest case that we can find about this, Your Honor. I mean, they reversed a murder conviction for letting extensive financial crime, evidence, and other information in. And I would read to your honor the conclusion from the court in the West Virginia Supreme Court.

And it says, the cumulative admission of the evidence under 404B, however, presents us with a likelihood that the jury convicted the defendant because of his character and not, because of the evidence surrounding the murder. In these circumstances, these errors cannot be regarded as harmless. And you can't just piecemeal it either. I mean, we spent 10 witnesses over six days, 38 transactions. Was there any 404 evidence that was proffered by the state that was disallowed? No, Your Honor. Not that I can recall. And then, you know, so you have 404 be a analysis and you have 403 and really the unfair prejudice just by the weight and the extent of that evidence. It the sheer volume 38 transactions, $9.97 million, 10 separate witnesses.

And State v. James, I know it's a little different because State v. James involved prior burglary convictions with an enhancement, but the court, the conviction was reversed where seven burglary convictions were admitted when they only required two, and they were limiting instructions given, and the court said that was, it was not harmless error when you pile on that much, and this was piling on. Let me ask you a question about the legal point of whether there's a logical connection or some logical relevancy using the language our cases they've used. I mean, you make a lot of good arguments that it makes no sense. sense. He would never have done it for this reason. And obviously, those arguments are in part,

at least for the jury to iron out, right? I mean, you made them to the jury and they decide whether this makes sense in terms of a motive. But what I'm asking is, to what extent does the trial judge when looking at a theory of motive that isn't 100% solid, to what extent does the trial judge analyzed the believability, the ultimate usefulness of the theory of motive before admitting the evidence. Just to continue a second, you know, in Lyle, we said that the trial judge has to clearly perceive the connection. In Perry, we, of course, quoted that, but we also talked about the trial judge using a rigid scrutiny. I mean, really, in Ler, Lyle and Perry, though, the question was not the existence of a logical connection, because in Perry, there clearly was one.

I mean, in Lyle, there clearly was one, and in Pary there clearly was not one, at least the majority said so. But in both cases, the real question was unfair prejudice. And I'm just wondering if this idea that the motive theory doesn't work is really a question of unfair prejudice as opposed to a question of logical relevancy. Well, it's both. You have to do both analysis. Chief Justice Kittred asked me if it was motive evidence. I don't believe it is motive evidence. It's certainly unfairly prejudicial under 403. And I was to answer your question, Justice, I was about to cite to Lowe, the standard in Lyle, which is a very high standard. And I think it should require, and I believe the law makes it require, more than a prosecutor's best theory. I mean, there has to be some evidence to support it.

And it has to be like life insurance policy, a windfall, things of that nature. Or the, I hate to use this example, but perhaps this looming cloud, storm cloud, so forth, would have given him motive to do harm to someone who was going to blow the whistle on instead of that's right according to you too many degrees of separation of murdering his wife and child well that that if there was evidence of that and that's in the case law yeah if there were a threat to report for sure but none of that exists was there any evidence that uh maggie was getting wind of these financial misdeeds

uh she she did have a bounce check or two right I believe she perhaps had. Was there any evidence that she was going to confront him about money? None whatsoever? None whatsoever. And Paul, though, who's described as the detective, was there any evidence that he had any information about his financial misdeeds as opposed to him hoarding pills?

No, Your Honor. It was only his drug use. Paul was aware of. I want to branch off for a moment. On page 600, excuse me, 6,340 of the record, Mr. Waters was cross-examining Mr. Murdoch. And if you read it, it is very, very compelling cross-examination. Of course, Mr. Murdoch's on the stand, so his credibility is in question. Let's assume that this financial crimes evidence came in in reply.

Right. Because a series of questions that Mr. Waters asked, Mr. Murdoch was, you lie, basically suggesting he lies with ease. Correct. Seamlessly lies about everything. Did you lie to your brothers? Did you lie to their wives? Did you lie to Marion Proctor? Did you lie to Bart Proctor? And all these answers were yes. Did you lie to the Brandsteaders? Did you lie to Chris Wilson? Did you lie to them about the kennels? Did you lie to Mark Ball? So when his credibility comes into question then,

could this financial evidence have come in in reply? I know that's not what we have here, but doesn't it kind of open the door, or maybe you would have chosen not to put him on the stand had the financial stuff not come in initially? Well, there are two points with that. One, we cited case law that we don't waive our right to challenge that by putting him on the stand to address it.

But to answer your question, Specifically, under 608B, Your Honor, you are not permitted put in extrinsic evidence of these things. You can ask him about it, but you can't then take six days and ten witnesses. I mean, you ask him the question, and if he answers it, you got it. If he denies it, you're stuck with it. That's the one under 608B. You're allowed to cross-examine him, but you're not allowed to introduce extrinsic evidence. What if the questions had been more expensive?

louder your partners about not stealing $9.7 million. And it becomes, it's a different dynamic, I understand, but what I'm trying to search for is would this have come in anyway? Well, I do believe under 60A, it's fair ground for cross-examination on his credibility. But then you get to 403 analysis. Excuse me? You're stuck with his answer, which would have been yes. Yeah, yeah.

But you don't get to then start putting up 10, witnesses to prove something that he's admitted to. You get a new trial is coming in, but it's only at least under 608 if he testifies. And in that event, you get another limiting instruction that says you can only use this to analyze this credibility. Correct. Thank you. Wait a minute. We just getting started. We have a question. We have a question. We want you to argue about the admissibility of the weapons that were seized and introduced that were from Ms. L. Yes.

So, and the weapons that were introduced in the evidence that were seized from the home, there was no testimony from anybody, even there. Well, it was beyond that, the experts admitted that he could not identify it as a murder weapon. Well, he said he couldn't include them or exclude them. And so, as we said, these guns, we know nothing more about them today than we did, you know, any other day. Yet they were allowed to put those in the evidence. And we've got State v. McConnell and another case where I think McConnell, where they put 22-cali bullets in evidence on a shooting case.

And the person was shot and killed with 357 Magnum. And that case was reversed. That case was reversed. There was another case that we also cited, I lost my place in my notes, but that... What was the purpose, as you understand it, for the admission of the weapons that were seized from Moselle? To prejudice, Alec Mertrard. I mean, that was the purpose. It made nothing more relevant or not relevant.

I mean... Didn't you suggest, though, that the police who investigated this had failed to... to do a complete job, and in particular that they had failed to properly seek out and find the murder weapons? Absolutely, and that stands true today. Wouldn't simply, wouldn't a simple response to that suggestion be, we looked at every 12-gauge and 300 blackout weapon on the property in here, four of them. Here's pictures of four of them, but you don't put them into evidence.

You can have Greer testify, I tested all these guns. I don't know anything more about them today than I did yesterday. I can't include them or exclude them. I mean, that testimony is perfectly appropriate. After they were put into evidence, were they ever used or referenced again, touched again? Absolutely. The Attorney General picks it up, holds it up, pretends that he's shooting somebody. He picks up the 300 blackout.

and reenacts the, you know, the crime. They're, Mr. Kenzie used them. Well, they can be used for demonstrative purposes. You just object to them going back into the jury run. Is that what you're saying? We did object to them going into evidence, for sure. And they could have had a demonstrative, they could have had a, you know, demonstrative exhibit to,

to demonstrate to the jury. But that's not what these were. These went into the jury, and they did an in-court reenactment with them. Mr. Griffin, I interrupted you a little while ago to segue to the 404B issue, and I think you were either at or near the conclusion of your argument regarding the cell phone experiment. Right. And if I cut you off, I didn't mean to, and I want to give you an opportunity, if you want to finish any thoughts you had on that issue, it seemed very important to you,

and I want to give you that opportunity. I was done with the cell phone. I was going to go to the blue tarp. and then the Dole of the Ohio issues, but I'll rely upon the briefs, and Mr. Barber may be able to address it on reply. But I'm happy to stand up here and answer any questions about those issues. I got a question. We have a question.

Help me out here. Mr. the evidence was Mr. Burlick didn't use his phone from 809 to 840 something, 850, maybe 9 o'clock, right? Right. Which was unusual for him, according to the evidence. What does it mean in the testimony of the cell phone extraction witness when a call was in the Verizon records, but not on Mr. Murdoch's extraction? What does that mean? There's a series, I mean, I made a series of notes. This call was not on his extraction.

It was on Maggie Murdoch's extraction, but not his. 905 calls Randolph, not on extraction. Does that mean that the inferences that he physically deleted it on his phone? I believe so. And there were probably 10 or 12 or more phone calls that were deleted if that's what the explanation is about not on his extraction. I believe that is the case. that the information was deleted from his phone for some reason or another.

And this goes to circumstantial evidence of something that he deleted the call. Was there any explanation at trial from your side, not that you were required to give one, as to why those calls weren't on his extraction? It was, there was no testimony about that at trial. Okay. All right. I have thoughts about that, but it's not in the record. All right.

Justice Hill has a question. Maggie's phone did not record steps at the time. Then you make a point about that. But also the location data got overridden. Did that override the step data too? That did not override the step data. And that was maintained in a different place. But the GPS data is pinging constantly, and there's only so much room.

And Sled did not put that phone in a Farad bag, which I didn't know what a Faraday bag. back once before this case, but they give them away at conferences, so it's not unique. Thank you. All right. No further questions. Thank you so much, Mr. Griffith. Appreciate it. It's the Golden Moment.

Triumph on the podium, Golden Hand. But with Corona Cerro, Golden Moments go beyond the Winter Olympics. They're enjoying sunsets, time outside, reconnecting with nature, and laughs shared with friends. every golden moment at the Winter Olympic Games, enjoy your own with Corona Cerro, 0% alcohol and a source of vitamin D. Corona Cerro, the official non-alcoholic beer of Milano Cortina 2026. Yes, sir, Mr. Waters. Thank you, Chief Justice.

I may I please the Court. I'll start out by saying, and again, I'm not going to, unless this Court would like me to, go through the extensive facts that were presented here. fundamentally our case boiled down to four important points. Number one was motive, and I know we'll talk about that, and I believe that the motive was very compelling here, and we'll go into that. But the motive pointed to Alec Murdoch. Number two was the means to commit this crime,

and what the evidence showed were two family weapons were used to commit this crime, both of which could not be accounted for after the crime was over with. Number three, opportunity. And this was huge. That timeline that was very detailed that, frankly, the defendant tried to use to be exculpatory, actually was very inculpatory and showed that not only was he at the crime scene with the victims just moments before they died, but importantly, had been lying about that to anyone who would listen. And that evidence was particularly strong when you look at the fact that when we look at that kind of evidence,

we look at patterns. And what was also so important about him being there is that his phone showed no activity, as Justice James mentioned, from about 809 to 902. And then from 902 to 904, he had 283 steps, far, far more than he ever had in any comparable period during the review period that we had. So you had that evidence of opportunity showing that he was the one who had the opportunity to commit these crimes. And then finally, you had multiple acts of guilty consciousness of the various things that he told law enforcement and all the rest of it.

So that's classic case. It may have been a long case and put it all together, but it boils down to basic good old, how do you determine who did somebody? Motive, means, opportunity, and acts of guilty consciousness. And I think the evidence was very strong with all of that. We started with the cell phone evidence, and I'll go to that as well since that's what counsel started with. And I want to start out by saying, first of all, that this is clearly not preserved. I'm going to talk about that very briefly because, as Chief Justice Kitchers pointed out earlier, this was an old school judge.

You got old school lawyers, old school prosecutors, and Judge Newman made it very clear at the beginning of this case what he expected with objections, that they be timely and that they be specific. So this is not a case where preservation is a gotcha moment. This is a case where the judge was very clear about what he expected, with that and the parties that were trying this case are ones who understood that very well. So I think if there's ever a case to look at error preservation issues we've raised throughout this brief, this is that case to do that. But beyond that, let's look at what happened during the defense case.

They called an expert who, Mr. Sergis, who is a former North Carolina deputy who has digital forensic examiner training in Cell Bright and Apple and he was qualified in cell phone forensics. And while he was on the stand, he used an unidentified iPhone with an unidentified iOS operating system to demonstrate for the jury that just a general motion will cause the raised-awake feature to turn on. And they emphasized that over and over again that all it took was a general motion. Just a gentle motion is all it took. And they did that demonstration on the stand. And so the state in reply called a deputy who had extensive treatment. training in digital forensic examination, same exact training, who was qualified without objection

in the same exact cell phone forensics. And what was more important here was he was here to correct fundamentally what was a misleading statement from the defense examiner. Because what he knows, and he knows how these things are programmed, he knows how they work. And the implication that if only a general movement will turn it on, that necessarily a more violent one, like slinging it like a frisbee will turn it on is false because the phones are designed and programmed the accelerometer in there are programmed so that while a general normal motion when somebody wants to look at their phone will trigger it violent motion will not so that your phone's not constantly coming on when you're jogging or running or doing anything like that people don't look at their phone

like that okay and so the phones are designed to do that so he did the exact same thing that the defense examiner did except for he did it much better because first of all he used the the exact same model iPhone. He used a similar iOS version that was used, and he manipulated it multiple times in many different categories, and it was there to ultimately disabuse the notion that if it comes on gently, it necessarily is going to come on when you sling it, because it just doesn't. And that is how iPhones work. And so when he was in cross-examination, and Mr. Griffin did a great job of cross-examining him, and at one point he says, well, I don't know anything about anybody else. Well, Maybe that was an inopportune answer, but that's not the end of it, because he went on after that to testify, I have extracies and how cell phones work.

I can tell you about the knowledge see databases. I can tell you the ways iPhones, the software's written, what kind of code is written on, and I can tell you how data is stored on it and the program that's involved in it, the programming that's involved in it. And frankly, his testimony proves the point because he made sure that the jury understood that just because a general, a gentle raised awake, a general motion will treat. of the raised awake doesn't mean that a violent motion will do that. In fact, it's more likely that it won't, and the phones are designed specifically to do that. That is an expertise that is beyond the knowledge of the average person. And again, this is not one, I think, as we talked about before, where you need to apply the counsel factors and all the rest of it. When you're talking about sort of an experiential type of testimony, the ultimate test is reliability, and he had the same

exact qualifications, the same background, and was qualified in the same manner. But his testimony was sometimes it does, sometimes it doesn't. That's correct. And that's the reality of how it works. Because again, these things are programmed to react to different types of inputs, and it's not an absolute guarantee. But the point that was important about that was that just because a gentle motion might turn it on doesn't mean that a violent one would. In fact, it's more likely that it won't because the phone's programmed to do that, like throwing it like a frisbee. This is probably not relevant to much, but why this phone being taken from the scene and why not pause? Why not just leave hers there too?

Well, that's very interesting. Was there any, I know, is there evidence, I think there's evidence that it was raised to wake at some point and put back down. Yes. So that was at 902, 904, something like that? Correct. So the evidence, if you look at that timeline, and I could go into it in great detail, But what the evidence showed and what the reasonable inferences from it were was, number one,

ELEC had Maggie's passcode. He did not have Paul's passcode. You might need to stick closer to the mic. I apologize. All right. So he did not have Paul's passcode. Paul's phone, Paul's laying face down, and his phone is laying just on the outside of his rear end, outside of his pocket. And in fact, the defendant told police that he picked up the phone or he tried to turn Paul over,

and the phone just popped out. Okay. But what's interesting about that is what's so crucial about the time of death and the forensic timeline, as we call it, establishing that time of death, is that Paul was actively in a conversation with his buddy, Rogan Gibson, and that's who the Kennel video was for. But he never completed that conversation. And both Paul and Maggie's phone go silent forever and ever amen at 849, about 30 seconds apart. Well, Rogan continues to try to contact Paul, all right?

And so when we look at contact on Paul's phone, there's somebody who actually looked at it, and the backlight came on, which is indicative of somebody, the face ID, not recognizing who it was. But as we know, those phones will display like messages coming in. And very interestingly, Alec Murdoch, in the wake of the brutal murders of his wife and son, yeah, he calls his brother. But then before he starts calling all these other family members, he's blowing up Rogan Gibson's phone. So the inference is that he saw that. He can't get into Paul's phone, but he's concerned about Rogan. The other inference is that he takes Maggie's phone with him because we see steps on her phone, and we also see activity of the orientation changing. And that orientation will only be logged if the backlight is on. And so when he gets back to the house, that's all of a so when his phone comes alive. From 902 to 906, there are 283 steps.

But at the same time, we're seeing orientation changes, and he is calling Maggie's phone. In fact, we can see an orientation change two seconds before the call comes in, which is certainly susceptible to the inference that whoever's calling is looking to see that call come in, like somebody who's manufacturing an alibi, like somebody who tells the police in his first interview. Look at my phone. I was calling Maggie. He calls her multiple times while he is running around like a chicken with his head cut off and then jumps in the car. And even though he said that Maggie came home because he asked her. or she was worried about him, and Marion Proctor testified that Maggie came home to go visit Miss Libby. After all of that, and he's blowing up her phone, he doesn't take the hundred yards down to the kennels to drive by there.

So, again, not to argue the facts, but all of this was very indicative when you look at this timeline of ELEC, looking at Paul's phone, leaving it there, taking Maggie's phone, taking it up there, start manufacturing, making sure those calls are coming in, and then as he's leaving out in a haste, he's leaving out. out of the Moselle slinging the phone out on the road. And the reason why the backlight, there wasn't an orientation change for that, is because the backlight didn't come on. And that was the point of McManagel's testimony. I'm not asking you specifically. I want to change gears to 404. I'm not asking you specifically in this case,

because I know you believe your motive is very plausible. But in general, how plausible does motive have to be? I mean, could a prosecutor, won't evidence in and work backwards from there. How does trial judge analyze that? Well, I think that the trial judge is fundamentally the gatekeeper and ultimately has to analyze that under the 404 test, which is it relevant?

Is it fall under an exception? Is there a logical connection? Is it clear and convincing? And is it, you know, the 403 analysis? I think that... So not just... not just the evidence you're trying to admit as motive, but the motive itself has to go through a 404 analysis.

Is that what you're saying to me? Well, I'm saying that the evidence that's being presented, every bit of it, yes, has to go through that and be part of that 404 analysis. But I think here, and I'll talk about this, that there's an unbroken chain, and that's why the extent, which it was extensive, but there's a reason why, and it's not, it wasn't overkill, it wasn't cumulative. But yes, the trial judge is absolutely the gatekeeper for that.

Now, what we did here, and I think this is the best practice, is we wrote a detailed pretrial motion and laid it entirely out, wrote out every bit of it, wrote out the entire theory, and put that out for the defense and said, Judge, defense, this is what we're planning on doing. And in opening, I was very careful. I just said, there's going to be things going on in his life. I didn't talk at all about that. And then we did the in-camera hearing, and we were very careful. And before I even broached those subjects, I raised that to the trial judge. to ensure that the entirety of that was being considered. Was there any 404B that was disallowed?

There was. So there was 404 of evidence of an affair that Marion Proctor and Maggie's concern about affair that he excluded as too remote. And then there was a side of the road and narcotics evidence, but ultimately that eventually came into play because of opening the door. Was there any 404B related to financial crimes that was disallowed? I think no, but I think that we... That's what concerns, I mean, I want to just gently push back and give you an opportunity to respond.

Yes, the judge is a gatekeeper. Unlike the federal counterpart of 404B, our case law has said that our version of 404B is a rule of exclusion, not inclusion. And the gate here was just left open. and I couldn't find any example of financial crime evidence that was excluded. And the granular detail in the expansiveness of which everything under the sun was allowed is arguably problematic. Even the nature of the victims, there are many examples here. And I want you to respond. share one. I think his name is Tony Satterfield was testifying. Well, we had to hear about the disabled

brother. How is that relate to motive evidence? That appears to be that not only is he a thief with a motive for murder, he's a despicable low-life character. I mean, the very evil that 404B is designed to prevent, and then ultimately 403 is the final safeguard. Right. Well, first of all, I'll say that this was never argued nor presented as propensity evidence. And frankly, this court has recognized, and other courts have recognized that the less likelihood of propensity when there's a vast difference between the type of 404 crime and the crime at issued. You know, once a stealing white-collar lawyer are always a wife and son murder. That's never was the inference and all the rest of it. Satterfield was independently relevant. And we streamlined this inquiry intentionally. And the defense made their general objection to the 404, but never. did once we kind of crossed through that door. We presented all of that in camera, never made any specific like, you know, limit this part, limit that part. We tried to streamline it all. The only reason

Satterfield was a witness who testified specifically was because Satterfield was one of the factors in the gathering storm. Satterfield, of course, there had testified that appellant had reached out to him and that he had reached out to appellant in the months leading up to the murders, I think even in June of 2021 asking about the case and about the settlement. And Alec, of course, is lying to him and saying, yeah, I'm still working on the case. I'm still going. But the reality is, is that he stole almost $3.4 million and had spent it two years ago. But what did one of the Satterfield children's status as mentally disabled have to do with any of that? Well, I think the point of that was just sort of the background of how Ellick had interacted with them and how he, this was a family

that was close to him. Did the fact that the young man was disabled add to the fact that he stole? I think what it added to, again, was we had a witness who was testifying for independent purposes, and that was just a background fact of the pressures on Alec because he had taken this family under his wing, a family who had one individual that he had told, I'm going to help you, I'm going to take care of you, one of whom had special needs, he had spent all of that money. They're asking questions about it. The sympathy directed toward the victims of the crime is not related to the motive. If he's a thief, and that was the motive for doing it, this extraneous information that tugs at your heartstrings is not related to that. And like when I asked you the question earlier, you responded by immediately segueing back to the financial crime itself.

Right. Not this extraneous stuff of every granular detail of his acts of theft. Right. And I will just say in putting that in, that was just we had a witness testifying. That was part of the background information that witness testified to. And that, again, it was part of his interactions with this family that was. part of the pressures, one of a myriad of factors that were all coming to ahead in June of 2021. If you had condensed your theory of motive, the whole gathering storm thing, down to the essentials

and left out all the stuff that the Chief Justice and Justice James were talking about, and in my view, you could have done that in about an hour and a half or two hours. You took 12 and a half hours to do it. So then you're taking that condensed version. You're presenting it to the judge to try to establish a logical connection. This is following up on something Justice Verdon asked and also asked the same question of Jim Griffin. Right. What is the level of inquiry that the trial judge goes into

to kind of get to the legitimacy of the theory of motive? Obviously, the jury would be the ultimate decision maker on that. But to what extent should the trial judge question whether it's a valid and legitimate theory? of motive. Well, I think that the words of the logical connection are there. And I think that as far as the trial and the clear and convincing nature of the evidence, but I think as long as it is a passable theory of motive, and that motive is logically connected to the underlying crime, then ultimately, as you say, it's for the... In all the cases that we've, that, that I

think we've looked at this logical connection question, it's been either easy, yes, there's a logical connection, or easy, no, there's not one. Right. Here, it's not easy. It's debatable, right? Your Honor, I would say, and if you'll permit me, I'll go through while these are all connected and why this is. This is a unique situation, and it demands, it's a complicated situation, and I would submit demands a complicated analysis of the law. It's not the typical case where you have a one-off crime, you know, a few hours. It's not Adams, right, where it's an armed robbery just a couple hours before, and they're smoking crack and that sort of thing. This is a long, unbroken chain. And, Your Honor, you can't understand the boiling point, which was crucial to the state's motive.

And I always say motive is not an element, but it's the only element. And particularly in a case like this where it's the murder of a wife and son. It is what everyone wants to know. And there's nothing far, there's no disconnect between someone having a financial motive for a crime. I mean, it's in the movies. It's in Fargo. It's in, you know, the... I hadn't seen Fargo.

Get to the point. All right, yes, sir. All right, but I'm just saying this is a number of movies. But let's look at why this is all interconnected. First of all, it's all interconnected, despite the temporal time period. Because what's relevant to motive is what is in the appellant's mind, okay? And what he knows is potentially going to be and is about to be

exposed. And that's all of it. And frankly, it eventually was. So what is relevant is not, well, it was just yesterday or it was last week or it was a year ago. What is relevant is what does he know all is about to come out? And that's a decade of him constantly staying one step of the head of the game through one theft as another. And that brings up the second point that this is all interconnected. It's an unbroken chain. And you can't truly understand in what is crucial motive. You can't truly understand the boiling point if you don't understand the slow burn leading up to that. Okay? And the defense put motive an issue as right.

Their biggest thing was, frankly, character evidence of he's father of the year. There's no way he could have done this. So this, in the case law says that where motive is a central issue like that, that there is a wider scope. But let's talk about it's interconnected. The jury could not understand the full weight of the pressures if they didn't understand that entire criminal financial history. You can't understand the need for it.

it without understanding the lifestyle, the bad real estate deals, the max out loans. You can't understand the badger theft of over a million dollars if you don't understand that they had, with his bank co-conspirator, had stolen a million dollars from the plier loans, and that had to be accounted for. You can't understand the need for fake forge and why he did that if you don't understand the complications of having to steal that. I think all of that is completely accurate. The disconnect that the defense is getting at and that I'm trying to ask you about,

occurs when he takes the what what the judge called some sort of urgency he had a nice phrase he used when he was ruling on it what how do you get from that to murdering your wife and son that's the disconnect that the defense is focusing on they're not focused on the disconnect between ford forge and stealing money that everybody understands that and my question is when analyzing that disconnect, what's the point of law? What's the rule of law that we look at that the trial judge looks at? Well, again, I think that the trial judge makes that determination of whether there's a logical connection and whether or not the evidence is clear and convincing. And I understand that under South Carolina, there is a gatekeeping function that is there. But I think that as long as

that there's... Let me just throw out a couple of examples, and I'm going to leave this alone. Obviously, you think there's a logical connection. Is that enough for the trial judge? or does the trial judge have to decide for him or herself whether there's a logical connection? Or does the trial judge have to look at whether there's a reasonable possibility that the jury might find there's a logical connection? I would assert that the trial judge should look to whether or not that is a reasonable inference from the evidence. And if it's a reasonable inference, and then it should go to the jury. I mean, that's what we do with all sorts of evidence is determine whether or not there's a reasonable inference from this evidence. and if so, reasonable inferences are for the jury.

Can I follow up on that? Yes, sir. I think Justice Few wrote State v. Perry, and it... I wrote three-fifths of it. Yeah, it's... It helps the Forest Gump and me understand it, this 404B evidence. I am also struggling with the logical connection. Your brief is excellent, phenomenally done,

but you say in the brief on page 87 that according to Perry, relevant is defined as evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable, so forth and so on. You emphasize the word any, and what I fear is if we get on that train and emphasize the word any that allows speculation to enter the room help me out with that because i would accept uh you emphasize in your brief boat wreck boat wreck that's all ellic murlock wanted to talk about when he was on video right um i get that so i think there's clear evidence of motive for him perhaps to kill paul because this boat wreck case was becoming an anchor around his neck

and then you could stop right there or get into the boat wreck accusation more. But your emphasis of the word any, to piggyback on what Justice Few was saying, I'm struggling with the logical connection that comes from the word any. That seems to me you're just saying whatever we say that makes sense, let's stick with it. Well, by emphasizing that word, I don't think, and I'm not at all trying to assert that any sort of speculation would be sufficient. What I am saying is, again, the word's logical connection. And I think that if it is a reasonable inference, as I just said, I'm not saying that the trial court should just entertain any speculation or any sort of fanciful thing that they come up with. I would, though, encourage y'all, though, to look, you know, not only at the brief,

but look at the filing that we did beforehand and look at the powerpoints and look at the closing argument that, you know, this is not just a speculative motive. This all ties together. And I had a whole series of how I could go through all of that. Of all, I think there's about 10 factors of all things that were all coming to ahead, all of that gathering storm that were coming ahead to that day. And that ultimately this, if you're looking at the validity of this, it actually worked. it actually worked because when all of this happened you know paul who you just mentioned had become that liability well maggie was too okay her name was on edisto her name was on moselle and and he was at the end of his rope and unable to uh to move like he needed to move financially and out of options

he had burned through seven hundred ninety two thousand dollars in less than two months and all of these things were coming to a head but when this happened everything changed all of a sudden he was the center of attention. All of a sudden, the sympathy factor kicked in. All the inquiry stopped, and the boat hearing stopped. The plaintiff in the boat hearing said, you know, this has totally changed the balance of my case. And what did he set about doing? There was testimony that he wasn't overly concerned about Buster's security. He wasn't overly concerned about going after the real colors, but you know what he did do? He fixed the glitch. He fixed the glitch so that his lawyer friend would send back most or at least send an email saying all the money's here and put that to bed.

So if we're looking for that logical connection, whatever standard is applied, this is not speculative. I understand that it can be hard to accept that why would somebody do this, but that's precisely why this mode of evidence was so probative and so important. And even though this is a unique case and a unique maybe lifetime set of facts that will never be seen again, that's all the more reason why. why this needed to be admitted and for the jury to fully understand this unique individual from a unique background and a unique set of family circumstances and a unique lifestyle and a unique history that all was about to come unraveled and that was more important to him at anything

and that when this action took place not only did two of his liabilities go away but all of those hounds at the gate went away as well and if it wasn't for a check falling out of a file a few months later, it might have worked. It worked for a couple of months. I got one more question to go back. What does it mean when something's not on his extraction? It means that, well, the inference from that is that the user or someone deleted it. Thank you. I ask a question about Toolmark. Sure. Justice He has a question, sir. Yeah, I want to flip over to talk about the Toolmark testimony by Mr. Greer. There are a lot of cases around the country. that have held that this idea of examining shell casings for two marks is a valid method in trying to determine which guns a cartridge was cycled through.

In fact, I'm not aware of any that go to the other direction. So abstractly, it seems to me like it's a, it's a. a valid theory. Maybe not. I'm just setting that aside for purposes of my question. But our cases have required not only that the theory be valid in the abstract, but that the theory be reliably applied. Justice Hill wrote about this and Warner at the Court of Appeals. We decided a case called Galloway recently where we stressed it. And really, I think if you go all the way back to Watson, that's what the court was talking about. As I read this record, there's nothing I mean, literally zero about how Paul Greer used the method.

He says he used it, but he didn't show, he didn't say, he didn't say, I found four different individual markings. He didn't say, here they are, here's where they were, nothing. And the thing that really troubles me about that is during the cross-examination by Mr. Griffin, I think this was in front of the jury. Mr. Griffin says, isn't it your opinion in this case about the shell cartridges being fired from the same 300 blackout? Isn't that based upon your presumption that each 300 blackout manufactured in the world makes unique tool marks when it cycles? a bullet and ejects it. Now, that's a legit question. For a toolmark and firearms examiner, in my view of it, there's only one answer, and it only has one word. And the answer is yes.

It's like DNA. If DNA is not different in every individual than the fact that DNA, it would be of no use to anybody. Fingerprints are the same way. If fingerprints weren't unique to every individual, then we wouldn't have fingerprint evidence. We also don't have toolmark analysis of cycled gun cartridges unless each gun makes a unique individual mark, right? Yes, sir. So when you don't tell the jury anything about how Greer applied the method, and Greer mistakenly fails to discuss the central theory of the whole method. How have you demonstrated to the judge that the theory was validly and reliably applied in this case to these facts? Yes, sir.

Well, I think as we look at the specifics of the testimony, and I would start with, I think, with this issue and frankly the TARP issue and the cell phone issue that these are questions that go to wait not admissibility. And I understand what you're saying. Judge Hill said in Warner or what this court said in Galloway, that's not the law. Right. Well, ultimately, I think that in this particular instance, if you look at the entirety of his testimony, he went through the acceptance generally of this for over 100 years. He went through the sled procedures. He went through the acceptance and peer review and journals and the quality control procedures, the blind review. So while there may not have been a more specific explanation of that, the general discussion of the applicability and the reliability of the science was clearly in this record.

And on top of that, I will also point to this that was in the record that shows that reliability. There's two things. Number one is that the examiner was able to distinguish between the cases around Maggie's body and the cases outside the gun room door and the cases across the street and say that those were all cycled from the same weapon, but was able to distinguish those from matching it to the one blackout that was recovered. Okay. And so that distinguishing right there shows an inherent reliability to the science. And on top of that, then another blind examiner, blind examiner, came up with that same conclusion. So that ability that was in the record to separate the wheat from the chaff answers the question, even if it wasn't explicitly answered, as Your Honor points out. Thank you for your answer. Mr. Ward, thank you so much. Appreciate your argument, sir. Thank you, Chief Justice. In the court. Mr. Barber, you're going to have no reply.

Mr. Chief Justice, may it please the court. Let me, I want to ask you because it's fresh. You don't get free minutes. I interrupted. I was listening very carefully to all the arguments. Mr. Waters was trying to defend the admissibility of the expansive nature of the 404B. And I thought he made a very compelling point. Because one cannot fully understand, I think he's the word bowling point,

without all of these interconnected parts. And so that's the logical connection that gives the judge the discretion to allow the fact finder to consider the evidence. So I'd like you to address that 404B issue, and particularly that position argued by the state. Yes, Your Honor. I thought that the strongest point I really counter that was look at what was actually admitted. We had the victim impact testimony from the financial crimes,

which I think the questions made clear have no connection. What did they connect to? Mr. Waters had a theme through his examination of all the witnesses. He asked every one of them, did you know the real Alec? Did you know, did you really know him? That was a question that was asked every single acquaintance. Did you really know him? You didn't really know him, did you?

The theme there, clearly, was that you didn't really know he's really capable of anything. He's a bad person. You don't know what he's capable of. And that's why that evidence was, that's why you had the mentally disabled, you know, victim of a financial crime, which has nothing to do with the supposed motive of I need to conceal something because I might get caught, right? It has to do with, you don't really know me. I'm a really bad person. And because you don't really know me, you don't know what I'm capable of.

So please speculate that I'm capable of murdering my wife and my child. That was the purpose of that evidence. We didn't have, whatever it was, 12 days, a financial crime testimony just to prove the fact that he, stole a bunch of money and might possibly have had some fear that he might one day be caught for having stolen that money. And then the speculation is what he wanted a distraction. And we can talk about why this would, you know, the logical leap to I'll just murder my family and be the center of attention and how that's somehow going to get scrutiny off

of me. Obviously doesn't make a lot of sense. And I think he, more than most people, is in a position to know, given his background that putting himself at the middle of a high-profile murder investigation is not the best way to distract attention from his own affairs. So I believe that's why there's, that's the logical disconnect. And then the real reason that it's admitted is this trial theme that you'll see in every single witness who had a personal acquaintance with him, every single one asked, did you know the real Alex Smyrdoff? And that's why that was admitted. Thank you, sir. If I would, if I could, I would like to

speak a little bit to the cell phone questions that both I believe respectfully maybe the factual predicate behind some of the questions might have been a little off by way of a very quick background the phone the iPhone has a database that records with a timestamp every time does the light the screen lights up every time it goes off various events will cause the screen to come on and off an incoming phone call turns it on it stays on for a period of time it turns off, incoming text messages, other kinds of alerts. And then there's this rise-to-wake feature, which is slight movement of picking up the phone, causes it to come on and off. Now, there's an entirely separate feature called an orientation change, which is it moves a different way

enough to rotate the screen we've all seen from portrait to landscape, and that only happens if the screen's already lit. The importance of all this is Maggie's phone's screen was lit continuously from about 902 to almost 907 p.m. Right. So it's lit that whole time. It did not just suddenly light up at 906 and 12 seconds. At 906 and 12 seconds, what happened was the final orientation change, which was a process that took eight seconds and ended at 906 and 20 seconds.

Right. And at that time, at that exact time, there was an incoming call from Alec Murat. Right. So it's rotating. Someone is rotating it while he's calling the phone. Her phone was lit up. that whole first, you know, five, six minutes because he was called for a phone, I believe,

three times, texted one time. It stays on for a minute after. That's why it stayed on the whole time. So we, we, it could have, if the issue is with the screen lit, it was lit at 904, 905, 906. So if throwing it out of the moving car causes the screen to light up, it could have been thrown out at any of those times. But it goes off before, 908 and 20 seconds, which is when he, we now know, drove by the point where it was recovered. So the screen is off that whole time. It doesn't come on again until there's another call, you know, 20 minutes later, right? So it's dark the whole time he passes it.

So the issue is... This is all directed at my questioning Mr. Griffin about the importance of the expert, of the testimony, the evidence. Yes, Your Honor, absolutely. answer is that it's important if the murder occurred between 902 and 907. Why is it important if the murder occurred after 908? Your Honor, it's not when the murder occurred. It's when after the murders, when a phone is thrown to the side of the road. Right, but the phone wouldn't have been thrown to the side of the road before the murder. Correct. The point is that at the time

that we know for certainty, the defendant drove past where the phone was thrown, The screen never came on. There's a long period of time before that when the screen is on continuously. You make a great point. If all this occurred before 907, then my questions to Mr. Griffith were, as you pointed out, factually flawed. But if it all occurred after 908, now you answer the question because I think the validity of my question is now squarely on the table. If your question is, could it have been thrown out after 908 p.m., then the answer, would be that would be inconsistent with the screen not coming on. Yes. The point is the phone had to be

thrown out before he drove past that spot. And that fact was not known until near the close of the state's case, right? Because somebody at General Motors was watching the trial, saw when the FBI agent testified on cross that they don't cooperate with murder investigation, somebody took exception to that, and they produced accurate data. I mean, to, to just, to, to, to, to, to, you know, to, to, to, to, you know, pretty much every three seconds, not from his vehicle, but from a server, General Motors keeps, you know, far away tracking his every movement, even though it was years earlier. And so all of a sudden, we know exactly where he is and know, with certainty, it's to the second when he drives past that spot, and we know that the phone is dark the whole time. So the question becomes, is it possible

to throw the phone out at that moment without the light coming on? And as Mr. Griffin said, we don't know how it got there. Somebody could have stopped the car in general. put it out, but we know he didn't do that. So that's the central question. And the testimony from the defense was, here's the feature, everyone can see it. I'm not qualified to say whether throwing it from a car will cause it to do whatever. We had an accident reconstruction guy who was qualified to say that. But then the defense rebuttal expert, they bring in a chain of custody expert from their direct who says, well, I threw it around my office. No one saw me do it. But I'm here to offer you what Mr. Waters accurately described as an expert opinion that if it's a gentle motion,

this is what it does, but if it's a violent motion, this is what it does, and this is why it's programmed to do and behave in that fashion, that's clearly expert testimony. It was well beyond his expertise, who was offered as somebody who knows how to use CELAWrite to download the extractions that we've been talking about. And as to the preservation, it was immediate objections as soon as this came out. The motion was renewed the first time the jury left the room. The judge ruled, Judge Newman ruled for the reasons he gave on the record, which we assign error to. It was not an untimeliness ruling.

So I don't believe that there's merit to the preservation argument there. The judge even said that the objection was preserved for the record. Is there any dispute that Mr. Murdoch called 911, 20 seconds after OnStar recorded that he arrived at the scene where the bodies were? No, no, there's the time stamps that OnStar produced and the 911 time steps are not in dispute. I would note that the nature is a rural area and just because you first got there, you know, it's dark. You don't necessarily immediately see someone the first second OnStar says that you pull up and you've got to get out and look and then his phone is connected to the Bluetooth, you know. Well, what do you say to the state's argument that that's not enough time for him to do what he said he did, which was. go check on the bodies, which were 30 feet apart.

In 20 seconds, to look at two bodies, they're 30 feet apart, I don't think that's impractical at all. I think I could, if you think about one, a pace is about three feet. If you're alarmed, you could take a pace in less than a second, right? That's not, you don't even have to break a run to do that. Can you respond to Mr. Waters? comments or argument about the clerk of court absolutely your honor uh i think the most important point to uh to point out with that is that there was absolutely no finding by uh just uh judge told

that jose was dishonest that is not a finding she said he was she said she was ambivalent uh your honor she said that only as to her response to the question forbidden by 606B about the influence this had on her deliberations in the deliberation room. She said she was ambivalent whether it was that or pressure from other jurors during deliberations. There was no question of her credibility when she was recounting what clerk Hill said to her before deliberations began. None. The only evidence presented at that hearing, the only evidence contradicting anything juror Z said or the alternate said or that was proffered by the egg juror in affidavit. The only evidence whatsoever was the testimony of clerk of court Becky Hill. It was not credible at the time, and it turns

out that Judge Toll was good at judging credibility because it has since come out that she perjured herself at that hearing when testifying about a different issue, but about her conduct at the trial. So the testimony of her perjurer at that hearing, admitted perjurer, is the only evidence contradicting the statements, the sworn statements from juror from the alternate juror from the sworn affidavit of the egg juror. So our position would be that it is wholly, would be, would be wholly unsupported by the record to credit that denial from Cork Hill over all the other evidence in the record, that that would, if that finding were made, which the state argues was implicitly made, certainly was explicitly made, that that would be an abuse of the

discretion. However, we argue that that wasn't implicitly made because Judge Toll didn't reach these sort of almost nitpicking was this said versus that said. She found that in her word exactly was improper. Improper comments were made to the jury. She found that it was a deliberate attempt to influence the jury that she had a book deal. That was all found. But it didn't matter whether it was this comment or that because her decision was controlled by an error of law, which was essentially that the defense had the burden to show some sort of but-for causation to the verdict. It didn't matter to her, because it didn't affect the verdict. Whatever was said was improper, but the verdict would have been the same no matter what. That's the written order. And that is the

error of law because the prejudice, which has to be shown, is the prejudice to the fair trial, which is that these things were said to the jurors, right? That's the bias. Right. This was said to the juror, that's the bias. We've shown the prejudice when we've shown that it's been said to the juror because now we don't have an impartial jury. There's no need to show the effect of the bias on the verdict. He says the comments were fleeting and innocuous. And Judge Toll said limited in subject and not overt as to opinion. Yes, Your Honor. And maybe to address a question I was asked at the very beginning, is that a question of factor law? What was, it's a compound question. What was said is a question of fact, characterizing it as an application of law

or a fact is a mixed question. To the extent, you have to disaggregate it and say, well, what was said? Again, the only evidence in the record, right, if unless you were to accept the found to be not credible testimony of Clerk Hill, who's also perjured herself, the only evidence in the record is that Those don't believe the defense was said. Don't be fooled by the defense. That's the evidence in the record. All right. So given that said, to characterize that as neutral as opinion,

is an abuse of discretion and it is a misapplication of law to those facts. To find that that wasn't said would also be an abuse of discretion because it would be a finding wholly unsupported by the record. Maybe one. I'm just going to remark that it's not fair to, you and Mr. Waters, you all had to talk about every issue and these other two dead beats over here, only had to talk about half of them. But are you good to talk a little bit about some of the real nuances of the Toilmark?

Absolutely. Okay. You put in in the pretrial hearing, or Mr. Griffin did, so the theory of Toolmark is set forth in several documents that have been widely circulated and published by the AFT and so forth. But there have been criticisms of those. And one of the most striking ones is this idea that how they reach a conclusion is circular. And that makes some sense, really.

But my question to you is, isn't it, wouldn't you say that those criticisms go more to the application of the theory than they do to the validity of the theory? Yes, Your Honor. could, it's important to, I think the best way to look at it is to compare it to DNA of it. It's because it's so striking, right? Everything in the universe is unique, right? The tool marks are all unique. The question is, do we have a process that can reliably distinguish, you know, the cause of this mark to the exclusion of all others, right?

That's the actual question. I did this process, and I can say, you know, with some degree of certainty, that, you know, these two tool marks are made by the same weapon. and not two different ways. To shorten it up, I'm suggesting that you just asked a really good question, do we have a process to differentiate? And I'm suggesting that these criticisms that have been published, particularly this idea of the circular thing, would answer that question, yes, we have a process. And it works. It's valid.

But it has to be meticulously applied. Is that a fair way of interpreting those criticisms? It's certainly fair. where I was trying to go with that is with DNA evidence, as the court knows, from the many DNA cases that it's had recently, these differences are quantified, and you get a very, you know, one in eight billion or whatever chance that these, you know, came from different people that we say it's a match, right? Here, you know, you have this very circular and very subjective. What you have in the end is two marks that look really similar, and somebody eyeballs them and makes a subjective judgment call that these two look really similar.

And our basis for that is circular because we say, well, I look at this part and that part, and it's like, well, how do you know that that means of the same? Well, that's what we've always done. That's what they're trained to do, and it's very circular. The theory says you have to find whether they match. And the next question is, well, how do you know that? And you say, you have to find sufficient alignment. And nobody ever comes down with a hard rule.

Like, you've got to find five marks on the same cartridge that are identical to the five marks on this cartridge. Whereas with DNA, particularly with the ideas like touch DNA, you have the experts saying, I was able to identify eight pairs of chromosomes and that, and they matched to what was at the crime scene or that to what we found from the defendant, and that gives a one in one million chance that it is somebody else. And to do anything like that with Toolmark, you would have to quantify the similarity in different. of the tool marks. And that's what I'm getting at is all of that goes to the application of the theory, I think, not to the abstract validity of the theory.

Absolutely. And there could be a day that with computers or AI that you can quantify and do something differently. But right now, having somebody eyeball it and say they look pretty similar to me, I think they're the same. That's not a reliable application of the theory. It's totally subjective. It's not quantified in any way.

and it's certainly not something that could be subject to any sort of... Oh, I'm trying to get you to concede that the theory is valid. I was really just trying to focus in on the importance of an explanation of how the theory is applied in an individual case. Thank you. No further question? Hearing no other questions, Mr. Barber, thank you so much. Thank you, Your Honor. On behalf of the entire court, I want to commend excellent counsel on both sides, thorough detail.

briefs very helpful to the court and its staff that is combined with arguments that reflected a commendable command of this lengthy and complex record together with applicable law and it has all resulted in excellent arguments today you've represented your respective positions professionally and we have all on the court commend counsel for both sides. We are adjourned. True Sunlight is a Luna Shark production created by me, Mandy Matney, co-hosted and reported by journalist Liz Farrell, research support provided by Beth Braden, audio production support provided by Jamie Hoffman and Grace Hills, case file management provided by Kate Thomas. Learn more about

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