Speaker 1 (00:00):
(silence)
Judge (00:00):
Please be seated. Good morning.
Speaker 2 (00:00):
Good morning.
Judge (00:00):
All right. I'm going to ask the court to call the case, please.
Speaker 3 (00:00):
May it please the court, Your Honor.
Judge (00:00):
Yes, sir.
Speaker 3 (35:26):
This is the State of South Carolina v. Richard Alexander Murdaugh, [inaudible 00:35:31] number 2022GS15592 through 595.
Judge (35:30):
Thank you. All right. I scheduled this pretrial conference and I think I told everybody-
Mr. Harpootlian (35:32):
Your Honor, I hate to interrupt you, but Mr. Murdaugh-
Judge (35:47):
Oh, I'm sorry.
Mr. Harpootlian (35:48):
He's on the way. I apologize for interrupting.
Judge (35:53):
No, no, no. I don't want him to miss anything. Short people. I don't know if it's any better, but it'll do.
(36:33)
I don't know how that works.
(36:34)
Okay, let's go back on the record then. I scheduled this pretrial conference for today. I had told the lawyers at the last pretrial conference that I would have one once the DNA samples came back. So that's why I scheduled this. And then I saw a bunch of other motions that probably needed to be heard so it won't interfere with my trial date of April the 5th. So we will go through those. But before we get started, let me do just a little housekeeping, catch everybody up. Everybody knows venue's in Sumter. Today is ... We have Jamie Campbell here, who is ... Jamie, if you'd stand, just so the lawyers will know who you are, the clerk of court from Sumter is here and I asked him to join us today.
(38:12)
In making my decision for Sumter, the number one ... Several reasons, but security, technology, infrastructure and cost were at the top of my list. I will tell the lawyers the technology in Sumter is amazing. They have an IT technician who is willing to help both of you, the state and the defense with anything that you need, any kind of electronic equipment. So I would ask both sides to reach out to Mr. Campbell and that way we can be prepared and if you need anything, they can help you get that done. I've also arranged for each, the state and the defense to have, for a lack of a better word, a war room. After reading your motions, I think it's appropriate that I call it the war rooms. So I think there's two rooms for each side. Is that correct?
Speaker 4 (39:22):
Yes, ma'am, Your Honor.
Judge (39:23):
You'll have tables and chairs, so it might behoove you to get to Sumter and go look. I just know that it's nice to have somewhere in the courthouse that you can put your belongings and witnesses and everything. So hopefully that will be helpful to you. I'm really happy with the security at the courthouse. They have a sallyport. There's also secured parking. I think that will be beneficial to everyone. There's ample parking for the public and the media. There's also a jury assembly room, which is nice. Most courthouses don't have that. We don't have that here. So jury assembly room is nice.
(40:11)
The November 13th pretrial will be the last hearing here in Lexington County. All other hearings will be held at the Sumter County Courthouse. Now also I believe, is the Colleton clerk here? Okay, there you are. I'm going to ask the lawyers when this hearing's over with, if you would please speak with the Colleton clerk about the evidence that he has from the first trial. He would like to speak with y'all about that. I would also, I'm hoping this would make life a little bit easier for the lawyers. I would like to transfer the file from Colleton to the Sumter County Courthouse. It's my understanding that this could be done by an order. However, I would like to have the consent of the parties. This would mean that the entire file will be at the Sumter County courthouse and all future filings beginning in January would be filed in Sumter instead of Colleton. Any ...
Mr. Waters (41:29):
No objection, Your Honor.
Judge (41:31):
Mr. Harpootlian?
Mr. Harpootlian (41:32):
Your Honor, when you say the file, are we talking about the exhibits too or just the paper?
Judge (41:40):
The file. The whole entire file that Colleton has. I was going to transfer over if there's exhibits there, I guess. I don't know if y'all picked up your exhibits from the last trial. You can talk to the Colleton clerk about that. I'm asking you to do that after this trial, but just for filing the entire file from Colleton, and then when the case is over with, we certainly will transfer it back to Colleton where it belongs. But I just thought it would be easier for filing.
Mr. Harpootlian (42:13):
No objection.
Judge (42:14):
Okay. Then I'm going to do that and I will start that after November 13th. So any motions that need to be filed for the November 13th pretrial, please file them in Colleton and then afterwards we'll move everything to Sumter to make life a little bit easier for everybody. All right. I've got three issues I want to talk about today. That would be DNA, the ballistics, and is it the FARO scan? There's a couple of other things that I'll take up at the end, but I've read everyone's motions and I want to ... There's an item, item 25.1. First, I've heard about it. It hasn't been in front of the court before. The state is objecting to this, but the defense is asking, I guess there were some DNA swabs, is that right, from the side of Maggie's phone? Is that what 25.1 ... That's what I gathered.
Mr. Waters (43:37):
25.1 was swabs from Maggie's phone and some of the swabs were analyzed by SLED.
Judge (43:47):
There were four swabs?
Mr. Waters (43:48):
Right. There are, to my understanding, two quarter portions of the swab remaining as well as the extract. And again, Your Honor, we have a whole position on, I think, the appropriate way to handle that. We're not objecting to testing, but we believe in the circumstances that we have here that there needs to be, and we're fine with independent testing. Heck, we'll even pay for it. But because this is the remainder of the sample and it is in fact untested sample, the state has a right to be privy to those results as much as the defense. And we've certainly cited some case law as that. That's the same principle that we have-
Judge (44:25):
Well, you cited California case law.
Mr. Waters (44:27):
Well, I think, I mean, I sometimes will cite California case law, but I think that they actually analyze the situation very well about the spectrum of situations that you have. The reality is, is again, we're not trying to stand in the way of anything. In fact, from the very beginning, if you look at my initial communications, my whole point was to try to be fair to both sides and to facilitate communication. But I also am saying there is untested sample here in both the 70 and 71 as well as the 25.1.
Judge (44:55):
Well, what I gathered was that you're saying, or at least what your motion, and I had a question to ask, I highlighted it, is that I'm not real sure I know what kind of test that the state did or did not do because it's my understanding you said there wasn't enough DNA to test. Is that right? Or to enter into CODIS from 25. 1?
Mr. Waters (45:31):
25.1, no. They did the [inaudible 00:45:33], they used GlobalFiler and then ultimately attempt to develop a profile. There was insufficient information to develop a profile based on the scientific standards that exist and insufficient information ultimately to put that into CODIS. And so that is the procedure that is done. Now-
Judge (45:47):
Well, has that changed? That was what, back in 2021? This is 2026. Have you asked to see if it's changed?
Mr. Waters (45:53):
Well, the results would not have changed from the sample that was examined before that. Now again, there is remaining untested sample and there's extract. We're happy we can provide that extract, but as to the same point holds as to untested reserve sample, that is still the state's evidence that is untested sample. And we're happy because of the limited nature of it, just as we suggested with the Othram stuff, to have an independent test to which both sides are privy to that-
Judge (46:29):
Mr. Waters, I don't know that you can hog in on the defense's right to independent testing.
Mr. Waters (46:36):
I don't think that we're hogging in. And again, I think that's why those California cases are instructive. If we had a ton of sample and there was enough for everybody to do as many tests as they want-
Judge (46:46):
We wouldn't be arguing.
Mr. Waters (46:47):
We wouldn't be arguing. And I'd be the first to be, there's not a problem here. But the courts have said that when you're in these, and the courts have said that where you have just enough for one, that the defense has no right to essentially take that away and consume it all. But when you have-
Judge (47:00):
What case is that?
Mr. Waters (47:01):
That would be People v. Varghese and it was talking about-
Judge (47:05):
Is this the California case?
Mr. Waters (47:06):
This is the California case, which really had a great way of analyzing the spectrum of the situations that we're in, which is why I cited it. But ultimately the middle ground is kind of where we're at, where there's enough for essentially a second. And the courts have said that it's appropriate in that instance to have an independent test to which both parties are present. And I think that's even highlighted here when you're talking about previously untested reserve sample. And that's what we're asking. I mean, the test can be whatever it is, but under the situation that we have, under the state's burden of proof and its obligation to the evidence, in this particular situation, having an independent test that both sides are privy to is a fair result and an appropriate result. If we had more sample, I'd be the first to say y'all can have all of that and we'll have all of this, but that's not the situation that we're in. Now we've already -
Judge (47:58):
Let me ask the defense, what is it that you want and what kind of test do you intend to perform on it if the court gives it to you?
Mr. Barber (48:08):
Your Honor, we would intend to perform a Y-STR test on the phone sample. And I think it would be helpful to explain how we got here, of course. We were talking about initially fingernails because SLED produced the DNA report before the first trial that said for item 70, the left fingernail clippings from Margaret Murdaugh, that there was some amount of unknown male DNA that's not Mr. Murdaugh under the fingernails. So we wanted to do a Y-STR test on that. We asked at trial, we asked the state's DNA expert on the stand, "Why did you not perform this test?" And she said that they decided that the test is, this is a direct quote, "It is possible, but because there are so many male individuals related to each other's standards point-blank, they decided not to. It was decided not to do this further Y chromosome analysis on it."
(49:05)
So they ran the test that they wanted to do. They've had this material for five years now. They did the test they wanted to do and they said, "We decided not to do this test." Their prerogative, they didn't want to do the test. Okay. Now we would like to do the test on the leftovers. We're talking about the state's leftovers. This is not evidence that was collected that we're trying to take so the state can't test it. That's not the case here. The state had the evidence for five years, could do whatever test they wanted. They did the test they wanted, consumed some of the quantification. They're now leftovers. We want the leftovers so we can do our test, the same test that they said they chose not to do. Even after-
Judge (49:45):
And you want to do the Y-STR test on item 25.1?
Mr. Barber (49:53):
Yes, Your Honor. And the important point here is after the last hearing went to offer for this quantification, we had included in that request item 71, which is the other fingernail. And this is the important point because their report that we had before the first trial for 71 right fingernail clippings for Margaret Murdaugh results, "The DNA profile developed is attributable to Margaret Murdaugh." Period. Nothing there.
(50:18)
Well, when we got the quantification from Othram, it turns out that's not the case. There's also this unknown male DNA under her other hand. And in fact, there's twice as much under that hand as there was under item 70. That made me suspicious. So I went back and started going through the underlying, and we attached some of it to the motion, some of those numbers, underlying data. And I discovered that 25.1, the swabbing from the cell phone that was thrown at the side of the road, I think the state would say by the person who did the murders, their test result at trial, that we had at trial said, "Results, a partial DNA profile was developed due to limited information obtained and the inability to determine the number of contributors. No further interpretation will be offered." Period. That was it. We had no idea there was anything there.
(51:04)
I go back now, prompted by what we found from Othram on 71 and find out that there's unknown male DNA including some genetic material that is not present in Mr. Murdaugh, meaning a contributor who's not him, on this phone. So now we have under both fingernails of hers and her phone all has this unknown male DNA. Now maybe it's different male DNA, maybe it's the same, maybe it's red herrings as Mr. Waters said at the previous. But as we keep progressing from one hand to two hands and now the phone, it's starting to look less and less like a red herring. It still could be. The only way to know is to test. The right kind of test in the circumstance, even under SLED's own manual, which we quoted in the motions, is the Y-STR test.
(51:49)
We have a known female contributor and we want to try to get information on the male contributor. So we look at the Y chromosome and this particular test is suited to when you have a lot of the female, not so much of the male, trying to suss out as much information as you can about the male. We want to perform that test on all three samples, which are again, the leftovers after the state performed all the testing that they chose to perform. And they don't actually ...
(52:17)
And another point here, Your Honor, is they have essentially, they have represented to the court that they don't need the results. They've brought an indictment or bringing it to trial. They say they have evidence beyond a reasonable doubt of the accused guilt. They don't have any need for this evidence to test the leftovers, which is precisely why they chose not to test it on the leftovers. Now we've come along and say we want to test it. Oh, it looks like there might be something here. There are objections and they're quoting 20 and 30 some year old California cases in contravention to our own rule 5, which is the controlling authority in this case about the results. And we've now disclosed the test we want, which they knew. It's the test you can do in the circumstance that was no secret. We want that.
Judge (53:04):
Well, correct me if I'm wrong. I thought it was that SNP that you wanted to do on 70 and 71 that SLED can't do. They don't do that test.
Mr. Barber (53:17):
Yes, Your Honor. Initially when we thought all we had was what was under the left fingernails, and that's it. That's the only DNA. We thought we want to try the SNP test. However, we found out from the experts that there's too much of her DNA, not enough of the male DNA to perform that. We've also learned from them from the quantification on the other hand-
Judge (53:38):
And that's what Othram said?
Mr. Barber (53:40):
Yes. That's not an option. We've now found out that we have three different unknown male DNA samples that are connected, her left hand, her right hand, and the phone that was in her hands according to the cell phone data until the moment she was killed. So we have this connected three points unknown male DNA. We need to do the same kind of test on all three to be able to compare the results because even if the test can't give us the name of a person, it can exclude people and what we have already excludes Mr. Murdaugh because it has DNA that's not hers and not his. We know that. But if we were even able to match those three together, that would be highly material in this case. If you have an unknown person under both her fingernails and throwing the phone out of the side of the road after she's murdered and it's not him, I mean, that's extremely important to the defense.
(54:36)
Maybe not so much to the state. They chose not to test this. They had every opportunity. Again, at trial, I pressed on cross why they didn't do this test and they said on the record why they didn't do it. They made their decision. What's left are their leftovers after they did all the testing they wanted, having years to do it. We just want to test the leftovers.
Judge (54:56):
Well, let me ask you, Mr. Barber, because also in your motion it says that Othram, I guess, to do the Y-STR test is going to use up or more likely than not use up all of the DNA. Is that right?
Mr. Barber (55:16):
Yes. The leftovers are limited. They are leftovers. And to perform the test, there is enough to perform the test, but there's not enough to perform the test and then have enough leftover. [inaudible 00:55:29] be precise, consume it all here means there won't be enough left after the testing to do the testing again. That's the using it all up. There's not enough here to perform the test multiple times.
Judge (55:43):
And we don't know about what 25.1, if there's even enough to test?
Mr. Barber (55:52):
We've confirmed that there's enough to do the Y-STR test, and again, it would consume the sample.
Judge (55:59):
Okay. All right. Let me hear from you, Mr. Waters.
Mr. Waters (56:02):
Yes, ma'am, Your Honor. And first of all, he said something I have to immediately correct that the quantification of items 70 and 71 were not available to the defense. They absolutely were in the discovery provided to the defense. So there's nothing new about those particular quantifications. And ultimately, to kind of explain the normal process is that when these initial samples are going to be analyzed, there's the standard, the global standard in DNA, and it's called GlobalFiler. And essentially that is where ultimately they are trying to take a particular sample, and there's the worksheets that they've attached, and they're ultimately trying to get it to the target concentration. And sometimes you have to dilute and sometimes you have to add, and that's that sort of next to last line that is the 0.0750. So this is all standard practice, but the goal of that, of course, is to identify an actual usable profile that can be given to an individual as opposed to Y profiling, which can only give you a paternal line and cannot distinguish between individual members of an unbroken paternal line.
(57:14)
So that's why that was the testing that was done. That is the standard practice to do that. What we have here is two separate things that we're talking about, and we'll go back to 70 and 71. We have the leftover extract, which again, we were fine with providing to them because that is stuff that SLED has already tested, and that extract then they can test, and they did, and they came back with very similar quantifications that SLED had that was available at the first trial and all the rest of it. The real issue is the untested reserve sample. And so we have in both sets of items, we have the same thing. We have the untested reserve sample in item 70 and 71, and we have the untested reserve sample, the swabs there.
(57:56)
So for 25.1, again, we're fine with giving them the extract, but when we talk about testing untested reserve sample that's going to be completely consumed, and this is the state's evidence, then it's only appropriate in that circumstances and fair to all concern that they ... And we're fine with independent testing if they don't want SLED to do it, but that both sides be privy to that test and to its results because forever and ever amen, those things are going to be excluded. So that's the reason for the testing that SLED did, that's the reason between the extract and reserve untested sample. But when we get to untested sample, again, we would fairly assert that that is something that the parties can share. And again, fair to both sides that they both be apprised of the result.
Mr. Barber (58:44):
Your Honor, just very briefly, if the DNA on these three items, these three samples, if Mr. Murdaugh were a potential match, if he were not excluded, if it could be his DNA fingers on the phone, I think that the state probably would've tested it, but he's excluded. And we asked at trial, "Why didn't you test it?" They chose not to. It was their decision. Obviously, since he's excluded, the defense would very much like to test the three items with the leftovers after the state did all of the testing that they wanted to do and the material they've had for five years now. I mean, that's really where we are with this. I haven't heard anything, Your Honor, that to me sounds like an exception to rule five. We have rules. If we do the test and it's something we want to use, then we'll disclose it to the state because we have to. We have rules for what we have to disclose and when we have to disclose it.
Mr. Baldwin (59:47):
Your Honor, may I just throw one more point out?
Judge (59:49):
Sure.
Mr. Baldwin (59:50):
And that is, if we test it and we don't use it, I mean, rule five doesn't allow them to use it against us, but Othram will hold it until the case is over. And then if they need it, for whatever reason they think they need it, then ...
Mr. Baldwin (01:00:00):
... both. And then if they need it, for whatever reason they think they need it, then it would be available at that point in time. But what Rule 5 prevents is for us doing a test and then using it against us.
Judge (01:00:12):
I understand.
Mr. Baldwin (01:00:15):
Thank you.
Mr. Waters (01:00:15):
I just want to correct one thing, Your Honor. As to 25.1, he keeps saying that he was excluded. And again, under the rules that govern the determination of whether alleles have been called and a profile has been identified, no profile was identified. So there was no profile that was suitable for comparison to anyone.
Judge (01:00:38):
So you don't know if it was the defendant's profile or not?
Mr. Waters (01:00:43):
Well, it couldn't be from based on that particular, based on the tests that were done. It could not have been. But one other thing I want to point out as well is that it is two swabs, not four as to 25.1. I think I misspoke earlier in saying that. But I also want to point out that this whole thing initially started with the Defense saying that they were going to do this SNiP testing that was this new technology and all the rest of it, and Othram was the only people that could do it. CELiD is perfectly capable of doing Y-STR.
(01:01:16)
Then when we talked to their expert, he said, "Yeah, that's pretty much a sole source sample. This would be high risk and unlikely to generate anything." It appears that that's the case because when we got back the quantification from Othram, it's goose eggs on the Y chromosome. And so that was part of our question too, is how is combining this, particularly combining from two hands going to help anything?
(01:01:36)
And again, when we get back to mixing extracts with untested reserve sample that the State was in their possession, but they retained out of good practice but have not had the opportunity to test, that's where I think just basic fairness requires that the State be privy to that. And again, that's a fair result for both sides. We absolutely agree the Defense deserves a fair trial, but the case law also says the State deserves a fair trial as well. And when we're talking about this untested evidence, there needs to be a commonality of approach.
Mr. Barber (01:02:07):
I apologize for the back and forth, Your Honor. I have to correct a couple of points there. The exclusion on the cell phone is on one of the autosomal chromo genes, and this is in the motion exactly where it is. The identifier is D10S124814, which is for to Mr. Murdaugh. He has a lead number 15 at that location. So he's not the contributor of that. That's in the motion. That's an autosomal. The Y on that there's no identification, but on the autosomal, he's not the contributor of that.
(01:02:49)
The other point, this high risk stuff that Othram said that was about the SNiP test, they're saying we can't do the SNiP test. We've got no feedback that there's any problem with the Y-STR test.
Judge (01:03:01):
And what are you going to compare the results to?
Mr. Barber (01:03:04):
The Y-STR test, Your Honor? Well, there are two things we get out of it.
Judge (01:03:08):
The State would put it through CODIS and I think that's their database. What is it? How [inaudible 01:03:16]?
Mr. Barber (01:03:16):
I don't know. Without getting the results, I don't know if the results would meet the standards, the amount of data you need to go into CODIS, that's not known now. But what we could do, the most important thing is we could compare potentially the DNA from these different locations, left hand, right hand and the phone. As I said earlier, if all we got were that this is the same person, excluding people, that's material, right? If the DNA on her phone, she's not the last person to touch it and there's a man who touched it, it's foreign to her and it's foreign to him. If it matches what's under her fingernails, it's foreign to her potentially. That could be highly material.
(01:03:53)
We could also potentially get from that kind of test some ancestry information. You heard about the Y chromosome is the same paternal line. It changes over time. You get things, half the type kind of thing. So you could potentially get some ancestry type information, demographic information about the contributor like race, things like that you could potentially get. We don't know until we do the test, but that's information that we could get.
(01:04:21)
But the critical point is the potential to link up, right? Because you heard last time that this is all red herring. She could have touched anything with her hand and picked up some skin cell here, a skin cell there. It's possible that SLED mishandled the phone when it was in the brush and that SLED agent's DNA's on it. We don't know. But if we start matching it all up and we can match the DNA from different points, it really starts to make an inference that perhaps that DNA came from a perpetrator of the crime. And if that DNA contains alleles that are not present in his body, well then that's obviously material.
Judge (01:05:12):
Okay. But I'm looking at your motion. I think there was Paragraphs 1 through 6 that all concern DNA and electropherograms. Like Paragraph number 3, you want the State to produce electropherograms for items 25.1, 70, and 71. The State says they've already provided this material to you. Do you have it?
Mr. Barber (01:05:46):
Yes, Your Honor. And that paragraph I think goes on to say for those for not previously produced. We're just asking for assurance that what we have is complete.
Judge (01:05:54):
Everything they have is complete?
Mr. Waters (01:05:57):
Everything I'm aware of. It's not uncommon to hear them repeatedly ask for things that they've received over and over and over again.
Judge (01:06:03):
I understand, Mr. Waters. You made that clear in your motions. Now on Paragraph number 4, I'm just trying to go through all the DNA before I make a ruling on this.
Mr. Waters (01:06:16):
Yes, ma'am.
Judge (01:06:19):
The Defense wants you to produce all the bench note worksheets, administrative review records, case file documentations. And again, the State responded in saying you've previously provided all of these materials to the Defense. So let me ask, Mr. Barber, do you have all those materials?
Mr. Barber (01:06:50):
I have all the materials that the State has produced. Again, we're asking for assurance that-
Judge (01:06:54):
Well, this is your motion.
Mr. Barber (01:06:55):
I understand.
Judge (01:06:56):
I want to make sure that you have everything. Because I'm going to tell y'all, this trial's going April the 5th, whether you like it or not. And we're going to go through this and if something comes up missing like the last time, please do not ask for a continuance. It's not going to happen. So I want to get all this stuff straight today because I was presented with like a 69-page motion that I went through, not to mention responses. So I spent a lot of time going through this.
(01:07:33)
So it's your motion. What I want to know is do you have everything that you've requested as far as Paragraph 4 goes? With Paragraph 4, you asked the State to produce all bench notes, worksheets, technical review and administrative review records, case file documentation and internal or external communications reflecting or relating to the decisions not to perform a Y-standard other than the victims.
(01:08:07)
The State responded, they gave it all to you.
Mr. Barber (01:08:14):
Well, Your Honor, again, I only know what I have. I don't have any discussions about a decision not to perform further Y-STR testing on this. Now, whether or not that discussion exists in any format that could be produced is beyond my knowledge.
Judge (01:08:32):
Well, Mr. Waters is telling you he's given you everything. Do you have any reason to believe that's not true?
Mr. Barber (01:08:43):
Your Honor, the answer to that, honestly-
Judge (01:08:45):
I'm not going to do it.
Mr. Barber (01:08:46):
... SLED would know, I'm not sure that Mr. Waters would know. So if SLED were to state that they've produced everything, then I would not have a reason to doubt it.
Judge (01:08:53):
Well, the Court right now, Mr. Waters, is an officer of the Court. And for the purposes of this hearing and your motion, I am assuming if you can't point the Court into some other direction as to what you do not have, then I'm assuming, Mr. Waters, that they have it all.
Mr. Waters (01:09:13):
They were given everything prior to the first trial.
Judge (01:09:15):
I just don't want this coming back up. I understand that if you find something, turn it over.
Mr. Waters (01:09:24):
Absolutely. And Your Honor, every time they do this, I have to go back and check and recheck, but everything was provided prior to the first trial. I'm not aware of anything responsive from SLED, who is who I have to go to determine that. If I became aware of something, of course I would provide it.
Judge (01:09:38):
All right. And then Paragraph 5, Mr. Barber, you've asked the State to produce all communications between SLED, the attorney general's office and any other person concerning the consumption, retention, storage, or testing of the reserve samples and extracts from item 70 and 71 from June 2021 to the present. I read the State's response. They said that they will comply with everything that is discoverable under Brady. You want to explain that to me, Mr. Waters? Does that mean that... I know it looks like some of this communications could be attorney-client or whatever.
Mr. Waters (01:10:30):
And that's what I mean by that, Your Honor.
Judge (01:10:32):
Is that what you're saying?
Mr. Waters (01:10:33):
Yeah. And again, we previously have given a download and are in the process of working again on a very extensive download because they have asked for all email communications and separate discovery requests that aren't part of these motions. And prior to trial, we gave them a huge dump based on their request of all SLED communications and all the rest of it. Obviously there were some that were excluded if there was an attorney-client privilege or something like that or work product. And so we're going to do the same thing. And if there's anything that's discoverable under Brady, my general rule is err on the side of disclosure and that's how we will look at this as well.
Judge (01:11:08):
Okay. And to your knowledge, everything concerning Paragraph 5 you've provided?
Mr. Waters (01:11:15):
Well, they have made an additional request for communications since the first trial. So obviously that is being worked on. They filed a bunch of motions to compel. We obviously had our positions.
Judge (01:11:26):
We're going to talk about that too.
Mr. Waters (01:11:27):
Yeah, we had our positions, particularly as it relates to the cell phone. So while we have things going until there was a resolution of the motions to compel, when we have been not only working on... And there's about four other letters of stuff they're asking for that we're working on as well. But I have to go back and recreate things from four years ago in communications because of the cell phone as an example. Because again, if I just am just like, "Here, here you go again", then we too often hear, "Oh my God, this is the first time." And that's not the case. And I can't let false discovery issues be created. And so it's very, very time-consuming. It took me three days just on the cell phone motion just to go through all of that.
Judge (01:12:12):
Okay. We're going to get into all that.
Mr. Waters (01:12:15):
And so ultimately, yes, Your Honor, we are going to comply with all that. I'm going to put in some very strict discovery transfer rules going forward dealing with the Defense in this case so that there can't be this, no, it didn't. We can't have that happen anymore. When we have all the records say, yes, you did, you got this. And so that's been a recurring problem and one that will have to be addressed, Your Honor.
Judge (01:12:43):
All right. So let me ask you, Mr. Barber, he said there's some other things that he's still working on. Is this something that I need to come back and revisit on the November 13th pretrial? Or can you tell me specifically what it is that you think you're missing?
Mr. Barber (01:13:01):
Your Honor, what we're looking for principally with number five here is the communications that would show assurance that we've got everything. I normally do civil cases and this is exactly the sort of thing you-
Judge (01:13:14):
Well, this is a criminal case. It's not a civil one.
Mr. Barber (01:13:16):
I understand, Your Honor. The point is we're looking for these reports to say you have everything, but there's sometimes it's couched to the best of my knowledge and those sorts of phrases you heard. This is just asking for is there something from SLED saying, yes, we've looked at our files and this is everything. Those are the communications that were really.
Judge (01:13:42):
And I wanted to make sure that I'm right. And what you've asked for is all these communications, but it only pertains to item 70 and 71 from June 2021.
Mr. Barber (01:13:48):
Yes. Yes, Your Honor. And the reason for that is, again, as I explained earlier, the request for item 25.1 has come up more recently when we got the Othram results back from Item 71 and realized they did not match the report. And Mr. Waters is right that there's some underlying data that we could have, I guess, looked at maybe to see that the report was incorrect. We relied on the written report that I read quotes from that's attached to the motion. But having learned that we need now to go back and verify what the report says, that's when we discovered 25.1 also needs to be tested, because if the unknown DNA under her fingernails matches what's on the phone from by the side of the road, that's just critical in this case.
Judge (01:14:37):
Okay. All right. I'm going to add that and see how well y'all have progressed on the November 13th pretrial conference. All right. Paragraph number 6, still relating to this DNA. The Defense is asking the State to produce the STRmix, the run files, the gene mapper in original and re-exported form. All electronic data for items 25.1, 70 and 71. The State says they've given you all this stuff. They gave it to you in the first trial and they're saying that if you don't have it, they'll be more than happy to give it to you. Do you have it or do you not?
Mr. Barber (01:15:40):
Well, we have what they've produced. And Your Honor, number six does say that and then not previously produced and specifically asking if any of that stuff hasn't been produced, we would want it. But we do have, of course, what they have produced.
Mr. Waters (01:15:53):
Your Honor, they've given the entirety of the STRmix data in the usable format that is how it's provided. They are now, just as an abundance of caution, we're willing to provide the proprietary project folder and project files as well. Again, when the entirety of STRmix and related things data is provided, it's provided in a usable format to the Defense. It's much like the FARO issue, but if they want all the stuff, the proprietary stuff, we'll give that to them then. That will be forthcoming once these motions to compel are resolved and discovery can resume with new processes put in place dealing with the Defense.
Judge (01:16:38):
Okay. Anything else, Mr. Baldwin?
Mr. Baldwin (01:16:38):
No, Your Honor.
Judge (01:16:40):
Okay. Now let me ask you, where is 25.1? Where is that item?
Mr. Waters (01:16:46):
It's currently in the custody of SLED at the lab, Your Honor, to my knowledge. I believe.
Judge (01:16:56):
This the first that we've talked about item 25.1, at least in my note. This was not a request from the Defense, like item 70 and 71 for their own independent testing. This is the first time I've heard now that y'all want independent testing.
Mr. Barber (01:17:20):
Yes, Your Honor. This was something after the previous hearing, the Court ordered it go to Othram for quantification, but then stop at quantification if we come back. The quantification at Othram is what prompted us to go back and look at the SLED report and see what else was off. And then that's when we discovered that item 25.1 actually has unknown male DNA on it as well.
Judge (01:17:49):
All right. This is going to be the ruling of the Court. At the August 14th hearing, I heard the Defense's request for their own independent analysis to be run by Othram. I asked to be notified when Othram had completed their quantitative results. Everyone agreed that there would be no objection to the chain of custody or the accreditation of Othram. I assume that is still the stance today of both the State and the Defense.
Mr. Waters (01:18:23):
Yes, ma'am, Your Honor.
Mr. Barber (01:18:24):
Yes, Your Honor.
Judge (01:18:26):
The Court also has been advised, I thought there were four samples of 25.1, but you're telling me there's only two?
Mr. Waters (01:18:38):
I'm told there are two, Your Honor.
Judge (01:18:39):
Two, okay.
Mr. Waters (01:18:40):
Two remaining swabs and then there's 10 microliters of extract.
Judge (01:18:44):
Okay. And so I've been advised that there's two samples that are swabs from Maggie Murdaugh's cell phone. I've also been advised that the testing on item 70 and 71 would most likely consume the samples in their entirety. If there's anything left over, it can be returned to the State. I ruled that the defendant is entitled to conduct an independent DNA testing. Rule 5 clearly provides for the Defense to do that. And although the State objects to the permanent consumption of the samples, I believe due process requires that a criminal defendant be afforded a meaningful opportunity to present a full and complete defense.
(01:19:45)
Now let me ask you, because in the State's response, because more likely than not, this DNA is going to be consumed, they think it might be a violation of the Preservation of Evidence Act. I'm not real sure that it is. I'm asking you, because the tables are kind of turned. Case law here says if they destroy the sample or lose it, you can show bad faith. Very seldom do I see the Defense asking for their own independent examination and that there's a possibility that all the DNA is going to be consumed.
(01:20:39)
Also, they brought up, I read in their motion about there's a right, and I've heard these cases on PCRs, that a defendant can ask for testing also of DNA and in this case, it wouldn't be there. Is there going to be a waiver? Are y'all going to waive any appellate right to using up all the... I can't imagine that you would appeal it to start with, but if I'm giving you what you want, but he might have the right to have it retested in a PCR and it's not going to be there.
Mr. Barber (01:21:20):
The client just informed me that he will waive that.
Judge (01:21:29):
Okay. I just though I'd put that up. I can tell you under Rule 5, the defendant is entitled to the right to inspect and examine material that is in the State's possession. I emphasize this right in the case of State v. Hardin, that they can conduct their testing for potentially exculpatory evidence. In this case, the unknown DNA recovered below the victim's fingernails, possibly on the side of the cell phone, has the potential to identify individuals connected to the offense, or at least say somebody was not tied to the cell phone and also the fingernails. I think that's relevant to the Defense in their case. I can let the DNA sit there at SLED. This is a really important case. They have every right to test it, and I'm going to let them test it. It's not doing the Defense any good to let it sit.
(01:22:46)
Then I'm also going to instruct... I'm going to let you go ahead, get Othram started. You told me that it would take approximately four months, and that was on the SNiP test. How long is it going to take on the Y-STR test?
Mr. Barber (01:23:04):
We're planning for about 90 days, Your Honor.
Judge (01:23:06):
Perfect. Get it done. Then I'm going to tell the Defense, if you intend to introduce any evidence of any reports of scientific test or expert disclosures, then it must be turned over. And that's under rule reciprocal discovery, you have to. The Court, I'm going to tell you, Mr. Waters, I know that you want to be part of it. I know you want to know what they're going to do, but that's just not the case. The Court can't direct the Defense to generate or disclose reports. I can't do that for the benefit of the prosecution. That's pretty clear in the case of State v. Northcutt. I can't do that. If they use it, then I want it turned over immediately. If there's reports generated that you intend to use, you must turn it over. Does the Defense understand?
Mr. Barber (01:24:15):
Yes, Your Honor.
Judge (01:24:17):
Okay. Then let's move on to the next. I think that takes care of all the DNA. We're going to get the other swabs to Othram and have them done. Mr. Waters, I want you to work with Mr. Barber on that. Now let's work on this production of ballistic evidence.
Mr. Harpootlian (01:24:47):
Your Honor, can I ask that we deal with FARO first?
Judge (01:24:50):
Sure.
Mr. Harpootlian (01:24:51):
Thank you.
Judge (01:24:53):
That'd probably be the easiest one.
Mr. Harpootlian (01:24:55):
Well, not as easy as you might think.
Judge (01:24:57):
Okay. Well, I thought that was going to be my easy one.
Mr. Harpootlian (01:25:03):
Well, it should be, but I don't think Mr. Waters will think it is. I'd be happy to summarize for you what it's about or you've read everything.
Judge (01:25:18):
I've read it. Go ahead. What I did read, I'm just going to tell you where I was after I read both of your motions is that the parties agree that the scan will be provided to the Defense. And I thought there was no dispute as to the production of this material, but let me reframe it.
Mr. Harpootlian (01:25:39):
Well, Your Honor, he says it's moot. He says they're producing it. And this is the problem. When we have experts sitting on their thumbs waiting to do what's going to take weeks in many instances, like for DNA, and we delivered hard drives to SLED, nothing as we stand here today. Now, if Mr. Waters will sit down for just a minute, I'd like to explain a little bit more.
Judge (01:26:07):
All right. I'm going to tell y'all, y'all need to stop this. Okay? I'm going to talk to y'all before we leave here today, but this has got to stop. I don't want this tit-for-tat back between y'all. Y'all lawyers, professionals. This is court. This isn't a sound bite. Okay? All right. Go ahead, Mr. Harpootlian.
Mr. Harpootlian (01:26:37):
If it pleases the Court, Your Honor, we asked for... And of course, the FARO data, well the FARO scan is these towers are set up on the crime scene and scan the crime scene to produce what can be a three-dimensional representation of the crime scene. And obviously, in the first trial, we didn't ask for this data. But we've learned that perhaps the production that SLED or whoever did the production, it could be inadvertently manipulated. I'm not accusing anybody of manipulating, but we'd like to, just like the DNA, just like everything else, have our expert run it and maybe use it in a format that's more acceptable to us, not a big ask.
(01:27:24)
But we did ask for it, and this is a bigger problem than just FARO. We asked for it on September 15th. We didn't say, "Give it to us." We said, "When do you have it, the raw data, and when can we get it?" And we did not ask for it in the first trial. We relied on what SLED had produced. We've now determined in a number of instances that may not be... And again, I'm not accusing anybody of any malfeasance or ill motive. I'm just saying that we have a duty to check everything. And our expert says if we can get this data, we're assured of its accuracy of whatever he generates. We moved, we asked on September 15th in a letter, very explicit letter. Nothing. On September 18th, we filed a motion to compel. Nothing.
Judge (01:28:18):
Three days later, Mr. Harpootlian. I've never filed a motion to compel, and I was a criminal defense lawyer for 30 years in my entire life. That's three days later. You got to give him some time to [inaudible 01:28:29].
Mr. Harpootlian (01:28:29):
Well, we filed a motion to compel. And until you ordered him to respond on October 8th, nothing. So it's not, am I giving him time? Is he doing... And let me explain a little bit why we feel a little burned on this. And I'm going to talk about, he says they've got it or they've had it on these other things. In 2023, we picked a jury in this case on January 23rd. On January 17th, we've had motions to compel pending. January 17th, six days earlier, they gave us 1300 files, 3.89 gigabytes of data. On January 18th, they gave us 5.22 gigabytes of data, 17 folders. January 20th, three days before the trial, they gave us 73 gigabytes of data.
(01:29:25)
Now, that's the Wednesday, Thursday, and Friday, basically, before we're picking a jury. We're in the middle of moving to Walterboro, setting up a shop. We planned to do that all that week, and they dump all this on us. And we tried to look through it, but immediately we're picking a jury and then off to the races and was having to deal with witnesses. So to be frank with you, much of it didn't get looked at until after trial. I mean, it's just we did not have the ability to do it, did not have the kind of electronic search programs we have today.
(01:29:59)
And in that data, there were a number of things. But the most shocking...
Mr. Harpootlian (01:30:00):
In that data, there were a number of things, but the most shocking thing to me was a report of an interview on September 15th, 2021 of a federal defendant, drug dealer who alleges... Do I have copies of that statement? Please? Who makes allegations... Here we go. That, I do...
Judge (01:30:24):
Yeah, that's fine. Thank you.
Mr. Harpootlian (01:30:43):
... allegations. And that report is attached. There were 673 emails produced on that day that we asked for six months earlier. And one of those emails had an attachment, and it's that statement from a guy named Ryan Spencer North, who's doing federal time. I'm going to summarize it for you, but he alleged that he was making 15 to $20,000 a week selling prescription pills to the Murdaugh family. I think that's interesting news.
(01:31:19)
And it wasn't just the Murdaugh family, it was the Murdaugh law firm. He never met Alex Murdaugh. He met a guy named Eddie Smith, and these are representations by Eddie Smith that he was buying it for the family and the law firm. He goes on to say that Eddie Smith representing Alex Murdaugh was in debt to them for $165,000. And now who are they?
(01:31:48)
He goes on to talk about a drug gang called... I think it's the Cowboys, and they go by another name. So what we have here is evidence of one of the... If you look at all the media, one of the theories is this was a drug deal gone bad or that Alex owed money and this violent drug gang decided to collect it by intimidation.
(01:32:15)
I mean, we get this three days before trial. And so we've asked... So when he says he's given it to us, all of a sudden he probably did, but it wasn't in any organized fashion. There's nothing that indicates what was in those 825 emails or where there's anything... And I don't expect SLED, I guess, to go through and categorize it for us. We would in a civil case. I know this isn't a civil case, but we're looking for a little more direction.
(01:32:44)
The point is this: I understand when we ask for something, Mr. Waters, it may take him three or four or five days or 20 days to get it. A simple letter back saying, "We're going to get it for you. We think we can get it by X day." There'd be no motion to compel, but all we get is crickets, no response.
(01:33:08)
And if this process isn't expedited, us ask him to respond, we're not going to be able to trial this case April 5th. Most respectfully, we'll be forced under the Constitution to move for continuance.
(01:33:25)
Let me give you a suggestion. If we have an issue, we want something, we'll write him a letter as we've been doing, and we'll copy you with that letter. And if he wants to respond, he copies you. And if you feel there's a hearing that needs to be held, have it. Or maybe just rule based on the letters. But if we continue to have...
(01:33:50)
We asked for the FARO day 30 days ago, 30 days ago, and you're going to hear in a minute about the ballistics. Same thing, no response. Until you order them to respond, they don't even respond. And when you say you only gave them three days, we got an April 5th trial date. This isn't the only thing we're doing. We're interviewing witnesses. We're trying to find other experts.
Judge (01:34:14):
I understand, Mr. Harpootlian. Mr. Waters.
Mr. Waters (01:34:16):
Thank you, Your Honor.
Judge (01:34:17):
Where are you on giving him the FARO scan?
Mr. Waters (01:34:20):
Well, Your Honor, to back up, when prior to the first trial, as I think he's conceded now repeatedly, they got everything that was requested with the FARO. FARO is a proprietary software, and we give it to them with a free reader so that they can use the software. They never asked for the raw data, and presumably because at the time they had all the access they ever wanted to Moselle itself, which is, of course, FARO is a 3D scan, visual scan of the crime scene.
Judge (01:34:51):
Well, they don't have that.
Mr. Waters (01:34:51):
And now they say that they want it, and I'm absolutely happy to do that, but I just want to point out that this is a new request. Apparently, they've got somebody who's paid the thousands and thousands of dollars to have the underlying software as opposed to the free reader.
(01:35:03)
But let's look at this: we had September 11th, they sent the DNA letter. September 17th, I sent a response letter to that. September 18th, the very next day, they file a motion to compel on this, the ballistics, and the FARO.
(01:35:19)
And that immediately puts a whole different thing in place because I have to now address all of that. And every single one of these, they have over and over again asked for the stuff that they have already received. But I have to go back and verify that because I don't want to say that and be wrong. I have to go back and put together emails and communications and everything from us because I'm very careful about that. But they file a motion to compel and that puts a-
Judge (01:35:41):
And you've attached your email saying they've had it where you've sent it to them?
Mr. Waters (01:35:46):
Right. And then-
Judge (01:35:46):
I'm so [inaudible 01:35:48]-
Mr. Waters (01:35:49):
On the 21st, they do the cell letter. And then on the 28th they do the cell motion, which has some severe problems with it, of the assertions that the defense makes in it. Meanwhile, during that time, I am out of town for two weeks and I have a surgical procedure. So I get to it as soon as I can.
(01:36:05)
But like I say, it took me personally three days just to go through and write that cell phone motion because of the severity of the allegations to set forth the actually what occurred.
(01:36:15)
And we see that just right now. He just said that, "Oh, we got this statement three days before trial." What was three days before trial was the delivery for the fourth time of the Murdaugh extraction that the emails show both cells...
(01:36:33)
Both of them, both Mr. Harpootlian and Mr. Griffin said, "We've had it. You've given it to us. You've been more than accommodating. We've lost it. Please give it to us again. And this is our fault, not yours."
(01:36:44)
And he's in here just now saying what I keep calling a false discovery issue, which they do repeatedly and saying, "They done all this stuff on us three days before trial." Well, not only was that not in that, that particular production was based on they essentially request to me that I said, "Look, I'm not going to let you create a false discovery issue unless you send me emails expressing that this is your fault and not mine, and it's stuff that you've previously received."
(01:37:09)
So as so far as the FARO, as soon as we have a resolution of these motions to compel, which we're getting today, then the process will resume except for... I'm going to be clear, I'm going to be putting in a very, very specific transfer process so that I can't hear any more of this, "Hey, we've got the records. We've gave this to you." And they say, "No, you didn't," in front of the court.
Judge (01:37:30):
Why didn't you just start a log?
Mr. Waters (01:37:32):