Murdaugh Pre-Trial Hearing

Speaker 1 (00:00):

The court's now in session. Honorable Judge Debra McCaslin presiding.

Judge Debra McCaslin (00:04):

Please be seated. Good morning.

Mr. Harpootlian (00:08):

Morning.

Mr. Creighton Waters (00:08):

Good morning.

Mr. Harpootlian (00:13):

Your Honor, may we have our client brought out please?

Judge Debra McCaslin (00:14):

Absolutely.

Mr. Harpootlian (00:15):

Thank you. He's dressed, he's ready.

Judge Debra McCaslin (00:27):

Okay, good. Let me tell everybody else. Good morning. Welcome to Lexington County and to the Lexington County Courthouse. As soon as we get Mr. Murdaugh brought out, we'll get started. Mr. Waters, how are you?

Mr. Creighton Waters (00:45):

Good, Judge. How are you today?

Judge Debra McCaslin (00:46):

I'm good. While we're waiting, let me introduce y'all to my new law clerk. This is my old law clerk. This is his last day. So you will not be emailing him anymore. This is Mary L. McKissick, and she will be the new law clerk that y'all will be getting emails from. So just wanted to introduce her so y'all would know when you did get them.

Mr. Harpootlian (01:22):

Your Honor, while we're waiting for Mr. Murdaugh, could I address one administrative thing? I've already talked to the clerk from Colleton County. When you file an order, on some occasions, you copy us when you file it. On some occasions, if we don't get it, the order allowing him to be present without the shackles. We read about it in FITSNews before we were aware there was an order. If you could, I don't know whether it's over, but when you send an order to Colleton County, if you copy the lawyers, I think you've done that on every order.

Judge Debra McCaslin (01:57):

Let me tell you, I usually, my office usually sends an order. I do that not only in this case, but any lawyer who appears in front of me. I send a copy of my own order. I apologize for that.

Mr. Harpootlian (02:12):

Nothing to apologize for, but once things crank up, getting it quick, I mean, getting it next day just follows in this, but it may be that as you make evidence and rule, whatever.

Judge Debra McCaslin (02:30):

Absolutely. Well, I'll make sure that everybody gets a copy. Again, I apologize for that.

Mr. Harpootlian (02:35):

Nothing to apologize for.

Judge Debra McCaslin (02:38):

I usually do send it myself.

Mr. Harpootlian (02:40):

Thank you, Your Honor. Here we go. Mr. Murdaugh is here.

Judge Debra McCaslin (02:43):

Okay. We ready to get started then?

Mr. Griffin (02:46):

He's ready, Your Honor.

Judge Debra McCaslin (02:47):

All right. Well, let me just kind of do a little housekeeping here. Mr. Harpootlian, let me just address kind of what we did last time as far as making arrangements out at the Bureau of Prisons for a conference room where you could take discovery to your client. Have you had any issues with that?

Mr. Harpootlian (03:15):

Let me confirm.

Speaker 2 (03:15):

None at all.

Mr. Harpootlian (03:19):

We have no issues whatsoever. Everyone's been wonderful.

Judge Debra McCaslin (03:22):

Okay, good. And then I told you that I would check on if there's any kind of download that you could do to the tablet that he has, and there's not. So we're going to have to stick with the computer from either the law clerk or one of your staff members going out to the BOP.

Mr. Harpootlian (03:45):

At this juncture, we have a law clerk, this young man back here, who's going down there. And of course, two and a half hour drive. Typically, it's two and a half, three hours with him and [inaudible 00:03:56] a half hour drive back. We understand. We're willing to put up with that.

Judge Debra McCaslin (03:59):

Okay.

Mr. Harpootlian (03:59):

That's not a problem. However, we have retained some experts and at some point we're going to need to, and they've done this in the past for us, but we've done some FaceTime meetings with them so they can show Mr. Murdaugh drawings and all those sorts of things. So we're going to try to... And I don't think they're going to have a problem with that, but if we arrange for an expert to be available and we're paying them hundreds of dollars an hour, we'd like it to work seamlessly if we can.

Judge Debra McCaslin (04:32):

Well, do you have any problem? All you have to do is just let me know.

Mr. Harpootlian (04:36):

Yes, ma'am.

Judge Debra McCaslin (04:37):

And we'll try to work around that.

Mr. Harpootlian (04:39):

Thank you, Your Honor.

Judge Debra McCaslin (04:42):

Okay. We'll make sure it gets done. All right. If y'all don't mind, I've got how I want to do this hearing today because I plan to hear all of your motions except for three. And I've kind of picked out the ones that I though we could go through right easily this morning. I know that both of you renewed your discovery motions and your reciprocal discovery motions. Let me ask the state, right now, do we have any problems with discovery?

Mr. Creighton Waters (05:19):

Not that I'm aware of, Your Honor. Obviously we have filed a motion as it relates to that defense phone extraction. That's obviously one of the things on the table today.

Judge Debra McCaslin (05:26):

And I'm going to rule on that today.

Mr. Creighton Waters (05:28):

We are obviously always auditing discovery. And of course it has been a few years since the trial. So there may have been things that we would turn over that have developed since that time. And we're in the process of doing that. But we are not aware of any discovery issues at this time. Indeed, not too long ago, the defense realized that one of the original big murder downloads that we gave them back in August of 2022 had been corrupted on their end and our staff worked and did hours and hours of work to report all of that to provide that to them. So my understanding is that they have all that, which they had then at the time.

Judge Debra McCaslin (06:02):

That's certainly not anything new.

Mr. Creighton Waters (06:04):

Not anything new.

Judge Debra McCaslin (06:04):

Just something you had to re-copy and give to them.

Mr. Creighton Waters (06:07):

That's right.

Judge Debra McCaslin (06:07):

Okay. How about you, Mr. Harpootlian? Do you have any discovery issues right now?

Mr. Harpootlian (06:16):

Mr. Griffin would like to address that, Your Honor.

Judge Debra McCaslin (06:18):

Mr. Griffin, be happy to hear from you.

Mr. Harpootlian (06:21):

Oh, [inaudible 00:06:21]

Mr. Griffin (06:21):

I'll come up here, Your Honor, since I don't have a microphone. Good morning.

Judge Debra McCaslin (06:24):

Good morning.

Mr. Griffin (06:27):

I want to make a record. I mean, there's ongoing obligation by the state. They say that we-

Judge Debra McCaslin (06:33):

There's an ongoing obligation by both of y'all.

Mr. Griffin (06:37):

And so there's some items that we would have expected to receive by now and we have not.

Judge Debra McCaslin (06:43):

Let me know what those are. What are they?

Mr. Griffin (06:46):

So as Your Honor well know, the state has to produce evidence, information pertaining to, that the defense could use to challenge the credibility or truthfulness of a witness. It's called Giglio material. And it's in United States Supreme Court, Giglio v. United States. And these include plea deals and promises, even secret agreements, evidence of witness bias and credibility issues of police where the evidence of past misconduct. And in that category, I have a few items as to secret agreements, there is a co-defendant in some cases, and then he's been charged separately. His name is Eddie Smith. Curtis Eddie Smith, who's a distant cousin of Mr. Murdaugh, was charged on November 2021, almost five years ago, of ABHAN, pointing and presenting conspiracy, filing a false police report, and that's related to a roadside shooting that involved Mr. Murdaugh.

(07:56)
Subsequently, in June of 2022, he was indicted by the state grand jury of four counts of money laundering, trafficking and meth, of other things. Four plus years have gone by, and those cases have not been disposed of. Every other case that we're aware of have been disposed of. And it begs the question, why not? Do they have a cooperation agreement with Mr. Smith? If so, what are those terms? He has been identified as a witness in this case since the last trial, well before the last trial. So we've got nothing on Mr. Smith. And if they have a deal, they're obligated to disclose it. If they have an understanding, they're obligated to disclose it and we've never received it. With regard to credibility issues of police, we are aware that Judge Roger Young dismissed a murder case.

(08:54)
And the name of that case is State v. Michael Colucci. And he was indicted in 2015. In June of 2025, Colucci's attorneys filed a motion to [inaudible 00:09:08] indictment saying that the state withheld critical exculpatory evidence on the eve of jury selection. The motions identify David Owen, SLED Agent David Owen, who was the lead case agent in this case, who after this case received SLED Agent of the Year Award. Judge Young dismissed the Colucci case because of withholding of exculpatory evidence. We want to know what's in Mr. Owen's, SLED agent, I think he's retired now, in his HR file, was he reprimanded? Was he sanctioned? Were any steps taken as a result of the Colucci matter? There's another SLED agent who was the lead SLED agent in the financial crimes case. Right now, we assume he's going to be a witness. He retired or resigned from SLED. We don't know exactly under what circumstances, but then he went to work for the Charleston County Sheriff's Department.

(10:11)
On June 8th, 2026, Captain Ryan Kelly was terminated from his position, according to the Sheriff's Department, for violating, for conduct unbecoming, harassment, improper procedures. And so that would be information. We don't have subpoena power unless we subpoena them to a hearing. They have control and can request this. We don't have it and we would like it. And so, Your Honor, that's some Giglio material. Some Brady material that we think we're entitled to. And as you know, Your Honor, Brady has evidence that could be exculpatory. We have learned through reporting from FITSNews that there was a recent murder, we believe, in Allendale County. And what has come out of that investigation and what has been leaked to the press is that Murdaugh murder weapons were connected to the Allendale County murder. Now, how could that be? And so we would like to know, were Murdaugh murder weapons connected to this Allendale murder?

(11:28)
Now, if Your Honor will get into this, you'll learn that the SLED Agent Ballistic Forensic Lab did an analysis of just the shell casings on the 300 Blackout that was used to murder Maggie Murdaugh. And the ballistics expert testified that the extraction marks on those shell casings found at the murder scene matched extraction marks found on shell casings around the Moselle home and at a shooting range. And their analysis was, in his opinion, it was the same gun that injected the shell casings of the 300 Blackout at the house, at the driver range and at the murder scene. Which leads us to, we don't know if it was the same murder weapon in Allendale, but if they did an analysis of the shell casings in the Allendale murder case, and they're saying it matches the shell casings for the Murdaugh murders, either their test is bad or someone's out there using the gun to murder other people.

(12:40)
And so we would like that information. We are aware that SLED has received tips because we've received tips. We've not been provided any information about tips of whether it's reliable or not identifying anyone else other than Alex Murdaugh participating in the murders. We've not received any information. Have they found the murder weapons? Have they found the murder weapons since the last trial? And there's related information underlying all of those. And so we don't think the state is taking their obligation seriously enough to find out what Brady materials out there has been developed and what Giglio material out there has been developed. And this is what we are aware of today, but we don't have the benefit and we don't have the ability to contact law enforcement and get this information. So those are our concerns.

Judge Debra McCaslin (13:52):

Okay. Mr. Waters, let me hear from you on the Giglio.

Mr. Creighton Waters (14:00):

Yes, ma'am. First of all, I want to say we take our obligations very seriously.

Judge Debra McCaslin (14:04):

I know you do.

Mr. Creighton Waters (14:05):

And have never had a problem. This is the first they've raised these specific issues. They could have given me a call. And if I ever discovered anything of importance, they're the first people that I call. And that's always been our practice. As to Giglio, as to Eddie Smith, of course, there is no cooperation agreement. I don't have any secret agreements. If I had any agreement with the individual, I would disclose that to him. They have all the witness statements. They have the state grand jury testimony. They've had every bit of information and every bit of discovery that we have on Eddie Smith. And there are no secret agreements. And if I do ever engage in agreement with any witness, I will disclose that immediately to the defense. I understand that obligation very well. As to-

Judge Debra McCaslin (14:43):

And those cases are still pending.

Mr. Creighton Waters (14:45):

That's correct. Yes, ma'am, Your Honor. As to Colucci and Kelly, we are all aware of our Giglio obligations. And as far as the Colucci matter, the judge, as I understand it, I wasn't involved in that matter, but ultimately dismissed that indictment without prejudice, just to allow some additional information to be presented back to the grand jury that the individual said that he forgot. But there was no finding that he misrepresented anything. I have made inquiry and I am not aware in any HR file of a finding of dishonesty or anything like that that would ultimately trigger Giglio. I have made those inquiries and I will renew those inquiries. And if anything is applicable there, I will immediately provide that to the defense as we do every law enforcement witness in the case. The same thing with the termination of Ryan Kelly from Charleston. My understanding is-

Judge Debra McCaslin (15:39):

That was a SLED agent?

Mr. Creighton Waters (15:40):

He was a SLED agent. He went to Charleston County Sheriff's Office and deputies served that will and he was terminated. But the inquiries I've made, and my understanding is that none of that had anything to do with dishonesty or falsification of reports or anything that would go to Giglio, that they were personnel matters. I will, of course, re-verify that. And if there's anything that needs to be provided in that regard, I will of course provide that to the defense. But that is my understanding at this time. And again, we always renew our Giglio inquiries for any law enforcement witness that testifies as we move to trial. And obviously if anything's forthcoming, we'll provide that. But those issues are not there.

(16:18)
As to tips, we provided a lot of that information before, but as I said, this case was tried over three and a half years ago. And so we are in the process of correlating. Heck, I get emails from all over the world to this day. But we categorize those and there will be any sort of information, no matter how fanciful and farfetched, and that'll be provided to the defense as well. And so again, as you recognize and as we recognize, that obligation is ongoing. We take it seriously and anything that has developed since that time, we will make sure to provide to that defense. We are constantly always doing discovery audits and discovery checks.

Judge Debra McCaslin (16:57):

All right. Well, tell me about the Allendale with-

Mr. Creighton Waters (16:58):

Oh, that's the... I'm sorry, Your Honor.

Judge Debra McCaslin (16:58):

... the murder weapons.

Mr. Creighton Waters (17:06):

That's the first I've heard of that. I have never heard the first thing about that. If somebody told me that they had matched that to the murder weapon, not only would I... The first call, again, I would be making would be to them. And the second call I'd be making would be to Your Honor. That is the first I've heard of that. I've never read the FITS article. Certainly nobody at SLED, who I communicate with on a daily basis has said, "Hey, Creighton, by the way, X happened." So I will certainly look into that, but I would be flabbergasted to find out that that actually had happened and no one had advised this office of that.

Judge Debra McCaslin (17:39):

Okay. All right. I hope that answers your questions. He's going to get back with you. He's going to double check on Agent Kelly. But to his understanding, there was no dishonesty, but that would raise the bar to Giglio. But he's going to get back with you. As far as the murder in Allendale with the murder weapons, you certainly raised my eyebrows on that.

Mr. Griffin (18:03):

Your Honor, throughout this case, FITSNews has been breaking stories that we were unaware of. And we can go through a long litany of that. But there was a podcast. There's a reference to what I just said to you.

Judge Debra McCaslin (18:19):

Maybe you could forward that to Mr. Waters and let him look at it and see if there's anything to it.

Mr. Griffin (18:28):

But we would ask that they look into that.

Mr. Creighton Waters (18:30):

And I'll be the first to say, Your Honor, is that I don't watch the podcast and I don't read the blogs because I try to base what I'm doing on the evidence and not on speculation that's out there in the media. But certainly I've never heard of that thing and I will make inquiries, but it would blow my mind if something like that had happened and SLED had not called me. I communicate with them daily. There are general counsel sitting here in the gallery here today.

Judge Debra McCaslin (18:52):

Okay.

Mr. Griffin (18:52):

And Your Honor, we would ask for the underlying documents on the Colucci matter involving judge's ruling, anything that was filed, anything related to the Colucci matter. And we'd ask-

Judge Debra McCaslin (19:07):

On the one that's going back to the grand jury that was dismissed that was referred back or dismissed without prejudice.

Mr. Creighton Waters (19:17):

Without prejudice, just to represent to the grand jury is my understanding. And again, my knowledge of that case is very limited. All this really was publicly reported and there's a public transcript in the judge's ruling, which is available to the defense.

Judge Debra McCaslin (19:31):

I think you can get it in the clerk's office.

Mr. Griffin (19:33):

Well, we do have some materials, but we don't know if we have all the materials. And then Agent Kelly's documentation relating to his termination, I don't think it's just sufficient for him to say, "Well, I've asked and there's nothing related to misconduct because what's publicly reported seems to be related to misconduct."

Mr. Creighton Waters (19:54):

Well, there's a difference between what's in a personnel file that may be powerful [inaudible 00:19:58]

Judge Debra McCaslin (19:57):

That's exactly right. And there's a different avenue to go. When you're talking about law enforcement's personnel file, usually you can ask for them, but then they come to me. And then I go through them and in camera. And if there's anything in there that I think that needs to be reported to both sides, not just one, but both, then I'll give it to you.

Mr. Creighton Waters (20:23):

Absolutely, Your Honor.

Mr. Griffin (20:24):

We'd love for that to happen.

Judge Debra McCaslin (20:26):

I don't mind doing that.

Mr. Griffin (20:28):

All right. Thank you.

Mr. Creighton Waters (20:28):

Absolutely.

Judge Debra McCaslin (20:30):

That's fine. Y'all need to get together, get them. I don't want anybody looking at them. I want them delivered to my office.

Mr. Creighton Waters (20:41):

Thank you, Your Honor.

Judge Debra McCaslin (20:41):

Okay.

Mr. Creighton Waters (20:41):

We'll get that done, Your Honor. Thank you.

Judge Debra McCaslin (20:46):

All right. Next, Mr. Harpootlian, I think this motion should be moot. I heard Judge Gergel dismissed without prejudice, and I think you have it on appeal, to modify the protective order for your federal case. Are you going to withdraw this and maybe refile it later after the appeal?

Mr. Harpootlian (21:14):

Yes, Your Honor.

Judge Debra McCaslin (21:14):

That's what-

Mr. Harpootlian (21:20):

We filed it before Judge Gergel precipitously dismissed the case.

Judge Debra McCaslin (21:22):

Perfect. I figured that made this motion moot and I could get rid of it. If you need to refile it, please feel free to do so after the appellate.

Mr. Harpootlian (21:32):

Once the court clerk sends it back, we'll be doing that.

Judge Debra McCaslin (21:34):

Okay. Then my next motion was the state sent me a proposed order for an amended protective order. This is by consent because I received your email, Mr. Harpootlian, that you consent. Mr. Waters, what I want to make sure is because this is a new case. That means there's new filings. And in your motion for this proposed protective order, you listed a bunch of stuff. Is that included in all of this? Or was that just a history Exhibit B that you gave me?

Mr. Creighton Waters (22:17):

Yes. The Exhibit B just was for, this is a new case, but I just wanted to provide the court sort of the historical development of the protective orders and sealing orders in this case.

Judge Debra McCaslin (22:29):

While we're signing it. Why I'm signing it and y'all are agreeing to it. Is that right?

Mr. Creighton Waters (22:33):

Yes, ma'am. It was just for the court's information as to how things started, how they progressed through the first trial, and how they now set up for Your Honor.

Judge Debra McCaslin (22:41):

Okay. Well, if you both agree, I'm going to tell you I'm going to sign it. I also took the liberty of putting a consent for both of you to sign. If y'all sign that, I'll have the clerk file it and take it back to Colleton today.

Mr. Creighton Waters (23:03):

Want us to do it right now, Your Honor? May we approach?

Judge Debra McCaslin (23:06):

Mm-hmm. And I'm going to give it to the clerk and that one's done. Yeah. Thank you.

Mr. Harpootlian (23:27):

Thank you, Your Honor.

Judge Debra McCaslin (23:29):

All right. Now, the next motion that I wanted to hear, Mr. Harpootlian, I did not get a response from you, but this is for the pre-voir dire. It's a questionnaire.

Mr. Harpootlian (23:48):

Your Honor, we agree this should be a questionnaire.

Judge Debra McCaslin (23:51):

Okay.

Mr. Harpootlian (23:52):

But we think we, as this case develops, there's going to be additional questions we're going to want to have in that questionnaire. Now what we did in Colleton, not that that matters too much, but what we did in Colleton was we had this questionnaire they filled out and mailed back in. And then when they got there, there was an additional more case specific questionnaire. We're not going to be mailing questionnaires to jurors until-

Judge Debra McCaslin (24:18):

January.

Mr. Harpootlian (24:18):

... January. So we've got several months to deal with that. If you just give us to the 1st of November to flesh that out, I think we can agree on a questionnaire.

Judge Debra McCaslin (24:27):

Is that fine with you, Mr. Waters?

Mr. Creighton Waters (24:29):

Yes, ma'am, Your Honor. We worked together last time to develop this questionnaire, and obviously I think we can do that again. And then if we have any issues, we'll bring them to the court.

Judge Debra McCaslin (24:37):

Well, I looked at it. I thought it was great.

Mr. Creighton Waters (24:39):

It worked great.

Judge Debra McCaslin (24:41):

Seems like it was helpful.

Mr. Harpootlian (24:41):

It did.

Mr. Creighton Waters (24:41):

It was great.

Mr. Harpootlian (24:45):

Your Honor, what we didn't address in a questionnaire, and we've got a consultant we're talking to about is do we ask in that questionnaire a level of awareness about this case? I'm not saying we should. I'm just saying we're examining that and that's why I'd like till the 1st of November. And of course, in the question, if you do a questionnaire when they get here, obviously we want to know a little bit more about their specific knowledge of the case. So yes, we agree there needs to be a questionnaire. We may want to add some questions to that questionnaire. Just not sure, but we will be by the 1st of November.

Mr. Creighton Waters (25:26):

And what we did last time, Your Honor, that worked very well is we had that questionnaire. The parties went through that questionnaire. We actually then had a dialogue where we agreed based on certain responses of jurors to exclude. And so they were already gone by consent, but we already identified ones that would need additional questioning. And then of course there was additional questioning with the court and the parties in private for either the jurors by their questionnaire or by responses in court that just needed further inquiry. And again, we were able to do that in two days.

Mr. Harpootlian (25:56):

And Your Honor, we would ask that there be direct supervision by you of the issuance of the jury summons, how they're picked. There were huge questions obviously after we learned of the clerk's conduct about how certain people maybe got on the venire and others did not. She was apparently excusing people we believe, and of course this litigation could help us, litigation that's on appeal of the court circuit, let us develop that. Her daughter appeared on the jury venire. And she, and I guess at the time, either I nor Mr. Waters thought that was unusual, but she was talking to both of us about how she'd make a great juror. She talked to me. I hope she talked to you.

(26:39)
I'm not saying expecting that to happen again. Got a new clerk. But in terms of summonsing jurors, there's a process. The Supreme Court, I found out later on, that there's a list. Actually, they're generated in Columbia. And then the clerk excuses, before he or she issues those summons. There's a screening process. That's what I'm concerned about. In other words, the big list will come from Columbia, but how it gets narrowed down before we ever see it, that would be me and Mr. Waters, concerned me greatly.

Mr. Creighton Waters (27:16):

Again, this is the first that I've heard of any issues with that. I mean, my understanding is with Judge Newman's supervision, obviously number ones that were excused based on patent exemptions such as over 65 who claimed that were non-residency issues and that sort of thing.

Judge Debra McCaslin (27:33):

Right. That would be my understanding of what normally happens when we pick a jury here.

Mr. Creighton Waters (27:40):

When we had the whole panel arrive, yes, there was something like that. Obviously she was excused. There were also people that had relationships, close relationships with Alec Murdaugh and the Murdaugh family. And of course we vetted all of that and excused as appropriate.

Mr. Harpootlian (27:53):

Well, what was never done, and I tried to get the list to compare the initial list that was generated in Columbia, to what actually were summons that were issued. And certainly there were people that the clerk said-

Judge Debra McCaslin (28:09):

They don't live here. They're over 65.

Mr. Harpootlian (28:12):

Right. Dead, whatever. I get that. But we never got the original list, so we don't know. And again, call me suspicious, but when we have evidence that the clerk of court is attempting to influence the jury to obtain a guilty verdict so she could sell more books, when did that start? Did it start when she started winnowing down people she though might be helpful to us? And I'm not saying that could happen again, but I think I need to mention it. I need to say to the court, I never expected it to happen the first time. I've been doing this 50 years. I've never seen a clerk of court interfere in this process. And clearly our Supreme Court found she did.

Judge Debra McCaslin (29:01):

Okay. Well, I can tell you, Mr. Harpootlian, I certainly don't mind overseeing it.

Mr. Harpootlian (29:04):

Thank you, Your Honor.

Judge Debra McCaslin (29:05):

That's for sure.

Mr. Harpootlian (29:06):

And again, I mean-

Judge Debra McCaslin (29:07):

Mr. Waters, wherever this trial is going to be, I will certainly make sure that it is on the up and up. I can promise you that.

Mr. Creighton Waters (29:18):

And just to be clear, there's absolutely no evidence that there was any shenanigans with that part of the process.

Judge Debra McCaslin (29:25):

I haven't heard of any of that, but we'll just make sure that everything is done properly.

Mr. Harpootlian (29:31):

Thank you, Your Honor. That's all I'm asking. And again, I would agree. We were never allowed to look at that piece of it for our motion for a new trial. It wasn't relevant to that. And the clerk was not going to. She never admitted she talked to any jurors. The court, both Jean Toal and the Supreme Court found her to be a horrible liar. So you'd have to prove it extrinsically. We don't need to go there. We may go there in our federal case, but we don't need to go there. I'm just saying, call me naive, I just want to make sure you are in charge of this process and it's not deferred to some functionary.

Judge Debra McCaslin (30:11):

No, I don't have a problem with that.

Mr. Harpootlian (30:13):

Thank you, Your Honor.

Judge Debra McCaslin (30:14):

All right. The next motion-

Mr. Creighton Waters (30:16):

Your Honor, real quickly, if I could just say-

Judge Debra McCaslin (30:17):

Oh, yes.

Mr. Creighton Waters (30:17):

... that as we got the dumps from the clerk's office with the jurors, it had the numbers on there with the over 65s and had the return from those individuals.

Judge Debra McCaslin (30:28):

You did get those?

Mr. Creighton Waters (30:28):

That's my recollection.

Mr. Harpootlian (30:29):

We did. But the question is, who got off that list before we got it?

Judge Debra McCaslin (30:33):

Okay.

Mr. Harpootlian (30:34):

That's the problem. And do we have any evidence that-

Judge Debra McCaslin (30:38):

You just want the original list-

Mr. Harpootlian (30:39):

I want the original list.

Judge Debra McCaslin (30:39):

... is want you want. I understand.

Mr. Harpootlian (30:39):

I want you to have the original list. So when the summons go out, you know that everybody on that summons list was summoned unless you were told they were dead. And again, I'm a little paranoid after our last experience, not realizing the clerk was trying to fix the jury.

Judge Debra McCaslin (31:01):

Okay. Well, I'll make sure I speak with the clerk before that process.

Mr. Harpootlian (31:10):

And Your Honor, certainly Mr. Waters is not vouching for her veracity and truthfulness here today. I understand that we're here because she attempted to fix the jury, right?

Judge Debra McCaslin (31:25):

I think he understands. Let me hear from you, Mr. Waters. I think he understands why we're here today.

Mr. Creighton Waters (31:33):

I went through a lot and actually suggested a lot of these procedures. Ultimately, all we were trying to do, recognizing the uniqueness of this case, and there's no denying it, is get a fair and impartial jury. And the process that we put in place worked very well. Actually the person who was handling all that and sending out those juror responses, there was multiple staff involved and all that was under the supervision of Judge Newman. So we certainly understand what the Supreme-

Mr. Creighton Waters (32:00):

... So we certainly understand what the Supreme Court ruled, but I know Your Honor will supervise whatever process. And my only goal and my only intent is to have the first screen process take place and then give us the jurors that are in play and then we'll put together a fair process to put 12 in the box.

Judge Debra McCaslin (32:19):

I agree with you, Mr. Waters. I'll take care of that. You don't need to worry. Neither one of you. All right. Next motion. It's going to be the state's motion in limine to exclude evidence of the polygraph. Let me hear from you, Mr. Waters.

Mr. Creighton Waters (32:37):

Yes, ma'am, Your Honor. Your Honor, this was just a prophylactic motion in limine that we filed prior to the first trial. And again, the case law is cited in there. I'm happy to detail it for Your Honor, but obviously the case law is very clear in South Carolina that polygraphs are a no-no. And that's because while they may be an investigative tool, the reliability of them is questionable. And of course, even the U.S. Department of Justice manual notes that it's not a lie detector. What it does is record physical responses that in the subjective opinion of the examiner may indicate deception, but that deception may or may not be related to concerns of guilt or innocence. And that's why the courts have always rejected those in addition to the fact that they go to the heart of why we have courts and why we have juries. And that's of course for the ultimate determination of the truth of the matter.

(33:41)
And so obviously from the state's perspective, if ever there's a polygraph issue or there's an interview that occurred after polygraph, we are rock solid to make sure that that witness and that officer or whatever does not say the P word out loud. And that's just been the general rule. And this is the way I do things, just like we did the financial evidence last time. We laid all our cards on the table, did a long extensive hearing. There was no gotcha moments or anything like that. And we just ask for the same thing, that there be just sort of an in-camera ruling and an instruction that the polygraph word is not to be mentioned because again, it can be hard to unring the bell.

Judge Debra McCaslin (34:19):

That's right. Let me hear from you, Mr. Harpootlian or Mr. Griffin.

Mr. Harpootlian (34:25):

[inaudible 00:34:26] please the court, Your Honor.

Judge Debra McCaslin (34:25):

Sure.

Mr. Harpootlian (34:28):

So generally, Mr. Waters is correct. And let me point out to the court and I'll hand up a copy of the case. It's the State v. Henry Eastwood, which-

Judge Debra McCaslin (34:41):

It's the Eastwood case, is that what you said?

Mr. Harpootlian (34:48):

I'm sorry?

Judge Debra McCaslin (34:48):

It's the Eastwood.

Mr. Harpootlian (34:50):

It's the Eastwood case.

Judge Debra McCaslin (34:58):

I've got a copy of it. Go ahead. No, I've got a copy.

Mr. Harpootlian (35:02):

So as you know, if you've got a copy of it, the Supreme Court said there's not an absolute ban. There are circumstances under which a polygraph could be used. I mean, again, it's not a lie detector, but the question is, if somebody was confronted with the fact that they failed a polygraph, did they give it ... I mean, in this case, did they give a confession? The Eastwood case, it was a confession [inaudible 00:35:30]. In this case, and we want to argue this more fully depending on whether or not this witness is called, Eddie Smith, who as we've already understood, was charged with a whole bunch of stuff, had a proffer agreement with the state. And the proffer agreement was conditioned on him passing a polygraph. And as Mr. Waters knows, in other words, he had a deal and the deal was predicated on him passing a polygraph. This is a copy of the results of that polygraph. And the polygraph was, "Did you kill Paul and Maggie Murdaugh?" He failed it. And so they, relying on that, canceled his proffer agreement.

(36:16)
Now, I'm not saying necessarily that's admissible on cross, but I am saying that it's an issue, not now, but much closer to trial that we need to be able to litigate. And there may be others. Again, we're going back through ... I will tell you, Mr. Murdaugh passed a polygraph, flying colors. So the same polygrapher. So it may play a role in this trial. I'm not going to concede that not under any circumstances can a polygraph ever be used. I'm just giving you this example of Eddie Smith failing the polygraph and them relying on it to cancel his deal. Now, that's what our understanding is from the limited documents. They never called Eddie Smith in the first trial, which we were shocked by. But should they call him in the second trial, we may want to go into this. So I would ask you not to issue an order prohibiting any mention of polygraph with this guarantee. We would not mention polygraph in a courtroom with a jury until given permission by Your Honor to do so.

Judge Debra McCaslin (37:25):

All right. Well, let me tell you, anything else from Mr. Waters?

Mr. Creighton Waters (37:30):

Well, Your Honor, just to correct one thing, there's never been any sort of deal with Eddie Smith. A proffer is not a deal. It says in big bold letters, this is not a cooperation agreement. It's only essentially a first aid provision. Again, polygraphs can be an investigative tool, but I never base decisions on them. And frankly, in my experience, I've found them to be wrong or for people to indicate DI for other emotional reasons than them to be accurate. This is why they're not ever relied upon in court. The case that they cite is a completely different issue where in that particular instance, the defendant wanted to bring up the fact that he had been given a polygraph and was told by the examiners he was lying as part of his defense in presenting an expert on false confession. And that is nothing that we have in this particular case whatsoever.

(38:20)
And in fact, if you look at the cases that we cite in the memo, Your Honor, a prime example of what the Supreme Court has ruled was there was one situation, and give me one second, I'll find the case. That would be State v. Counsel, which is the seminal case on that. And in that particular case, there was another witness who took a polygraph on, "Were you present? Were you involved?" And DI was shown. Deception indicated was shown. And of course the court said that because "A polygraph cannot reliably show truth, it's of no assisting to the jury because it doesn't show anything." So that's a vastly different situation, more akin to what we have here where the Supreme Court has already said no than the situation in the Eastwood case where that false confession and this aspect of it was crucial to that expert's opinion.

Judge Debra McCaslin (39:12):

Okay. Thank you-

Mr. Harpootlian (39:14):

... Very, very briefly. It was a proffer agreement. And the proffer is, "You're going to tell us stop. And if you pass the polygraph, we can go to the next step," Which would be perhaps giving him something for his testimony. They were using it as a screening device. No question about it. But he failed the polygraph, so he didn't get the deal. He's right. He doesn't have a deal as far as we know. And the reason he doesn't have a deal is he failed the polygraph. Now, whether we get to talk to the jury about that nine months from now is an issue altogether different. But all I'm saying is we would ask you not to issue an order, blanket order prohibiting the mention of polygraph. Although I will concede I would not do that without having pretrial, an in-camera hearing of some sort and getting clearance from you.

Judge Debra McCaslin (40:02):

Well, that's going to be my ruling, Mr. Harpootlian. I'm going to rule that the results of a polygraph examination are not admissible as well as the defendant's willingness or refusal to submit to a polygraph. And I'm going to tell you now, there is to be no mention of a polygraph test before the jury. This ruling is based on counsel and case and the Palmer case. Should the defense seek to introduce any evidence or testimony or reference concerning a polygraph examination, you must notify the court and obtain a ruling outside of the presence of the jury or risk this case being a mistrial. You understand?

Mr. Harpootlian (40:53):

Well, I think, Your Honor, you probably should threaten mistrial. You ought to threaten contempt.

Judge Debra McCaslin (40:57):

Contempt.

Mr. Harpootlian (40:57):

There you go.

Judge Debra McCaslin (40:57):

Yeah. You don't want me to hold you in contempt, Mr. Harpootlian-

Mr. Harpootlian (41:03):

... Mistry the case.

Judge Debra McCaslin (41:05):

And I might mistry it if you start screaming polygraph without letting me know beforehand. You understand? I want to make sure everybody's on the same page.

Mr. Harpootlian (41:18):

I got it. I think I suggested it. I agree with you. I just wanted you to know there are circumstances, and that's one where we may seek to do that. We're not going to do it without getting your approval.

Judge Debra McCaslin (41:29):

Perfect.

Mr. Harpootlian (41:30):

And that may come up in the context of his testimony. He may say something that-

Judge Debra McCaslin (41:36):

I mean, you never know what happens at trial.

Mr. Harpootlian (41:38):

Right.

Judge Debra McCaslin (41:39):

I'm just telling you right now, I'm telling you a polygraph is not admissible. If you're going to bring it up, you need to let me know first and then we'll have an in-camera hearing.

Mr. Harpootlian (41:51):

Thank you, Your Honor.

Judge Debra McCaslin (41:52):

Any objection, Mr. Waters?

Mr. Creighton Waters (41:53):

None at all, Your Honor.

Judge Debra McCaslin (41:54):

All right. Then let's move on to the next motion. The next is the state's motion in limine to allow the state's use of the defendant's prior testimony in retrial. Let me hear from you, Mr. Waters. I've done a lot of research on your motion.

Mr. Creighton Waters (42:15):

Yes, ma'am, Your Honor. Obviously at the first trial, Mr. Murdaugh, who of course had given multiple statements to the police in which he said he had never been down at the kennels. He had told all his law partners, all his friends, all his family that he had never been down at the kennels either. And obviously during the state's case in chief, we presented witness after witness who knew him very, very well saying 100% that's his voice on the kennel video, which again, was taken at the scene with the victims and according to the timeline, just moments before they died. And so he ultimately, with the full waiver with Judge Newman, said, "I'm going to testify and I want to testify." And of course, right out of the gate, the first series of questions asked by Mr. Griffin on direct examination was an explanation of why did you lie about being down at the kennels? It was the most important issue in the case at that point.

(43:17)
Obviously, as a general rule under Harrison, a defendant's testimony at a former trial is admissible. And I'll get to the statute in a second. And then I'll also, of course, under rule 804(a)(1), it would be admissible, of course, based on unavailability, assuming that he would refuse to or exercise his Fifth Amendment right at a second trial.

(43:40)
The issue, of course, boils down to the statute. And of course, the statute says that "The testimony of a defendant in a criminal case shall not be afterwards used against the defendant in any other criminal case except upon an indictment for perjury." And of course, our position in that is that this is the same criminal case. This is not an other criminal case. It's the same indictment. It's the same allegations. It's the same case that we are doing. There's no question that we are starting the evidentiary presentation again from new, but that doesn't change the fact in the plain language of the statute that this is the same criminal case. And we cite-

Judge Debra McCaslin (44:15):

That's the critical distinction for the statute. Either you're in the same case or you're not.

Mr. Creighton Waters (44:21):

I agree. And we cite Tucker for that proposition. Now, I do agree that Tucker's a little different. It was a death penalty bifurcated case in that the go phase was affirmed and the sentencing phase was reversed. But the court clearly said there that during the re-sentencing phase, that prior testimony was admissible because it was the same case.

(44:39)
Now, the defense obviously argues that because of the Supreme Court's guidance on the financial issues, that ultimately his decision to testify is somehow impelled by that. And we would respond to that in two ways.

(44:58)
Number one is the first thing is it's very clear that the most important reason for him, "I want to testify," is that he had to explain that kennel video, which again, was the most important issue for the defendant to testify.

(45:14)
Secondly, as we look at the opinion, and obviously I know you've deferred on the mode of evidence, and we'll get to that at a later time, of course. But the Supreme Court, while saying that perhaps the trial court let the state go too far with that evidence, the court did say that the court appropriately ruled the evidence admissible under 404 and did appropriately admit at least some of that evidence. So ultimately, depending on how Your Honor rules on that mode of evidence, admission of any prior testimony should the state decide to do so, could be very much tailored to whatever the appropriate parameters are based on this court's ruling as to the extent of that testimony-

Judge Debra McCaslin (45:54):

... I think it would go along with what financial crimes are allowed in at the time of trial.

Mr. Creighton Waters (46:01):

Absolutely. Absolutely. And the state certainly understands that and is willing to do that. And then even aside from that issue, clearly whether it's impeachment of this defendant, should he testify again, or if the defense were to present a new theory through evidence that would be refuted by this testimony, I think that the law's very clear that then it could be used for impeachment to sort of ... If they change tack, then it would be fair game regardless of the issue of the statute.

Judge Debra McCaslin (46:32):

Okay. Who's going to argue that?

Mr. Griffin (46:37):

Mr. Barber will-

Judge Debra McCaslin (46:38):

Mr. Barber, come join us.

Mr. Barber (46:42):

Good morning, Your Honor.

Judge Debra McCaslin (46:43):

Good morning.

Mr. Barber (46:46):

Of course, we oppose this motion on two grounds, a statutory ground and a constitutional ground. And I would like to address the statutory one first on the generally accepted principle that if a constitutional issue could be avoided, that you should rest on statutory grounds. And the statute here is 191150, which as Mr. Waters said, prohibits using his testimony in another criminal case. And so we're concerned on what is the same cases versus another case. At 10:23 AM in this hearing, Mr. Waters standing at this podium said, "This is a new case." That was his statement on behalf of the state. On a different motion, he said, "This is a new case." Now for the purposes of this motion, it becomes again the same case. The defense's position is that a trial de novo is another case, that that is the logical rational conclusion from the statute, that the purpose of the statute is to protect the ability of a defendant to testify in one criminal case without a broad irrevocable waiver of his Fifth Amendment rights.

(48:05)
The state, as far as I can tell, takes the position that the indictment number controls whether this is another case or not. Not anything substantive happening in a case. And I would point out that there's not a single case in which with a trial de novo, because of an error by a state actor, not the prosecution, but certainly a state actor, that that constitutes irrevocable waiver of the defendant's Fifth Amendment rights. Tucker is the closest case. Mr. Waters conceded it's not really applicable. It's a re-sentencing on the same conviction. Here we're having a trial de novo and everything is new. As the court just went through with all those other motions, it's a new case. Even the protective order has to be redone. Everything is new. All the motions in limine have to be redone.

(48:50)
The one thing that is eternal and cannot be changed from the previous trial is one witness's decision to testify. That Fifth Amendment waiver is the only thing, according to the state, that's not waived. For purposes of the statute, we suddenly become the same. And before getting to the constitutional infirmity of that, as Your Honor knows, we filed a motion to dismiss the indictment shortly after this motion. It was responsive to this motion. If the state ... It's a reductio ad absurdum argument. If we're really going to take the position that it's not a substantive question, whether this is the same case or a different trial, well, if it's the indictment numbers under Thrift, we clearly meet the standard under Thrift for dismissal in the indictment.

(49:36)
Now, is that a waste of the court's time? I would say yes, because they'll just go to a grand jury and re-indict it. But if we're going to put substantive import on the indictment numbers, the arbitrary indictment numbers, well, the grand jury ... We have testimony from the first trial that the grand jury was presented evidence that the state admitted in its reply closing argument was incompetent, which the witness also admitted was incompetent. We have, if you look at that very lengthy motion for sanctions that's still pending, it's a colorable claim of misconduct. I would point out in Thrift, the Supreme Court explicitly held there was no misconduct. But because there's a colorable case for it, which is the least possible burden. Well, fabricated evidence. It's a colorable claim of misconduct. Okay. Is it prejudicial? Well, it would be the only direct evidence linking the accused to the crime. The only direct forensic evidence. Something that would prove his guilt. It must be prejudicial.

(50:43)
So we meet the Thrift requirements, the indictment should be dismissed. They should have to go back and re-indict it. We'll get a different indictment number and be right back here with a different case if that's really their position that a trial de novo is not another case. And this is just a statutory argument. There is, of course, a constitutional argument, which is the Harrison argument, which is that because he was testifying to address evidence that was ruled to be inadmissible, that his Fifth Amendment waiver cannot be held in this new trial. I mean, that's the clear holding of Harrison. It clearly ... In Simmons as well, which was a suppression hearing. In that case, someone testified in a suppression hearing and electing to assert that Fourth Amendment right in a suppression hearing, you're not required to waive other constitutional rights. The case law clearly held, and Your Honor indicated that you've done a lot of research on this, that a witness cannot be required to surrender his constitutional rights to address inadmissible evidence. And I think Mr. Waters agrees with that in that the dispute is whether or not he was testifying to address the financial crimes evidence. But as our response motion with many quotes and block quotes, that was explicitly preserved. In Harrison, it was just an inference.

(52:09)
In this case, counsel repeatedly put on the record why he was testifying. On page three of our response, Mr. Harpootlian said at that time, quite explicitly put on the record that our advice as to whether to take the stand or not would have been different had the financial crimes information that he was also renewing the objection to had not been admitted over objection. And the court held in response to that, that the objection was preserved. So here we are. Harrison directly prohibits this. Though I would suggest to Your Honor that the statute would be an easier ruling because there's no reason to reach a constitutional question. This is another case which we just said a dozen times when discussing previous motions.

Judge Debra McCaslin (52:58):

Thank you.

Mr. Barber (53:00):

Thank you, Your Honor.

Judge Debra McCaslin (53:02):

Any response, Mr. Waters?

Mr. Creighton Waters (53:04):

Very briefly, Your Honor. First of all, just because I just got this from general counsel. It said that there was a 300 blackout that was used in Allendale. However, it was entered into IBIS and there have been no leads or no matches on that. So that's what I was just informed.

Judge Debra McCaslin (53:21):

Is that going back to-

Mr. Creighton Waters (53:23):

Going back to the prior motion, yes.

Judge Debra McCaslin (53:25):

To the prior where the blackout was-

Mr. Creighton Waters (53:27):

And I'll find out more, but it doesn't-

Judge Debra McCaslin (53:28):

... Said to have been used in another murder in Allendale or somewhere. You understand that, Mr. Griffin?

Mr. Griffin (53:35):

I understand what he just said.

Judge Debra McCaslin (53:36):

Okay. Sometimes a real novel idea is to pick up the phone and call each other and talk. That's what we used to do when we were younger. Just call and ask if you've got a question. And then if you have a problem with it, I'm more than happy to settle it for you. I hate that we have to do this in court. I do. It's easier just to ... Now we can email. If you don't want to talk to each other, you can just email each other. Say, "Hey, you heard about this."

Mr. Creighton Waters (54:08):

I have never not taken a call from these gentlemen. Love talking to them.

Judge Debra McCaslin (54:11):

Yes, sir. Mr. Harpootlian?

Mr. Harpootlian (54:13):

Did he just say he loves talking to me?

Mr. Creighton Waters (54:14):

I did.

Judge Debra McCaslin (54:15):

He did. So maybe you ought to pick up the phone there, [inaudible 00:54:19]-

Mr. Harpootlian (54:19):

... They need to start drug testing [inaudible 00:54:21]. In all seriousness though, seriousness, I have never questioned Mr. Waters' integrity. But as a result of this case, I cannot help but question the SLED lab integrity and the SLED agency.

Judge Debra McCaslin (54:38):

I understand, but see how easy it was for him to make a phone call and turn around and give Mr. Griffin an answer.

Mr. Harpootlian (54:49):

Okay. And the answer is SLED entered it into some database and got no matches. Did they pull the shell casings from the Murdaugh trial and compare them to the shell casings to this? And that's not what I heard. That's not what I heard. And remember now, and if you've read the sanctions motion, they misled Mr. Waters about the blood spatter for months, months. And misled us. And misled an expert. That was the SLED lab. And when we talk about DNA in a little while, that's the context in which we are approaching this case because we were lied to. The grand jury was lied to by SLED. And he was lied to. So I appreciate the fact he called and I was a prosecutor for a while. Trust but verify when dealing with police officers-

Judge Debra McCaslin (55:44):

Well, I'm sure he'd be happy to do that for you.

Mr. Creighton Waters (55:47):

I think I have personally been involved in the indictment of seven sheriffs and multiple police officers. If I had any evidence, anybody intentionally fabricated evidence, I don't play that. There is a difference between Mr. Harpootlian, excuse me.

Judge Debra McCaslin (55:58):

Let him finish. Let him finish.

Mr. Creighton Waters (55:59):

There is a difference between where mistakes or the two ships pass in the night and intentional fabrication. That might be their characterization, but that's not what the evidence reveals. And obviously that'll be something that we'll discuss later on. But I will obviously look into that more. But NIBIN is the database where you put guns in, kind of like the fingerprint database, and then it gives you hits whether it shows up with other crimes.

Judge Debra McCaslin (56:22):

Would it show if you put in the casings or the markings from the case?

Mr. Creighton Waters (56:30):

I'm going to find out more and double check and we're going to run this down. But again, there is no ... From what I was just told by SLED, there are no leads or hits on that blackout that was used in the Allendale shooting. I promise you though that I'm going to find out more if there-

Judge Debra McCaslin (56:43):

And if you got any other questions, Mr. Griffin, just email him. He'll check it out for you.

Mr. Griffin (56:48):

Sure will, Your Honor.

Judge Debra McCaslin (56:50):

And I mean, if you want some kind of verification, I'm sure he won't have a problem giving it to you.

Mr. Harpootlian (56:55):

As long as, again, a phone call between him and an agent who has a stake in maintaining this conviction is okay for him. It's not for us. We want to say if they submitted it, what was the result? Is there a written result?

Judge Debra McCaslin (57:08):

And what I'm trying to tell you, Mr. Harpootlian, is just ask him. I think he will give you just that.

Mr. Harpootlian (57:16):

Okay.

Judge Debra McCaslin (57:16):

Instead of just throwing all these questions at him at one time, just send him an email. And if you want something verified, tell him. Do you have a report to that? I understand you being distrustful. I got it. But if he doesn't know what you want, he can't give it to you.

Mr. Harpootlian (57:35):

We'll be explicit. Thank you, Your Honor.

Judge Debra McCaslin (57:39):

Let's go back now. I'm sorry about that, Mr. Waters. Let's go back to the defendant's prior testimony in his retrial.

Mr. Creighton Waters (57:46):

Sure. And just to start out, he said at 10:23, I said new case. And I think he's parsing my words a little closely when I'm talking about Your Honor's reconsideration of a ruling. It's still the same indictment. It's still the same testimony under oath. It's still the same evidence that's going to be presented. It is the same case. And while Tucker is a bifurcated proceeding, it still was a brand new evidentiary proceeding de novo in that particular case. So I think Tucker is still applicable. Ultimately, again, I think that the appropriate solution is going to depend on Your Honor's parameters as we get to that financial evidence. But ultimately, the Supreme Court said, "We agree with the state that under the facts and circumstances in existence in the first trial, the trial court acted within its discretion in deciding not to exclude the evidence under 404." And went on to say, "We hold the trial court acted within its discretion in admitting some evidence of his financial crimes."

(58:39)
So that issue was in play. So it is not going to give them sort of a complete out. Unlike Harrison, which I believe was a completely false confession that was played on TV for everybody to see prior to trial. The financial crimes, according to the Supreme Court, were appropriately in play. The only issue was to an extent which Your Honor and the parties can clearly circumscribe that based on Your Honor's ultimate ruling as to those issues.

Judge Debra McCaslin (59:04):

Okay. All right. I did ... Mr. Barber?

Mr. Barber (59:08):

Your Honor, just very briefly. We anticipated the argument Mr. Waters just made on page nine of our response brief. It is under Harrison, it is the state's burden to show that its action did not induce the testimony. So this idea that you can parse out that they could have introduced some unknown quantum of financial evidence, we don't know exactly what would have been admissible or not. And maybe that quantum would have been admissible and therefore not triggered Harrison or Simmons. It's the state's burden to say that what they introduced did not compel his testimony and simply saying that we perhaps could have introduced something is not sufficient to meet that burden.

Judge Debra McCaslin (59:51):

Okay. All right. Well, I've read the case law. I've read the statute in this case. And I think it's pretty clear. A criminal defendant's testimony from a first trial is admissible at a retrial in the same case. And that is from 191150. "The testimony of a defendant in a criminal case shall not afterwards be used against the defendant in any other criminal case." That is our Supreme Court interpreted 191150 narrowly and it limited its protection to the use in a different criminal case, not the same case. So I believe that his testimony may come in under 804. I've got (b)(1) or (a)(1), I think it's (b)(1), or for impeachment purposes. The court does not find the defendant's argument prevailing. I think you rely heavily on Harrison v. U.S. where the defendant was forced to testify as a result of the prosecution using illegally obtained confessions by the defendant.

(01:01:13)
Here, the defense argues that the evidentiary decision of the trial judge to allow evidence of the financial crimes coerced the defendant into testifying. However, I went and looked at the ruling again from our Supreme Court. The court ruled that the evidence of the financial crimes in this case is admissible in the new trial so long as it is probative to the murders. Accordingly, this is inherently different as an evidentiary issue versus illegal conduct.

(01:01:51)
Now let me, with all that said, I don't know, Mr. Harpootlian or Mr. Barber, what the state intends to introduce in their case in chief. I don't know what financial crimes are going to be allowed in and what's not going to be allowed in. If it's not allowed in, certainly that testimony related to it, I mean, it's all subject to rules of evidence. If it's not relevant, it's not in your case in chief, then that prior testimony's not coming in, obviously. I think you agree with that.

Mr. Barber (01:02:37):

Yes, ma'am.

Judge Debra McCaslin (01:02:40):

But I do think when you testify in a case, there's consequences. Testifying and not testifying, there's consequences. You don't get to tell your story, but then you're also at the peril of cross-examination and it's sworn testimony. So I'm going to allow it in subject to what is being testified to in the trial. Okay?

Mr. Harpootlian (01:03:13):

Your Honor, for the record, we would respectfully-

Judge Debra McCaslin (01:03:16):

Disagree?

Mr. Harpootlian (01:03:17):

Disagree. Are you going to issue a formal written order or is that your ruling?

Judge Debra McCaslin (01:03:21):

That was going to be my ruling.

Mr. Harpootlian (01:03:23):

That's fine. And of course we would renew it when it becomes relevant, but I just want to make sure we're not perceived [inaudible 01:03:30] objection to that.

Judge Debra McCaslin (01:03:30):

Sure. I'm not going to let you waive any objections. You can take objections to all my rulings at the end if you'd like, and it'll be on the record. We'll revisit it again at trial.

Mr. Harpootlian (01:03:43):

Thank you, Your Honor.

Judge Debra McCaslin (01:03:44):

Okay. All right. Now ...

Judge (01:04:04):

Let me go to the state's motion as to the privilege review of the defendant's phone and the motion to compel defense to turn over the digital evidence.

Mr. Creighton Waters (01:04:17):

Thank you, Your Honor. And may it please the court. Just to kind of set the table a little bit, and I know we have done so in our motion, the night of the murders, Mr. Murdoch, although he was referring to his phone saying, "See, hey, I called Maggie. See, I went..." At that time, the phone was not downloaded. It was not until three days later on June the 10th that actually a 14th circuit investigator, who's now a SLED agent, did an advanced logical download of that phone, of course. And so there was that. And then later on after the side of the road happened, or I think it was maybe in August, excuse me, then his phone was seized again and there was a download done by SLED at that point. Okay? Obviously he's a lawyer and like any case where we have a phone, but particularly one where there's a lawyer involved, we had in both instances, the first one was done prior to the Attorney General's direct involvement, but there was a privilege review done in order to protect the rights of the defendant.

(01:05:19)
And so ultimately the investigators only and the prosecutors only received the redacted parts of that phone, whereas the defense always got the unredacted copies with everything on it. Same thing happened with the SLED download. It was privilege reviewed by a taint team at SLED and then the investigators and prosecutors only got the redacted portion of which thousands of messages were excluded. The defense got the unredacted portions as well. So the first part of this motion is, and I believe they can sense, I'm not going to talk too long about that, is that since that time, of course, there's been a number of developments. And we painted a broad brush because frankly, Your Honor, the last thing in the world I want to do is to become privy to some communication I'm not supposed to. In fact, we go through great lengths to ensure that doesn't happen. But we've since had, I think, 12 attorney-client privilege waivers from former clients of his. He of course has pled guilty to conspiracy with another lawyer and a banker.

(01:06:17)
And so those things I think would require a reassessment of that privilege because of either attorney-client fraud or these waivers. And so we propose to do that with the taint team. And then we also propose, and I think they agree to this, that we would identify new communications to be released to the prosecution and investigative team, but give them a chance to review those without us seeing them and make any sort of issue they want. And if there is an issue, we'll bring it to the court.

Judge (01:06:43):

Are these waivers? Are they affidavits or what are they?

Mr. Creighton Waters (01:06:47):

Yes. During the course of the financial investigation, many of the clients executed written waiver, attorney-

Judge (01:06:53):

Okay. So there's a written waiver from these clients?

Mr. Creighton Waters (01:06:57):

That's correct. Yes, ma'am, Your Honor.

Judge (01:06:58):

Okay. Any objection to that being sent back to OGC and reevaluated?

Speaker 3 (01:07:09):

No, Your Honor. We don't object to the process that was described in Mr. Waters' motion where the taint team would bring to our attention and the court's attention any potentially privileged stuff before the prosecution receives it.

Mr. Creighton Waters (01:07:23):

Okay. All right. The next part of this is that early on, of course, we were told that there was a defense extraction that had been done. We've now, since their response, they've said that it's a logical extraction as opposed to a full file extraction. The thing about phones are is that they really represent a snapshot in time. They are, I hate to use the word breathing, but they're sort of living items where the evidence on them can change through manipulation of the phone and just how they operate from one day to the next. And so ultimately the defense had that extraction. We never asked for it at the prior trial. They of course never used it and didn't call the examiner who did that. And so we filed this motion to ask for it. I think, and just for the sake of right now, I think the defense has raised these constitutional objections while we have our arguments where we believe these things can be authenticated other ways and that there would not be an act of production Fifth Amendment violation.

(01:08:24)
At this point in time, I'm going to state that I think a better solution might be, because under rule five, of course, their disclosure obligations require them to disclose those if they plan to use them in their case in chief at trial. The problem as I see it and why we ask for this is that those things can't really be easily assessed overnight because they are very large. And so what I would suggest and request to the court is that, and I understand that during trial things can change, but that there be ultimately a scheduling order whereby at least it's this issue, they can declare that intent or at least give this information if they're going to use it, to the state in a reasonable enough time prior to trial so that we're not broken down with a jury on ice so that we can assess a phone dump of 256 gig phones.

Judge (01:09:18):

All right. So you agree that they don't have to turn it over to you unless they're going to use it in their case in chief? Unless it's provided that it's not protected by attorney-client privilege. It's not protected under the Fifth Amendment.

Mr. Creighton Waters (01:09:39):

Well, I think what I'm saying is we raised arguments as to why the Fifth Amendment would not apply in this case, why attorney-client privilege and work product would not apply in this case. And again, we're not asking for the opinions of the examiner or the impressions of that. But what I am saying is I, at this point in time, given their consent on the privilege review, am not willing to push us into this particular thorny issue at this time, as long as maybe we have a remedy that if they are going to use it is provided to us in sufficient time.

Judge (01:10:09):

You want notice?

Mr. Creighton Waters (01:10:10):

That's correct. Yes, ma'am. I think that's a fair resolution.

Judge (01:10:13):

Any problem in giving him notice if you're planning on using anything from this phone in your case?

Speaker 3 (01:10:21):

No, Your Honor. We didn't use anything the first trial because the full extraction the state did less than a month later has that and more. So I don't anticipate that we would use it at all, frankly.

Judge (01:10:35):

I will.

Speaker 3 (01:10:36):

I have no issue with giving notice if we change our mind.

Judge (01:10:39):

Well, let me ask you this. I set the trial for April the 5th and I intend to stick by it. How about if you're going to use anything, can you turn it over to him by March 1st? That'll give you like 30 days to have any rebuttal or expert witness or any objection to that?

Speaker 3 (01:11:06):

If Your Honor is ... If this is only about the Chip Johnson cell phone extraction that we're talking about, if that's what's subject to that notice requirement, there's no objection.

Mr. Creighton Waters (01:11:18):

Thank you, Your Honor. That's absolutely acceptable. The only other thing I would just ask, and I'm sure they would do that anyway, is that as we work out these issues, that any extraction be preserved during the court's ruling.

Judge (01:11:28):

March 1st deadline. Okay. March-

Mr. Creighton Waters (01:11:32):

I think that takes care of that issue, Your Honor.

Judge (01:11:34):

Perfect. But we're just going right through these. All right. Let's talk about the DNA. This is the defendant's motion. This was brought up at the status conference. The way I left it was to find out if there was a viable sample to test. And I want to make sure I got this right. It looks like there was really two samples. A sample the state tested and there's some leftover, for a lack of a better word, leftover stuff. I don't know that it contains all DNA in it, but leftover. Then there's a reserve DNA sample. So I want to make sure because there's two. Am I correct in saying that?

Mr. Creighton Waters (01:12:47):

Yes, ma'am. So these are of course the fingernail clippings.

Judge (01:12:52):

Right.

Mr. Creighton Waters (01:12:52):

And so you got the clippings in the package. As I understand it, a representative sample was prepared and tested. And from that, there's 47 microliters of extract remaining. And testing can proceed from that. There is also though, the reserve portion of that sample itself that has yet to be processed, which-

Judge (01:13:15):

The same sample?

Mr. Creighton Waters (01:13:16):

Well, the same set of clippings.

Judge (01:13:18):

Right.

Mr. Creighton Waters (01:13:19):

But it's kind of like a shirt or pants. You get the pants, you do cuttings from it. You don't cut the entire thing. And so there's still parts of the pants that could potentially be cut and tested and that sort of thing. So it's very similar. So we have extract and we also have the unprocessed sample. And so what we have. And we've had a discussion with their expert and he said that's barely even a mixture.

Judge (01:13:45):

But he's talking about the leftover stuff though, right?

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