Speaker 1 (00:00):
... The Honorable Judge R. McCaslin presiding.
Debra McCaslin (00:00):
Thank you [inaudible 00:22:10]. Good morning.
Court (00:00):
Good morning.
Debra McCaslin (22:37):
Good morning. I don't know about you all, but I had a pretty peaceful day yesterday since the internet was down all day. So let me ask Mr. Harpootlian, did you file something that I don't know about?
Richard Harpootlian (22:54):
[inaudible 00:22:55] system was down, I didn't get it either.
Debra McCaslin (22:58):
How about you, Mr. Waters?
Creighton Waters (22:59):
It was decidedly not peaceful because we were trying to prepare and couldn't email, couldn't print or anything.
Debra McCaslin (23:03):
Yeah, it was-
Creighton Waters (23:06):
But no, we did not file anything. We started to work on the defense's jury questionnaire. Of course, we had sent ours back in August, but ultimately, I don't know if we're going to address that today or not.
Debra McCaslin (23:18):
Yeah, I was just going to run through this right quick before we get in to the motion to dismiss. I want to make sure Othram has all the DNA. Mr. Griffin?
James Griffin (23:31):
Yes, Your Honor. We think so.
Debra McCaslin (23:31):
What do you mean we think so?
James Griffin (23:35):
FedEx package was shipped earlier this week.
Phillip Barber (23:38):
Yes, we have shipping information and we'll confirm with the lab when they get the package, which they should have today and confirm that.
Debra McCaslin (23:50):
And you've been kept apprised of it, Mr. Waters?
Creighton Waters (23:53):
Yes, ma'am. Adam Whitsett is with SLED and is handling that. I've been privy to the emails. To my understanding, everything is proceeding according to what the defense experts have requested.
Debra McCaslin (24:04):
Okay. And we can expect that to take about 90 days, Mr. Griffin?
James Griffin (24:10):
I think maybe shorter than that, but that would be outside window, we've been told.
Debra McCaslin (24:18):
All right. And then I have the juror questionnaire. I did receive the defense. Did you get a copy of the defenses'?
Creighton Waters (24:25):
Yes, ma'am. I did. And of course, we had sent ours to you back in August as well-
Debra McCaslin (24:29):
I've got both of them. And then in fact, I even had one from a previous case that I pulled. So I have them all. I was hoping you all could look at them and agree. And I'm going to set a drop dead date of January the 20th because I talked to Clark Campbell and we need to get them out by the 20th.
Creighton Waters (25:06):
Happy to have discussions with the defense. There are some questions that they had in there that we think stake out personality profile questions, which the law doesn't allow, but I'm certainly happy to discuss it with them as much as we did before and see if we can find common ground.
Debra McCaslin (25:21):
Okay.
Richard Harpootlian (25:21):
And Your Honor, we're more than happy to do that. Of course, our position is when I say unique, I've been doing this for a while. I've never seen kind of awareness of a jury panel that we're going to have since there's already been a trial, already been a conviction, five documentaries, two make TV movies.
Debra McCaslin (25:41):
You're not going to get an argument out of me. I agree with you.
Richard Harpootlian (25:45):
So our questionnaire and-
Debra McCaslin (25:48):
Is very thorough.
Richard Harpootlian (25:49):
Very thorough. Different because it'll allow us at the front end to have people, if they do have, I think he's guilty or I think he's innocent, I'm not going to change my mind. They can tell us that in the mail- in questionnaire and the clerk can, pursuant to your instruction, not even have them come in. So if we narrow it down before we have to... If we are doing this on April 5th, it's going to take till April 10th to wade through this.
Debra McCaslin (26:17):
No, no. We're going to do this in January.
Richard Harpootlian (26:21):
No, I'm talking about questioning jurors when the jurors come in.
Debra McCaslin (26:25):
Right. But I want to get this out to the jury on the 20th, by the 20th. I need a questionnaire by the 20th. So let's just say we pull 300 jurors. I've got to send this out to them. And let's just say 200 of them are disqualified. Then I got to send it out again.
Richard Harpootlian (26:53):
Yes, ma'am.
Debra McCaslin (26:53):
So I'm trying to make sure that I've got enough time and I talked to the clerk that we've got enough time to at least do this twice before April the 5th. Does that suit?
Richard Harpootlian (27:06):
Yes, ma'am. And Maggie Fox, who on our team is not here today. She's got the flu, but she's going to be in charge of the jury questionnaire process. Make sure we have one person. We think this is so important that we need one person, not all of us talking to the state or to you.
Debra McCaslin (27:25):
Okay.
Creighton Waters (27:26):
And absolutely, we've been the ones who were the proponents of jury questionnaires both this time and of course the prior time, we just think that there's a way, and we certainly agreed that there needs to be a more detailed inquiry because of the nature of this case. We just think there's a way to do that, to get the information we need without blatantly violating the law from the Supreme Court cases like Stanko and Avery and others that clearly prohibit certain types of questions. We can ask, and I think our one does that better, ask questions that should elicit information from which we follow up on rather than ask questions that are violative. I'll discuss that with Ms. Fox and see if we can come to a common ground.
Debra McCaslin (28:04):
Okay. All right. So like I said, you all try to work on it. I'm going to set the 20th, which is our next pretrial. That's our next pretrial date. January the 20th in Sumter. We'll discuss this because I want to be able to give it to the clerk on that day so we can get it printed and out. Okay?
Richard Harpootlian (28:29):
Yes, ma'am.
James Griffin (28:30):
Your Honor, may I... We have one area of, I think, disagreement we've not yet agreed upon is when we send the first questionnaire out, is it case specific? Last time, it was plain vanilla, the jurors came in and then they got a second case specific questionnaire. What we found and what we will know this time that whoever gets this questionnaire will know good and well that they're being summoned for this trial.
Debra McCaslin (29:00):
Well, I couldn't imagine that they would think anything else.
James Griffin (29:02):
Right. So-
Debra McCaslin (29:00):
... didn't imagine that they would think anything else.
Mr. Griffin (29:03):
Right. So, we think it's just fruitless to send a plain vanilla one out without case specific questions. So, if we can get some guidance from the court, unless they've changed their position, that would go a long way as to us working something else.
Creighton Waters (29:20):
Your Honor, again, I think if you phrase the questions appropriately, like you just said, people might know what it is and we'll get the responses that we need. What I don't think you need to do is first of all, stake people out as to particular opinions or their opinions about me or Alan Wilson.
Debra McCaslin (29:36):
That's right.
Creighton Waters (29:38):
Those are way too far. I think that just like you said, people aren't going to know what this is and we're going to see those responses. But if we actively encourage that, if we ask questions like, "Do you know anybody else on the jury panel?" You're going to create an impetus of people to look up content, to start preparing us.
Debra McCaslin (29:54):
We'll never find anybody.
Creighton Waters (29:56):
And I think that there's a happy medium where we can get that information without crossing lines. And we're in favor of that.
Debra McCaslin (30:01):
Well, you know what? I trust after looking at everybody's filings that y'all can come to a happy medium and work with each other and let me know. If you need any guidance from me, send me an email and I'll work. But I went over the questionnaire. It's pretty thorough. I assume you did that, Mr. Griffin?
Mr. Griffin (30:26):
Well, actually I did not. Ms. Fox was in charge, but we did have a consultant assist us.
Debra McCaslin (30:31):
Okay. It was very thorough. I thought it was drawn up very nicely. Y'all look at it and see if you can't come to a happy medium. What you can't decide, I'll decide for you. Okay?
Richard Harpootlian (30:47):
Thank you, Your Honor.
Debra McCaslin (30:48):
All right. Now let me ask you this, because I meant to ask this last time. I'm not sure that I did. Expert witnesses. Everybody had their expert witnesses because I don't want anything at the last minute saying, "Hey, I haven't had time. I don't have an expert witness." I know I have a deadline of March 1st on the defendant's phone. And I didn't know if maybe that's why I was giving you time for an expert witness instead of deadline of March 1st. But what about everything else?
Richard Harpootlian (31:25):
Your Honor, if I could address a couple points here. And Mr. Waters should not take this as criticism of him and [inaudible 00:31:36]. I understand all he can send us is what law enforcement gives him. However, we had a hearing where we asked for the right or the ability to go examine the shell casing. Your Honor indicated you would not order that, but they should furnish to us the photographs that they used that were inputted into the database.
Debra McCaslin (32:01):
Right. All their raw data that they had that they came to use to make a decision.
Richard Harpootlian (32:06):
We still don't have those.
Debra McCaslin (32:07):
Okay.
Richard Harpootlian (32:08):
Our expert can't even begin without having those. And again, I'm not criticizing Mr. Waters. I'm not criticizing the Attorney General's office, but I know that SLED, as most law enforcement agencies spread out all over doing different things. I had one of the witnesses called me yesterday saying that SLED agent was trying to interview him after we asked for some information about his statement.
(32:34)
So, if they would help Mr. Waters by giving him the stuff, we had a hearing on this, he ordered it. Maybe we could deal with SLED directly so he doesn't have to wait for... I mean...
Debra McCaslin (32:49):
Well, I did. I'm going to tell you that in the FARO scan was going to be my next questions. What's going on with the ballistic, Mr. Waters?
Creighton Waters (32:58):
Your Honor, I've had multiple conversations with SLED. I just talked to Mr. Griffin. We've actually even scheduled a meeting next week to go through every single item and ensure that there is production. I've already spoken to SLED about a number of these things. There's no issue in providing them. I'm pushing the button forward to drive these new things that have been asked for, and I don't foresee an issue here.
(33:20)
Again, I just talked to Mr. Griffin. We've got a meeting on the books next week, and we're going to do a comprehensive review so that I can ensure that if there's any cracks, nothing is falling through.
Debra McCaslin (33:30):
Is that just for the ballistic?
Creighton Waters (33:33):
That is across the board. Anything and everything that the defense-
Debra McCaslin (33:35):
And what about the FARO scan? Do they have that? I ordered that that Monday after I left.
Creighton Waters (33:41):
That FARO was already provided weeks ago.
Debra McCaslin (33:46):
Okay.
Creighton Waters (33:46):
I'll ask again, cell phone evidence for that time.
Debra McCaslin (33:50):
Because I know you had an expert for the FARO data that you wanted. Okay. So, next week is going to be ballistics. What day next week?
Creighton Waters (34:03):
I expect to have the raw data prior to that. We're going to have, and as well as other productions as well, I'm going to have a meeting with Mr. Griffin late next week where we are going to go through everything and just ensure that everything has been provided. That is forthcoming in the very near future.
Debra McCaslin (34:25):
Okay. Will y'all send me an update after that meeting? You can just send me a group email while y'all are there. If there's something that I need to take care of, I just don't want at the last minute there being discovery that hasn't been turned over and the defense is going to tell me, well, their expert needs to look at it and they need a continuance because I'm not going to grant it.
(34:53)
And that's not going to be a happy day. So, I want to make sure they have everything they need and I'm going to put a deadline on it if I have to.
Creighton Waters (35:07):
Your Honor, a lot of these are new requests and we're working to put those together like the FARO itself. They have been provided to FARO well prior to the first trial. They just decided they wanted the raw images when before the reader was fined.
Debra McCaslin (35:23):
But they're entitled to that.
Creighton Waters (35:23):
And I'm not disputing that. I'm just saying we're having to... It's not like these things were withheld a lot of these requests and we're working on those and have no problem providing-
Debra McCaslin (35:31):
Right. I don't think he's saying that you're withholding anything.
Richard Harpootlian (35:36):
I want to make this clear and I said it the first thing. We're not alleging anybody is withholding anything intentionally in this case, but-
Debra McCaslin (35:45):
It's just slow getting there when we have an April 5th trial date.
Richard Harpootlian (35:48):
And we've got experts too waiting on some material which Mr. Waters indicated he furnished, but I think the bottleneck is sweat would be my best guess. There's no evidence that they get it and sit on it for four weeks. I mean, so I would just encourage the court to perhaps let law enforcement know there could be consequences if they don't focus on providing Mr. Waters with what he requests.
Creighton Waters (36:14):
Your Honor, I will ensure it gets done.
Debra McCaslin (36:14):
And I believe you Mr. Waters.
Creighton Waters (36:16):
The buck stops here and I will ensure it gets done.
Debra McCaslin (36:21):
Absolutely, because the buck does stop with you and you're going to be the one I'm looking at.
Creighton Waters (36:27):
I understand, Your Honor.
Debra McCaslin (36:30):
Okay, good. All right. So, we've got expert witnesses lined up. All right. The other one, I think at our last hearing, the state requested confirmation as to whether a logical extraction of Mr. Murdaugh's cell phone had been performed. Do we know if that's been performed? I think this is my March 1st drop dead date, if y'all are going to use it.
Mr. Barber (37:01):
Your Honor, if I'm recalling this correctly, this was about the Chip Johnson extraction that was done before his arrest. And I think we confirmed at the last hearing that that was a logical extraction performed. Can you speak up?
Debra McCaslin (37:17):
Anything else you need, Mr. Waters?
Creighton Waters (37:18):
Well, that's a defense extraction. Again, that's never been provided to us. They've said it's a logical extraction. I'd still love to have it, but ultimately they said it's merely a logical extraction, which has a lesser amount of subset of data. I don't know if there-
Mr. Barber (37:35):
Your Honor, there was a motion on this, if you recall, that they did an extraction, which at that time wasn't provided to us. This was all pre-arrest, but right after. Then we had an expert also do a logical extraction. And then after that he was arrested. They took his phone and have had his phone ever since. And so, I thought the resolution from that motion on that point was when we confirmed that it was a logical extraction, which is what they had, and they had one that's closer to the murders than the one we have, that they had drawn the request.
(38:08)
I didn't know if that was still a live issue and that was just being asked to confirm on the record that it's a logical extraction and not the full extraction. And I do confirm that.
Debra McCaslin (38:18):
Okay. Anything else, Mr. Waters?
Creighton Waters (38:20):
No, ma'am, Your Honor. I'll talk to Mr. Barber about it.
Debra McCaslin (38:22):
Okay. All right. Then the FARO, all has been turned over. You don't need anything else?
Richard Harpootlian (38:29):
Your Honor, there will be some items that Mr. Griffin and Mr. Waters that have not... We mentioned once this morning, the native x-ray [inaudible 00:38:38].
Debra McCaslin (38:37):
The what? X-ray.
Richard Harpootlian (38:45):
So, let me make this real quick. There's an X-ray taken. What's furnished to us is a PDF of that X-ray. The native is a much clearer image that can be blown up and more detail can be seen. Almost everything furnished to us has been PDF of everything, including the shell casings, including... So, we want the native, the original photograph or the original x-ray for two or three experts to look at. And he has not brought it up today.
(39:20)
He has not said he's not going to give it to us. I'm just saying there's going to be other things we're going to talk about next Thursday other than what we talked about this morning. And just so we can meet that March 1 day, you're going to be overly inclusive if necessary. And let me explain this to you. If you have an expert, I'm saying we do, but if we had an expert, that expert might look at what we have and say, "Well, how about this?
(39:48)
Why the x-rays in native format?" Or they may say, "This isn't my area of expertise. It's a subset expert and that's who you need to get." So, do we have all our experts? No, ma'am. But if we get this data, the ones we do have can tell us whether they can opine or we need somebody else to opine. The more data you have, we didn't do it this way 30 years ago.
Debra McCaslin (40:18):
No, we sure didn't.
Richard Harpootlian (40:21):
So, it's like civil practice now. Reams and reams and reams.
Debra McCaslin (40:26):
Technology's changed.
Creighton Waters (40:30):
I want to be clear, Your Honor. I mean, that's exactly right. All of this has been provided as it normally is in discovery. Now they've come to me. He says again, this is correct. This is an absolute new request they raised to me this morning. And that's when I said, "You know Jim, Mr. Griffin, come over to my office on Thursday. Let's go through the whole list. Put together your wishlist. If it's something we got, I'm happy to provide it unless there's some legal reason why we can't."
Debra McCaslin (40:51):
Well, I appreciate you doing that. That ought to-
Richard Harpootlian (40:52):
Point out that this is sort of a moving target. It's not a static give us this and then it may raise additional questions. And Your Honor, when you said email you on the jury questionnaire or anything else, do you want those filed or not filed?
Debra McCaslin (41:12):
As far as?
Richard Harpootlian (41:14):
We have disputes on the jury questionnaire.
Debra McCaslin (41:17):
If you have disputes, I'm going to tell you what I'm going to do is y'all can email me, but anything you email me, I'm going to seal and file as a court's exhibit along with the jury questionnaire.
Richard Harpootlian (41:30):
Right. I just think perhaps the more public debate about these issues, the more informal potential jury gets and we're trying to dampen that down.
Debra McCaslin (41:37):
Right. Exactly.
Creighton Waters (41:39):
I agree with that. That's why we sent ours and I attached it to our filed motion back in August. I think having drafts and versions that are in public filings probably would be a good thing of whatever the court ultimately or the parties-
Debra McCaslin (41:51):
I agree because I'm going to tell y'all, I brought two files. I reviewed some personnel files and I'm sealing them for the record, R. Kelly personnel file. I did not find anything in it. I reviewed David Owen's personnel file. I did not find anything in it that I needed to turn over to the defense or anything that was relevant to this case. I put both these files in a sealed envelope and I'm going to have the clerk seal them and file them as a court's exhibit for the record.
(42:28)
I will do the same with any emails that y'all send me concerning anything in this case. I'll be more than happy to do that just in case something comes up later on. So, I have also done an order transferring this file to Sumter. So, from now on, everything, I guess... Mr. Campbell, will that be starting today?
Richard Harpootlian (43:03):
I thought we discussed January 1, Judge.
Debra McCaslin (43:05):
January 1. So, anything that y'all filed dated January 1, needs to be filed in Sumter. Okay? Now I had one quick, because I see Joe McCulloch out there. And I've got two orders. Mr. Waters, I have your order. Mr. McCulloch, I have your order. Really, it's the same order, except for one has a later date to provide the redaction of the jury tampering. Mr. Waters, I'm going to give you as much time as you need. I know you have your hands full.
Creighton Waters (43:56):
It is very labor-intensive, Your Honor, on top of dealing with all of this.
Debra McCaslin (44:00):
I agree.
Creighton Waters (44:00):
We're having to procure new software to effectuate an effective redaction of this, which we're still in the process of doing. So, I would appreciate that.
Debra McCaslin (44:12):
Okay. I think all it does, Mr. McCulloch, is delay this to, I really think the end of the month, or maybe it gives him a little bit of leeway.
Mr. McCulloch (44:23):
That's fine, Your Honor. I would point out, however, this is something we had an agreement about two months ago.
Debra McCaslin (44:30):
Right.
Mr. McCulloch (44:31):
In my office, we go to a tech sometimes. I find that a black magic marker works really well. You black it out by redacting and then you make a copy of that and it's not possibly pierced. So, I don't know that the state needs to spend a lot of money on software.
Creighton Waters (44:49):
The issue of course is not, as I said before the prior hearing, is not redacting the documents. That's fairly easy. We do that all the time. The issue is redacting those videos, those body cam videos of those interviews in a way that will preserve the juror's anonymity. And of course, that can even be exposed by the background behind them. They may talk about other jurors by name.
(45:12)
And so, it requires a careful parsing of that to ensure that. And so, that is where the heavy lift is and that's the time-consuming process, Your Honor.
Debra McCaslin (45:21):
I agree. And then I know that I have y'all on the deadline too, so I'm going to give you the leeway that you've requested. I will sign yours, have it filed, and then when you can get that to Mr. McCulloch.
Creighton Waters (45:36):
Yes, ma'am.
Debra McCaslin (45:37):
Okay.
Mr. McCulloch (45:39):
Thank you, Your Honor.
Debra McCaslin (45:40):
Anything else, Mr. McCulloch?
Mr. McCulloch (45:42):
Sorry?
Debra McCaslin (45:42):
Anything else?
Mr. McCulloch (45:44):
Nope. Thank you.
Debra McCaslin (45:45):
Thank you. Thank you for being here. All right. Let me ask, is there anything else I need to take up before we move on to this motion to dismiss?
Richard Harpootlian (46:00):
Your Honor, just one minor matter. Our silence after your ruling that you can seal the personnel files, I don't know that I have to enter an objection at this time, but just preserve the record and I just want to-
Debra McCaslin (46:19):
I'm not sure that you have to, but out of an abundance of caution, I'll be more than happy to have the record reflect that you noted... What's your objection to my sealing the personnel records?
Richard Harpootlian (46:44):
Did you seal the personnel record?
Debra McCaslin (46:44):
Well, let me tell you. I thought about it.
Richard Harpootlian (46:44):
Your Honor, I'm not disagreeing.
Debra McCaslin (46:44):
Right.
Richard Harpootlian (46:46):
The record. We don't know what's in there or we may know things you don't know. And so-
Debra McCaslin (46:49):
Well, and that's probably true, Mr. Harpootlian.
Richard Harpootlian (46:53):
Examine them under order not to distribute it or talk about it.
Debra McCaslin (46:58):
I told y'all that I would do an in-camera review and an in-camera review is just that, a confidential review. I did it. I'm telling you this is the court's ruling on both of these. I'm going to seal it. And the reason I'm sealing it and making it a court's exhibit is I'm not going to let just anybody go and look at people's personnel files. I'm not telling you that it might not be available some other way, but I'm just telling you for me reviewing this in camera, I'm going to seal them, and I will note your objection on the record.
Richard Harpootlian (47:37):
Thank you, Your Honor.
Debra McCaslin (47:41):
Okay. All right. Now I'm going to tell you, Mr. Hart, anything else before we move on to the motion to dismiss?
Richard Harpootlian (47:52):
No, Your Honor.
Creighton Waters (47:52):
[inaudible 00:47:53]
Debra McCaslin (47:53):
All right. I'm going to tell you, I've read your motion. Mr. Waters, I read your response. Read your response. Lot of reading. Lot of reading. I did it. And it's a pretty high burden and it's your burden. So, let me hear from you.
Mr. Griffin (48:21):
May it please the court. Your Honor, we had prepared a PowerPoint. I have provided a copy to Mr. Waters. I want to submit a copy to the clerk to make it part of the record and then two copies for you and your law clerk.
Debra McCaslin (48:53):
Oh, that's great. Thank you.
Mr. Griffin (48:53):
And it is a high burden, Your Honor. And that's why if I could impose upon the court to suffer through my PowerPoint, that we have a lot of substantive information that you don't normally have in these type of cases, because it is the Colleton County grand jury. There is no transcript.
Debra McCaslin (49:16):
That's right.
Mr. Griffin (49:16):
But what we do have, which you wouldn't have in a normal case, is we had a narrative prepared by the case agent. We have his trial testimony from the first trial where he testified that he followed the narrative. We have information from his narrative and from his admission from the first trial that he made these representations to the grand jury pertaining to high velocity blood spatter from the murder of Paul Murdaugh on Alex Murdaugh's t-shirt that was presented, which was false, and we're going to show that today.
(49:59)
And we have his admission that he testified before the grand jury that shotgun shells were loaded in guns found at Moselle, the family home, in the same manner as the combination of shotgun shells that killed Paul Murdaugh, particularly the first was a buckshot. The second was a stainless steel waterfowl shot, but it was frequently called turkey load at the time. But we learned through the course of this trial it was stainless steel. I learned I'm not that big of a hunter, although I do hunt, but you don't shoot lead over water.
(50:42)
And so, these were stainless steel pellets that were found in Paul's body. I want to begin, Your Honor, with the standard, and it is State v. Thrift case. There's a lot about State v. Thrift, and it was decided in 1994, but one of the holdings and the holding that's important for us today is that the Supreme Court said that you cannot admit evidence of a polygraph, a defendant or target's refusal to take a polygraph. You can't present that to a grand jury when they're considering an indictment or anything. And that was a new ruling in that case.
(51:26)
And it's important to note in that case, the trial court, I believe, had concluded that it was prosecutorial misconduct by the Attorney General's office for asking those questions. The Supreme Court said, "No, no. We find no prosecutorial misconduct here, that the Attorney General's office staff handled the matter in complete good faith in accord with the highest of ethical and professional standards." That's what the Supreme Court said.
(51:59)
They said, "Nevertheless, we addressed the prejudice prong because of the colorable claim of prosecutorial misconduct, the colorable claim of prosecutorial misconduct." And then they go on to apply the prejudice prong of Bank of Nova Scotia, where they said, "A dismissal of indictment for non-constitutional error is appropriate if it's established that the violation substantially influenced the grand jury's decision to indict, or there's grave doubt that the decision to indict was free from substantial influence of such violations."
(52:36)
The court in Thrift also said, "It is usually difficult for a defendant to make such a claim," and the cited State v. Thompson that held that speculation about potential abuse of grand jury proceedings cannot substitute for evidence of actual abuse as grounds for quashing an otherwise lawful indictment. The reason it's difficult to make such a claim is because these local grand jury proceedings are not transcribed, unlike the state grand jury. But again, as I mentioned in my first opening comments, what we have here is an unusual set of circumstances.
(53:16)
We have information about what was actually presented to the Colleton County grand jury, and we're going to show you that that information was false. I do want to bring up a case that Judge Roger Young dismissed an indictment without prejudice-
Debra McCaslin (53:34):
I'm familiar with it.
Mr. Griffin (53:34):
In State v. Colucci. And just for the record, Your Honor, the issue in State v. Colucci was that the defendant was the husband of the deceased, and the deceased was found hung by the neck outside their business. The state charged the defendant for murdering his wife. What the deceased's mother told the same lead investigator in this case immediately after her death, the mother told David Owen, the lead investigator here, that days before she was found hung, that her daughter told her that she was contemplating suicide by hanging herself.
(54:29)
The same case agent here was the same person in Colucci who didn't disclose the evidence in any file, didn't disclose it to the AG's office, and it was only surfaced after a mistrial from the first trial. The mother came forward and said, "Disclose that. I had told this investigator right after it happened about my daughter saying she was going to hang herself." Judge Young found that there was no intentional misconduct on behalf of the Attorney General's office.
(55:06)
Yet he says, "The court believes that our court should demand better from the state. If the state wants to retry the defendant, it is to do so only after the state has presented the case to a grand jury who shall have the benefit of the full measure of evidence this matter deserves. The goal is to do justice, and this case deserves a fresh restart, an order that citizens of South Carolina can have full confidence in whatever the jury's verdict may be." And then lastly, before I get into the substance here, I want to quote Judge Bell, Judge Randy Bell.
(55:41)
Your Honor, I know you're old enough to remember Judge Randy Bell and some of us here in this courtroom are old enough, but he was a scholar amongst scholars and on the court of appeals. And he says, and it was quoted by the Supreme Court in Thrift, "Speculation about potential abuse of grand jury proceedings cannot substitute for evidence of actual abuse." In saying this, we yield to no one in our zeal to ensure that the grand jury continues to perform its historic function as a shield between the accused and abuse of the prosecutorial power of the state.
(56:17)
The courts of South Carolina stand guard to see that the grand jury is not reduced to a mere play thing of prosecutors. Now, the grand jury in Colleton County was presented with evidence by one witness, David Owen, and we know that by the face of the indictment because it says witnesses presented and he is the only witness that was presented to the grand jury. As you know, county grand juries, lawyers don't normally go in there. There's no evidence that a lawyer was in there, and so it's David Owen.
(56:48)
But as I mentioned, what we do have is the benefit of his trial testimony where he admitted to what he told the grand jurors. And the first issue relates to this blood spatter, Your Honor. And what I want to address is how a blood spatter opinion that SLED's own laboratory contradicted reach the press and then the grand jury that indicted Alex Murdaugh.
(57:17)
And we go through four steps. The first, Your Honor, in order to have blood spatter, you got to have blood. It's pretty simple. And in August of 2021, SLED's laboratory and their laboratory analysis, Ms. Zapata, did what's called a confirmatory blood test on areas of Alex Murdaugh's shirt to confirm whether or not there was actual human blood on the shirt. And the results through this confirmatory Hematrace test was there's no human blood. And then irrespective of August of 2021...
Mr. Griffin (58:01):
Irrespective of August of 2021, no human blood found on the shirt by SLED's lab. On February to March of 2022, SLED reaches out to a blood spatter expert questioning whether there is blood spatter on Alex Murdaugh's shirt. Nevermind the fact that in August, and again in November, you'll see directly emailing... I mean directly a report issued to David Owen saying there's no human blood. They set up on a path to find an expert to say there's high velocity blood spatter on Alex's shirt. And then in April, after they get a second opinion from the same expert that reversed the first opinion that says, it's all transfer and there's no blood spatter here, they get him to reverse his opinion. He doesn't know the tests show there's no blood. And then nine days later or 10 days later is reported in the press in FITSNews. And then in July, the grand jury hears it. Yet there's no blood on the shirt that they say there's blood spatter. And this is the timeline that we want to focus on. And then we got photos of the shirt that we'll address.
(59:23)
But June 8th, the murders happened the night of June 7th, early morning hours of June 8th, SLED collected Alex's clothing. And then on June 25th, there's a part of his shirt where it's discolored. You can see on the videotape that he takes the hem of the shirt and wipes his face off. They do a cutting from that area and they do DNA tests and they find Maggie's DNA on that part of the shirt. Paul's DNA is excluded. On July 21st, SLED then sprays the shirt with a substance called leucocrystal violet, it's called LCV. And it is a presumptive test for blood. They spray it all and where it finds what might be blood, it turns purple. And we've learned in this case, there are other reasons that it can have a reaction besides blood. That's why it's called a presumptive test. In order to confirm the test, you have to do a HemaTrace, which was done in this case, so the presumptive test on July 2021 reported there's some purple areas and then they were gridded and we're going to show you the grid.
(01:00:50)
And 12 grids of where these stains are and then they cut out the areas where the stains were and then they did DNA testing on those, which we'll see. But they did HemaTrace confirmative testing on every sample and everyone's reported negative for human blood. It's August the 10th. Six weeks later on September 21st is when they first reach out to Mr. Bevel about hiring his firm. And then on November 10th, SLED issues a formal report that has DNA analysis that frankly you're going to see that the agent, David Owen, testifies about some of the DNA analysis in the same report to the grand jury, but he says he never saw the page that says no human blood on these 12 cuttings. On January of 2022, they send a lot of information to this expert in Oklahoma. They don't send the report that says there's no human blood. And they ask him, are the stains on the shirt consistent with gunshot?
(01:01:55)
And then on February 3rd, 4th, Mr. Bevel issued a report that says stains are consistent with transfers and not back spatter from a bullet wound, so he says, no, there's no blood spatter here. And then February 7th, 8th, February 15th, March 20th, they follow back up with Mr. Bevel. And we don't know exactly what was said, but we know exactly what was done is that they had a Zoom call. He asked to see photos of the shirt as it exists then and there. And you're going to see Mr. Bevel saw what we saw when we asked to see the shirt. Because of the LCV was sprayed all over the shirt, over time the entire shirt washes out like tie-dyed blue and you can't tell anything with it. And so Mr. Bevel says the shirt probably won't do any good. He did ask for raw images, not JPEG images, but the original images that the camera took so he can do a further analysis on the shirt. And then so Agent Owen and another agent flew to Oklahoma. They took with them a CD, DVD with additional images.
(01:03:19)
And then on March 29th, Mr. Bevel issues a final report, completely contradicts his early report that says the stains are consistent with transfers, meaning hand to shirt. And now he says there's 100 plus stains that are consistent with spatter. And there's a question you'll see. I though you can get this peer reviewed and all of a sudden he says six other people reviewed it. And Your Honor, that was on March 29th. We read on April 26th in FITSNews a headline that says, high velocity impact spatter directly ties Alex Murdaugh to double homicide sources say. I mean, almost eight days later we read this in FITSNews. I mean, this is real time. We see it. We're stunned by it. We hope it's a lie, but it wasn't. I mean, it was leaked to FITSNews. But backing up, here's something extremely important. On April 18th and 19th, and you'll see this, SLED Lab logs whoever accesses data from their lab.
Speaker 2 (01:04:43):
I looked at it. I saw the exhibit.
Mr. Griffin (01:04:46):
There's a bar graph that we have I think, and there's data about how frequently it's accessed. April 18th and 19th, the SLED analyst, Ms. Zapata who ran the HemaTrace test opens the No Human Blood report on each of two days, 18th and 19th. On April the 20th, SLED's DNA staff meets with the Attorney General's office to discuss the lab reports. And Ms. Zapata at trial testifies that the shirt results were probably discussed. And that's what she says, probably.
Speaker 2 (01:05:25):
I read her testimony.
Mr. Griffin (01:05:27):
And six days later we read about it in FITSNews. And then Collin and Grand Jury is presenting the information on, and indicts on July 14th. The same day CNN reports on the blood spatter and July 20th, People Magazine reports on the blood spatter. And Your Honor, there's certain crossroads in every case. And in this case, we felt without a doubt that we could prove, if we had the right information, that this test was junk science, that this test could not... Because it could not have happened. I mean, we were convinced to our souls that this test was false. And I know what Your Honor says about no motion to compel, but we went to Judge Newman and we said, "We've got to have everything they have about this. We've got to have it." And we moved to compel and he ordered them to produce it. And it was produced, Your Honor. It was produced on... Let's see if it's up here. It was produced in a-
Speaker 2 (01:06:49):
On November the 23rd, you filed your motion to compel.
Mr. Griffin (01:06:52):
Well, to exclude it, so November 3rd, after defense's motion on October 17th, we get a SLED lab download. We take a hard drive over there and we get 38.4 gigabytes of information. Now, it's important to understand that the way SLED produces information to the Attorney General's office to be produced to the defendant is through some evidence.com channel or some channel was Axiom or evidence. com, so SLED selects what goes to the AG's office. AG's office produces it to us. What we did on this October 17th motion is we asked to bypass that. We wanted to get it straight from SLED and Adam Wisnet, I'm not sure if he's in the courtroom today, he's been here every time, but he ensured that SLED produced everything to the AG's office. And in that production, that 38.4 gigabyte production is this HemaTrace test result, which we never would have seen had we not kept pushing. And Judge Newman granted our motion to compel and we got a 38.4 gigabyte drive, because you notice in their report, they said that they produced it to us on December the 2nd or thereabouts.
(01:08:25)
How could they do that when we attached it to our motion to exclude Mr. Bevel's opinion and we cite their report? And that is how, Your Honor. By their own admission, they said SLED didn't give us this. We didn't get it until December the 2nd. And we wouldn't have gotten it had Adam Wisnet made their SLED lab give us a download of the entire report, of all their work, so it bypassed the normal production channels. We got a gigabyte. We filed this motion right before Thanksgiving. I talked to my friend, Mr. Waters. He though we were full of it. And then they had a big meeting out there and then he pulled us aside and says, "I thought y'all were full of it." And we weren't full of it. And we'll get to that a little bit later, but we had the information because we filed a motion to compel, Your Honor.
(01:09:26)
And then actually we sent the information to Mr. Bevel. Then Mr. Bevel then, he gives the information and then he does some kitchen sink analysis and he comes to the conclusion that the HemaTrace results were unreliable because it had been treated with LCV. We have in our memo and we'll show it shortly. The AG's office, Mr. Waters, asked the SLED lab to do research on this issue. They did their research and they said, no, that's not the case. That HemaTrace is actually more reliable than any other testing after it's been subjected to LCV or anything else. And so we go to trial.
Speaker 2 (01:10:24):
I think it showed that it was 94% correct if I remember. I read all this. I read every bit of it.
Mr. Griffin (01:10:32):
I understand you have.
Speaker 2 (01:10:33):
Go ahead.
Mr. Griffin (01:10:39):
And in their response, Your Honor, they said, "We've litigated this." Well, we did and we didn't. I mean, the issue before Judge Newman, if they're intending to use this, we will have a hearing on a counsel hearing. Well-
Speaker 2 (01:10:52):
If they're intending to use what?
Mr. Griffin (01:10:55):
To use Mr. Bevel's blood spatter report, testimony.
Speaker 2 (01:11:00):
They didn't use it in the first trial, did they?
Mr. Griffin (01:11:02):
They did not use it. But what I'm saying is we never got to the point where Judge Newman heard all this evidence that you're seeing and he said we've litigated it. It has not been litigated. But the fact of the matter is, here we are, and it's one basis for which we're asking the court to dismiss the indictment without prejudice as has been. Here's a picture of the shirt as we believe is best it was originally in the SLED lab before it was treated. And the discoloration down here at the time we believed was some transfer from Alex's hands to his shirt. He wiped his face. And the state's theory was that this was high velocity back spatter, most likely from the shooting of Paul. And I mentioned earlier, they spray the shirt with LCV and you'll see what happens. The most bright light here is, I mean, bright blue is down at the bottom, but as you look closer, there are other areas that are gritted and areas of interest are gritted with a string labeled A through H.
(01:12:23)
And so there are total of 12 areas, 11 gritted here and then the hem that was previously cut. And on number three up there is where they cut it out. And where they cut the grids out and then they test it. They test it for DNA and they test it for human blood. And these are the results, Your Honor, from all 12 items that say where on the shirt they came from. And so we have that listed here and they list them item 9.2 to 9.13. And we have two columns here, Your Honor. We have Paul's DNA present and human blood. Human blood, none identified. Now, one of the things that the state doesn't address in our memo is Agent Owen's testimony that he says to the grand jury in the areas where Mr. Bevel's expert found blood spatter from the shooting of Paul, that they find Paul's DNA, Maggie's DNA and Alex's DNA. And of course it has to be. If you're shooting someone and their blood spatters back on your shirt, that person's DNA is going to be on your shirt.
(01:14:07)
And we're going to show in a minute the areas where Paul's DNA is identified, which is 19.4 stain A, lower front is identified. And 19.3, stain J, which is kind of around the back and you're going to see that, it's identified. Those are down at the bottom, down at the bottom, not in the area where the blood spatter is allegedly exists, so not only is there no blood, there's no Paul's DNA. In the area where Agent Owen testified to the grand jury, and this testimony forensically puts him at the murder scene at the time of the murder. It puts him there. Irrefutable. If it was true, it is as good as a fingerprint at the murder scene or better because it only happens at the time blood is being escaped Paul's body to the ceiling and back, so he's there according to this report. His DNA, Paul's DNA is on Alex's shirt. Paul's blood is on Alex's shirt. The problem is, it never happened. And SLED knew it since August of 2021 and they knew it since November when they issued a report to Agent Owen saying there's no blood.
(01:15:40)
Has all the DNA results, but undeterred, undeterred, and they keep pursuing this. And this is sort of the dividing line where under Mr. Bevel's report says blood spatter upper two thirds, no Paul's DNA. Lower third, one, two spots affirmative for Paul's DNA. It's irrefutable, Your Honor. And then these are the results from the two reports. The first one on the left is August 10, 2021, the HemaTrace result. And the second is the November 10, 2021. And that's the report that you look at, it's got Agent David Owen on the cover of the report. And report addressed to Agent Owen, no human blood identified. It was not provided to Mr. Bevel until after we filed our motion and we sent it to him, frankly. Here's a slide addressing the flip-flop for Mr. Bevel and his opinions. The first opinion is on the left side, are the blood stains on Alex's white T-shirt consistent with back spatter from a gunshot? And his opinion in that top quadrant up there, IQ4, it says the stains on the white T-shirt are consistent with transfers and not back spatter from a bullet wound.
(01:17:21)
Well, that's the report they got him to flip. And so March 29th report says, are the blood stains on Alex's white T-shirt consistent with back spatter from a gunshot? And then his opinion is some of the stains on the white T-shirt are consistent with transfers and 100 plus stains are consistent with spatter on the front of the T-shirt and 100 plus, so he goes from none to 100 plus. And we want to ask ourselves what changed from the first report to the second report. And what did change, Your Honor, as we done the timeline is that Agent Owen, another agent fly to Oklahoma. Mr. Bevel asked for raw photos, like we've just asked for raw photos on the ballistic shells, not JPEG photos, but whatever the original format is, we want those. Bevel asked for the same thing. We want raw photos. Agent Owen flew out to Oklahoma with a CD that had photos of the shirt. It says with a large CD format, we were able to filter the colors of the shirt using Photoshop, focusing on red and blue and white of the shirt, so he photoshopped the shirt, Your Honor.
(01:18:54)
In his own words, he photoshopped the shirt. But they're saying at the time that it was an enhanced version of the photos that he received. They still don't give him the lab report that says no human blood. And bottom line, he says, I don't see any other mechanism to get so many misting stains onto his shirt other than the spatter created from the shotgun wounding. And then here's the deal about the raw photos. And the state in their response, Your Honor, I guess they just cut and paste their early response because once again, we filed a motion to compel with Judge Newman, said, "Please order SLED to give us everything that was given to Bevel." He ordered that. And we got this large format CD drive and we're looking at the photos and we're expecting to see raw format of some kind. And we don't. We just see JPEG, which is the same thing he had previously, which is the same thing that we had in a JPEG. And in their response, they say raw photos.
(01:20:07)
Well, we're like, "We got the same CD that y'all said y'all gave to Bevel and the format's the same. What gives?" And at the first, second day or early in the trial, Mr. Zelinka handed us a copy of a statement from Bevel, which we have in there. He says, "I was mistaken. I asked for raw photos. I didn't get raw photos. I just got more JPEG," so nothing changed. Nothing changed. He didn't get anything differently. They just got him to change his opinion. And here's where they still, in what they filed today, excuse me, what they filed last week or whenever, they said, "Reviewing the higher quality images taken prior to LCV processing and having enhanced the images in Photoshop, BGA concluded there were over 100 plus spatter stains." And this is a statement from Bevel. It's attached to our reply brief. He says, "I now know my belief was an error as to what I received on the CD, as what I received on the CD was in JPEG format," so it was no different.
(01:21:21)
And again, this is what he got and this is what he didn't get. He got a lot of things, but the most important thing he did not get was a statement, the lab report saying there's no blood. And then here's a picture of the shirt. When we said we want to go out to the lab and see the shirt, that's what we saw. That's what Mr. Bevel saw, so when they flew the shirt out to him, this is basically what he saw. You can't tell anything from this shirt. You cannot tell a single thing from this shirt other than it had been washed out from LCV. We complained mildly about that, but we learned that's what happens when you spray it with LCV over time. It reacts to everything, cotton, I guess. That's why it's a presumptive test, not a confirmatory test. And then when they got the draft report, SLED got the draft report and said, "You told us there was going to be a peer review process to this and more people were going to look at it." And so he changed the report and he says, "The T-shirt has been evaluated by six recognized blood stain pattern experts, all agreeing the best explanation for the stains on the shirt are spatter from approximately the bottom third up to the top of the T-shirt." And we talked about there's no DNA of Paul in that area, but he doesn't identify the six experts. We never got a chance to cross examine him about who that is and what did they do. But he put that in his report and there was no need. And this is the audit report, Your Honor, of how often this report was accessed at SLED. And before indictment, it was accessed 10 times. And importantly, that April entry, as we mentioned before the meeting with the SLED DNA analyst and the lawyers for the state, it was accessed twice. And 10 times before the indictment, it was accessed. I mean, it was accessed 10 times. Now, Agent Owen claims that he had not seen the November 2021 HemaTrace lab report until the error was discovered on November of 2022. And we would point out that it was addressed to him that the audit logs that we've attached show that he accessed it, but SLED says he can't tell what reports in there he actually accessed. We know that the same report contains records of the raincoat DNA and that in Agent Owen's grand jury notes he has and he testified there's no DNA found on the raincoat. It had to come from the same report because no DNA found... It's in the same report. And he told the grand jury the DNA in the spatter belonged to Alex, Maggie and Paul before he says he ever saw the lab's report. Well, he got that wrong, but that's where you would go to find where Maggie's DNA is found on the shirt, where Paul's DNA is found on the shirt. You would go to the same report. You would go to the same report that he says he didn't see until after we pointed it out to him. And there's a question about the standard. We'll live by the standard that the state submitted in their response. It is new or in reckless disregard should have known.
(01:25:15)
And there's a case that in State v. Durant, Your Honor, that says the state has to affirmatively investigate NCIC for someone's record. You can't just sit back and say, "Yeah, I don't know." You've got to go look, so in South Carolina, there's an affirmative obligation, but if you just go reckless disregard, how is it not reckless to the lead case agent to examine the reports addressed to him specifically as to, is there blood where we say there's blood spatter? The answer's no. Is there DNA where we say Paul's blood is? Is it Paul's DNA? The answer is no, but yet he testified. He testified that it was there. He testified falsely it was there. They have not addressed that. And then six days later, you got the leak, which I mentioned earlier. And we just, in the slide, Your Honor, you can take your time and look at it, but you just line them up. You line the final report up to what the reporting is and there's no way around. I mean, it came from the state whether it came... Clearly we accept Mr. Waters' word and his footnote.
(01:26:42)
He says, "It was not authorized by me or me as the lead prosecutor or investigator in this case. I mean, I didn't do it." I mean, that's the shaggy defense. It wasn't me, but it doesn't answer who done it. And it had to be. It had to be-
Mr. Griffin (01:27:00):
Who done it? And it had to be. It had to be. It had to be the state without a question. And again, I'll tell you, this reverberated. I don't know how it reverberated in the public, but I can tell you in the circle of Alex's friends, Paul's friends, Alex's family, it reverberated. And it had a big impact. And we were determined to find out what was behind this. And we now have. We now have. But it spreads like wildfire, as I says. And we say in our brief, if it makes a difference to the court, we have deposition testimony identifying who done it. Whether that person's right or not, I don't know, but it's sworn testimony under oath.
Judge (01:27:56):
It makes no difference to the court. I've heard a lot of stuff from both sides on this case. A lot of it's been in the press. So let's move on.
Mr. Griffin (01:28:06):
Well, we were right not to put it in there. But the spatter claim was public 11 weeks before the grand jury heard it. And so what did the grand jury hear about this? We have Agent Owen's narrative. What the state has presented is an email before his narrative from another, Agent Ghent, who didn't go in front of the grand jury and just has an outline of things that you should address. So the state relies upon that, that predates the grand jury appearance, predates this narrative and definitely predates my cross-examination of David Owen at trial. But here's what his narrative says. "The clothing was examined by an expert. The expert found multiple particles of blood spatter on the shoulders in front of Alex's shirt, and the DNA in the areas of spatter were identified as belonging to Alex, Maggie and Paul."
(01:29:04)
Not true. Not true. Any knew or in reckless disregard should have known that was not true. Particularly as the DNA, there's no basis to say there's no expert told him that there was DNA in the blood spatter that matches Paul. No expert, nobody, nobody. And actually the DNA lab results say the complete opposite, that there's no DNA in the area of the shirt where they claim the spatter that matches Paul. None. And again, this is a circumstantial case. Supreme Court calls it a circumstantial case, but the biggest circumstance going in front of the Colleton County grand jury is Alex got Paul's death blood on his shirt that you can only get by being there when his head is blown off.
(01:30:03)
Now, there's no argument. There's no way to argue, Your Honor, that that had no influence on the grand jury. I mean, that's what they have to show that it's not substantial or that it couldn't have any influence on the grand jury. I mean, that puts him there. That puts his son's spattered blood when his brain ejects from his head on his shirt. And it's false. It's fabricated. It was made from whole cloth, from jump. From the word jump, Your Honor, it was made up. And at trial, Agent Owen, they don't want to distance themself... I'm a little bit... I mean, I understand the pickle they're in. I mean, they won't say, "Well, it's still a valid opinion." But even the agent says at trial... So I ask him, "So you didn't know at the time, but you know now that what you told the Colleton County grand jury was not correct. Is that fair?" And he says, "In reference to the shirt, correct." So he's admitted that what he told the grand jury was false as to the shirt.
(01:31:11)
Now they want to say, "Well, it's not false because this guy got some blood bank blood in the sink of his kitchen and did something." We don't really ever know what he did, but he stood by his report. That doesn't change the fact that SLED lab says there's no blood. Sled lab says there's no DNA. The grand jury didn't hear that. SLED lab does a research paper, attaches real peer reviewed medical articles as to whether HemaTrace performs after something has been treated with LCV and comes back and says, "It is the most reliable test out there." I mean, none of that was told to the grand jury. So the grand jury was misled here greatly when they returned this indictment.
(01:32:07)
And then you get to the shotgun loads, which I mentioned earlier, and this don't take near as long, Your Honor, and I appreciate your patience. I know you've read everything, but-
Judge (01:32:15):
No, you go ahead.
Mr. Griffin (01:32:16):
... hopefully I've put some color behind this. On August 11th, Alex had been asking to come for an update on the investigation. He was invited down to Colleton County, SLED, met in the conference room, is videotaped. And in that meeting, he's confronted by Agent Owens. And essentially, in so many words, he was accused of killing Maggie and Paul. And Agent Owens says, "I just got to go where the evidence leads me." And he says, "What we found is..." And I'm not quoting verbatim. I don't want to be accused of misstating anything, but essentially he says, "What we found, that guns found on the property, in the house, in the gun room had the same load, buckshot turkey load, as used to kill Paul. Multiple guns have the same load." And then during the trial, what we learned was after days of testimony of all the guns that they had collected, examined, what have you, we learned that wasn't true, that there was not a single gun on the property that was loaded in the same manner as the shotgun that murdered Paul, not a single gun.