How the SC Supreme Court dropped the ball in the Murdaugh case

The South Carolina Supreme Court’s outrage over the courtroom clerk’s egregious misconduct during Alex Murdaugh’s murder trial is entirely understandable.

Among her other improprieties, she warned jurors “not to be fooled” by Murdaugh.

It is easy to see why the court condemned this behavior in the strongest terms. The clerk’s behavior certainly risked tipping “the scales of justice.”

But whether it did so is a different matter. The court’s ruling in Murdaugh’s favor suggests that it failed in its primary task: determining whether it was the clerk’s transgressions, rather than the strength of the prosecution’s evidence, that likely convinced the jury to convict him.

Claims that jury verdicts were unfairly contaminated by external influences are notoriously troubling. While the central question is whether the misconduct “caused” the jury’s verdict, the law generally prohibits jurors from testifying about how their internal reasoning was affected.

This prohibition reflects a practical reality: reconstructing jurors’ mental processes after the fact is inherently unreliable, and once lawyers get involved, it’s nearly impossible. Jurors’ recollections can be easily distorted by regret, remorse, rationalization, suggestion, or outright manipulation.

To navigate these problems, most courts, including those in South Carolina, confine themselves to an objective rather than subjective inquiry.

Instead of determining what actually influenced a jury, courts assess what likely would have affected a hypothetical, reasonable jury under the circumstances known to have occurred.

This avoids the hazardous business of asking jurors to explain their thinking, but it also gives reviewing courts immense latitude — empowering them, in effect, to grant or deny a new trial based on guesswork — or even worse, for any reason they like.

The Murdaugh case proves the point.

In some criminal trials, the evidence of guilt is so overwhelming that no external factor could have realistically altered the outcome. This is especially true when the defense was utterly preposterous — which surely applies here. That is exactly how the judge who initially rejected Murdaugh’s bid to overturn his conviction sized up the situation.

But the state Supreme Court rejected that view, dismissing the strength of the prosecution’s case as based “largely on circumstantial evidence.”

This reasoning is a mere makeweight. As judges and lawyers well know — and as Murdaugh’s jury was correctly instructed — circumstantial evidence is not inherently inferior to “direct evidence.” In fact, it often proves far more persuasive than eyewitness testimony or confessions.

The court also attempted to buttress its ruling by observing that “Murdaugh’s credibility was a key component of his defense.”

But that fact actually cuts against reversal. Murdaugh’s credibility was utterly destroyed by, among other things, his own testimony, a fact that only further reinforced the prosecution’s case. Labeling his defense “credibility-dependent” does not make it plausible, nor does it remotely suggest he would have been acquitted absent the clerk’s misconduct.

Importantly, Murdaugh’s jurors were repeatedly instructed to decide the case solely on the evidence presented in court.

As the U.S. Supreme Court has observed many times, “there are no perfect trials,” and the legal system operates on the reasonable assumption that jurors follow standard instructions. The state Supreme Court resisted this logic, arguing that if instructions always cured prejudice, no defendant could ever prevail.

This is sophistry. No one ever said instructions always cure prejudice. But the law presumes jury instructions work because, in the vast majority of cases, they do. Without this presumption, every exposure to outside information would trigger automatic reversal. The law necessarily takes a more realistic view.

While some rare trial errors demand automatic reversal, the clerk’s misconduct was not of that character. Like most trial errors, it requires appellate courts to evaluate the misconduct in the context of the entire trial — to assess whether the verdict would have been identical had the misconduct never occurred.

The court paid only lip service to this duty, insisting it had “no choice” but to order a new trial. Not so. Rather than seriously assess the likely effect of the clerk’s transgressions, the court indulged the impulse to signal outrage and self-purity.

It no doubt believes it achieved a worthy aim. But appellate courts exist not to confer judicial redemption. They exist to ensure that the immense costs and burdens of a retrial are forced upon the public, crime victims, and grieving families only when truly warranted.

In this case, they were not.