Few things capture the public’s imagination and make headline news daily as does a jury trial, especially one for murder. The O.J. Simpson murder trial was perhaps the last century’s most famous example.
The latest example of such a case is the murder trial of disgraced South Carolina lawyer Alex Murdaugh. Filled with Southern gothic details of a gruesome double homicide with bodies found outside a hunting dog kennel, theft of millions of dollars, and at the center of it all a powerful family with influence in local law enforcement and the judicial system. The case is the subject of daily, national news coverage in leading papers such as The New York Times and The Washington Post, as well as being a prominent feature on nightly network newscasts and cable news. For those who still can’t get enough, there are also multiple podcasts devoted to the case.
It’s also a case about which everyone has an opinion. But rather than offer an opinion about the merits of the case or predict an outcome (which seems likely to come this week), I wanted to offer some observations, from a trial advocacy perspective, of the conduct of the trial by the lawyers for the prosecution and the lawyers for Mr. Murdaugh.
Although the facts of the case are in so many ways bizarre and extreme, the case illustrates some very common issues that come up in trials generally, especially criminal trials. Those issues are: 1) whether the defendant should testify; 2) how the defendant (or any witness) should present himself on the stand; and 3) strategies for a successful cross-examination.
The Decision for the Defendant to Testify
The decision of whether a defendant will testify in his own defense in a criminal case can hardly be more significant. It is, of course, a decision unique in the criminal practice. In every criminal case in which I’ve ever been involved, it is a decision fraught with risk. I’ve heard and read many commentators criticize the decision for Mr. Murdaugh to take the stand as foolish on behalf of his lawyers, especially in a case where there is no direct evidence that links him to the murders—no DNA, fingerprints, bloody clothes and, of course, no eyewitness testimony.
But the criticism misses two important points. First, the decision to testify is wholly a matter of the defendant’s choice. No lawyer can make that decision for the client. Advice can be given, pros and cons identified. But ultimately the decision to testify is intensely personal. In many courts, including the one in this case, the judge will ask the defendant, outside the presence of the jury whether he understands he has the absolute right to testify and then point out that no one can prevent him from doing so or compel him to do so. That inquiry is often a dramatic moment in a trial.
Second, the debates about the utility of a defendant’s testimony are as unending as the argument about LeBron vs. Jordan. Some lawyers view a defendant’s testimony, especially in a white-collar case, as a sine qua non of a successful defense. Others view their client’s testimony as a “in case of fire, break glass” kind of thing, to be employed only as a last resort. My partner Abbe Lowell has sagaciously observed that when the defendant testifies, the case rests on his believability. When he doesn’t, the case rests more on the believability of his counsel.
In this case, there almost certainly were many hours worth of discussions between Murdaugh and his counsel about testifying, combined with extensive practice sessions trying to simulate the likely cross-examination. With all that in mind, Murdaugh made the intensely personal decision to testify. Ultimately, whether his lawyers thought it was a good idea is irrelevant. I certainly understand why he wanted to testify and the persuasive value of him taking the stand and denying involvement in the grisly murders. The flip side is that, by testifying, he opened himself to excoriating cross-examination about his financial fraud as well as lies he told to law enforcement officials investigating the murders.
Murdaugh’s Presentation as a Witness
In every trial, much thought is given to the selection of the witnesses, how they can aid the case and, importantly, how they will present themselves to the jury. Consultants make handsome livings helping to guide witness preparation and suggesting how a witness should testify, including her demeanor, how she phrases certain answers, and even what she will wear.
Here, Murdaugh was a very emotional witness. He cried repeatedly, sometimes agonizingly so. He was homespun, using pet names for the victims calling his son, i.e. “Paw Paw” for Paul. He wore an open collar shirt with a jacket so he was not casually dressed but not overly formal either. He looked the jury in the eye and denied he committed the horrible crimes of which he is accused, while admitting to repeated financial misconduct, including stealing from vulnerable clients. He also admitted to lying to law enforcement.
The reviews of his testimony from the critics were mixed. Many found his emotion off-putting or scripted. His folksy language was lambasted as contrived.
But when you strip away an assessment of the merits of the case—which is very hard for outside observers to do—I think he actually presented as well as he could have in this circumstance. He was no doubt meticulously prepared over time and many of the dramatic moments were undoubtedly practiced. And yet what he did is what trial lawyers tell witnesses to do all the time in any kind of trial—look at the jury during important parts of your testimony. Be direct and use simple language. Be your authentic self and don’t hold back emotion if it comes from the heart and is appropriate in the moment. Perhaps most importantly, he plainly and repeatedly admitted on cross-examination to lying to clients and cheating them. He also admitted to lying to law enforcement. He largely did so without reservation or excuse and usually in the manner that every capable trial lawyer or jury consultant would advise. That’s not an easy task to accomplish.
The State’s Cross-Examination of Murdaugh
Observers have had much to say about the prosecution’s strategy on cross-examination. As it was happening, I received a series of animated texts from a former trial lawyer colleague who was highly critical of the approach. “Get to the night of the murders right off the bat.” “Don’t spend so much time on the financial misdeeds.” Many other followers of the trial shared that view.
I don’t. This case, like many cases, hinges on the credibility of the defendant. If the jury believes him, he prevails. If the jury doesn’t believe him, he is nearly certain to spend the rest of his life in prison for these murders. I think it made perfect sense for the prosecutor to frame the issue around whether Murdaugh was a credible narrator. The best way to do that was to walk him and the jury through all the times, over many years, that he had lied to clients, their families, and his partners. The prosecutor repeatedly analogized the sincere-sounding testimony he provided the jury on direct with the equally sincere assurances he provided all those different people to whom he now admits he frequently lied.
What I liked best about the examination was that it plainly was the result of a strategy, a choice made by the prosecutor to approach the examination a certain way. One can say a different approach might have worked better, but there cannot be a successful cross-examination without a deliberate strategy.
The prosecutor has also been criticized by trial commentators for asking open-ended questions and even the dreaded “why” questions that allowed Murdaugh to wax on and explain himself. Surely that is a violation of the cardinal rule of cross-examination: Maintain complete control of the witness.
Again, I disagree. The “rules” of cross are more guidelines to be applied flexibly and in context by an experienced trial lawyer. Time and again, when the prosecutor invited Murdaugh to explain, the answers he provided were inconsistent, even nonsensical. By allowing Murdaugh to explain, the prosecutor was taking a risk, for sure, but he was doing so in calculation of the likelihood that Murdaugh would take the rope he was given and aid in the construction of a noose.
Was the cross-examination perfect? No. Sometimes, the prosecutor got sloppy and asked imprecise questions that allowed Murdaugh to wander or volunteer helpful clarifications. At times, the loose questioning bogged down the examination and sapped it of its energy. For my taste, the prosecutor also went on too long. Length is the enemy of an effective cross-examination and this one could have been better executed had it ended an hour (or two) earlier.
Ultimately, the only critics that count are those sitting in the jury box. Although the closing arguments from both sides will be closely followed and critiqued by outside observers, I don’t see those arguments as likely to sway jurors one way or the other. The gist of the prosecution’s case and that of the defense played out fully in the testimony of Alex Murdaugh. The jury has likely seen and heard enough.
And, as always, what they are really thinking is anyone’s guess. (Editor’s Note: Alex Murdaugh was found guilty Friday morning for the murders of his wife and son and sentenced to life in prison without the possibility of parole.)
Tom Melsheimer is managing partner of the Dallas office of Winston & Strawn. His email is [email protected]