Murdaugh Trial Ethics: No, Judges May Not Punish Defendants For Taking The Stand In Their Own Defense…Can They?

More dubious “expert” testimony this morning: this is why I watch less and less TV news.

Judge Clifton Newman sentenced disbarred South Carolina lawyer Alex Murdaugh to two consecutive life sentences in his sensational trial for the murders of his wife and son, after a jury found Murdaugh guilty yesterday in the 2021 slayings of Maggie and Paul Murdaugh. Murdoch already faced life in prison for an astounding number of financial crimes. In fact, the alleged motive for his killing his family was to take attention away from those offenses. (This strikes me as similar to the guy who fired a nail-gun into his skull to distract from the pain of his inadvertently sawing off his own hand in his workshop, but never mind…)

On Fox News, a legal analyst told viewers that Murdaugh was likely to get the maximum non-capital punishment penalty from Judge Newman because he took the stand in his own defense to assert his innocence. “Since the jury found him guilty, that means he lied under oath,” the “expert” explained. “Judges don’t like that. His testimony guaranteed a harsh sentence.”

That cannot be right, and I have never heard such a theory before. If a criminal defendant risks being penalized for taking the stand in his own defense, then his or her absolute right to do so is a sham. Judges caution jurors not to presume guilt or make any adverse assumption from the fact that a defendant chooses to assert his right not to testify in his or her own trial: how then could a judge ethically or legally give a harsher sentence because a defendant does testify?

If such a defendant is shown to have lied during cross examination by the prosecution, that is a different matter. This expert, however, was claiming that the act of testifying that he was innocent was alone a justifiable reason for the judge to hand down a maximum sentence.

If that is true—and it can’t be—then it chills a constitutional right. Juries make mistakes, bad ones. Is a system in which a defendant can only feel safe in testifying in his own defense when he is confident that the jury will acquit him just? That makes no sense: if the defendant is sure he’ll be acquitted, then he shouldn’t risk being made to look guilty by a tough prosecutor in cross examination. If the defendant thinks he losing the trial and wants to testify to proclaim his innocence, should that require him to risk a longer prison term if the jury isn’t convinced?

It’s a Catch-22. That can’t be right…can it?

Now I have to do research to see if there has ever been judicial guidance on this question…..

12 thoughts on “Murdaugh Trial Ethics: No, Judges May Not Punish Defendants For Taking The Stand In Their Own Defense…Can They?

  1. That can’t possibly be true. That expert is an idiot. Being convicted by a jury does not prove a person who has taken the stand to claim his innocence has been lying. Adding down a tougher sentence because a defendant exercised his or her constitutional right to testify on his or her own behalf cannot possibly be legal. Who cares if the judge likes it or not?

    If that so-called expert is correct, what’s to prevent a judge from handing down a tougher sentence to a defendant who pleads the Fifth, exercises his right to a jury of his peers or his right to fair trial?

    Fox needs to find smarter experts. This strikes me as commentary the expert wants to be true rather than what is true.

    • Anyone still watching Fox gets the old “garbage in garbage out”result. They have admitted lying is no reason not to put statements on the air and do so daily.

      • Anyone watching ANY of the network or cable news sources…unless you have a reliable source to suggest. Do you? Fox News just spins in the opposite direction from the vast majority.

  2. An expert who’s an idiot? “I am shocked….”

    A trial lawyer once commented to me in a totally off-hand way, “Everybody lies in court.”

  3. Are convicted defendants really prosecuted for perjury during cross-examination? I’ve often wondered about this, but I’ve never heard of it actually happening. I’ve always assumed there’s a nearly constitutionally guaranteed right to lie in court in your self-defense. Kind of like the right to counsel!

  4. I think the “expert” was out over their skis.

    As I’ve said before, my new guilty pleasure is watching Court TV with commentary, and I think that I have a much better understanding of trial law now than I did two years ago.

    If Alex had admitted that he’d done it when given a chance to speak this morning, it would be different because he’d be admitting he perjured himself, and subsequent acts can absolutely be part of sentencing considerations. He’d also be admitting that he’d wasted the court’s time for the last two years because he thought he could beat the rap, and that’s… Something. But you can’t sentence harsher just for someone choosing to testify in their own defense.

    With the fact patterns alleged though, in the case of a guilty verdict, I don’t think it was ever going to shake out any way other than two consecutive life sentences. Man killed his wife and kid brutally, blew his son’s brain out of his head with a shotgun, to distract from the millions of dollars he was playing a cup game with, and then put a lot of thought and effort into trying to manufacture an alibi. Really… Without the kennel video Paul recorded (and Alex didn’t know about), placing Alex at the scene at very close to the time of death, he probably would have gotten away with it. This case hinged on the injured tail of a puppy named Cash.

    Two concurrent 70 year sentences aren’t materially different than two life sentences… Alex is old, he’s not getting out either way. But sometimes, it’s right to send a message.

    • IANAL. Watched almost all the court video. The state never proved any elements of the crime with the evidence admitted. They spent more hours on the unrelated financial crimes. The state lied to the grand jury to get the indictment. He is anabsolutelyevil and horrible person, but the state did not prove beyond a reasonable doubt. The jury deliberated over six weeks of testimony on a circumstantial evidence case in Three hours! This trial was a mockery of justice and hopefully will be overturned on appeal.

      • I disagree. Look, it was a hard case. Reasonable people will disagree on this, and I make no judgement, but we came away with very different takeaways here.

        First; The jury isn’t required to do deliberations on all six weeks worth of testimony. A juror interviewed today said they did a straw poll at the beginning of deliberations and 2 said not guilty, 1 said they didn’t know, and 9 said guilty. Those 3 people who didn’t vote guilty were convinced after about an hour of deliberations. That’s legit. It’s fast, but you’re never going to see a case overturned because the jury was too fast.

        Also, remember that the rules of evidence for jurors require that they give as much weight to circumstantial evidence as they do other evidence because evidence is evidence. This may get overturned because of all the 404 evidence that was presented… But I think there’s a very solid argument that the defense opened the door for it. It was a very circumstantial case, and there are people out there that will never be convinced by circumstantial evidence, but these 12 people were.

        And I can’t blame them. I believe it too. Beyond a reasonable doubt. If Alex had not called Paul and Maggie to that location, they would not have been there. They were shot with family guns. If not Alex, the best theory goes that a killer looking for Paul or Maggie, maybe in connection with the boat case, went unarmed to a place he could not know their victims would be, armed himself with guns he found, but could not have counted on being available, killed Paul and Maggie, but did not go to the house looking for the only person they could reasonably expect to be at Moselle that time of night, then took nothing from the scene except Maggie’s cell phone, which he threw out a window of their vehicle a few miles away. Then Alex, who after making a point for some reason of calling Paul and Maggie to Moselle, left them at the kennels and took a nap. When he woke up a half hour later he sent them a bunch of text messages which they didn’t reply to, and drove off to visit his mother (which was unusual, both that he didn’t often visit her and it was late) without checking on them, despite driving past them.

        The fact of the matter is that he had the means, motive, and opportunity to commit the crime, I agree they got really far into the reeds with the financial crimes, but they were part of proving the motive. Alex lied consistently about where he was, what he was doing, and what he was wearing. His answers were chronically inconsistent, and he tried to get other people to lie for him. He lied up until hard facts were presented, then he lied a different way to fit those new facts, and then when hew hard facts were revealed, he changed his lies to fit them. All while committing his biggest lie: That he was helping SLED catch the person that killed his family.

        Means. Motive. Opportunity. Guilty Conscious.

  5. This “expert” from Fox News sounds like Nancy Grace. If that’s correct, res ipsa loquitur. Fox News had too many blowhards on as “experts” in the course of the trial and the credibility given is unearned.

  6. If that expert is correct, then it would have to apply to any person pleading not guilty to a crime who is later convicted, because they were obviously lying when they entered the plea, right?

    But the fact of the matter is that we expect criminals to lie and cheat — it’s what they do.

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