What were they thinking? Why did Alex Murdaugh’s lawyers allow the now convicted killer to testilie for hours on end?
Judging by the number of people who have yelled, “Hey Betras, what the xxxx (readers are free to insert the word of their choice) is up with that Murdaugh trial?” I am not the only person who has been obsessed with the sordid saga of the once prominent South Carolina trail lawyer who was recently found guilty of murdering his wife and his son.
Okay, I wasn’t “obsessed” with it, I was consumed by it. I watched every moment of the trial, hours of analysis of each day’s proceedings offered by “expert” criminal lawyers, as well as all of the documentaries, docudramas, and special reports that streamed into my smart TV, smart phone, and laptop.
The discussion and speculation that raged during the trial continues today—much of it focused on Murdaugh’s decision to take the stand. In the immediate wake of his testimony, in which he basically admitted to being a pathological liar who couldn’t tell the truth if his life depended on it, which it did, a number of talking head criminal lawyers told the media the defense team had to allow the accused killer to look the jurors in their collective eyes and refute the charges. One of the pundits, criminal attorney and former prosecutor Mark Eiglarsh told CNN “If you’re going to have somebody testify, having a lawyer who’s smart, who’s been in the courtroom, who’s lied for 20 years … that’s the guy you want on the stand…all it takes is one juror to connect with him emotionally.”
To be frank, Mr. Eiglarsh and anyone else who thought it was a good idea for Murdaugh to hitch up his pants, take the stand, and admit to being a drug-crazed criminal who did everything but murder his wife and son is just plain stupid—a fact underscored by the verdict.
During my career I have represented numerous clients charged with murder and I have never put one of them on the stand, including those who have literally begged me to allow them to proclaim their innocence in open court. I have adopted this strategy for a number of reasons beginning with the fact that it is not my job to prove my client is innocent, it is the prosecutor’s job to prove they are guilty, and I refuse to do anything that will make that job easier.
And permitting a client to give up their Fifth Amendment protections against self-incrimination by testifying does exactly that.
Think of it this way: the accused takes the stand, I ask them if they committed the crime, they emphatically say no. This has absolutely no impact on jurors who fully expect defendants to say they didn’t do it. I sit down, the prosecutor stands up and immediately begins tearing my client apart limb from limb. Check the video of the Murduagh cross and you’ll see how this works—or I should say how it doesn’t work for the defense.
Clients also ask to take the stand because they fear the jury will believe they are guilty if they just sit quietly as I defend them. I point out that this is, for the most part, not true and that judges are required to instruct jurors that they may not draw any inference from the fact that a defendant does or does not testify—the presumption of innocence that is the beating heart of our judicial system stands.
Whether Murdaugh would have benefited from keeping his mouth shut is a question that will be debated in legal circles for years. One thing is certain, however, testilying for hours on end didn’t help at all.