WEBVTT - Does Alex Murdaugh Have a Chance on Appeal? 0:00:03.120 --> 0:00:07.960 This is Bloombird Law with June Brusso from Bloomberg Radio. 0:00:10.760 --> 0:00:14.480 For six weeks, the Alex Murdoch case has attracted true 0:00:14.480 --> 0:00:18.479 crime fans a murder with no real physical evidence, not 0:00:18.600 --> 0:00:21.840 even a weapon or bloody close, but a case showing 0:00:21.880 --> 0:00:25.960 the strands of old world power, money and privilege in 0:00:26.040 --> 0:00:31.040 rural South Carolina, and the strands of New world greed, addiction, 0:00:31.120 --> 0:00:35.839 and egocentric behavior. After hearing more than seventy five witnesses, 0:00:35.880 --> 0:00:39.960 the jury deliberated for less than three hours before finding 0:00:40.040 --> 0:00:43.080 Murdoch guilty of killing his twenty two year old son 0:00:43.200 --> 0:00:46.720 Paul with two shotgun blasts and his fifty two year 0:00:46.720 --> 0:00:51.400 old wife, Maggie with four or five rifle shots. At sentencing, 0:00:51.520 --> 0:00:56.520 Murdah maintained his innocence. I'm innocent. I would never hurt 0:00:56.600 --> 0:00:59.360 my wife Maggie, and I would never hurt my son 0:00:59.400 --> 0:01:03.000 Paul Paul. But Judge Clifton Newman handed down the harshest 0:01:03.040 --> 0:01:08.280 possible sentence he could consecutive life sentences without parole. A 0:01:08.440 --> 0:01:13.480 sentence you to prison for murder in hand for the 0:01:13.520 --> 0:01:18.560 rest of your natural life. Those sentences will run consecutive. 0:01:19.240 --> 0:01:23.520 Defense attorneys Dick Carputlian and Jim Griffin say they'll appeal 0:01:23.560 --> 0:01:26.760 the conviction based on the judge's decision to allow in 0:01:26.959 --> 0:01:32.000 evidence of Murdaugh's past financial misdeeds. Once they got that 0:01:32.640 --> 0:01:36.640 character character information, as he's a thief, he's a liar, 0:01:37.080 --> 0:01:41.160 then it dictated this jury had to think he was 0:01:41.200 --> 0:01:44.959 aspicable human being and not to be believed. So it 0:01:45.080 --> 0:01:50.360 was about character, it wasn't about motives. So as a result, 0:01:50.440 --> 0:01:54.040 our options were limited. Joining me as former federal prosecutor 0:01:54.200 --> 0:01:58.560 Jessica Roth, a professor at Cardozo Law School. There was 0:01:58.680 --> 0:02:04.000 no direct evidence, no murder weapon, no blood soaked evidence, 0:02:04.080 --> 0:02:08.320 no physical evidence at all. Well, there was obviously the 0:02:08.440 --> 0:02:11.959 evidence of the crime scene, the bodies of the victims, 0:02:12.120 --> 0:02:14.840 and there was a lot of evidence introduced, i think 0:02:14.840 --> 0:02:18.440 in the nature of photographs and evidence about the autopsies 0:02:18.720 --> 0:02:20.600 to show the state of the victims. And there was 0:02:20.680 --> 0:02:24.639 significant expert testimony dedicated to showing the kinds of bullets 0:02:24.720 --> 0:02:26.760 that were used in the trajectory of the bullet and 0:02:26.800 --> 0:02:30.400 the positioning of the victims introduced by the prosecution in 0:02:30.480 --> 0:02:33.840 part to support the theory that the victims were taken 0:02:33.880 --> 0:02:36.959 by surprise and that there was no evidence of defensive 0:02:36.960 --> 0:02:41.720 wounds to suggest that they knew their assailant, and you 0:02:41.919 --> 0:02:45.760 weren't expecting harm from anyone else. So there was evidence 0:02:45.880 --> 0:02:48.160 sort of about the state of the victim. There was 0:02:48.200 --> 0:02:51.680 also evidence in the nature of this very important cell 0:02:51.720 --> 0:02:55.040 phone video that Paul Murdoch, who was one of the victims, 0:02:55.040 --> 0:03:00.400 the defendant's son, took moments before the time at which 0:03:00.400 --> 0:03:03.440 the prosecution placed some time of death for both victims. 0:03:03.800 --> 0:03:07.840 And on that video, which Paul took mostly of a 0:03:08.000 --> 0:03:11.120 dog that had been entrusted to the Murdoch family by 0:03:11.160 --> 0:03:14.960 a friend of Paul. Do you hear Paul talking and 0:03:15.120 --> 0:03:17.800 showing the dog he was examining, in particular the dog's 0:03:17.840 --> 0:03:20.160 tail for his friend who was concerned about the condition 0:03:20.160 --> 0:03:22.359 of the dog's tail. And you hear Maggie, who was 0:03:22.400 --> 0:03:25.400 the other victim, the defendant's wife, speaking, and then you 0:03:25.480 --> 0:03:28.239 also hear a third voice. And that was what was 0:03:28.280 --> 0:03:32.880 so significant about that video because numerous witnesses identified that 0:03:33.040 --> 0:03:37.000 third voice just heard, not seen, that was identified as 0:03:37.000 --> 0:03:40.800 being the defendant, Alec Murdoch, and so that placed him 0:03:41.000 --> 0:03:43.560 at the kennels which was the scene of the crime, 0:03:44.080 --> 0:03:48.240 just minutes before the murders allegedly happened. So that was 0:03:48.480 --> 0:03:51.800 probably the single most important piece of evidence in the 0:03:51.960 --> 0:03:55.680 entire case, was that cell phone video. The coroner said 0:03:56.000 --> 0:04:00.320 that the victims were killed between eight pm and ten pm, 0:04:00.400 --> 0:04:06.240 but the prosecution used the victim's phone usage to pinpoint 0:04:06.280 --> 0:04:09.480 the time of death to eight forty nine. That was 0:04:09.520 --> 0:04:13.440 pretty elaborate, wasn't it using that data? So the time 0:04:13.480 --> 0:04:17.159 of death was pinned by the prosecution to the time 0:04:17.320 --> 0:04:20.800 when the cell phones were both victims locked for the 0:04:20.920 --> 0:04:25.960 last time. And while it's certainly not the case that 0:04:26.360 --> 0:04:29.000 when you stop using your phone and it therefore locks, 0:04:29.080 --> 0:04:31.919 that you're necessarily dead, and that was in fact an 0:04:32.000 --> 0:04:35.239 argument that the defense made in closing that we shouldn't 0:04:35.240 --> 0:04:38.719 accept that as meaning death. And nevertheless, I think was 0:04:38.880 --> 0:04:42.640 persuasive evidence that it is likely that the defendants died 0:04:42.680 --> 0:04:45.760 around the time that their phones locked for the last time, 0:04:46.160 --> 0:04:50.040 because the other evidence of their phone usage suggested that 0:04:50.120 --> 0:04:53.720 they were people who were using their phones fairly continuously. 0:04:54.160 --> 0:04:57.839 And so although it's possible that they remained alive for 0:04:57.960 --> 0:05:01.080 some significant period of time after their phone locked for 0:05:01.120 --> 0:05:04.640 the last time, when one looks at their cell phone 0:05:04.880 --> 0:05:08.840 usage overall and then appreciates that the phones locked at 0:05:08.880 --> 0:05:11.840 this moment in time in the context of their overall 0:05:11.839 --> 0:05:15.920 cell phone usage, it's plausible that that was when they died, 0:05:15.960 --> 0:05:18.440 when the phones locked for the last time. And that's 0:05:18.560 --> 0:05:21.280 particularly the case given that, as I mentioned, a moment ago, 0:05:21.360 --> 0:05:24.680 Paul had taken this video of his friend's dog, and 0:05:24.720 --> 0:05:27.640 he had been actively communicating by his phone with his 0:05:27.720 --> 0:05:30.320 friend about the dog, and the friend was asking for 0:05:30.360 --> 0:05:33.360 Paul to send him the video right away. And so 0:05:33.400 --> 0:05:36.279 given that Paul did not, and the friend then followed 0:05:36.360 --> 0:05:39.160 up with messages that Paul did not respond to, friend 0:05:39.160 --> 0:05:42.000 followed up saying send me the video that supported the 0:05:42.040 --> 0:05:46.200 prosecution's argument that Paul's death happened. Write about them. Much 0:05:46.200 --> 0:05:49.760 has been made of the fact that Murdo took the stand. 0:05:50.120 --> 0:05:52.400 A lot of people have been looking back on this, 0:05:52.560 --> 0:05:57.200 including the South Carolina Attorney General. He said Alex Murda 0:05:57.320 --> 0:06:02.159 taking the stand was a fatal move in his murder trial. Well, 0:06:02.160 --> 0:06:05.679 I think one other really important part of this case 0:06:05.800 --> 0:06:08.800 that I need to mention, particularly following our discussion of 0:06:08.839 --> 0:06:12.080 the cell phone video, is that the defendant had told 0:06:12.240 --> 0:06:15.320 police officers that he had not been at the Kennel's 0:06:15.440 --> 0:06:18.600 the night of the murders with his wife and his son. 0:06:19.000 --> 0:06:22.760 And so the significance of the cell phone video was 0:06:22.880 --> 0:06:25.400 partly that it placed the defendant at the scene of 0:06:25.440 --> 0:06:29.640 the crime moments before the moment where the prosecutors contended 0:06:29.680 --> 0:06:32.880 that the murders happened, but also that the defendant denied 0:06:32.960 --> 0:06:36.120 having been there, and that was essentially disproven by the 0:06:36.160 --> 0:06:39.400 cell phone video, which he didn't know existed when he 0:06:39.440 --> 0:06:42.800 first spoke to police officers. So he had lied on 0:06:42.839 --> 0:06:45.080 the night of the murders when he first spoke to 0:06:45.120 --> 0:06:48.320 police about when he had last seen Maggie and Paul, 0:06:48.640 --> 0:06:52.000 and then he continued to tell that lie for several 0:06:52.040 --> 0:06:55.440 months thereafter. And so it was the combination of the 0:06:55.520 --> 0:06:59.000 video putting him there at the scene moments before and 0:06:59.160 --> 0:07:01.919 his denial of having been there when he didn't know 0:07:02.000 --> 0:07:04.800 about the existence of the video that I think was 0:07:04.920 --> 0:07:09.760 really critical to the prosecution's case here. And so when 0:07:09.800 --> 0:07:13.720 you understand in context that the defendant had denied being 0:07:13.880 --> 0:07:18.400 at the kennels repeatedly, and then several witnesses at the 0:07:18.480 --> 0:07:22.960 trial identified his voice as being the third voice heard 0:07:23.000 --> 0:07:25.760 on that video, that was so crucial because it was 0:07:25.800 --> 0:07:28.040 so close to the time of death at the place 0:07:28.080 --> 0:07:31.400 of the deaths, the defendant, or at least the defense attorneys, 0:07:31.440 --> 0:07:34.400 seemed to think that he had to offer an explanation 0:07:35.000 --> 0:07:38.800 for why he had lied about not having been there 0:07:39.200 --> 0:07:42.600 moments before the killings. I still don't get the motive 0:07:42.640 --> 0:07:46.240 here that the prosecutors put forth. He killed his wife 0:07:46.240 --> 0:07:50.440 and son to distract from his financial crimes. So their 0:07:50.560 --> 0:07:54.080 theory of motive, I think developed over the course of 0:07:54.120 --> 0:07:57.960 the trial. It always started with this idea that there 0:07:58.120 --> 0:08:02.040 was a reckoning coming for the pendants, based in large 0:08:02.160 --> 0:08:07.520 part on his financial crimes and misdeeds. He had stolen 0:08:07.640 --> 0:08:12.000 from his law partners. He had stolen from his clients, 0:08:12.040 --> 0:08:16.840 including people who were the young children of his former 0:08:16.880 --> 0:08:22.200 housekeeper who died while working on his estate. He had 0:08:22.200 --> 0:08:26.040 stolen from all of these people, and the moment of 0:08:26.120 --> 0:08:30.400 reckoning for those crimes was imminently upon him. That was 0:08:30.440 --> 0:08:34.559 the prosecution's theory, and that theory was supported by not 0:08:34.600 --> 0:08:37.880 only the evidence to establish that he had committed those crimes, 0:08:38.320 --> 0:08:41.480 but also that he had been confronted by the chief 0:08:41.480 --> 0:08:45.200 financial officer of his law firm the very day of 0:08:45.240 --> 0:08:49.720 the murders, so that afternoon, he was confronted about hundreds 0:08:49.760 --> 0:08:53.520 of thousands of dollars that he had misappropriated from the firm, 0:08:53.800 --> 0:08:57.240 so that, according to the prosecution's theory, was part of 0:08:57.280 --> 0:09:01.200 the trigger for him to react, act and try to 0:09:01.240 --> 0:09:04.680 find a way out, even if not a permanent way out, 0:09:04.880 --> 0:09:08.720 something that would distract attention and essentially get people off 0:09:08.760 --> 0:09:11.440 his back for some period of time, so that he 0:09:11.480 --> 0:09:14.920 could perhaps figure out how to sort of shift money 0:09:14.920 --> 0:09:17.160 around one more time, as he had done many times 0:09:17.160 --> 0:09:19.880 in the past, by borrowing from people or perhaps feeling 0:09:19.920 --> 0:09:23.800 from others to replenish the coffers or to satisfy some people, 0:09:24.120 --> 0:09:27.000 and the idea would be that he would be perceived 0:09:27.080 --> 0:09:31.120 as the grieving widower and poor father whose son had 0:09:31.120 --> 0:09:33.640 been murdered, and so he would get a little bit 0:09:33.679 --> 0:09:38.359 of breathing room and forbearance. That was chiefly the prosecution's 0:09:38.400 --> 0:09:42.880 theory coming into the case. As the trial continued, they 0:09:42.920 --> 0:09:46.600 added some more layers to that theory of motive, and 0:09:46.720 --> 0:09:49.480 I think added on the idea that he was concerned 0:09:49.520 --> 0:09:53.600 about his own reputation and standing and that of his 0:09:53.760 --> 0:09:57.520 family in the community. He was from a long line 0:09:57.840 --> 0:10:02.520 of respected lawyer years in the community. His father had 0:10:02.520 --> 0:10:06.079 been the head prosecutor in the county, as had his grandfather. 0:10:06.520 --> 0:10:09.920 He himself had been an assistance prosecutor in the county, 0:10:10.280 --> 0:10:13.080 and so part of the theories seemed to become that 0:10:13.240 --> 0:10:18.200 it was the fear of reputational harm and prestige that 0:10:18.559 --> 0:10:22.560 went into his motivations in reacting the way he did. 0:10:23.240 --> 0:10:27.160 It was nearly six weeks of testimony from seventy five witnesses, 0:10:27.840 --> 0:10:32.080 but the jury came back in just three hours, And 0:10:32.280 --> 0:10:36.720 according to the jurors afterwards, they said that they said 0:10:36.760 --> 0:10:41.000 a prayer, they took an initial anonymous vote, and in 0:10:41.040 --> 0:10:44.280 that vote, two jurors thought he was not guilty, and 0:10:44.480 --> 0:10:48.040 one juror had not made up his or her mind. 0:10:48.480 --> 0:10:52.160 And then they said that within forty five minutes, the 0:10:52.240 --> 0:10:55.400 jurors who wanted to vote guilty had convinced the other 0:10:55.440 --> 0:10:58.160 three they don't have to do anything, But wouldn't it 0:10:58.200 --> 0:11:01.360 seem logical to go through the evidence and, you know, 0:11:01.440 --> 0:11:04.760 look it through before deciding that a man is guilty 0:11:04.760 --> 0:11:09.360 of killing his wife and child. I was very surprised 0:11:09.360 --> 0:11:12.800 by the speed of the verdict. I truly was shocked 0:11:12.840 --> 0:11:14.560 that it came back as quickly as it did. I 0:11:14.600 --> 0:11:18.200 did not expect that. What I thought when I first 0:11:18.280 --> 0:11:20.280 heard that they had reached a verdict at quickly and 0:11:20.400 --> 0:11:23.000 had heard what the verdict was, was that the jury 0:11:23.679 --> 0:11:27.400 must have seen this as a fairly straightforward case at 0:11:27.400 --> 0:11:30.120 the end of the day, that despite the weeks of 0:11:30.160 --> 0:11:33.360 testimony and the many witnesses and exhibits that were offered, 0:11:33.679 --> 0:11:37.320 that it came down to only a few pieces of 0:11:37.360 --> 0:11:41.040 evidence that were critical to their deliberations, And I suspected 0:11:41.080 --> 0:11:44.679 it was that video that Paul took at the kennels 0:11:44.720 --> 0:11:47.200 that placed the defendants at the scene of the crime 0:11:47.240 --> 0:11:49.720 a few minutes before the time of death, and the 0:11:49.760 --> 0:11:54.120 defendants denial, repeated denial until he was confronted with that 0:11:54.200 --> 0:11:57.160 cell phone video and the witnesses who identified his voice 0:11:57.200 --> 0:12:00.800 as having been on that video, that it effectively came 0:12:00.840 --> 0:12:03.040 down to those two things, That why would he have 0:12:03.280 --> 0:12:06.320 denied having been there, which seems like such a crucial 0:12:06.360 --> 0:12:09.600 piece of evidence to provide to law enforcement to look 0:12:09.640 --> 0:12:12.120 for the killers of your wife and son, And that 0:12:12.240 --> 0:12:15.160 much of the other evidence in the case in a 0:12:15.240 --> 0:12:20.240 sense was peripheral to those basic elements. And the jurors 0:12:20.280 --> 0:12:23.640 who were interviewed since the verdict came down the extent 0:12:23.679 --> 0:12:28.199 i've heard their comments, they have corroborated so there comments 0:12:28.200 --> 0:12:31.040 have supported why inferred, which was that it was really 0:12:31.120 --> 0:12:34.360 quite straightforward to them. And I have heard one make 0:12:34.400 --> 0:12:38.880 additional comments about their deliberation, saying that there were some 0:12:39.000 --> 0:12:43.240 jurors who initially were not ready to vote for guilty, 0:12:43.640 --> 0:12:46.560 but not from a firm conviction that the defendant was 0:12:46.640 --> 0:12:49.960 not guilty, but rather that they just had some questions 0:12:50.000 --> 0:12:53.120 they wanted to work through in discussions with the other 0:12:53.200 --> 0:12:56.040 jurors and reviewing the evidence before they got to a 0:12:56.120 --> 0:13:00.320 place where they felt comfortable voting guilty, and that that 0:13:00.440 --> 0:13:03.200 was interesting to add on to what had previously been said, 0:13:03.200 --> 0:13:06.920 because I too had heard about that initial vote and 0:13:07.280 --> 0:13:10.360 didn't understand how somebody who may have been committed to 0:13:10.520 --> 0:13:13.320 not guilty would have come around so quickly. But to 0:13:13.440 --> 0:13:16.280 now hear the additional comments, it sounds like it wasn't 0:13:16.320 --> 0:13:19.680 so much that there were two jurors committed to not guilty, 0:13:20.000 --> 0:13:23.800 but rather that they were too not yet ready that 0:13:23.840 --> 0:13:27.320 makes sense guilty, which is different. Let's talk about the appeal. 0:13:28.120 --> 0:13:31.480 What the defense attorneys have said is they're going to 0:13:31.520 --> 0:13:34.960 appeal around the question of whether the judge was too 0:13:35.000 --> 0:13:40.600 permissive in allowing evidence of his past financial wrongdoing and lies. 0:13:41.040 --> 0:13:44.359 They said there was no significant evidence linking his financial 0:13:44.440 --> 0:13:48.320 crimes to the motive for murder, and that the prosecutors 0:13:48.400 --> 0:13:51.960 said they needed to establish his motive. Then they ended 0:13:52.040 --> 0:13:54.440 up using it to show he was a liar in 0:13:54.480 --> 0:13:57.360 a conman, and so when he took the stand, the 0:13:57.480 --> 0:13:59.760 jurors were already convinced that he was a liar in 0:13:59.760 --> 0:14:03.280 a then because of all the evidence of financial crimes. 0:14:03.360 --> 0:14:05.679 So I think the most significant issue out appeal will 0:14:05.760 --> 0:14:09.360 be this evidence three question of whether the judge correctly 0:14:09.640 --> 0:14:12.520 allowed the prosecutors to put in the evidence about his 0:14:12.600 --> 0:14:16.440 financial crime. It was introduced on this theory that it 0:14:16.679 --> 0:14:21.840 established motive for the crime, and the jury was I believe, 0:14:21.960 --> 0:14:25.440 instructed that they should only consider it for purposes of 0:14:25.600 --> 0:14:28.680 establishing his motives. There are a couple of issues though, 0:14:28.720 --> 0:14:31.720 in terms of evaluating the likelihood of success on an 0:14:31.760 --> 0:14:36.080 appeal with respect to this evidence. One is, even if 0:14:36.120 --> 0:14:39.320 a reviewing court were to find that the judge did 0:14:39.400 --> 0:14:44.200 commit error in his analysis in permitting it, I think 0:14:44.320 --> 0:14:47.280 it would be subject to harmless error review, and the 0:14:47.440 --> 0:14:50.680 court would look at through the other evidence in the case, 0:14:50.880 --> 0:14:52.560 and if the court thought that at the end of 0:14:52.560 --> 0:14:55.800 the day the other evidence was overwhelming, it would not 0:14:55.880 --> 0:14:58.560 reverse even if it thought that the trial court had 0:14:58.600 --> 0:15:02.520 committed error. The second issue is that because the defendant 0:15:02.600 --> 0:15:07.240 took the stand, evidence about, or questions about, and those 0:15:07.280 --> 0:15:12.120 other crimes to a significant extent would have been permissible 0:15:12.160 --> 0:15:16.640 to impeach him. And so, in a sense, the issue 0:15:17.400 --> 0:15:21.680 may have been partially waived because the defendant decided to 0:15:21.680 --> 0:15:24.160 take the stand, and so the jury would have heard 0:15:24.200 --> 0:15:29.520 about these lies and frauds as a basis for impeaching 0:15:29.640 --> 0:15:34.720 his truthful character as a witness, And given that as 0:15:34.800 --> 0:15:37.840 part of the record, I think that's an additional reason 0:15:37.920 --> 0:15:41.040 why a court may be hesitant to or may not 0:15:41.120 --> 0:15:44.280 find a basis for a reversal here. Now, so the 0:15:44.360 --> 0:15:46.960 defense says, tell me if this will be considered at all. 0:15:47.000 --> 0:15:50.520 The defense says that once all that evidence of his 0:15:50.600 --> 0:15:53.920 financial crimes came in, he had no choice but to 0:15:53.920 --> 0:15:56.880 take the stand and rebut it as best he could. 0:15:57.280 --> 0:16:01.120 That was the calculus that they made. But he could 0:16:01.160 --> 0:16:05.320 have remained silenced and held the government to its burden 0:16:05.360 --> 0:16:08.440 of proof beyond a reasonable doubt that he did commit 0:16:08.520 --> 0:16:13.040 the crime and preserve the issue more cleanly for appeal 0:16:13.560 --> 0:16:17.680 on the judge's ruling to permit the other act evidence 0:16:17.720 --> 0:16:21.920 to come in to prove motive. Once he took the stand, 0:16:22.400 --> 0:16:26.000 I think the argument on appeal becomes much harder to make. 0:16:26.520 --> 0:16:30.240 One of Murdah's lawyers, Jim Griffin, said he's confident they'll 0:16:30.280 --> 0:16:34.120 succeed on federal grounds if their appeal falls at the 0:16:34.160 --> 0:16:37.680 state level, and he based that on the state asking 0:16:38.200 --> 0:16:42.440 Murdah about why he didn't come forward and tell law 0:16:42.560 --> 0:16:45.120 enforcement where he was at the time of the kennel 0:16:45.240 --> 0:16:49.520 video after he was arrested, saying that US Supreme Court 0:16:49.560 --> 0:16:53.400 cases are clear that post arrest silence can't be used 0:16:53.440 --> 0:16:57.160 against you. Is that a convincing argument? Well, I would 0:16:57.200 --> 0:16:59.880 want to read the appellate briefs before offering a firm opinion, 0:17:00.120 --> 0:17:03.120 but my initial reaction is that I don't think the 0:17:03.200 --> 0:17:07.479 claim is that strong. It is true that prosecutors cannot 0:17:07.560 --> 0:17:11.359 comment on a defendant's silence when the defendant elects not 0:17:11.440 --> 0:17:14.440 to testify a trial, or if a defendant elects to 0:17:14.520 --> 0:17:18.120 remain silent upon arrest, but the situation is different when 0:17:18.119 --> 0:17:21.640 a defendant tells a lie before any arrest has occurred, 0:17:22.119 --> 0:17:25.440 and maintains that lie repeatedly for a period of time 0:17:25.480 --> 0:17:28.000 before any arrest. So, in other words, the case law 0:17:28.040 --> 0:17:32.879 distinguishes between pre arrest silence and post arrest silence. The 0:17:32.920 --> 0:17:35.920 case law also draws a distinction between prosecutors using a 0:17:36.000 --> 0:17:39.679 defendant's silence as substantive evidence in their case in chief 0:17:40.200 --> 0:17:43.200 and using it to impeach a defendant who testifies, and 0:17:43.440 --> 0:17:47.040 courts allow prosecutors more leeway to use statements to impeach 0:17:47.200 --> 0:17:51.280 and also give prosecutors considerably more leeway to use pre 0:17:51.440 --> 0:17:55.359 arrest silence. In the murder case, the defendant repeatedly lied 0:17:55.440 --> 0:17:58.800 about his whereabouts on the knights of the murders, specifically 0:17:58.840 --> 0:18:00.960 denying that he had been at the kennels where the 0:18:01.000 --> 0:18:04.280 murders took place, in a series of interviews with police, 0:18:04.680 --> 0:18:07.960 all of which occurred well before he was arrested and 0:18:08.040 --> 0:18:10.359 when he was not in custody, and he met with 0:18:11.520 --> 0:18:15.080 investigators several times over the course of those months, long 0:18:15.119 --> 0:18:18.280 before he was ever arrested for the murders, and I 0:18:18.320 --> 0:18:22.000 believe that the prosecution referenced those lies and noted his 0:18:22.119 --> 0:18:25.919 failure to correct them primarily when they were impeaching Murdo 0:18:26.040 --> 0:18:28.239 once he took the stand at his trial, So I 0:18:28.280 --> 0:18:30.760 think it's likely that the court would view these to 0:18:30.840 --> 0:18:35.720 be permissible uses of pre arrest statements to impeach. To 0:18:35.760 --> 0:18:40.320 the extent that the prosecution also explicitly or implicitly suggested 0:18:40.359 --> 0:18:43.560 that Murdoch should have corrected his prior statements after he 0:18:43.600 --> 0:18:46.640 was arrested. I think those comments would likely be more 0:18:46.680 --> 0:18:49.920 problematic for the prosecution and harder to defend on appeal. 0:18:50.119 --> 0:18:53.200 But I think even then, Murdo arguably opened the door 0:18:53.400 --> 0:18:56.560 to that subject when he testified that he had attempted 0:18:56.760 --> 0:18:59.760 post his arrest to reach out to prosecutors to correct 0:18:59.760 --> 0:19:03.040 his prior statement, and he's testified that they had rebuffed 0:19:03.040 --> 0:19:05.440 his efforts to communicate with them. So I would want 0:19:05.480 --> 0:19:08.159 to look carefully at the trial record to see exactly 0:19:08.520 --> 0:19:11.720 how and when these questions were asked of murder and 0:19:11.760 --> 0:19:15.800 how prosecutors used his testimony about the failure to correct 0:19:15.800 --> 0:19:18.439 in their closing. But based on what I recall about 0:19:18.560 --> 0:19:21.439 the trial, I think that the defense likely faces an 0:19:21.480 --> 0:19:25.880 uphill battle on these arguments, primarily because the defendant took 0:19:25.920 --> 0:19:29.080 the stand and because most of the statements in question 0:19:29.160 --> 0:19:33.600 happened well before he was arrested. The odds of getting 0:19:33.720 --> 0:19:38.240 a conviction like this overturned on appeal are pretty slim, 0:19:38.320 --> 0:19:42.520 aren't they. Yeah, I mean it is hard to overturn 0:19:42.640 --> 0:19:47.840 a conviction based on an evidentiary ruling, which is I 0:19:47.880 --> 0:19:50.080 think going to be one of the main bases for 0:19:50.119 --> 0:19:52.640 the appeal. As I said, it's going to be subject 0:19:52.720 --> 0:19:57.320 to harmless error review and also abusive discretion review in 0:19:57.440 --> 0:20:00.240 terms of whether or not it actually was error. I 0:20:00.320 --> 0:20:03.320 do think in the context of this case, it was 0:20:03.520 --> 0:20:08.040 necessary for the government to provide some evidence that established motive, 0:20:08.440 --> 0:20:11.200 even if it was not a perfect motive or didn't 0:20:11.280 --> 0:20:15.040 fully explain the defendant's conduct. I think the question will 0:20:15.119 --> 0:20:19.320 be in significant part about how much evidence was admitted 0:20:19.400 --> 0:20:22.560 to establish this motive. In other words, there were quite 0:20:22.600 --> 0:20:26.280 a few witnesses that went on at considerable length, and 0:20:26.320 --> 0:20:30.959 the questioning of the defendant about his financial frauds was extensive, 0:20:31.160 --> 0:20:33.399 and I could see a reviewing court looking at that 0:20:33.440 --> 0:20:36.320 record and saying this was too much or more than 0:20:36.440 --> 0:20:39.399 was necessary to establish motive. But again, there is a 0:20:39.440 --> 0:20:42.600 great deal of deference to the decisions of the trial court. 0:20:42.640 --> 0:20:45.600 Whose closest to the facts and to the trial in 0:20:45.680 --> 0:20:49.280 making those determinations. And then again there is the harmless 0:20:49.359 --> 0:20:53.480 error review as well. Thanks Jessica. That's Professor Jessica Roth 0:20:53.680 --> 0:20:59.080 of Cardozo Law School. Another member of Sam Bankman Freed's 0:20:59.080 --> 0:21:04.200 inner circle has become a prosecution witness. Former FTX engineering 0:21:04.280 --> 0:21:08.640 chief Nishad Singh pleaded guilty last week to six criminal counts, 0:21:08.920 --> 0:21:12.639 including wire fraud, conspiracy to commit securities fraud, and a 0:21:12.720 --> 0:21:16.159 campaign finance law violation, as part of a deal to 0:21:16.240 --> 0:21:20.080 work with prosecutors against his old boss. He was the 0:21:20.080 --> 0:21:23.760 third close associate of Bankman Free to flip against him. 0:21:24.160 --> 0:21:27.639 The plea followed a revised indictment against Bankman Freed that 0:21:27.720 --> 0:21:30.880 featured four new charges and a wealth of fresh detail 0:21:31.200 --> 0:21:35.840 focused on an alleged plot to shape US crypto policy. Meanwhile, 0:21:35.880 --> 0:21:40.320 a protracted struggle over Bankman Freed's bail conditions highlights the 0:21:40.359 --> 0:21:45.560 growing complexity of such matters as communication technologies evolve. Joining 0:21:45.600 --> 0:21:49.760 me as Bloomberg legal reporter Crystal Mesh SBF has already 0:21:50.080 --> 0:21:54.000 angered the judge. Tell us why there's no debate about 0:21:54.119 --> 0:21:56.680 what he actually did? That he logged onto a virtual 0:21:56.800 --> 0:22:02.000 private network in late January or early February, which the 0:22:02.080 --> 0:22:05.000 government took opposition too. He says it was to watch 0:22:05.480 --> 0:22:09.080 the NFL Conference championship games in the Super Bowl. But 0:22:09.200 --> 0:22:11.360 as others have pointed out, and the judge pointed out, 0:22:11.520 --> 0:22:15.359 these were games that were aired. You didn't need subscription 0:22:15.400 --> 0:22:18.040 to anything to watch these games, So it kind of 0:22:18.160 --> 0:22:21.399 looks weird. The judge wasn't sure, you know, wanted to 0:22:21.440 --> 0:22:23.879 know why he did this. He was definitely skeptical that 0:22:23.960 --> 0:22:25.840 he had done that. But it led to a kind 0:22:25.840 --> 0:22:30.240 of an interesting exchange between the judge and Dan Bankman 0:22:30.280 --> 0:22:32.639 Freeds lawyers, who kind of said, you know, if they 0:22:32.640 --> 0:22:35.000 don't have a TV in their house, you know, their 0:22:35.040 --> 0:22:37.400 law professors, you know, they kind of wished they had 0:22:37.400 --> 0:22:39.560 bought them a TV at Best Buy. But it kind 0:22:39.560 --> 0:22:42.760 of illustrated the kind of technological divide between the judge 0:22:42.840 --> 0:22:46.359 and you know, the defendant and judge Kaplan is well 0:22:46.440 --> 0:22:50.920 known in the courthouse in Lower Manhattan for forbidding any 0:22:50.920 --> 0:22:54.240 sort of electronics in his courtroom at all times. So 0:22:54.880 --> 0:22:59.240 very interesting exchange. So why is the judge so concerned 0:22:59.640 --> 0:23:06.080 that Bankman Freed has access to the Internet or VPN? 0:23:06.160 --> 0:23:09.840 Why I mean, what is his basic concern? So it 0:23:09.920 --> 0:23:13.000 seems the overarching concern, which is, you know, a common 0:23:13.040 --> 0:23:17.840 concern in most criminal cases, is his attempts to contact 0:23:18.320 --> 0:23:22.400 others involved, including the the receiver in the bankruptcy case, 0:23:22.880 --> 0:23:25.639 and possibly move assets around that they may not know 0:23:26.000 --> 0:23:29.800 are out there. So not clear that any of that 0:23:29.840 --> 0:23:34.199 had actually happened. But the judge nonetheless was skeptical. And 0:23:34.520 --> 0:23:37.200 what was very interesting is something you know se very 0:23:37.200 --> 0:23:40.280 often is the prosecutors had kind of come to an 0:23:40.280 --> 0:23:43.200 agreement with the defense. They said, we're happy and comfortable 0:23:43.200 --> 0:23:46.119 with these kind of restrictions. The judge said, no, this 0:23:46.280 --> 0:23:48.760 is not good enough. This guy's smarter than this, and 0:23:48.840 --> 0:23:51.680 you need to kind of rate him in more athlete. 0:23:52.240 --> 0:23:55.040 At a bail hearing in February, the judge noted that 0:23:55.160 --> 0:23:58.520 encrypted letters sent by the imprisoned Mary, Queen of Scott's 0:23:58.520 --> 0:24:02.280 had only recently been ciphered. You don't think this defendant 0:24:02.359 --> 0:24:06.960 is bright enough to encrypt something without a computer, So yeah, 0:24:07.040 --> 0:24:11.800 quite a moment. At the hearing, the proposed bail package 0:24:12.080 --> 0:24:15.119 would limit him to a single monitored cell phone and 0:24:15.200 --> 0:24:18.600 a laptop, and his lawyer said that was draconian. I 0:24:18.680 --> 0:24:20.840 mean Why isn't that enough If he were in prison, 0:24:20.960 --> 0:24:24.120 he wouldn't even have that. Sure, many have argued that 0:24:24.119 --> 0:24:26.800 that's you know, this is a common restriction on people. 0:24:26.920 --> 0:24:31.720 Certainly many people involved in cryptocurrency related prosecutions and things 0:24:31.760 --> 0:24:34.119 like that have had kind of restrictions like this. So 0:24:35.520 --> 0:24:38.040