Still Not Free: Alex Murdaugh just had his murd3r convictions thrown out, yet his release is not happening

The South Carolina Supreme Court’s decision to overturn Alex Murdaugh’s murder convictions Wednesday primarily focused on how a county clerk’s improper comments to the jury violated his right to a fair trial.

But the court’s 29-page ruling also offered “guidance” for prosecutors, advising them to reel in their use of Murdaugh’s financial crimes in a murder retrial.

That’s just one way a second trial could be different than the now-vacated 2023 trial. The retrial is likely to have less focus on financial evidence, a lack of surprise evidence or testimony, and may prove a challenge in finding impartial jurors, legal experts told CNN.

“If there’s a retrial, the whole case has to start again,” said Jessica Roth, a former prosecutor and professor at Cardozo School of Law in New York. “It’s a new trial from start to finish.”

Murdaugh’s attorneys said on NBC’s “Today” the defense has the advantage in a retrial.

“In a retrial, the statistics are in favor of the defendant because you have a lot more recorded testimony of witnesses,” attorney Jim Griffin said Thursday. “You get to impeach them with inconsistencies. It will be a totally different trial, I promise you.”

South Carolina Attorney General Alan Wilson said his office plans to retry Murdaugh on the murder charges “as soon as possible.” Prosecutors still have a window to ask the state Supreme Court to reconsider its decision or to appeal to the US Supreme Court, but lead prosecutor Creighton Waters said he expected a retrial ahead.

“I’m thinking right now what’s gonna happen is we’re gonna tee this thing up and do it again,” Waters told CNN’s Laura Coates.

The state Supreme Court’s ruling was the latest twist in the sprawling Murdaugh saga that has riveted the public and spawned true crime documentaries, podcasts and best-selling books.

Murdaugh, a prominent attorney from a South Carolina Lowcountry legal dynasty, was convicted by a jury of the murders of his wife, Maggie, and 22-year-old son, Paul, in March 2023. Those convictions are no longer.

He remains in prison on dozens of financial crimes, serving concurrent state and federal sentences of 27 and 40 years.

Court overturns Alex Murdaugh’s murder convictions, orders new trial

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The murder trial was the capstone to a remarkable fall from grace for the personal injury lawyer, whose father, grandfather and great-grandfather served as the local prosecutor consecutively from 1920 to 2006.

Murdaugh was a partner at a powerful law firm with his name on it. But that prominence belied underlying issues, and the killings of his wife and son were followed by accusations of misappropriated funds, his resignation, a bizarre alleged suicide-for-hire and insurance scam plot, a stint in rehab for drug addiction, dozens of financial crimes, his disbarment and, ultimately, the murder charges.

Here’s a look at some of the key factors that may be different in a second go-round.

Retrials tend to favor the defense

One key difference in a retrial is prosecutors and the defense know what the other is going to say.

That generally gives an advantage to the defense, who can better prepare for the evidence, said Anna Cominsky, professor of law at New York Law School.

“The defense has seen the prosecutor’s case start to finish, so that is a gigantic advantage for the defense,” she said. “It’s a clean slate for the defendant, and yet they get to see the entire prosecution case.”

For example, at his first murder trial in March 2023, prosecutors tried to prove Murdaugh was at the scene of the crime just prior to the killings – despite his repeated insistence he was elsewhere. The key proof came in a video recorded by his son Paul that captured Murdaugh’s voice in the background, placing him at the scene.

The video marked the crumbling of his alibi, legal experts told CNN at the time. When he took the stand, he was forced to admit he had lied to investigators about his whereabouts.

The entrance to the house at the Murdaugh Moselle property on Wednesday, March 1, 2023 in Islandton, S.C.

Andrew J. Whitaker/Pool/The Post And Courier/AP

In a retrial, though, the defense could take a different strategy for combatting that video evidence given Alex Murdaugh’s admissions. Or they could focus more on other parts of the case that they believe to be weaker.

Waters, the prosecutor, downplayed the notion that the defense has an advantage on retrial, noting that by law the state has to give the defense all the evidence ahead of time.

“As you’re well aware, prosecutors have very strict obligations to provide discovery,” he told CNN. “So frankly, nothing should be a surprise to the defense. That’s not what we do. We give them everything that we have.”

On the other hand, prosecutors know what Murdaugh said in his testimony, admitting to his presence at the crime scene and his financial crimes. And if Murdaugh again chooses to take the stand, prosecutors can use his prior testimony to “impeach” him if his story changes.

Less focus on financial crimes

A retrial would likely feature much less evidence about Murdaugh’s financial crimes.

The first trial featured extensive testimony about Murdaugh stealing millions of dollars from vulnerable clients and his own law firm. Prosecutors argued that Murdaugh killed his wife Maggie and son Paul in an attempt to fend off a “gathering storm” that would soon expose him as a fraud.

In their appeal, Murdaugh’s attorneys argued the motive did not make logical sense and said the prosecution improperly used the financial crimes evidence to malign his character.

In its ruling Wednesday, the South Carolina Supreme Court offered “guidance” to limit this financial crimes evidence.

The justices agreed with prosecutors that the financial crimes evidence was relevant to the state’s theory of motive. But they said the trial judge “allowed the state to go far too long and far too deep into aspects of Murdaugh’s financial crimes.” Some of this evidence did not relate to the motive and had “obviously high potential for unfair prejudice,” they wrote.

“By our calculation, the State spent a total of 12.5 hours of actual testimony before the jury over ten days of trial to introduce evidence related to Murdaugh’s financial crimes,” the justices wrote. “We are convinced the State could have effectively presented evidence to support its motive theory in a fraction of that time.”

At the time of his first trial, Murdaugh still faced unresolved financial charges. Since then, though, he pleaded guilty to state and federal charges.

The appeals court said its decision to overturn the murder convictions was solely based on the county clerk’s improper statements to the jury. Still, the court offered this guidance on the financial evidence to ensure the retrial is fair to Murdaugh, explained Roth, the Cardozo professor. By following this guidance, prosecutors can avoid other appeals issues in its retrial.

Finding an impartial jury

Finally, the parties may have difficulty finding an impartial jury given the high-profile nature of this case.

The Murdaugh family was already well-known in South Carolina’s Lowcountry prior to his arrest. Now, there are documentaries, dramatized TV shows, books, podcasts and more digging into the case and the details of his first trial.

“From the beginning, that was going to be a challenge in seating a jury that could be fair and impartial and put that other information out of its mind in deciding his guilt,” said Roth. “I think the problem is renewed and perhaps aggravated by there being that much more information in the public domain in the years since the initial trial.”

“Jury selection is going to be tricky,” Cominsky said.

Waters, the lead prosecutor, admitted finding a fair jury is a “concern,” but he said there are systems set up to protect a jury from outside information.

“We live in a society also where the jurors are more used to consuming media and they understand the difference between what’s in the media, what’s in a podcast, and what’s the truth of the evidence on the witness stand,” he said. “And we’re going to depend on our citizens to do that.”