Could the Murdaugh murder indictments be tossed? Here's what the judge asked

LEXINGTON, S.C. — Nearly two hours into Friday’s hearing about whether to dismiss double murder indictments against Alex Murdaugh and get new ones, state Judge Debra McCaslin asked prosecutors a key question.

“Let me ask you, if you had to go back to the grand jury (and get a new indictment) could you have it done and be ready to go by April 5?” McCaslin asked lead Attorney General prosecutor Creighton Waters.

“I’m always full speed ahead, your honor,” Waters replied.

April 5 is when McCaslin wants Murdaugh’s retrial to start on murder charges in the 2021 fatal shootings of his wife Maggie and son Paul.

McCaslin said she will rule soon on whether to require prosecutors to seek new murder indictments.

“I’ll issue a written order, and I’ll try to get it to you by Friday (Nov. 20) of next week,” McCaslin told attorneys on both sides in the large courtroom on the fourth floor of the Lexington County courthouse. More than 120 people looked on, including about 30 members of the state and national media.

Columbia longtime defense attorney Joe McCulloch predicted McCaslin would require new indictments.

“Her final question to the prosecution was pretty telling. She asked prosecutors if they could re-indict and not disrupt the schedule, and the answer to that was ‘full steam ahead’,” said McCulloch, who was in the audience and has been following the case.

In the last month, Murdaugh’s defense attorneys have argued in court filings that the 2022 indictments for murder by a Colleton County grand jury were fatally flawed for numerous reasons including that a law enforcement officer gave false testimony to the grand jury about blood spatter from his victims being found on Murdaugh’s shirt.

Defense attorneys have asked McCaslin to throw out those indictments and require prosecutors to seek new indictments based on other evidence.

“What we’re asking for is a reboot. Go back to Square One,” defense attorney Jim Griffin told McCaslin. In his arguments to McCaslin. Griffin, who played a detailed series of slides presenting his points to the judge, called prosecution evidence about blood spatter “junk science.”

Prosecutors have acknowledged that one document in their case mistakenly indicates that Murdaugh’s shirt contained no blood spatter — minute traces of blood splashback — that would have allegedly occurred when he shot them. But numerous other documents, expert evaluations and lab tests correctly show that Murdaugh’s shirt on the night of the shooting did indeed contain blood spatter, they contend.

McCulloch said requiring new indictments would remove an appellate issue from the defense, should Murdaugh be convicted.

If McCaslin does keep the indictments as they are, that could allow prosecutors to introduce the expert evidence about how blood spatter was found on Murdaugh’s shirt.

But it would also allow defense attorneys to tell the jury about the single prosecution document that asserts there was no blood spatter found on the shirt.

In any event, if the judge requires prosecutors to seek new murder indictments, that could be viewed as a public relations victory for Murdaugh’s defense attorneys.

“It’s a temporary victory for the defense,” McCulloch said. “And there’s no prejudice to the prosecution that I can see.”

At Friday’s hearing, prosecutor Waters told the judge his team has plenty of other evidence — not just blood spatter — with which to convince a jury of Murdaugh’s guilt at the upcoming trial.

That other evidence includes Murdaugh’s motive, a raincoat in Murdaugh’s possession covered with gunshot residue, a roadside shooting incident in which Murdaugh apparently faked a suicide attempt to win sympathy, a missing assault rifle of the type used to kill Maggie, matched ammunition casings to those used at the Murdaugh estate and a detailed timeline and video that puts Murdaugh at the death scene with Paul and Maggie minutes before they died, Waters said.

And Murdaugh “had been lying to everybody” about not being at the scene of the crime, Waters said.

“This is all very, very compelling evidence,” Waters said.

In May, the defense attorneys persuaded a unanimous South Carolina Supreme Court to overturn Murdaugh’s 2023 murder convictions and give him a new trial. Justices found that jury tampering by Becky Hill, the former Colleton County clerk of court, denied Murdaugh his constitutional right to a fair trial.

A Colleton County jury in March 2023 found Murdaugh guilty of murder in the shooting deaths of Maggie and Paul at the family’s 1,700-acre estate in a remote rural part of the county. Judge Clifton Newman then sentenced Murdaugh to two consecutive life sentences.

In Murdaugh’s first trial, which lasted six weeks and featured testimony from more than 70 witnesses, prosecutors did not introduce any evidence concerning blood spatter.

Murdaugh is also serving a 27-year sentence for stealing from clients and his law firm, as well as a 40-year sentence for similar crimes given to him in federal court.

Murdaugh’s retrial will take place in Sumter County. He contends he is innocent of the killings. His lawyers have indicated in filings they may raise the possibility of killers as yet unidentified for being responsible for the deaths.