Murdaugh mysteries: How the jury decided | John L. Hill

By John L. Hill

Law360 Canada (March 6, 2023, 12:52 PM EST) --
John Hill
John L. Hill
There is a myth in our criminal law that a jury safeguards individual liberty because culpability is believed to be more fairly determined by an accused’s “equals and neighbours, indifferently chosen, and superior to all suspicion.” (R. v. Kokopenace [2015] 2 S.C.R. 398. Jury trials were instituted to prevent the undue influence of a monarch in his own courts. (R. v. Lee [1989] 2 S.C.R. 1384. Thus, when the Canadian Charter of Rights and Freedoms was proclaimed, section 11(f) included a citizen’s right to trial by jury where the maximum punishment exceeded five years.

Is justice better served by having 12 citizens be the adjudicator of facts rather than by a judge alone? An examination of the recent case in the United States where prominent South Carolina lawyer Alex Murdaugh was convicted after a five-week jury trial of murdering his wife and son can, for Canadians, offer a teachable moment of what can go wrong when an accused charged with a serious crime elects to be tried by judge and jury.

The problem with jury trials is that a jury can, and often does, base its verdict on whom the accused is rather than what the person has done. Unless it is expected that an accused can portray himself as an upstanding citizen, jurors may take a negative inference of an accused’s character into consideration in determining guilt or innocence rather than answering directly on whether that accused perpetrated a criminal act.

In the Murdaugh case, the prosecution was able to establish that despite his respected profession, Murdaugh was a liar and a cheat. He openly admitted to misleading police and only acknowledging his deceit once on the witness stand. Further he had misappropriated large amounts of client and partnership funds. He also admitted to a severe opioid addiction.

Going into deliberations, jurors could on the evidence conclude that Murdaugh was a liar, a thief and an addict. Does that make him a murderer? Despite how a judge may charge a jury, there is the suspicion that jurors will convict on who the accused is rather than what he has done. To put it bluntly, jurors sometimes just want to take out the trash.

The Murdaugh case also raises another area where defence counsel may need to have a second thought on when to advise the client to elect to have a jury trial. Without eyewitnesses to the crime, the prosecution was required to construct its case on data scavenged from cell phones and electronic devices to pinpoint a time of death. The coroner had determined the killings happened between 8 and 10 p.m. Information gleaned from various devise seemed to hone in on a time that left Murdaugh vulnerable.

Juries are prone to be swayed by “scientific” data. As common people they have watched how TV detectives use DNA to catch the villain. Trial lawyers are much more adept at trying to decipher what this scientific data means and how much is “junk science.” Yet trying to disparage such “evidence” before a jury can be tricky and ultimately unsuccessful.

In a March 3 opinion piece in the New York Times, Farhad Manjoo deconstructs some of the prosecution position on the meaning of what the electronic data showed. It was not that the information gleaned from the devices was wrong but perhaps the inferences the prosecution made were incorrect or had a perfectly valid alternate explanation.

The end result was that the jury reached a guilty verdict in about three hours with one juror later disclosing that nine jurors on an initial poll were convinced of guilt; one was unsure; and two others were leaning to a not guilty verdict and needed convincing. How the conversations went to make the finding unanimous is an unknown. No reasons are given.

Would a judge alone have been apt to render a guilty verdict based on character or misperceived acceptance of electronic data? A judge alone would be required to detail the judge’s decision-making process making for a more fulsome inquiry should there be appellate court review.

Of course, it is likely the jury verdict was right and proper despite the accused’s protestations to the contrary. Nonetheless without eyewitness testimony, and an accused with an unsavoury character, there exists the possibility of a wrongful conviction. Perhaps an accused’s right to a jury trial for a serious charge is not the guarantee of justice that many believe it is.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

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