← Crime & Justice with Donna Rotunno
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- [00:00]
Dick Harpootlian
You have one new message translating. Disney and Pixar's Hoppers is now available on Disney. You could say that again. Critics are calling it Pixar's funniest movie ever. And a wildly entertaining ride. Blizzard Potato. It's certified fresh and verified hot. Now we party.
- [00:21]
Donna Rotuno
This is incredible. Wow.
- [00:24]
Dick Harpootlian
I am clearing the rest of the day. Disney and Pixar's Hoppers now available on Disney. Rated pg.
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Donna Rotuno
This is Crime and Justice and I'm Donna Rotuno. A new judge has been announced for the retrial of Alex Murdaugh. We're back with Alex's defense attorney, Dick Harpoutlian. I'm so excited to talk to you today. There have been big developments since our last conversation. Let's get right into it. First, what was Alex reaction to getting a new trial?
- [01:00]
Dick Harpootlian
Well, initially he was sort of incredulous. He couldn't believe it because, as he said, he had not won a single motion for a single argument in any, any of the venues we've been in, whether it was in front of the trial judge or in the motion in front of Judge Toll on the for a new trial. So Supreme Court ruling giving him a new trial was. He was just incredulous because he couldn't, he couldn't believe it. But very happy.
- [01:27]
Donna Rotuno
Well, I'm happy about it and not really having anything to do with the facts of the case. I know last time you were here, we spoke at length about what had happened when you went in for the oral arguments and the questions that the court had asked. And I know you didn't want to make a prediction, but I did. And I said that I thought they were going to overturn this conviction. And I think that justice demanded it. And I think that the decision is bigger than Alex and this case. And I think it was the right decision decision. And frankly, it not only made me happy as a trial lawyer, but it restored some faith that the system can get it right here because you can't have what happened in that case happen in other cases anywhere, ever.
- [02:11]
Dick Harpootlian
Well, I'm very proud of our Supreme Court because the rule of law prevailed. And, you know, it's not. That doesn't happen so much anymore around the country. So I think we in South Carolina show the rest of the country horrible thing happened, clerk of court fixing the jury. But our Supreme Court didn't attempt to cover that up or in some way deal with it other than straight on. And their opinion is extraordinary. And again, I'm proud of them for doing the right thing. I mean, it's really, in a very politically charged case.
- [02:48]
Donna Rotuno
Yeah, I felt the same way. I thought that that was the only. The only decision really, that was just and really does uphold the foundation on which our system is built. And I found it extremely important. And I've continued to say it's bigger than Alex Murdoch, and I will continue to say that because it is. So now you're getting a new trial. You're gearing up to do that. Do we have a timeline as to when we think this is going to happen?
- [03:15]
Dick Harpootlian
No. And that's. We have a. The judge, Judge Debbie McCaswin, who is a circuit court or trial court judge, just like Judge Newman who tried the original case, she's at the same level, has been appointed by our chief justice to handle the case. And we're going to have a Status Conference on June 29th in Lexington county where she holds court and talk about all these issues when, how. Where those kinds of things. We have some motions to file. They. The prosecution will have motions to file and, you know, we'll either argue those that day or she'll set a time for them to be argued.
- [03:55]
Donna Rotuno
And talk to me about this new judge. So the. You have a new judge in the case. She sits in a different county. Will the trial be tried in that county or you don't know. That's going to be something that's up for discussion.
- [04:08]
Dick Harpootlian
That's up for discussion. We're obviously going to file a motion for a change of venue, and obviously the state will oppose it. And. But we think that. I think this judge will be fair in understanding that this case has gotten. I mean, it's. The publicity and coverage of it has been so extraordinary to be tough to find 12 people who honestly think they can give them a fair trial. And so. And we're not going to get it in the environs of Carleton county or anywhere down in that part of the state. So I think we get a change of venue and where she moves it, it's totally within her discretion. So.
- [04:52]
Donna Rotuno
Yeah, I thought about that. It was hard for you to pick a jury the first time, much less have to do it again after the intense media scrutiny that this has received. And now a new trial.
- [05:06]
Dick Harpootlian
Yes. No, I think it's going to be extraordinarily difficult and we should, you know, we're going to ask for a number of different things from the judge, including a motion for individual wadir. We don't get that in South Carolina except in a death penalty case. And we think that we and the state should be given the Opportunity to go a little bit deeper than just sort of to the crowd. Anybody here have a reason why they can't be fair and impartial for both the state and the defense, which is the normal question asked in the routine case? I don't think that goes far enough. If somebody, they ought to be asked, have you heard about, have you read it? Read about it? Have you formed an opinion or do you have a sense of an inclination of where you'd go right now? Those kinds of questions. And I find jurors, if asked a specific question and not in a group, they tend to be honest, they tend to be open. And that allows us to exercise what I call peremptory challenges or be disqualified by the judge. I mean, I tried a case 40 years ago, wrote a book about a guy named Donald Pee Wee Gaskins. I prosecuted it. He was the largest mass murderer serial killer in the history of the state. It killed 13 people. And I was trying for number 14. He not known nationally, but in South Carolina, he was infamous. And to get a jury took four weeks with individual wadir because, you know, Mr. Jury, you ever heard of Donald Pee Wee Gaskins? Yes. What do you know about him? Oh, he's the largest mass murderer in the history of the state. Well, could you put that aside and base your verdict on what you hear in this courtroom? I mean, it's almost incredulous to get 12. We had 14 with 2 alternates people to say they could do that, and they did. So, I mean, I just. This is not going to be easy.
- [06:58]
Donna Rotuno
No, it's not. And not only because as we just talked about the media scrutiny, but there was a televised trial. So people could have already watched a trial that has had a decision. Right. The jury came back guilty and they could have watched an entire trial. So talk about forming an opinion. It's different to form an opinion based on what you read in a newspaper, but it's a lot different to form an opinion if you sit every day and watch live testimony, testimony on camera.
- [07:26]
Dick Harpootlian
Well, you're, you're entirely correct. I mean, I don't know how many people, when I meet them, say, yeah, you were Al Murdo's lawyer. I watched every minute of that trial. I ran into a. Ran into a woman in the airport, I guess about a year ago. And she said, you're Dick Harbour. And I said, yeah, I know I am. But that joked very far anymore. But she, she says, I watched every minute of that trial. And I said, what do you do? Where are you from? Toronto. I said, well, what do you do for a living? She said, I'm a dental hygienist. I said, well, how did you go to work every day and watch every minute of the trial? She said, well, you know, we got a TV on in the. In. In the room with it with the. The patient I'm dealing with. And I said, you could focus on the TV and the client. The patient. She said, yeah. I said. And I said, did you cut anybody's tongue off? I mean, really. I mean, people. I mean, I hear it over and over and over again, so I say that somewhat humorously. But was anybody working those six weeks? It's just. Can't believe how many people told me they watched it.
- [08:30]
Donna Rotuno
No, they really did, because I even had friends in Chicago that of course, were asking me questions about it or even actually other places in the country, because they were watching it. And of course I was working, so I wasn't watching it. But I would go back and I would watch clips on YouTube or, you know, you can. You can record things and watch them later. So, I mean, people really. It was a very captivating case. So add that in and you're going to have jurors, especially people that are interested in that area, saying, you know, we. We watched a large portion of this. So I don't envy you, because picking a jury in this situation is definitely not going to be easy. Tell me about the type other than obviously, you know, fair and impartial jurors and. And people who have not formed an opinion and all of the standard issues that we look for. But are there any specific types of jurors that you think would be more fair in a case like this? Any type of demographic? I mean, I try a lot of sexual assault cases, and there's very specific types of people I look for, depending on race or sex or age or, you know, is. Is. Does this case fall into any of those categories where you think there's certain jurors who just. You could never have on this case?
- [09:43]
Dick Harpootlian
Well, remember now, there's no direct evidence in this case. There's no eyewitness, there's no confession. There's no forensics that tie him to the scene. It's all circumstantial. So my experience has been the more intelligent the juror, the more they question the lack of evidence. And remember, I don't have to tell you this, but we don't have to prove him innocent. We have to show and argue the state did not prove him guilty beyond a reasonable doubt. So because it's virtually as you know, virtually impossible to prove your innocence. And in this case, the. As you saw in the first trial, sweat bungled the crime scene processing. They didn't take DNA or attempt to take DNA or fingerprints from the feed room where Paul was shot. They lot, they did not preserve things like Maggie's phone in a Faraday bag. I mean, all this blunder after blunder after blunder after blunder. So if you listen to the judge, what he tells you at the beginning and the end of the trial, and you apply the correct legal standard, we believe Alec will be found not guilty.
- [10:56]
Donna Rotuno
It's fascinating to think about. So tell me a little bit about the background of the new judge. I know she's, you know, a circuit judge. I know where she's sitting. But is she a former prosecutor? She a defense attorney? Where does, where does she come from in the legal world before taking the bench?
- [11:13]
Dick Harpootlian
He's a former defense attorney. I met her 35 years ago. When. First time I met her, I was a prosecutor. I was the elected DA here. And she was defending a drug client who was facing 25 years on a trafficking cocaine case. And he had a little gang that came to the courtroom with him, and she defended the case and he was convicted. You know, as a prosecutor, no one should brag that they, you know, convicted everybody they prosecuted because he shouldn't have brought the case if he didn't think he could convince a jury beyond a reasonable doubt.
- [11:52]
Donna Rotuno
True. Exactly.
- [11:55]
Dick Harpootlian
So. So I'm not going to brag about beating her that day, but I will brag on her because the maximum was 25. We'd offered him 10. I argued for 25, and she was very eloquent in convincing the judge to only give him 15. So even then, and about two years later, three years later, when I was back in private practice, she rented some office space for me. I mean, you know, she. I never paid her. She wasn't on payroll. I mean, this has all been vetted by the Corps. But she, she. I saw back then she did two things I think every great defense lawyer needs to do. She was hardest working woman or man I've ever seen. I mean, she got there early, she stayed late, she, you know, all the time working the angles that as a defense attorney have to do in terms of evidence, in terms of law. But beyond that, she had the ability to convince prosecutors wherever you got to jury, but convince prosecutors what the right thing was to do. She was just extraordinarily talented and still is. She credited me with being one of her mentors. When she was coming up as a young lawyer. Now, I'm not sure I mentored anybody very effectively, but I did give her advice from time to time. And I tried a case in front of her. Not. Well, actually, we didn't try. We ended up working out a guilty plea. And, you know, I asked for X and she gave me X +5. So obviously there's no favoritism being shown there. But she's, I mean, she does what she thinks is. Look, but you know as well as I do that, that we're advocates for our client. If a judge doesn't follow our advocacy and does something that we think, you know, is more than what they deserve, don't get angry with them. It's their judgment that counts, not our advocacy. So.
- [13:58]
Donna Rotuno
Right.
- [13:59]
Dick Harpootlian
She's got a great reputation. Being a hard worker, being fair. Look, I want to judge. It called balls and strikes. Yeah. I mean, if I get somebody that's fair, that's all I ever want. I don't want somebody for me or against them or somebody who's already made up their mind. We, we see this too often and less now than maybe in the old days. But judges have made up their mind, you know, based on what they've heard about the case or opening statement and, and their rulings tend to drift in the direction they're. They're probably going to go in. She's not one of those people.
- [14:35]
Donna Rotuno
Well, I'm happy to hear that. That's all, that's all we want, right? As lawyers, we want somebody who's going to be fair, who's going to let us do our job, who's going to listen, who's going to be the referee. And at the end of the day, that, that's what we want.
- [14:46]
Dick Harpootlian
Cheers to America's 250th birthday. Get 20% off your first purchase at foxnewswineshop.com with code FNRADIO20. 20% discount excludes wine club offers and cannot be combined with any other promotion. Expires July 31, 2026.
- [14:58]
Donna Rotuno
Must be 21.
- [14:59]
Dick Harpootlian
Order to order please Drink responsib.
- [15:01]
Donna Rotuno
Let's talk about the day or the day after we heard that Alex was getting a new trial. And then the AG comes out and says, well, the death penalty may be back on the table. What was your reaction to that? And do you think that that's actually going to happen or do you think that was more of a, you know, sort of sour grapes response the day the news came out?
- [15:24]
Dick Harpootlian
No, understand the Attorney General's Running for governor, he made a runoff yesterday and there'll be an election two weeks from yesterday. That was purely and clearly a political statement. I mean, he had been running on the fact that he got the Murdoch conviction gets undone. He's got to have something to say, well, you know, we're going to make it tougher on him. Two things. One, and you know this as well as I do, upping the penalty because you get a new trial called prosecutorial vindictiveness. No judge is going to let him go, so. And two, I almost want to say make my day. If he declared the death penalty, several things happen. One is we get individual Wadir on the jury, which we're not. We don't get without that. We're going to argue we get it, we should get it in this case, but that's by no means a guarantee. That would be a guarantee. And then we almost get unlimited resources for experts and we get a bifurcated trial. Now, I was a prosecutor for 12 years and prosecuted about a dozen death penalty cases. You never, ever seek the death penalty in a circumstantial evidence case. Yeah, because if the jury doesn't have, when I say clear and convincing, I mean, more than reasonable doubt evidence, they're never going to consider killing it. So, I mean, that's just, that was politics and that's, you know, we got to be on guard for. Throughout this trial.
- [16:47]
Donna Rotuno
Yeah, for sure. I, you know, I looked at it and I thought, you know, it just seemed to be such a sort of amateur response in a situation where it just, it just looked like sour grapes to me. And I understand that he has an election and I understand that people are going to be looking to him to make a comment, but I think it almost would have been better to talk about the fact that, you know, the case was not overturned. And I know he said this, but I think I would have made this the lead. The case was not overturned based on any evidentiary issues. The case was overturned because of clerk inserted herself and, you know, we got a conviction once and we'll get one again. And I just, I just thought that throwing that back on the table sort of looked a little sour grapes.
- [17:31]
Dick Harpootlian
Did look like sour grapes. And, and remember now, the Supreme Court's decision reversed the case because of what the court did. But they went on to comment about the excessive nature of the, what we call 404 Crimes, the financial crimes, and cautioned the next judge to limit that. And by the time the jury heard about the murder, they'd heard that Alec had stolen money from a mentally disabled kid, from an, an orphan, from a widow, from an amputee. And, you know, he was just. They viewed him as evil and despicable. So then when we get up and start talking about the evidence in the murder case, they've already judged him.
- [18:14]
Donna Rotuno
Sure.
- [18:14]
Dick Harpootlian
Guilty Will. And combine that with the clerk in the background going in the jury room and elsewhere telling jurors, don't believe him, don't believe his lawyers. You know, he's a liar. You take those two things and put them together, and, you know, we get a new trial.
- [18:31]
Donna Rotuno
I don't know when prosecutors are going to learn that this win at all costs and not really thinking about, you know, what it means on appeal is just a bad idea. I mean, the same thing happened in my first New York trial with Harvey Weinstein. The, the higher court overturned the case because they said they put in too many proof of other crimes that, of course, we fought against. It's like, at what point are they going to learn, I mean, to do these cases over again, the cost, the time, the investment, you know, it just seems like, just do it right the first time.
- [19:05]
Dick Harpootlian
Well, you know, I was the elected DA here and the deputy DA for, for eight years. There are. And I had kids working for me who thought this was like a football game or a baseball game. It's about winning.
- [19:17]
Donna Rotuno
Yeah.
- [19:17]
Dick Harpootlian
When you're processing, it's not. And I fired a kid one time because I found he was withholding some, I mean, Brady exculpatory material. And he said, well, you know, it doesn't help him. I said, that's not your. Yours to decide. You turn it all over and let them decide. And if, by the way, you look at that and think that's going to somehow inhibit your, your ability to get a guilty verdict, that means you don't think you can prove him guilty beyond a reasonable doubt, don't prosecute the case. And I just didn't trust his judgment. And, you know, I think today, maybe it's the political atmosphere, but it's all about winning and losing. It's not about doing. And, and these are folks who have a duty to see justice is done. And also they forget this. I mean, they keep talking about the victims. They don't represent the victim. They represent the state of South Carolina or the US Government. The victims. If they want to get a lawyer, I mean, they can consider the victims, I suspect. But these prosecutors go around saying, I'm the victim's lawyer. You're not. You are the state of South Carolina you're here to see justice is done. Not to satiate the vindictive or the revenge of the victim they want, because that's the way you make judgments. You're not gonna be doing the job.
- [20:39]
Donna Rotuno
Dick. I had a prosecutor recently tell me that a victim changed their story. And I said, okay, well, put it in writing and get it to me. And she said, I can't do that. And I said, what do you mean you can't do that? And she said, attorney client privilege. I about fell over. I'm like, you are not the lawyer for the victim and she has no privilege.
- [20:59]
Dick Harpootlian
Well, I went to see a rape victim case and I got a call from the prosecutor saying, you're talking to a represented party. You've committed. I'm going to turn you into the grievance committee. I said, well, who's her lawyer? I am. No, you're not. I mean, ridiculous. She. I mean, but it's really that. You find that. I find that there needs to be, you know, maybe in law school, you want to be a prosecutor. Here are the rules. This is what you're supposed to do.
- [21:25]
Donna Rotuno
Yes.
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Dick Harpootlian
Not, you know, and because it's not getting through.
- [21:28]
Donna Rotuno
No, it's true. To seek justice. So tell me now you're going to have a second trial. You have another bite at the apple, and everybody thinks that's the greatest thing in the world. It's. Second trials are hard because you have the record from the first trial. They're. They're more than double the work, in my opinion. So you have a lot of work to do. There's two specific. Three specific things I want to ask you about. The. Basically the redo, for lack of a better term. Number one is do you have a strategy to deal with the kennel video?
- [22:04]
Dick Harpootlian
Yes.
- [22:04]
Donna Rotuno
Because the kennel video, I think was. Was problematic. And so, you know, I know I don't expect you to tell me, but. But if there, you know, there is something there that you think you can, you can, you can do.
- [22:16]
Dick Harpootlian
We absolutely do. We absolutely do. Yes. And we understand that's an issue and it's got to be dealt with. Yep.
- [22:27]
Donna Rotuno
Okay. And then another question. If you. And I know it's not our say as the lawyers, but if it were up to you, would you have Alex testify again?
- [22:39]
Dick Harpootlian
You know, that's a game day decision. As you know, things work around during a trial. What you thought might. He might have to respond to never came up. On the flip side, all kinds of bad stuff came up. You've got to answer. You don't know. So I don't even have an inclination right now. And when we sit down with Alec, the one thing we say is we're not going to talk about whether you testify or not.
- [23:03]
Donna Rotuno
I also think too, if you eliminate a lot of the financial crimes evidence, you may feel like there's less to respond to, too, which could make it very interesting in terms of the fairness aspect.
- [23:15]
Dick Harpootlian
Well, and there's. All right, absolutely. So I mean that we'll see what she lets in, if anything, and how that impacts his ability to take the stand. Remember, now, they really can't get into his guilty plea unless he takes the stand.
- [23:32]
Donna Rotuno
Right.
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Dick Harpootlian
So.
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Donna Rotuno
Yeah. Which is. Which is. Yeah. Which is big.
- [23:36]
Dick Harpootlian
Yeah. So, you know, you've been there. I mean, weigh it one. But you want to make that decision that day. You haven't prepared to testify.
- [23:43]
Donna Rotuno
Sure.
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Dick Harpootlian
But you won't. That's a game day decision.
- [23:48]
Donna Rotuno
Yeah, I agree. And that's. That's a good answer for everybody listening. That's a good answer Dick gave us. So, you know, I always wonder, and I know that it's not the defense's job to do this, but I also think that if you can provide an alternative suspect theory that obviously helps a jury or at least intimate that maybe there's somebody out there, is there any evidence out there or any strategy that you have that supports an alternative suspect theory?
- [24:17]
Dick Harpootlian
Yes. Yes.
- [24:19]
Donna Rotuno
Great. I'm so excited to watch. Dick, you told me I can come and watch in the courtroom, and I'm taking you up on that because I want to come.
- [24:26]
Dick Harpootlian
Absolutely.
- [24:27]
Donna Rotuno
Trial.
- [24:28]
Dick Harpootlian
Absolutely.
- [24:29]
Donna Rotuno
Take a couple of days off from my day job.
- [24:32]
Dick Harpootlian
Maybe take more than a couple of days, but you're welcome to go visit wherever it is. We don't know where it's going to be, and we think it's going to be a much shorter trial without the financial crime stuff and some of these other issues already being resolved. We think three weeks would be at the most.
- [24:51]
Donna Rotuno
Yeah, I think you're right. Which is. Which is going to be very interesting to watch. Talk to me about the lawsuit filed against Becky Hill. I'm glad you filed it. I think that the fact that nothing really came of the investigation, I think is sort of ridiculous on the state side. So talk to me about the lawsuit. What is Alex hoping to accomplish there and tell me a little bit about it.
- [25:16]
Dick Harpootlian
Well, you're familiar with the term Title 1983 lawsuit, which is a civil rights lawsuit, if alleging that she violated Alex's Sixth Amendment right to a fair trial. We sued her in federal court because it's a federal claim. And I mean, basically the facts found by the Supreme Court in their decision, which support almost a directed verdict for us. We're very interested in the discovery in that case because if you get into the weeds on this thing, hard to believe she did it alone. And I can't say much more than that, but we're looking forward to the discovery in this case.
- [26:07]
Donna Rotuno
Well, I think that'll be interesting. And also, if you know the discovery, I would assume that you would be able to subpoena the investigation that was done by the state and get any statements or any information that they received during the course of that investigation as well.
- [26:23]
Dick Harpootlian
Well, what was interesting was that, you know, she pled guilty to a number of charges, none of them related to jury tampering. And, and the prosecutor who was assigned the case by the Attorney General said that that while there was evidence that, that she may have said some things to jurors, they could, they could not find evidence to prosecute her for jury tampering. Now, our state statute, the jury tampering statute, says whoever tampers with some definition there or attempt to tamp. I mean, they got hung up on what Judge Toll did in the, in the motion for new trial. She said we had to show it affected somebody. And the Supreme Court said, no, you don't. Not, not for, not. Not to show you get a new trial under Rimmer and a whole bunch of other cases on the criminal side. All we got to show is she attempted to tamper in the facts again in the, that the, that the South Carolina Supreme Court found show she attempts to tamper. So, I mean, I don't quite understand why. Why. And remember now, though, the folks investigating her were the same folks who were the lead investigative agency in the Murdoch case. So is sweat going to investigate somebody and, and this is before the Supreme Court decision came down and find that they tampered with the jury and almost guarantee a new trial. I mean, they had a vested interest in finding she did tamper. So, I mean, it's this, this thing's a mess.
- [27:59]
Donna Rotuno
Well, I'm looking forward to seeing how it plays out. I'm looking forward to hear what happens after your hearing with the judge. I hope you get a change of venue. I know it's not easy. I also hope that you will be able to do in person, individual voir. But we're going to be paying attention to this. And at some point when you can talk to me again, I would love to chat with you and have a great day. Thanks. Dick.
- [28:23]
Dick Harpootlian
Donna, thank you so much for having me on. I really appreciate it.
- [28:32]
Donna Rotuno
Thank you for joining me for another episode of Crime and Justice. Remember, we want to hear from you. Send us your thoughts, questions or theories and we will answer them on air.
- [28:47]
Dick Harpootlian
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