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Alex Murdaugh and whether to testify in your own defense – ABA Journal

As a criminal defense attorney with my fair share of trial experience, its always interesting to see how other practitioners litigate their cases. After all, the legal profession enjoys playing Monday morning quarterback with its analysis. I personally try not to cast stones; Im far from flawless in trial. But thats the beauty of the process: No one is perfect in that setting.

A seasoned attorney described it best to me when I was a pup. He expressed, among other things, that if you give the same case to 10 different lawyers, youll see it tried 10 different ways. And that isnt a slight to any other advocate; in fact, its an ode to the artistry implicit in advocacy.

There is one subset of trial practice that really brings the bright lights, though. When you have an attorney facing charges in a criminal case, theres a different level of scrutiny, not only from the internal perspective but also from an outside analysis.

Those of us who have represented attorneys through criminal prosecution can attest that when it comes to representing someone licensed and knowledgeable about the law, there will be plenty of bumps in the road on the path to a productive attorney-client relationship. Its hard enough to represent an untrained individual through a process aimed at depriving them of life and libertytheres constant second-guessing, whether explicit or implicit, when the stakes are that high. Its even more challenging to navigate those waters when the backseat driver is also a knowledgeable professional.

Without knowing the inner dealings, I can assume this was the case during South Carolina attorney Alex Murdaughs criminal trial. After all, we need only look at the Murdaugh saga as a whole, which involved embezzlement, drug trafficking, money laundering, a faked murder attempt, a failed assisted suicide and the deaths of three other individuals.

Call me crazy, but that sounds like a complicated situation that was likely exacerbated by a potentially complex attorney-client relationship.

The case against Murdaugh was almost entirely based on circumstantial evidence. Although the law makes no distinction between direct and circumstantial evidence for the purposes of trial, desperate individuals will keep a death grip on hope in the absence of red hands. That may have played a part in Murdaughs decision to pursue a trial, but there likely wasnt much middle ground to run to, either. The prosecution believed he killed his wife and son in cold blood; Murdaugh maintained he didnt kill them in any way, shape or form.

Nevertheless, he ultimately was convicted of both murders and handed two consecutive life sentences.

As a parent, I cant fathom a situation in which I would deliberately and intentionally take my childs life. Ive been watching HBOs The Last of Us (I love zombie movies), and certain scenes force the audience to imagine facing a loved one who has turned into a zombie. Ive had fleeting thoughts of how I would react if my son became a zombie before I did. To be honest with you, I think Id probably let him kill me. I just cant imagine hurting him under any circumstances, even if that causes a detriment to my personal health or safety.

Nevertheless, situations in which parents kill their childrenknown as filicidehappen much more often than wed like to believe. In 2017, CNN reported that according to a Forensic Science International study, between 1976 and 2007, approximately 500 children were killed by their parents yearly. That number is staggering in light of our innate parental instincts. The figure makes one wonder if those parents are simply out of their minds or if there is some other issue at play leading to such a horrible result.

According to the self-described only person in America who is a forensic psychiatrist, a reproductive psychiatrist and an academic whose research has focused on filicide for two decades there are multiple different reasons why parents kill their children, and mental illness mayor may nothave a role in individual cases. That person is Susan Hatters Friedman, and she explains how its critical that we never presume why a parent killed. She further notes that anger, greed, hatred and revenge are often seen in various family-related murders.

While Friedman advises not to presume why a person killed, we often jump to the most palatable conclusion, as I did earlier in this columnthat someone must be mentally ill or unstable to perpetrate such a deplorable act.

And maybe thats why Murdaugh decided to take the stand in his own defense; perhaps he and his defense team wanted to show that hes not the type of insane killer so many of us imagine when we think of someone capable of taking the life of their own child. Or maybe, as an attorney-defendant, he made the decision to testify on his own against the wishes of counsel.

Regardless of the reason behind the decision, advising your client to testify or refrain from the same is one of trial practices most challenging strategic aspects. Its often a tough decision for the client as well. Ultimately, its their Fifth Amendment right to exercise or waive.

Aside from any mental health-related strategy, Murdaugh found himself caught between a rock and a hard place, nonetheless. During three separate interviews, he denied being present at the kennels where his wife and son were shot. That persistent point was called into question when a video found on a friends phone placed Murdaugh at the kennels during the time his wife and son died.

So with that in mind, I can see the logic behind taking the stand. When your client gets caught in a lie, they have two options: 1) admit defeat and hope the jury doesnt hold it against you; or 2) go down swinging. My general approach is that if the damage is already done and there isnt any impeachment evidence that could make the damage even more catastrophic, then take the punchers chance.

Be that as it may, Murdaughs situation is just one particular example of a much broader philosophical question: Should your client testify at jury trial?

Well, the answer is a classic lawyer clich: It depends. The ultimate decision comes down to a simple analysis. What do you stand to gain versus what do you stand to lose? Criminal defense attorneys spend a large majority of jury selection reiterating the fact that we dont have anything to prove; the burden is high, and it rests solely on the prosecution. As such, you can sometimes appear disingenuous if you present too much evidence without the proper preface.

I like to inform juries from the outset that I dont know what evidence I might have to present because that decision depends on what the prosecution does or doesnt show. I may have to fill in some gaps. I may have to correct some errors or omissions. That explanation at least leaves the door open.

Many factors play a part in the advice you give. Does your client have prior convictions or other trouble? Are there aspects of the story only your client can tell? Whats their temperament? Do they appear sincere and honest? Will they actually listen to your questions and answer them without going into left field?

At the end of the day, I do believe juries want to see someone get on the stand and say, I didnt do it.

But at what cost?

B.C. ‘pump and dump’ defendants’ assets can be frozen by SEC – Vancouver Is Awesome

B.C. judge allows injunction claim by U.S. Securities and Exchange Commission against assets belonging to defendants in a $1 billion stock fraud case

The U.S. Securities and Exchange Commission (SEC) can proceed with an injunction to freeze assets belonging to at least five B.C. residents alleged to have committed over $1 billion in stock market fraud.

On March 21, Supreme Court of B.C. judge Amy D. Francis granted the SEC a Mareva injunctionto prevent the B.C. defendants from dispersing their assets.

The SEC brought the claim against Zhiying Yvonne Gasarch,Courtney Kelln, Mike K. Veldhuis, Paul Sexton,Jackson T. Friesen, Graham R. Taylor and Fred Sharp. However, Taylor and Sharp were not part of the ruling due to scheduling conflicts and will face a likewise hearing later this year.

The SEC allegations involvea complex, international plan to defraud American investorsby illegally trading shares in hundreds of junior public-traded companies via offshore entities between 2011 and 2019.

In May 2022, federal Massachusetts District Court Judge William G. Young entered a default judgment against Sharp, who the SEC called the mastermind of the alleged scheme, for failing to respond to the claim. The others contend they are innocent ahead of a U.S. court hearing.

The SEC seeks close to $41 million in assets and about $13.5 million in total pre-judgement interest from the defendants, excluding Taylor and Sharp. Sexton alone accounts for $20.5 million of the total $54.5 million being sought.

The defendants are already subject to a preservation order by the B.C. Securities Commission, which has frozen 114 trading accounts worth about $28.9 million.

As such, the SEC argued there is a shortfall and asked the court for freeze orders on an $8.5-millionLake Country homeowned by Sexton and a $3.1-million Vancouver homeowned by Friesen. The commission is also seeking to freeze vehicles belonging to the others.

The SEC, represented by securities lawyer David E. Gruber, also previously sought a court order for the defendants to provide it with a sworn statement disclosing all of their assets, including any that are beneficially owned under a nominee or jointly with another person acknowledging it does not have a firm grasp of all the assets belonging to the defendants. The SEC has not targeted Sharps home in West Vancouver.

Friesen, represented by securities lawyers Owais Ahmed and Tricia Milne, and the four others, represented by criminal defence lawyer Greg Del Bigio, argued the SEC had no jurisdiction to impose an injunction and evoked Charter, and U.S. Fifth Amendment claims.

Francis ruled that the court did have jurisdiction in aid of a foreign proceeding and thatthe Fifth Amendment, which is the right not to self-incriminate, does not apply in civil cases.Francis also ruled the BCSC was within its rights to impose preservation orders under the B.C. Securities Act, despite unsubstantiated claims it was accomplished without a warrant. Francis found the defendants did not put forth sufficient evidence their Charter rights had been violated.

On the other hand, Francis found the SEC had provided enough first impressionevidence that a fraud had occurred and that the alleged fraudulent activities of the defendants give rise to a risk of dissipation.

The alleged fraud is substantial, involving over 100 U.S. junior (penny stock) companies. According to the claims, it appears to have been primarily orchestrated from Vancouver, with the assistance of B.C. law firms.

Sharp, a former Vancouver lawyer, was issued a US$24-million civil penalty and found liable for repayment of US$21.8 million plus US$7.2 million in interest. He has denied the SECs allegations in response to a notice of civil claim.

The enterprise, known as the Sharp Group, allegedly used an array of offshore shell companies to conceal the identities of clients involved with promoting U.S.-listed companies, thus helping them avoid disclosure requirements as they fraudulently manipulated the price of the stocks in pump and dump schemes, noted the commission.

The group is also accused of conducting stock transfers and money transmittals via an encrypted communications network as part of their service. Sharp allegedly called the network Q, dubbed himself Bond andGasarch Wires, according to the commissions preliminary evidence. Fraudulent documents used to evade gatekeepers at brokerage firms also factor into the allegations.

The SEC claims that Taylor, Veldhuis, Sexton and Friesen were some of the Sharp Groups most significant clients, collectively accounting for over $140 million in illegal stock sales.

Sharp is also engaged in a complex and longstanding constitutional challenge against the Canada Revenue Agency, which is investigating his offshore tax arrangements.The CRA made a criminal referral in 2013, alleging Sharps business, Corporate House Group of Companies (Corporate House), was involved in a complex tax evasion scheme. In 2016, Corporate House arrangements were revealed in the Panama Papers leak.

Sharp, Kelln and Gasarch face criminal charges in the U.S. related to the SEC claims.

gwood@glaciermedia.ca

March 28th, 2023

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self-incrimination | Wex | US Law | LII / Legal Information Institute

Self-incrimination is the intentional or unintentional act of providing information that will suggest your involvement in a crime, or expose you to criminalprosecution.

TheFifth Amendmentprovides protection to individuals from being compelled to incriminate themselves. According to this Constitutional right, individuals have the privilege against self-incrimination. They can refuse to answer questions, refuse to make potentially incriminating statements, or refuse totestify at a trial in any criminal case.This right is applicable to the States through the Fourteenth Amendment.

Thisprivilege only protects individuals. Artificial entities like companies, partnerships, and LLPs cannot assert this privilege. The exception to this is asole proprietorship.

Custodians of corporate records cannot refuse to provide records, even if such materials may incriminate custodians themselves.

The privilege only protects testimonial evidence like statements admitting guilt. Non-testimonial physical evidence like blood and DNA tests, handwriting samples, or fingerprints arenot protected.

The privilege allows an individual to reject producing or turning over incriminating documents that constitute self-incriminating testimony even if that person is served with a subpoena for doing so. The privilege does not prevent the use of some documents, like incriminating:

However, the government may not compel theindividual to write a diary, because the diary is testimonial in nature and thecontents are similar to testimony; see Schmerber v. California, 384 U.S. 757 (1966).

If an individuals business is inherently suspected of a crime, that person can refuse to register; see Marchetti v. United States, 390 U.S. 39, 52 (1968).

The privilege usually applies in criminal procedure. But it may extend to a witness in any proceeding if their testimony provides a reasonable possibility of incriminating oneself in future criminal proceedings, even if the testimony is made in a civil procedure. However, if the civil records are maintained for administrative purposes as public records, the privilege does not apply.

In addition to the protections created by the Fifth Amendment, other federal laws also provide protections related to self-incrimination.

The same protections that exist for typical criminal matters may not exist in other matters, particularly those related to tax issues with the Internal Revenue Service (IRS).

TheSupreme Court held in Beckwith v. United States, 425 U.S. 341 (1976) that the same protection does not apply to a non-custodial interview, such as one held by IRS agents. The non-custodial interview in Beckwith was one that was held at a private home.The Court held that this was not a police-dominated atmosphere; as such, there was not the usual need for safeguards to counteract the compulsion which exists in a custodial environment.

However, the questioned individual may still receive some protections in non-custodial tax matters. When someone is being interviewed by IRS agents with regard to criminal tax matters, the IRS agent is required to provide the questioned individual with appropriate warnings, seeUnited States v. Leahey, 434 F.2d 7 (lst Cir. 1970).

A defendant invokes privilege by refusing to take the stand. Thus, the court cannot compel them to testify, and the prosecutor cannot take their failure to take the stand to the jurys attention. If the prosecutor made a comment, it would trigger the harmless-error test.

A witness can only invoke the privilege in response to a specific question that may incriminate oneself if they answer that question. However, a defendant has a right to confrontation provided by the Sixth Amendment. If the invocation may prevent adequate cross-examination, it may not be invoked.

Privilege invocation cannot impose a burden on individuals. If the state penalizes individuals for not cooperating with authorities or making testimony, its unconstitutional.

If a defendant takes the witness stand or a witness discloses self-incriminating information when answering specific questions, then the privilege is waived. Once waived, individuals cannot assert the privilege again when the prosecutor cross-examines their testimony.

Any incriminating statement (e.g. confession or other inculpatory statements) of a suspect obtained as the result of custodial interrogation (questions asked by known police or other law-enforcement officers after being taken into custody) is inadmissible and should be suppressed in the subsequent trial, see Miranda v. Arizona, 384 U.S. 436 (1966). However, if the suspect was informed of their Miranda rights, which gives procedural protection to privilege against self-incrimination, but they still made that statement, the statement is admissible, as their rights are waived. If the suspect made two statements, one before the Miranda warning and the other after it, the second confession is admissible unless the circumstances indicate that the substance of Miranda has been drained away. See also Oregon v. Elstad, 470 U.S. 298 (1985). The suppression of incriminating statements is not automatic.

Fruitof thepoisonous tree - tainted confessions -include physical derivative evidence which is obtained as a result of a non-Mirandized confession, and the second confession is admissible if the confession is not coerced, see United States v. Patane, 542 U.S. 630 (2004). Failure to give Miranda warnings does not violate a suspects right. Its the use of a statement obtained this way at trial that violates. See Chavez v. Martinez, 538 U.S. 760 (2003).

The Supreme Court has narrowed the scope of Miranda warnings. Here are exceptions:

After properly given, Miranda rights can be waived. The government has the burden of proof to demonstrate by a preponderance that the waiver was made knowingly and voluntarily by the suspects. The suspects silence is not enough to waive their Miranda rights.

A defendant and witness can refuse to answer questions or testify at trial if their statements will incriminate him in criminal proceedings. But the prosecutor can use prior conflicting statements to impeach the defendant once the defendant opens the door by taking stands.

If the prosecutor grants immunity to individuals at trial or before a grand jury, individuals then are compelled to testify. The testimony is not used against testified individuals in a subsequent prosecution but serves other purposes.

This is a total immunity that gives full protection to witnesses from any prosecution related to their testimony.

This precludes the prosecutor from using the witnesss testimony or evidence derived from the testimony against the witness.

Testimonies of individuals, who get immunities in one jurisdiction, cannot be used by another jurisdiction to prosecute those individuals. Therefore, if an individual gets immunity in Federal court, their testimony will be precluded admission in a State proceeding.

[Last updated in June of 2022 by the Wex Definitions Team]

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self-incrimination | Wex | US Law | LII / Legal Information Institute

March 14th, 2023

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