At the CDRC, we regularly receive questions from defense attorneys and incarcerated individuals around the state. In this column, we reprint our answers to common or interesting questions (with any case identifying details omitted or modified) that might be helpful to a wider audience.

In light of the South Carolina Supreme Court’s highly publicized decision reversing Alex Murdaugh’s murder convictions based on the court clerk’s improper communications with the jurors during the trial, we address how appellate counsel for indigent defendants can discover, present, and pursue similar claims in Michigan.

Question. I’ve been a MAACS roster attorney for a while now. It’s fairly common that my clients will tell me that the trial judge, the prosecutor, the victim’s family, or someone else said something to the jury during a recess or before the case is called. When I first started, I would seek an evidentiary hearing to call the jurors as witnesses to attempt to expand the record in support of their allegations, but my motions were always denied, so I eventually stopped raising this issue, and began suggesting my clients raise it in their Standard 4 brief, or not raise it at all. 

I had mixed feelings last week when I saw that Alex Murdaugh was granted a new trial by the South Carolina Supreme Court because a court clerk made improper comments to the jurors about the case. On the one hand, that seemed like the correct result. On the other hand, it made me wonder how many of my clients would have also received a new trial on similar grounds if they had the same resources as Alex Murdaugh. It also made me wonder whether any of my clients who had this issue would have been entitled to a new trial under Michigan law. 

A criminal defendant in Michigan would likely be entitled to a new trial if they were able to establish that that a judicial officer or employee made comments to their jury that were similar to those made by the clerk of the court during Alex Murdaugh’s trial. But discovering and making the initial showing that such communications occurred can present a greater challenge for solo practitioners who represent indigent defendants than raising more common issues that also require evidentiary hearings. But your clients’ indigence is not a major impediment to investigating and effectively presenting the issue on their behalf.

The South Carolina Supreme Court’s decision granting Alex Murdaugh a new trial

After a jury found Alex Murdaugh guilty of murdering his wife and son, his attorneys filed a motion for a new trial that asserted that Rebecca Hill, the clerk of the court where his trial occurred, “tampered with the jury.” In support, they submitted affidavits of several members of the jury who the clerk spoke with during the trial. Based on this proffer, the trial court granted Mr. Murdaugh an evidentiary hearing.

At the evidentiary hearing two jurors testified that Hill made remarks to them about how rare it is for a criminal defendant to testify in their own defense and advised them to watch Mr. Murdaugh closely while he testified to gauge his credibility. One of the jurors testified that after they were excused to begin their deliberations, Hill said “this shouldn’t take us long,” which “made it seem like he was already guilty.” All of the other jurors who were called as witnesses testified that they did not recall Hill saying anything to them at all or that what she said had not affected their deliberations or verdict.

After the hearing, the trial court issued an opinion and order denying Mr. Murdaugh a new trial. Although the court credited the jurors’ testimony about what Hill had said to them during the trial and found that Hill’s statements were improper, it concluded that her comments had not prejudiced Mr. Murdaugh and did not entitle him to a new trial. This finding was based on the jurors’ testimony that Hill’s statements had no impact on their decision to convict, “overwhelming and compelling evidence” of guilt presented by the prosecution, and the trial court’s extensive instructions to the jury about what they could consider during their deliberations.

The Supreme Court of South Carolina reversed the trial court’s decision. Because Hill’s comments related to matters that were pending before the jury, specifically Mr. Murdaugh’s credibility as a witness, prejudice was presumed, pursuant to Remmer v United States, 347 US 227 (1954) (Remmer I). Because the jurors’ testimony about what did and did not affect their deliberations was inadmissible and irrelevant, the trial court erred by relying on it to find that Mr. Murdaugh was not prejudiced. And because the prosecution did not present any other evidence rebutting the presumption of prejudice, as Remmer I requires, the trial court erred by denying Mr. Murdaugh a new trial.

Michigan law would probably consider the clerk’s comments to the jury to be substantive ex parte communications

In People v France, 436 Mich 138 (1990), the Michigan Supreme Court reversed its earlier precedent that held that defendants were entitled to a new trial whenever they could establish that someone engaged in ex parte communications with the jury during their trial, and established different standards for different types of ex parte communications between a “court officer” and a juror. ‘Housekeeping communications’, which concern matters like the jurors’ meal orders and restroom usage, are presumptively non-prejudicial.¹  ‘Administrative communications’, which concern matters like “the availability of certain pieces of evidence and instructions that encourage a jury to continue its deliberations,” do not result in a presumption for or against prejudice.² But “substantive communications,” which include at least “supplemental instruction on the law given by the trial court to a deliberating jury,” are presumptively prejudicial, and entitle defendants to a new trial unless the prosecution can rebut the presumption “by a firm and definite showing of an absence of prejudice.”3

The analysis in France would likely extend to a court clerk’s private comments to the jury. Although France explicitly addressed ex parte communications with the jury by a trial judge and bailiff, the Court stated that its analysis addressed ex parte communications “between a jury and a court officer,” a title that almost certainly includes the clerk of the court. The France Court also cited an earlier decision that specifically addressed ex parte communications involving a court clerk,⁴ and indicated that its analysis would also apply to the communication at issue in Remmer I, which involved statements made to a juror by “an unnamed person”⁵ who worked for a casino, not the trial court.⁶

Clerk Hill’s statement to the jurors suggesting that it is rare for a defendant to testify, what they should pay attention when gauging the defendant’s credibility while he testified, and the likely duration of the jury’s deliberations would also be considered substantive communications under France. Courts typically instruct juries on how to gauge witness credibility and how to consider a defendant’s decision whether to testify or remain silent,⁷ so remarks like those Hill made to the Murdaugh jurors would likely be viewed similarly to the “supplemental instructions on matters of law” at issue in France, where were deemed substantive.⁸

In France, the Court held that the presumption of prejudice had been overcome by defense counsel’s agreement to the judge providing written instruction to the jury ex parte and by counsel’s failure to object to the substance of that instruction when provided to the jury orally.⁹ Consent or waiver would not apply to the clerk’s communications to the Murdaugh jury since the defense was unaware of them until after the trial. Unlike the written jury instructions that the Court deemed to be substantive, but non-prejudicial in France, the defense had not consented to Hill telling the jury anything, and it is not clear what, specifically, Clerk Hill told the Murdaugh jurors, which would make it more difficult for the prosecution to rebut the presumption that her statements were prejudicial.

The South Carolina Supreme Court concluded that the trial court’s finding that Mr. Murdaugh was not prejudiced by Hill’s statements had erroneously relied on the jurors’ testimony that the clerk’s statements had not affected their verdict to rebut prejudice. This was error because South Carolina Rule of Evidence 606(b) rendered the jurors’ testimony about what impacted their verdict inadmissible. That Rule, which mirrors Michigan Rule of Evidence 606(b), prohibits juror testimony about “the effect of anything on that juror’s … vote; or any juror’s mental processes concerning the verdict,” but permits jurors to testify about “extraneous prejudicial information was improperly brought to the jury's attentions.” Unless the Michigan Court of Appeals or Supreme Court interpreted MRE 606(b) to permit consideration of juror testimony about the “juror’s mental processes concerning the verdict” when it is offered to rebut the presumption of prejudice, it is doubtful that the prosecution could avoid reversal on similar facts under Michigan law.

Making an initial showing that someone engaged in substantive ex parte communications with the jury is difficult, but not impossible for those representing indigent defendants on appeal in Michigan

There is no question that the resources available for Alex Murdaugh’s appellate counsel made it easier for his team to demonstrate his entitlement to a new trial than it will be for most attorneys who represent indigent defendants on appeal. However, the barrier to raising this issue is far from insurmountable for even solo practitioners, who employ no staff and represent only indigent defendants. And because establishing substantive ex parte communications with the jury creates a strong presumption of prejudice and a high probability that your client will granted a new trial, you have an obligation to investigate the issue whenever you receive credible information that such communications may have occurred.¹⁰

By definition, ex parte communications with the jury take place outside of the defendant’s presence, so your client and their trial attorney will rarely be able to establish the error. Some ex parte communications occur or are referenced on the record at trial.¹¹ If you can establish such communications using only the transcript, you may not need an evidentiary hearing to secure relief, but you will need to think strategically about whether supplementing the record is likely to improve your client’s chances for relief. However, most claims involving substantive ex parte communications with jurors, like those between Clerk Hill and the Murdaugh jurors, occur off the record and require an evidentiary hearing to establish. Most claims raising this issue are best supported by testimony of the jurors, who almost always come across as more credible than someone else that overheard the exchange while attending the trial to support the defendant.

Unfortunately, most jurors are far more difficult to locate and communicate with than your client’s friends and family.

The first step in this process is to determine the names of the jurors. You may find a list of each juror and alternate in the trial court file or in trial counsel’s file or notes, but this is not typical. The Court Rules require courts to preserve juror questionnaires and seating charts that would allow you to easily contact each jurors¹² but only guarantee attorneys access to juror questionnaires before jury selection and require a court order granting an attorney or party access to juror questionnaires after that.¹³ They also allow each court to adopt its own unique policy about whether to allow access to the jury seating charts.¹⁴

If you do not find the jurors’ names in trial counsel’s file or the court file, you will likely need to create a list by carefully reviewing the transcript of jury selection. You can do this by writing down the name and number of each person initially called as a potential juror during jury selection. Then, as you read through the transcript, cross off their name if they are excused and replace it with the name of the person called to replace them. When you reach the point in the transcript where neither party has any challenges and the jury is selected, you should have a list of fourteen people empaneled to serve on your client’s jury.¹⁵

Depending on the county’s population and the jurors’ names, you may be able to find accurate addresses and even phone numbers for most members of the jury by searching their names using voterrecords.com or even Google. If you are not confident that you’re able to determine the jurors’ addresses once you have their name, you will likely need to secure an investigator. Investigators can usually figure out the jurors’ current addresses by searching nonpublic databases, such as TLOxp by TransUnion.

Once you have a list of the jurors’ names and addresses, you should draft two or three short, yes or no questions that will fit on a single postcard. You want to mail the postcard to each name on your list and ask them to answer the questions on the postcard and then mail it back to you.

The first question should verify that you’ve found the right person and clarify which trial your next question will ask about: “Were you a juror at [your client’s name]’s trial?” The second question should ask generally about the type of ex parte communication that you are investigating. If you were representing Mr. Murdaugh and had information about the clerk’s communication with the jury at his trial, your second question might ask: “Before you delivered the verdict, did the court clerk or anyone else say anything to you or any other juror about the case that the judge or defendant would not have been able to hear?” I’ve been taught that it is better not to ask numerous questions or open-ended questions because you want the jurors to fill the postcard out and send it back. You don’t want them to take it home to write out a lengthy response and then get distracted.

If you receive any postcards that have positive responses to the second question, you will probably want to contact the juror(s) who sent it to you to see if they will provide you additional information about the ex parte communication, and also to see if they are willing to sign an affidavit or a statement that is more detailed than their responses on the postcard. However, the postcard containing their response should be enough to make the initial prima facie showing in support of your need for an evidentiary to support the issue. In Remmer I, which is the seminal case on ex parte communications with jurors, the U.S. Supreme Court held that the district court erred by not conducting a hearing on the defendant’s motion for a new trial, which was supported by a newspaper article reporting the alleged communication.¹⁶

Once you are granted an evidentiary hearing on the issue, pursuing it should not be any more difficult than pursuing a claim that involves a missing alibi witness or an undisclosed report. The defense is not required to pay fees to subpoena the jurors to testify and can also secure the government’s assistance with serving subpoenas on any defense witnesses.¹⁷

***

The attorneys who represent Alex Murdaugh on appeal did not obtain a new trial on his behalf because South Carolina’s laws are more favorable to criminal defendants than Michigan’s, because they were able to hire a team of investigators who could interview everyone involved in his trial, or even because the clerk who engaged in the ex parte communications with the jurors published a memoir that acknowledged she had a financial interest in the jury voting to convict. They were able to win a new trial for their client because they had credible evidence that the clerk of the court made statements to the jurors about the case and the defendant’s credibility that rendered his first trial unfair. Your clients have the same right to a fair trial as Alex Murdaugh and to the same level of representation on appeal if they are convicted. You have the ability, resources, and responsibility to ensure that they receive both.

Subscriber Comments

• You must be a subscriber to view comments