What jury tampering did — and what a retrial actually means
Plain-English explainer, drawn only from the case law, the statute, and the model jury instruction. Not legal advice.
The test
The South Carolina Supreme Court applied what lawyers call the Remmer presumption, from a 1954 U.S. Supreme Court case, Remmer v. United States. The idea in plain English: a jury is supposed to decide a case on what it hears in the courtroom and nothing else. So if an outsider gets to the jury and says something about the case — and it is more than a harmless, passing remark — the law does not make the defendant prove the jurors were swayed. It flips the question: the verdict is presumed to be poisoned, and the prosecution has to show there is 'no reasonable possibility' the verdict was influenced. Here the outsider was the elected Clerk of Court, the official who runs the jury's day — seats them, delivers their notes, controls who reaches them — which is why the court called her conduct 'unprecedented' and said she 'became a character witness on behalf of the State.' The state could not rebut the presumption, so the convictions were vacated. 'Vacated' means wiped out: the guilty verdicts legally no longer exist, and the case goes back to square one as if the 2023 trial never happened. It is not an acquittal and it is not a finding that he is innocent — the court expressly said that because it was ordering a new trial, it did not need to rule on his other challenges to the evidence, and it did not decide whether the evidence was enough to convict. Double jeopardy — the rule that you cannot be tried twice for the same crime — does not block a retrial here, because that protection attaches to an acquittal or to a conviction that survives; when a defendant wins reversal of his own conviction for a defect in the process, the ordinary remedy is a do-over.
Who has to prove what
Two different burdens, running in opposite directions. On the tampering question, once Murdaugh showed the clerk's contacts with jurors were 'more than innocuous interventions,' the burden shifted to the State to prove there was no reasonable possibility the verdict was influenced — a burden it failed to carry. At the retrial itself the burden is the ordinary one: the State must prove every element of murder beyond a reasonable doubt, and Murdaugh is presumed innocent and need prove nothing. On the pending motion to dismiss the indictments, the defense carries the burden of making what South Carolina courts call a 'colorable claim of prosecutorial misconduct' before a judge will look behind a grand jury's work at all. Under Commonwealth v. Lawson (2016), the mere fact that most people are sane is not, by itself, enough to carry that burden once mental-illness evidence is in the case — the Commonwealth may rely on the circumstances of the offense and the defendant's words and conduct before, during, and after.
- Does "she knew what she was doing" end the inquiry?
- No. The test has two independent prongs. Even a defendant who appreciated wrongfulness is not responsible if disease left her without substantial capacity to conform her conduct to the law. That is the prong defense expert Dr. Zeizel invoked.
- If the jury acquits on lack of criminal responsibility, does she walk free?
- No. Under M.G.L. c.123 §16, the court may order up to 40 days of hospitalization for evaluation, and the DA or facility may petition for commitment — six months initially, renewable in one-year periods. The model instruction notes a person who remains mentally ill and dangerous "may remain committed for the duration of his [or her] life."
- What are the jury's options here?
- First-degree murder (life without parole), second-degree murder (life with parole eligibility), not guilty by reason of lack of criminal responsibility, or no unanimous verdict (mistrial; retrial possible). Whether involuntary manslaughter joins the slip is still being argued.
— State v. Murdaugh, S.C. Supreme Court, App. Case Nos. 2023-000392 & 2024-000576 (filed May 13, 2026) · S.C. Supreme Court opinion (official PDF, Op. No. 28329) · South Carolina Lawyers Weekly · FITSNews