Patrick O’Keefe Quoted in NY Times, Alex Murdaugh Trial Article
Lawyers say Alex Murdaugh taking the witness stand is a risky but calculated move.
Feb. 24, 2023
In most cases, legal experts believe it is risky for a criminal defendant to take the witness stand. But lawyers said that as evidence and testimony mounted against Alex Murdaugh, he likely felt that taking the witness stand was a better option than saying nothing at all.
Rachel Fiset, a criminal defense lawyer based in Los Angeles, said Friday that generally it was “a terrible idea” for defendants to take the stand, in part because a defendant can run a “huge risk of perjury.”
In Mr. Murdaugh’s case, Ms. Fiset said that “he runs a huge risk of incriminating himself in all of the other crimes for which he is charged.” Despite the risk, Ms. Fiset said that she believed Mr. Murdaugh decided to testify because it would give him a chance to “personalize his story.”
“He is a skilled lawyer who thought he could tell this story best in his own words,” Ms. Fiset surmised, adding that he probably wanted to speak to jurors in a manner that would resonate with them.
When Mr. Murdaugh admitted on Thursday that he had lied when he told the police that he was not at the dog kennels with his wife and son on the night of the murders, Ms. Fiset said, he probably felt that “he had no other option than to admit he was there, given all of the testimony placing him there that night.”
“Maybe he had nowhere else to go but up, and that was what influenced his decision.”
Patrick O’Keefe, a criminal defense lawyer in Michigan, said that courts are “pretty exhaustive” in instructing jurors that a defendant’s silence and refusal to take the stand cannot be used against them.
“But sometimes, there’s no silence more deafening than a defendant invoking his right to remain silent,” Mr. O’Keefe said, adding that the decision for a defendant to testify is never clear cut. A defendant testifying at his own trial, he said, was like “walking between raindrops without getting wet.”
Miller Shealy, a professor at the Charleston School of Law, said that while putting a criminal defendant on the stand is “usually not a wise thing,” Mr. Murdaugh most likely felt that he could not avoid testifying.
“I have felt all along that he just had to take the stand,” Mr. Shealy said.
While Mr. Murdaugh’s admission of lies in the past could harm his credibility, Mr. Shealy said, he probably made an assessment that those admissions would not be enough to prove he was guilty of murder.
“He’s not on trial for his lies,” Mr. Shealy said. “There are a lot of people who swindled countless innocent people and who know that the government is on their tail, and they’re about to go down hard. They don’t shoot their family members.”
Mr. Shealy said that while he did not see a connection between Mr. Murdaugh’s lies and a motive for murder, a juror “may not be thinking about this in that way.”
Tyler D. Bailey, a lawyer based in South Carolina, said that Mr. Murdaugh “took a risky but calculated bet” in deciding to take the witness stand.
“Alex needed to get on the stand to tell his story to the jury in an attempt to redeem his credibility and tell the jury himself that just because he’s stolen from countless people, doesn’t mean he killed his son and wife,” Mr. Bailey said, referring to Mr. Murdaugh’s admissions that he stole millions from clients and others.
Mr. Bailey said that Mr. Murdaugh’s attempts to explain his untruths, however, could also hamper any chance he had in defending himself against the separate charges alleging financial crimes.
“The jury will have to make their own decision as to Alex’s credibility,” Mr. Bailey said. “They’re going to have to make a unanimous decision as to whether Alex is just a cunning individual who lied and stole from his clients and people closest to him, or if he’s a cunning and lying thief that would kill his own son and wife to distract investigators from looking into his financial crimes and draw sympathy from others.”
