A clerk of court in South Carolina has a set of statutory duties that read like an inventory of a filing room. Maintain the records of the court. Issue process. Receive and account for fines and fees. Attend sessions of the court. And, in a jury trial, take custody of the jury: administer the logistics of their sequestration, convey the judge’s instructions, and manage the practical business of twelve people who are not permitted to talk to anybody about the only thing on their minds.
That last duty is listed alongside the others, as though it were the same kind of task as docketing a filing. It is not, and last week the South Carolina Supreme Court explained why at some length.
On 13 May the court unanimously overturned Alex Murdaugh’s 2023 convictions for the murders of his wife Maggie and his son Paul, and ordered a retrial, on the ground that the then clerk of court for Colleton County, Becky Hill, had improperly influenced the jury. The court described her interference as shocking.
The date
January 2024, when a judge heard the jury tampering allegations and declined to order a new trial.
That hearing was not a formality. Jurors testified. The allegation was already on the record and had been since the previous autumn: that the clerk had made remarks to the jury bearing on the credibility of the defendant’s testimony, and had done so while she had the access to them that her office gave her.
The judge who heard it applied the standard then understood to govern, concluded that the defense had not shown that the interference had affected the verdict, and denied the motion. The convictions stood, and for two years that was the end of it.
What it turned out to mean
That the test being applied was the wrong one, and the difference between the two tests is the whole of this case.
One approach asks whether improper influence changed the outcome. It puts the burden on the defendant to demonstrate that the jury would have decided differently, which is close to impossible, because a jury’s deliberations are largely protected from inquiry and nobody can run the trial again without the interference to compare.
The other asks whether the process was sound. On that approach, a court official inserting herself into the jury’s view of a witness’s credibility is a defect in the trial itself, and the question of whether it changed the verdict does not arise, because a verdict produced by a compromised process is not a verdict anybody can stand behind.
The Supreme Court took the second view. The ruling does not say Murdaugh did not do it. It says nobody can presently know what a properly constituted jury would have concluded, because the one that sat was not one.
Why the office made it possible
Here is the part that generalizes beyond this case and is the reason to write about it.
The clerk is not a party. She is not the prosecution, not the defense, and not a witness, and she is therefore not subject to any of the machinery built to control what parties may say to a jury. There is no rule excluding her, no objection available when she speaks, and nothing in the trial record capturing what she said, because what she said was not said in court.
And she had more unsupervized contact with the jury than anybody else in the building. Not the judge, who speaks to them formally and on the record. Not counsel, who may not speak to them at all. The clerk walks them to the room, brings them things, answers procedural questions, and is present during the hours of waiting that make up most of a juror’s day.
So the trial’s controls were pointed at the people with the least access, and the person with the most access was outside them entirely. That is not a loophole anybody exploited by cleverness. It is a structural feature of how the role is defined, and it was defined that way when the job really was mostly filing.
What the ruling costs
It should be said plainly, because appellate decisions of this kind are sometimes discussed as though only a principle were at stake.
A retrial means the family of two murdered people going through the whole thing again, three years later, with the evidence colder and some witnesses less available. The attorney general has said his office disagrees with the decision and will seek to retry the case as soon as possible, and a judge has since ordered a change of venue.
None of that is a reason the ruling is wrong. It is the price of the ruling being right, and the court plainly understood it, which is what the unanimity is for.
There is also a cost to the state’s other convictions, which is subtler. Every defendant tried in that county during that clerk’s tenure now has an argument available that was not available a fortnight ago, and some of them will make it. Most will fail, because the finding here concerns one trial and one jury. Answering them still takes court time that the system does not have spare.
What should change
Three things follow, and they are not about this defendant.
The first is that contact between court staff and a sequestered jury should be recorded in some form, as contact between counsel and a jury effectively is by being prohibited. Not surveillance of deliberations, which is rightly protected, but a log of who spoke to the jury and when. It is the sort of measure that sounds bureaucratic until the absence of it costs a state a murder trial.
The second is the standard. If South Carolina’s appellate courts have now settled that a compromised process is reversible without proof of effect on the verdict, that is a significant clarification and trial judges need it stated clearly, because the judge in January 2024 was not obviously wrong about the law as it then stood.
And the third is the clerk’s role itself, which in a jurisdiction where the post is elected rather than appointed carries an incentive nobody designed and everybody can see. An official who stands for election has a reason to be noticed, and the highest profile trial in the state’s recent history is a place where being noticed is available.
Whether any legislature takes that up is the thing to watch, and the honest expectation is that it will be raised this session, referred to a committee, and quietly not reach a floor, because reforms addressed to a problem that has now visibly occurred are easier to announce than to pass.
