Prosecution rests in Murdaugh trial; Second conviction for husband in wife’s murder – TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Rachel Kaufman joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss the prosecution preparing to rest their case in Alex Murdaugh’s murder trial, federal charges facing an officer following the death of Breonna Taylor, and a husband convicted of his wife’s murder for the second time.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[00:00:10]
Hello and welcome to True Crime Daily's The Sidebar, taking you inside the courtrooms of high profile and notorious cases from across the country. I'm your host, Joshua Ritter. I'm a criminal defense lawyer based in Los Angeles and previously an L.A. County prosecutor for nearly a decade. You can find me at joshuaritter.com. We are recording this on Friday, February 17th, 2023.
In this week's episode, the prosecution is winding down their case in the murder trial of Alex Murdaugh charged with the murders of his wife and son. As well as a new federal trial facing former Kentucky Police Officer Brett Hankison for his part in the raid that killed Breonna Taylor. And finally, the trial of Mark Jensen, who's been convicted for the 1998 murder of his wife, Julie, after his previous conviction was overturned by the Supreme Court.
Today, we are joined by Rachel Kaufman, a criminal defense attorney recognized as one of Atlanta's top trial lawyers. Rachel is also a legal analyst. You can catch her on Court TV and many other outlets. Rachel, welcome.
Rachel Kaufman:
[00:01:12]
Thank you. So good to be here.
Joshua Ritter:
[00:01:15]
Before we jump into these cases, and I know you've been following them closely and you have some interesting thoughts I can't wait to get to, tell us a little bit about your background and your current practice.
Rachel Kaufman:
[00:01:24]
Okay. So I moved to Atlanta, Georgia for law school, graduated from Emory Law in 2012. For a few years, I worked for a DUI firm. And while I was at that DUI firm, I happened to become connected with an individual who was charged with murder. And I went from trying DUIs to trying this murder case.
Joshua Ritter:
[00:01:44]
That's quite a leap.
Rachel Kaufman:
[00:01:47]
You know, only somebody who is really naive and who has not been in the game that long would think that that would be like a normal thing to do and just do it, but then I won. And so what happened was from there, I started my own law firm and I deal with mostly violent felony high stakes matters. I used to go to trial more. Since COVID, I've gone a little bit less but yeah. So I work for myself. I'm sort of I'm a one stop shop. I have one cell phone. I have no boundaries basically. My family calls the same phone that my potential clients call. When you call, you're going to talk to me. And I just try to run a more holistic practice where I'm really interested in my client's best interest long term. I really don't like repeat clients because I really want them to get out of the --
Joshua Ritter:
[00:02:38]
Succeed, get out of the spiral.
Rachel Kaufman:
[00:02:41]
Yeah, I'm not trying to make money off of people continuing to do bad things. Yes. And not that everybody who's charged with something bad doesn't do that, but I'm just in the scheme of things. I'm also about accountability. And sometimes accountability doesn't look like what the prosecutor often wants it to look like, especially in Georgia. They're so desensitized to -- I don't know what punishment should be about, which I believe it should be about restoration if that's an option or if they're coming back to society. And Georgia, it's just like, how many years can we give them? So we're fighting the fight down here in Atlanta.
Joshua Ritter:
[00:03:15]
I like it. And you're in the thick of it, it sounds like. Well, we would invite you to bring all of that experience and expertise to these cases. So let's jump right in. The first one I know that you've been following closely, we're going to Walterboro, South Carolina, where after presenting 500 pieces of evidence and over 50 witnesses, the state is expected to rest their case in the murder trial of Alex Murdaugh.
Murdaugh stands accused of the 2021 murders of his wife, Maggie and son, Paul. The jury heard testimony on Wednesday, February 15th, from the lead investigator in the case, David Owen, and saw footage from Murdaugh's third interview with authorities in which Murdaugh became the lead suspect in the case. In the interview, the interviewer asked Murdaugh outright if he killed his son and wife before raising questions about Murdaugh's location at the time of the murders. Murdaugh has maintained that he was asleep at the alleged time of the murders and that he visited his sick mother before returning to the family's sprawling hunting property where he found his wife and son dead.
However, prosecutors allege that Murdaugh can be seen in a Snapchat video. This has become very important, taken from his son's phone hours before the killings, in which Alex is seen wearing different clothes than those he wore when officers responded to his 911 call. In cross-examination, Murdaugh's defense questioned the investigator about genetic evidence from an unknown man that was found under Maggie Murdaugh's fingernails. Very interesting.
Murdaugh's defense has alleged that the murders of Paul and Maggie may have been related to a financial dispute between a drug dealing gang and Murdaugh's co-conspirator and drug dealer, Curtis Smith. This line of questioning prompted the judge to allow evidence of an insurance fraud scam between Murdaugh and Smith that the judge had previously ruled against. Murdaugh has admitted to his part in the scheme, confessing he hired Smith to kill him in an attempt to give his surviving son a $10 Million life insurance policy. The plan hit ran afoul when the shot fired at Murdaugh only grazed his head. Lot going on here with this guy.
Rachel, I know you've been following this case closely and I know you have some interesting thoughts about it. But tell me first, what do you think about it so far, as far as how the prosecution has done? Do you think they've done enough to secure a conviction here, or do you think that the scales might be tilted towards the defense?
Rachel Kaufman:
[00:05:35]
You know, it really depends on what the jurors are looking at in a vacuum. I guess possibly the evidence is circumstantial enough that somebody might have doubt, but they're sitting there in the courtroom watching Alex Murdaugh every day and they've had the opportunity, even though he's a lawyer, he decided to speak to the police three times. And to me, it's those interviews and his behavior and demeanor and motive kind of to figure out what's going on during those interviews. I mean, if you were innocent and your wife and son were killed, I imagine you'd be a little bit, I guess, more assertive in trying to find out who did this. You'd probably be trying to offer a reward, billboards. His behavior is what I think pushes it over the line.
So I do think the prosecution has done a good job. At first, I was a little bit confused about the money motive, because he didn't have life insurance policies on Maggie or Paul. So I'm like, okay, so that's not it. And so it's interesting that the state has wanted to present the insurance situation where the assisted suicide situation initially, because that's clearly not what happened with Maggie and Paul. But it kind of does show just a level of depravity, what you're willing to do in order to get money on top of -- and just a lifetime of fraud, basically.
And this is somebody who I have very little patience for, quite honestly, because there's people who in this world who haven't had opportunities or the privilege of being able to make an honest living without having to climb out of a hole. He had everything. All he had to do was just keep it steady. He's so greedy. But he's so greedy and things got out of control. I saw he said he spent $50,000 a week on drugs. I don't believe it. I don't believe it. But how?
Joshua Ritter:
[00:07:25]
Yeah, for just yourself, I don't know. I don't know.
Rachel Kaufman:
[00:07:28]
Doing the math. And I'm like, I don't think that's possible, but --
Joshua Ritter:
[00:07:30]
I don't know what kind of boutique drugs he was taking. But yeah, that seems like an awful lot of money. Let's get into this motive thing, though, because this has always troubled me. And we've talked about this before on this show, and I know everybody's discussing it. But we always say the prosecution doesn't have to prove motive, right. That's not an element of the crime. They don't have to prove the why. But it's so important and it's so important to jurors and it's so important, especially in a case like this, where you're talking about a man murdering his own wife and child. Why would he do that? What would drive him to do that?
And at first, like you said, the prosecution's theory seemed to have been, well, look, he was in all sorts of financial trouble, but then you make the excellent point of, well, then how does killing his wife and child solve any of those problems? It's not like he was going to get some big financial windfall from their deaths that would have solved his financial problems. It just to me, it solves nothing. And therefore, I have a hard time connecting the dots to say that that's the motive. What are your thoughts? Have they presented a better motive? Do you have ideas on a better motive? I'm curious to hear what your thoughts are.
Rachel Kaufman:
[00:08:37]
I think it's kind of like one step away from money being the motive. We're looking at him getting a windfall positive. But we know at the time that he's facing a lawsuit from the boating accident where his son's accused of killing this girl and that he had already used the umbrella policy stealing from his deceased housemaid. So he knew that if he lost that lawsuit, that he would be, I think they were asking for more than $50 Million or something. You know, they wanted a lot of money. He didn't have the money. I know that there had been an order signed for them to start mediation in the case.
So I was trying to think to myself, what would get Alex Murdaugh, who's not known to be particularly violent or angry, what would get him so mad to the point where he would actually just like shoot his son and wife? I don't think there was a hitman, which I know people talk about too. I don't think there was a hitman because his alibi would have been way better. If he had hired a hitman, he'd be out of town. He would just be like, yeah. So I don't --
Joshua Ritter:
[00:09:40]
True. If he was in on it. If he was in on the hitman, you're right, we would have seen videotape of him playing --
Rachel Kaufman:
[00:09:49]
He would have had receipts.
Joshua Ritter:
[00:09:50]
Playing the slots at some casino outside of town or something.
Rachel Kaufman:
[00:09:53]
Exactly. So what I think happened was I think that the son had been facing a lot of bullying, Paul, amongst his own peers and family members, like not family members, but more distant family for what was going on in the case. I think they had tried to blame one of his friends. The dad really wanted his son to face no consequences as a result of what I think he did. It seems as though he did, according to all the witnesses. I think it's possible that the son and the mom, or at least the son, Paul, confronted his father about wanting the entire thing to be over with and wanting to take responsibility.
Joshua Ritter:
[00:10:29]
Maybe.
Rachel Kaufman:
[00:10:30]
And to me, that's the only thing -- someone suggested maybe they confronted him about his drug use. Well, he thinks he's a good liar, so he would find a way in my drugs. I think the only way that he could get angry enough at them, that they get to -- something that would really upset him would be putting him in a situation where he's now even farther in the hole. And if his son -- yeah, if the son wanted to say that, he would have to kill him so he didn't say it.
Joshua Ritter:
[00:10:57]
Right. And that's an argument. And I don't know if there's evidence that that exists, but at least that argument makes sense to me as far as okay, now I understand why he would want to kill them. But until now, and even with what we have, and it seems like the prosecution, like you said, has kind of not pivoted so much, just backed off of that original theory, the best I think they have going for them so far is that no one knew what this man was capable of, right.
He had been a drug addict for 20 years and his best friend didn't know about it. Therefore, his best friend doesn't know him and doesn't know what he's capable of. He embezzled millions of dollars from his law firm and his best professional friends had no idea. Therefore, they don't know what this man is, and they don't know what he's capable of. It seems to be the best that they're doing so far with the prosecution is to explain why the inexplicable essentially would happen, why he would kill his wife and family. But at least the theory that you're presenting makes sense as far as why he would be motivated to target them.
Rachel Kaufman:
[00:12:02]
I'll build it out. I can build it out more real quick because I just want to say --
Joshua Ritter:
[00:12:04]
Yeah, please.
Rachel Kaufman:
[00:12:05]
Something that I was really kind of -- so as somebody who I really love animals, I'm an animal advocate. And when I heard that he was earlier in the day, the day that Paul and Maggie were killed, that he said that he was driving around his property with Paul planting corn so that the doves would come, presumably so they could shoot them. I know there's hunters out there. I'm not trying to disrespect hunters.
But there's something about his attitude about how expendable other people and things are for his benefit. That, plus a drug problem, I don't know. I mean, I just think he's quick with the gun. He has a lot of guns. He's very comfortable shooting. And it's like if you give somebody five drinks and you give him a gun, I mean, I don't know, they might be more likely to shoot. I think once you shoot your kid and your wife's there, what are you going to do? And I think it was all panicked. I think he panicked. I don't think --
Joshua Ritter:
[00:12:57]
At a certain point, maybe whoever got shot first, the second one was panic. Sure. You know, somebody stumbled upon it. I don't know. But again, I mean, it's horrible as a human being as he is, I think it's difficult for me and I think it will probably be difficult for jurors to wrap their heads around as horrible as a human as he may have been. This is his wife and child. I mean, this isn't the law partner who confronted him about where's all the money gone or something. This is his wife and child. And it just is so, I guess, disturbing at its core that you want some sort of reason that you can wrap your head around.
Let's get, though, you kind of alluded to this about the whole defense going with this drug retribution narrative and all of that. And I don't know if the defense was being clever in the way that they open the door to this. And the judge is now allowing some of this testimony in about the insurance fraud. And they feel that that will somehow allow them to get into some of their theories on him owing drug money.
But to me, that's not a bad argument for the defense, is to say, listen, this guy, you're right, he was in all sorts of financial trouble. And in fact, he owed a whole bunch of money to some really bad guys who are not going to kill him because that's the guy that owes the money, but they're going to send a message to him by killing the wife and child. I can kind of wrap my head around that. And it fits into, and I want to hear your thoughts on this, the idea that there was two weapons used, which is so bizarre to me. And it's been the part that I've had struggled with a lot is you're telling me that he switched weapons in the middle of this. And you're right, a shotgun is not a quiet weapon. So he's attracting attention and then he switches guns to kill the other person or --
Rachel Kaufman:
[00:14:55]
He doesn't -- he's on a hunting property. He's used to being able to shoot.
Joshua Ritter:
[00:15:00]
No, but I'm saying the attention of the wife or the child, right, the other person or two separate people with two separate guns committed a hit. I mean, am I too far out there or what do you think?
Rachel Kaufman:
[00:15:16]
Here's my problem. I really feel like this guy, like Alex Murdaugh, has gotten away with everything for his whole life. Like really just used to my dad, you know, we know, mayor, and blah, blah, blah, police chief. Enough already. It's only because he's a white male, and I'm saying this now, it's only because he's a white male that he's not facing the death penalty, in my opinion. I swear to God. I really feel -- and the only reason I feel like we're willing to give him, not me, because I'm turning into a prosecutor, because I have no patience for him. I really don't.
But like we give a white professional man the benefit of the doubt in a way that we don't give young black males the benefit of the doubt. We can't imagine this man doing this, whereas we can imagine someone who we're used to seeing in mug shots on the cover of newspapers do it. It seems really depraved. His behavior during those three interviews is what I want to go back to, though. I mean, so, yeah, the defense may be able to get somewhere with that, with the insurance and all of that. But I'm like, and he didn't do this for insurance. So it kind of, they would be defending something that the state's not even holding on to now.
Joshua Ritter:
[00:16:21]
Yeah.
Rachel Kaufman:
[00:16:22]
And at that point, I'm kind of like they're done with that. They may not even argue it. So I don't want to be his lawyer is all I can really say. I mean, I would not be a great lawyer for him because I think he's full of shit and I'm sick of it. And somebody -- just imagine same guy, his daughter goes missing. He would be on the news. He'd be the same person on the news, you know, very assertive, telling the police to do a better job, find my daughter.
Joshua Ritter:
[00:16:53]
Yeah. No, you're absolutely right. Well, as we're speaking, it sounds like they are coming close to the end of the prosecution's case. Who knows how much of a defense the defense is going to put on. I know there's speculation he may even take the stand. I'd be really surprised by that. But by the time this comes out, we may be towards the end of this case. So we'll continue to watch it and have follow up. And I'm sure that it will have a ending to it that will have a lot for us to discuss.
Let's move on now to Louisville, Kentucky, where prosecutors will make a second attempt to convict former Kentucky Police Officer Brett Hankison for his actions and the raid that ended in the fatal shooting of Breonna Taylor. During the execution of a warrant, after officers broke the door off its hinges, Taylor's boyfriend, Kenneth Walker, fired his gun once striking Sergeant Jonathan Mattingly in the thigh. The police responded by firing several shots, striking Taylor five times.
Hankison allegedly shot ten rounds blindly into the apartment. The most recent federal charges alleged that Hankison endangered Breonna Taylor and her boyfriend along with her neighbors when he fired into Taylor's apartment. Notably, none of the shots fired by Hankison struck Breonna Taylor. However, he's the only officer to face charges in the raid after the two other responding officers were found justified in discharging their weapons after Taylor's boyfriend shot at them.
Hankison was previously acquitted on state charges related to the endangerment of Taylor's neighbors. Hankison's upcoming trial will be moved back by two months after the defense requested more time to evaluate the evidence handed over by federal prosecutors. His trial is scheduled for October 30th. So, Rachel, what's your opinion on prosecutors opting to try this officer again? And talk to us too about the possible issues of double jeopardy here.
Rachel Kaufman:
[00:18:51]
So because they're two different jurisdictions, two different court systems. The federal system is not at all connected to the state system and you can be charged in both places, as decent human beings. So that's the law. But there's a lot of laws that kind of don't make sense. And when you think about resources, to prosecute somebody twice seems like a waste of resources.
When you're acquitted, and I imagine it's the same in Kentucky, there's 12 jurors that found him not guilty, so, yeah, they're going to try him in federal court, I think it's for optics, possibly. I know that they can. I just don't really see why at that point that you would, except for you're so disgusted by their behavior that you want everyone to know. Like I remember the Ahmaud Arbery case, I believe that they charged the McMichael father's son. They also charged them with, like, hate crimes and stuff in federal court. And they'd already been convicted in state court.
So, yeah, they can do that. And apparently, if it's a media case and it makes sense for optics to keep going, they will. It's kind of sad to me, though, because I do know how many, every single day there's people in positions of power being corrupt and no one's doing anything about it. So I'm glad they're against him twice.
Joshua Ritter:
[00:20:09]
And also, it would be really unfortunate if this were, like you said, just entirely politically motivated, that they just want to kind of make a point that they have a problem with this as well. I mean, however, you felt that trial turned out the first time around, whether you agree with the verdict or not, the guy had his day in court and there was no one saying that that wasn't a fully fleshed out and well-done prosecution. It's just they didn't appear to have the case that they thought that they did. And now to put this man through this whole thing again, merely because, like you said, if it is true, that they're doing it for the purpose of optics, does not seem like a wise use of resources, at the very least to me. So talk to me about --
Rachel Kaufman:
[00:20:54]
I just want to say it's disrespectful to the jurors, to their decision, unless there's new evidence. And then that's the thing, unless there's evidence that somehow come up with in between then and now. But 12 jurors said something, and they said he's not guilty, that the state didn't meet their burden without additional evidence to then disrespect their verdict and then try it again.
Joshua Ritter:
[00:21:14]
Yeah. No, a hundred percent. And it would have to be some pretty convincing new evidence too. I mean, it would have to be something like somebody changed their testimony or forensics that they just didn't have before or something like that, but I haven't heard anything like that. Maybe it does exist. But at this point, it does seem a little confusing and perhaps even troubling. But talk to me about this is almost like a retrial. You've got all of this sworn testimony from people on a first trial. Who does that benefit the second time around? Do you think it tilts in the favor of the prosecution or the defense in the fact that they have all of these prior statements that they might be able to use?
Rachel Kaufman:
[00:21:55]
Since he was acquitted, that benefits the defense because I'm going to -- they better stick to their story. They better not change it the second time around because I've got you. I don't know if a new witness, that they had a new witness come in, who knows. But everybody who testified in the first trial is going to have to say the same thing.
Joshua Ritter:
[00:22:13]
Yeah. And that's the point I was trying to make, is that they better review every word that they say because anything that changes becomes now a prior inconsistent statement that any good defense attorney like yourself is going to chop them apart on cross examination. So, yeah, I don't know how unless, like you said, there's some sort of new smoking gun we don't know about. It seems like it's going to be an even more difficult kind of tight wire act that they're going to have to do to put this prosecution on.
Rachel Kaufman:
[00:22:42]
And just ultimately, what is the goal? So these are the questions I have also with this Trump prosecution coming up. So let's just say you indict this guy and then you convict him. What do we want from him? What would be the best -- what is punishment in relation to him? What do we want from him? I think a lot of us want like an apology, something like humility. I don't know. I mean, I feel like that would be better than putting him in prison since he is somebody, unless he has a bunch of prior offenses, why do we really want to prosecute him? And I'm somebody who doesn't believe that what they did to Breonna Taylor was horrific, to come into someone's house and do anything like that. And so I'm not condoning it whatsoever. I just at this point --
Joshua Ritter:
[00:23:24]
What is the point? What's the message being sent? Yeah. No, I agree with you. I agree with you. I find it a little troubling myself. Let's move on to our final case out of Kenosha County, Wisconsin. After nearly seven hours of deliberation, a jury has convicted Mark Jensen a first-degree intentional homicide in the 1998 death of his wife, Julie Jensen.
Mark was originally convicted for the murder of his wife 15 years ago in 2008. However, a Supreme Court ruling overturned his conviction after a controversial piece of evidence allowed in the prosecution's favor, was found to have violated Mark's constitutional rights. The same special prosecutor that gained Mark's conviction led the state's case in the second trial, which is interesting to me, that pivotal piece still there and still gunning for him. Though, that pivotal piece of evidence, which was a letter penned by Mark's late wife, Julie, was not allowed in as evidence. The letter was given to a neighbor of the Jensen's and alleged that if anything happens to me, "her husband, Mark, would be my first suspect". Pretty damning stuff. Prosecutors allege that Mark poisoned his wife with antifreeze before suffocating her on the bed in their Pleasant Prairie home.
The state claimed Mark's motive in the crime was to get his wife out of the way in order to continue an affair with a woman whom he later married after Julie's death. Mark's defense contended that the marriage was deeply troubled with infidelity on both sides and cited Julie's documented depression as eventually leading to her suicide. In closing, the defense argued that the prosecution's case was based on a lie from the informant, Aaron Dillard, an admitted conman facing ten years in prison on probation violations when he met Jensen in 2007 in the Kenosha County jail.
Dillard testified that Jensen confessed to poisoning Julie Jensen with antifreeze, drugging her and smothering her. The defense said Dillard only knew case details because he read Jensen's case files. The jury of six men and six women ultimately disagreed and the judge promptly revoked Mark Jensen's bond after the verdict. He is set to appear for sentencing April 14th and faces life in prison for the murder charge. All right, Rachel, jump right in. It's been 25 years. Were you surprised by this conviction that they were able to secure it even without the letter?
Rachel Kaufman:
[00:25:49]
Well, again, it's so sad that, again, the jurors are supposed to look at the burden of proof. But we know that they're just people like us and we're attorneys and sometimes we're unable to really gain perspective. You look at the guy. If you just look at him, it's like the way that he looked at the jury, everything about the optics of him in a courtroom with the jurors. I could have told you from the second that they went in there, it's over. I mean, he looks the part. He looks like -- I mean I don't know if there's a dateline about it, but I'm sure he just looks the part. And throughout the entire case, the way that he would kind of like he would like smirk and do these weird things.
Joshua Ritter:
[00:26:33]
Yeah.
Rachel Kaufman:
[00:26:34]
Honestly --
Joshua Ritter:
[00:26:36]
Certainly not doing himself any favors.
Rachel Kaufman:
[00:26:37]
No. And it's sad because if a juror doesn't like you, they don't want to believe you.
Joshua Ritter:
[00:26:43]
Yeah, it's true. It is true. I mean, I know that you're joking to some extent, but it's absolutely true that they are human. Yeah, they are human. And if they find a person to be dislikable, just by themselves, they're going to look for things that kind of, it's almost like confirmation bias. They're going to look for things that make that person guilty. I agree with you.
Rachel Kaufman:
[00:27:11]
Yeah. Do I think there was tons of evidence? No, but we've all seen too many datelines where the husband kills the wife. Then we had the kid's friend and the kid's friend's mom testified during that case where they were talking about, like, I guess how they had gone over to their house. And the kid had said that the mom was sick that morning. There was like some pretty -- I don't know why a kid would say that so well.
Joshua Ritter:
[00:27:35]
Well, to me, one of the interesting things is so they had this incredibly powerful piece of evidence the first time around, which is her letter, which is I mean, I don't know how you get around that as the defense. And they kick it out, the appellate court kicks it out which we could have a whole discussion on whether or not that was right. But then they seem to hitch their train to this jailhouse informant the second time around, which is also a controversial kind of piece of evidence. And this guy is saying, yeah, he confessed to me the whole thing. Oh, and by the way, I'm also a felon. I've got all sorts of problems. I'm not trustworthy. I mean, do you think they're creating appellate issues for themselves again here with this jailhouse informant? And what are your thoughts on jailhouse informants in general?
Rachel Kaufman:
[00:28:26]
I feel like a jailhouse informant is going to be considered just from the second they come out there in chains, because they don't get to get dressed out like a defendant. I feel like people are 25 percent likely to take their word. So I feel like you're already starting at a point where you have very little credibility with the jury. I mean, everyone knows he wanted a field trip. If I'm a defense attorney, this guy wanted a field trip. I don't know if he's closer to his loved ones now. I don't know if he's got a friend in the jail. I don't know what's going on. But he got to have like a -- otherwise, he'd just be sitting in his cell. So I'm glad he came here to say he went through the guy's files and reports by himself. I mean, I would destroy the jailhouse informant.
So, no, I don't think that that's a particularly strong witness. But I do think that when you want to believe the state and you've got people, you've got somebody up there saying it, you will believe int. So really for me, the problem is, is how strong is the story from the beginning for defense attorneys. If the state's story from the beginning is incredibly strong, and you don't have another strong story, which is I know it looks like the defense tried to say it was a suicide. So they created like instead of just saying it could have been anything else, they wanted a competing story. If there's no evidence, there's no evidence. I'm a defense attorney and I will go to trial, but I'm not a good liar. I'm really not. And some attorneys might be. I like to think that I'm just as honorable as a prosecutor who wears a pin and they're not any more truthful than I am when a client's case seems to be very difficult to beat at a trial. Sometimes accountability makes sense and saves your life.
Joshua Ritter:
[00:30:09]
Yeah. Yeah.
Rachel Kaufman:
[00:30:10]
The conversation that I often have, the hardest part for me are people who don't want to be on it. Man up. But, I mean, if you're going to go out there and do this, if you're going to shoot your kid in the head five times, Alex Murdaugh, whatever you did, you blow his brains out. To now say that I didn't do it, it wasn't me. I mean, man up.
Joshua Ritter:
[00:30:31]
Right, right.
Rachel Kaufman:
[00:30:33]
I just don't have much patience for it. I don't have much patience for it. But there are a lot of people that get charged with horrible charges that drove people somewhere or that were just standing there. And those are the people that I like to represent because they get swept up in this. But when you have -- there wasn't another suspect all this time. I guess if I were Mark Jensen's defense attorney, I guess what I would do is probably spend a lot of time talking about the confirmation bias that from the beginning they were just really looking at him.
Joshua Ritter:
[00:31:01]
Yeah. You make a really good point that I always tried to drive home is that you've got to present a bad guy to the jurors. If it's not your guy, if it's not the guy sitting next to you, and your defense is my guy didn't do it, not that it was in self-defense or there were justified reasons for what took place and all that. But if you're saying my guy did not do this thing, you've got to give him something else. And you're right, if it's a lame story and you don't have much evidence to back it up, then now they're just choosing between two narratives here and they're not going to choose yours. And that's a failing strategy.
Rachel Kaufman:
[00:31:35]
Yeah. And when you have no evidence to support your defense theory, which is sometimes the case, if you have to go to trial and they don't want to resolve their case, I mean, yeah, you're getting up there, kind of knowing. I mean, you have to convince yourself that you're going to win. So there's no time to like the ring, like Mike Tyson walking into the ring and thinking he's going to get knocked out. No. Like you go in there ready to go. Yeah, like I'm ready to go. And I believe what I'm about to say, but at the same time, I mean the truth is the truth is the truth. And jurors usually don't want to give us the benefit of the doubt. I usually put my clients on the stand in those situations, if they can get up there and hold their own is the best way to create that doubt.
Joshua Ritter:
[00:32:18]
Yeah. And sometimes that's all you're left with, right? One last thought I had on this. I'm curious to hear what your thoughts are, these 25 years, right. A lot of, talk about resources, retrying this man, going all the way up to the Supreme Court, coming all the way back down. Do you think they would have put all of this effort into retrying this man if it wasn't for the letter? And even though the letter didn't come in, I think that letter was so compelling to the prosecutors and especially that this is the same prosecutor trying him again. They were so convinced of this man's guilt based upon that letter, that even without the letter, they're willing to put on this retrial again. If that letter didn't exist, do you think we'd be sitting here talking about a retrial on this case?
Rachel Kaufman:
[00:33:04]
No, I think he would've been acquitted the first time possibly.
Joshua Ritter:
[00:33:07]
I think you're right. I think you're right. I just think that the ironically enough, this case really still stood on the idea that there was that letter, even though it didn't play a role, if that makes any kind of sense.
Rachel Kaufman:
[00:33:21]
The passion behind the story that they tell rooted in what they believe is the truth. I mean, I feel like when someone believes what they're saying because they've been passionate about it for 25 years, I don't care what the defense says. It's like a train. I'm going forward and not stopping. And the jurors feel that.
Joshua Ritter:
[00:33:41]
Yeah, I think you're right. I certainly don't think they would have retried him. But I think you're right that probably just that air of confidence knowing you have a guilty man in that room because you have this piece of evidence that you may not be able to share, but you know that it exists might have been what carried the day. Rachel, this was so much fun. Thank you so much for coming on this week. Where can people find out more about you?
Rachel Kaufman:
[00:34:07]
That's a good question. I guess they can check me out on Instagram. I have a professional Instagram, but I'm more fun on my personal one because I kind of mix everything. So it's Rachel Kaufman. It's _RachelKaufman but you check it out. Lots of dog stuff. I work with canine cell mates, which is something we can talk about on another podcast but I love to post about dogs, and I like to hold the state accountable on my personal accounts in case they're looking because they are sometimes. So we have lots to talk about more. But thank you so much for having me. It's been wonderful.
Joshua Ritter:
[00:34:40]
Oh, of course. And we'll definitely check out your Instagram. And I'm your host, Josh Ritter. You can find me on Instagram and Twitter at @JoshuaritterESQ and check out my website at joshuaritter.com. And you can find our Sidebar episodes wherever you get your podcasts. And we want to hear from you. If you've got questions or comments you'd like us to address, tweet us your questions with the hashtag #TCDSidebar. And thank you for joining us at the True Crime Daily Sidebar.
