After South Carolina’s Supreme Court reversed Alex Murdaugh’s double-murder conviction and life sentence last week, the state’s attorney general, Alan Wilson, said the death penalty is “on the table” for a retrial against the ex-attorney who was found guilty in 2023 of killing his wife, Maggie, and their son Paul in 2021.  

But introducing the prospect of capital punishment could further complicate the state’s case in what’s already been a tortured legal process.

Murdaugh defense lawyer Dick Harpootlian said that Wilson, a Republican who is running for governor this year, is playing politics rather than law. “The law is clear that he cannot seek the death penalty if it is due to vindictive prosecution,” said Harpootlian, a former chairman of the South Carolina Democratic Party. He said the question is: What does Wilson know now that he didn’t know when he brought the case? “Is there some new piece of evidence?” the defense lawyer wondered.

Harpootlian made those comments during a press conference on Monday, at which Murdaugh’s legal team announced a civil lawsuit against Rebecca Hill, the court clerk whose improper influence over jurors led the state’s high court to upend his convictions.

When Harpootlian referred to a “vindictive prosecution,” he apparently had in mind U.S. Supreme Court precedent that says defendants can’t be punished by facing more severe penalties for getting their convictions overturned on appeal. So if Wilson does, in fact, seek the death penalty in a retrial, that could raise what’s known as a presumption of vindictiveness that the state would then have to rebut. That’s what Harpootlian’s question about new evidence seemed to get at, because that’s the sort of thing that the state could raise to rebut the presumption.

But it’s unclear what new evidence there is here, if any. I asked Wilson’s office on Monday morning (prior to Harpootlian’s remarks at the press conference) what the state’s rebuttal argument would be if it seeks the death penalty and Murdaugh raises a vindictive prosecution claim. His office hadn’t responded as of publication time.

Wilson’s office did post a statement on social media in response to the press conference, saying, among other things, that Wilson is weighing retrial options through a legal, not political, lens, and that when the state brought the case in 2022, “the legal and practical realities surrounding the death penalty were very different. South Carolina had not carried out an execution in more than a decade. That has changed, and it is one of several factors that must now be considered as we move forward.”

That suggests that if the state seeks the death penalty and is pressed by a judge to present objective evidence that doing so isn’t illegally vindictive, then the state might raise that general argument about “legal and practical realities surrounding the death penalty” at the time. It’s unclear how successful that argument would be, however, because the state nonetheless had the option of seeking capital punishment but chose not to, as the judge who sentenced Murdaugh in 2023 observed.

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Jordan Rubin

Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.

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• Seeking death penalty in Alex Murdaugh retrial could cause prosecution more problems