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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Tennessee’s top court dealt with a similar issue in a 1997 appeal, State v. David Willard Phipps Jr., where Phipps was convicted of murder in a case in which prosecutors didn’t initially seek the death penalty. He had his conviction reversed on appeal, and then the prosecution filed a notice of intent to seek capital punishment. Citing that same line of U.S. Supreme Court precedent, the Tennessee court said the prosecution’s action raised a presumption of vindictiveness that the state must rebut.

Likewise citing those U.S. Supreme Court precedents, the federal appeals court that covers South Carolina has noted that “when a prosecutor seeks more severe penalties on retrials obtained by a defendant, the prosecutor’s decision is presumed to be vindictive, on the theory that it is more likely to be an impermissible response to the defendant’s obtaining a new trial — as is his legal right — as distinct from a legitimate response to criminal conduct.”

That’s all to say that if Wilson tries to seek the ultimate punishment against Murdaugh, then the state could wind up having to play defense by explaining why doing so doesn’t violate the defendant’s rights. That doesn’t mean that the state would necessarily be barred from moving forward with a capital case, but it could face that friction from the outset, risking a new complication in a case that doesn’t seem to need one.

And on top of any vindictiveness litigation, there are the challenges inherent in bringing any capital case and seeing it through the inevitable rounds of litigation and costs that accompany such an effort. Non-capital murder cases carry myriad issues as it is. Capital cases compound them, up through the point at which an execution would actually take place — which likely wouldn’t happen until many years after any conviction and death sentence is secured in this hypothetical scenario against the defendant who is in his late 50s.

Depending on what happens with Wilson’s political career, he may not be responsible for seeing the case through to the end. But injecting the death penalty into the already fraught case could start another losing chapter for the state — or at least an uncertain one.