Appellate Attorney in Action: State v. Richard Passio Jr. | South Carolina Supreme Court

I wanted to spend a little bit of time talking about kind of an aspect of appellate law that people don't really seem to know a lot about, and that's the oral argument. So, um, in this video there's like a little snippet of an oral argument that I did a couple of months ago. Essentially, an oral argument is an opportunity for you to engage in kind of a conversation about the case with the judge or the justices. And sometimes they just want to kind of flesh out particular legal concepts, you know, sort of explore some, you know, issues in your case in greater detail. It's just, it's a little bit more of kind of an academic exercise. We're always like really happy when we get an oral argument. We can tell that that means that the court is really taking our case seriously and that they're interested in the issues that we've raised. So, it's always an honor to be able to do it. But, you know, sometimes you'll have some difficult questioning in an oral argument. Doesn't mean you're gonna lose the case. It just means that there's some issues that kinda need to be more fully developed. And sometimes, you know, it's an opportunity for the courts to explore, like, how this particular case sort of, you know, interplays with other cases and other issues that they may be considering. So, it's just a really kinda interesting intellectual kind of exercise. And it's always a lot of fun. So anyway, here's a little bit of it just so that you can see it. It's not the sort of thing that you see on television. And unless you're really kind of in this world and are really, you know, an appellate attorney or, you know, somebody who has a case up in the courts, you're just not really likely to kind of know what it's about. So I hope you enjoy this.

I'm just wondering procedurally, when you make a directed verdict motion, do we somehow just drop the rules, or relax the rules, and allow the party who makes the motion to go back and cherry-pick evidentiary objections, to which were not really vetted, and which are not in the brief?

Well, I do believe that, I mean, so, right, when the time for the directed verdict came out, this was not so, granularly objected to, that's true. But I do think trial counsel made a record that the evidence was insufficient to prove the guilt. I do think that when you look at the evidence that was presented, of which this was only a part of it, the picture that emerges is one of just not being sufficient to support the verdict.

I hear you on that. Thank you, ma'am.

So, I mean, another witness testified to the decedent being ashen, as tending to prove that the victim, the decedent, had been dead for a significant amount of time. And again, these were not reliable indicators of time of death. Significantly, Dr. Presnell, the forensic pathologist, I mean, she did testify as to lividity, or rigor mortis, which is that purple blotching of skin that results as the blood settling after death. And she testified that that would have been present from some time between 30 minutes and 2 hours after death. And so what that means is that if the state's theory of the case is true, and that Passio murdered his wife at some point between 1:00 and 3:00 a.m., there would have been lividity present on the victim's body. But there wasn't. And we know that there wasn't, because if it had been there, we know that the pathologist would have testified to it, but the State did not ask the pathologist any questions about the death interval. But also, I mean, the State's theory of this delayed reporting of murder is pretty illogical. I mean, for some reason, the State decided to commit to the notion that Passio murdered his wife from sometime between 1:00 and 3:00 a.m. and not report it until nearly 6:00 a.m. The inference being that this delay shows some malice on Pasio's part, that he's a liar. But to do what? I mean, there was no evidence that he tampered with the scene. The State never argued that he engaged in any particular actions during this interim, other than say that he just spent this time getting his story straight.