Battle Over Defense Witness Heats Up in Lindsay Clancy Trial

[00:00:00] Speaker 1: Before we get going, I just kind of wanted to remind everybody that there is a media order that has been issued on this case. And for some of the media and the individuals who've been here for the last couple of weeks, I'm sure familiar with it, but I know there's a constant people coming in and out. So I just want to remind everyone that there is a specific media order that's been issued on this case. And everybody is presumed to have reviewed it and agreed to it. So if there are any violations or problems with that, we'll have to deal with it. But I just kind of wanted to remind everybody, especially people who may have just come into the courtroom recently. So if you have any questions about what that order is, you can speak to any of the court officers. They have a copy of it. We can get a copy of it to everybody who needs to see it and review it. All right. And with that, what we'll do is we're going to go, the defendant excuse me, had filed a motion for addition to the witness list, to add to the witness list regarding a Ms. Thorndyke. So what I'm going to do first, I'll hear from the defendant, [00:01:17] Mr. Rankin: then I'll hear from the Commonwealth. Mr. Rankin. Thank you. Your Honor, basically as the motion speaks for itself, there is a woman, her name is Emily Thorndyke, who's a LACSW here in Massachusetts. She owns and is an independent operator of her own clinical social work establishment called Wise Mind Therapy. Your Honor has her resume. She graduated from Dovish Urban High School, received the Bachelor of Arts in Sociology from Hartwick College. Master's degree from BC, 2019, is licensed in Massachusetts. And interestingly enough, she did work at the McLean Hospital in the very short-term unit that the doctor was testifying that Lindsay was in for five days in January of '22 into '23. She worked for five years as a mental health specialist from May of 2014 to May of 2019. She was a clinical social worker manager of that unit from 2019-2021. So she's basically got about seven years and seven months of experience working in that unit for a majority of that period of time, full-time employee, and then for one year as a supervisor. She left as the court is aware from the motion. I vetted her out. I obviously would be concerned if there's any so-called axe to grind, if you will. Any lawsuits pending? Were you fired? Did you have any difficulties? Any claims for harassment? Hostile workplace? Absolutely nothing. She has friends that are still employees that still work at McLean. And I do not know this woman. I have literally never met her. Her involvement in this case came about after one of the prosecutors, I don't recall which, made it out on direct examination that McLean is some kind of a five-star institution where the doctors, the psychiatrists, the psychotherapists, the counselors were all banging into each other in the hallway trying to interview Ms. Clancy, who was just blithely refusing care and treatment, which is not the case. Patrick testified as to his observations. The court is aware that Patrick's testimony clearly in all fours landed on the fact that it was clear to him that there was no staff that was available other than kids behind plexiglass on their cell phones. She colored, she took walks, there was no therapy, she didn't speak to any therapists or counselors. So now the jury is left with that image that McLean is purportedly some kind of a five-star hospital because they're affiliated quote-unquote with Havit, which you from your practice I'm sure as I know from my practice is as far from the truth as can be possible in my opinion. But it doesn't matter what my opinion is. I could cross-examine somebody till the cows come home. It doesn't matter. This woman posted a video on TikTok, which much like yourself, I'm sure. I hardly know what TikTok is, but I I was, I received an email from one of the very, very active people in the community of TikTok saying, look, you got to check this video out. So I did. This is about a week ago, maybe longer now. When I saw her video saying that she could not stand for, and I quote, the lies and the misrepresentations from that witness stand about McLean Hospital. I then said to my private investigator, Bob Jones, I said, Bob, I can't find this woman because she had a pseudonym, name or whatever. He went, we wrote, he called her, left messages. She never got back to us for like three days. He went to her house. He sat out in front of her driveway. She came home from work. They interacted, he waved, didn't want to scare her. And she said, I thought, oh, by the way, I believe that my, actually my wife had written her a letter as well because she's a nurse and was trying to reach out to her to have her get in touch with me to no response. She then tells Bob, I thought you guys were all AI. I didn't know that you were real. I thought it was spam. He then gave me her number. I spoke to her. She told me exactly what I put in the affidavit or in the motion. And she is available, ready, willing and able to testify to an employee's observations over seven years, including as a supervisor, as to what woeful environment McLean Hospital offers, especially on holidays, such as major holidays like New Year's, which is fine. We all enjoy New Year's. But nevertheless, New Year's, the day after that weekend, Monday, nobody was there. And I think it's important to rebut the inference that was created through the examination by the DA. [00:06:38] Speaker 1: All right, Ms. Brake, let me ask you this and I'm going to ask the Commonwealth kind of same thing. What's the relevance, what's the argument for the relevance of what McLean's was at least the, because she wasn't there for about a year, if I looked at the motion, is that correct? [00:07:01] Mr. Rankin: I'm sorry. Yeah, that's true. She left. She has her own business now. And she left, but it was just a year. Yeah. There's no change in the circumstances from Lindsay going into that hospital on New Year's of 2022 to 23, and this woman's work experience where she left a year before. And I agree with you, this would have been a non-issue were it not for the flavor of the government's repeated argument that she was a person who was spurning health care, didn't want health care, had the opportunity, and she walked away from the opportunity, which as I say is as far from the truth as possible. So I think it is now because of their questioning squarely before the jury to leave that impression And the woman that was the doctor from McLean was just a pleasure. She was just a lovely, lovely woman and testified as best she could on the case. But they're left with the impression that McLean is this wonderful place that she just did not have any interest in utilizing what was available to her that was not available to her. And she's testifying to custom practice in her observations over seven and a half [00:08:22] Speaker 1: years. Is there another alternative to get there? Someone who actually works there or worked there during this time period that it's the time period that- A year? One of the things that, yeah, but things can change in a year. You know? I don't think so at McLean. I don't know so. I guess that's the question. I don't know so. That would be that that's one of the things I'm going to I may have to wrestle with. But that's kind of what I was asking whether or not there is or I understand the argument. Okay. And I understand the argument regarding relevance. But if we're talking about staffing or the availability of programs and how that work, this witness is a gap there. I guess that's all. I'm wondering if there's [00:09:08] Mr. Rankin: another way to get there. So, you know, the realities of trial practice, if you're the government, you send summonses, you have people come to your office, you're interviewing witnesses. If you're the defense, they run for the hills. For example, one motion I'm bringing with you is merely looking for pediatric records that I have had to have Bob Jones go and try to get the HIPAA forms, everything, and they're avoiding us horribly. And I'm going to have a contempt hearing request very shortly. But the point I'm getting at is if they want to reach out to McLean, I'm sure that McLean administration would bend over backwards to give them every record that they would need as to how many employees they had, what their work records were, their doctors, their counselors, all available. I know I can't get it. So I'm suggesting to your honor that this is a an opportunity for a person who worked there for all those years who does not have any dog in the fight to testify to what her observations were clearly within her time frame. She left a year before Lindsay went in there on New New Year's. So I certainly agree with that. Grass examination. They could get records if they wish, but I think it is relevant. I think it's material and I think it has to be used to rebut the inference [00:10:32] Speaker 1: that was raised. All right. Thank you. Thank you. Yeah, Carmel. [00:10:38] Speaker 3: Your Honor, the Carmel would object to the witness, the late disclosed witness. In addition to the obvious Rule 14 issues, the fact that we didn't have notice of this individual, there's been no discovery other than what's contained in the affidavit and what we could identify from this woman's TikTok video. There's no report from the investigator who admittedly by counsel has spoken to this witness, this individual. Aside from that, we have a number of other wish issues with this witness. One is this isn't somebody that's proposed to be an expert. So they're not relieved. They wouldn't be relieved of a sequestration order. But this woman's TikTok admittedly, she's been following the trial. She goes on for several minutes in a very long TikTok video where she identifies what she thinks are lies based on her observations of Patrick Clancy's testimony. We have no idea what her thoughts are or what her comments are on the rest of the trial that we assume she's watched based on her comments in this particular video. That she outlines in this video her experiences at McLean and her observations and how they are different from what was portrayed in that particular witness's testimony. But in the course of this trial, we not only have that particular witness's testimony, we have records from McLean and the records speak from themselves about what she was offered, what she did, what she declined, what the contact was with each and every person who wrote a note in that record. But this witness admittedly had, wasn't there, had no contact, has no knowledge of the case and of itself. And in this case, Your Honor, we deal with facts. We're presenting facts to the jury. We're not presenting somebody's opinion about what kind of care the defendant got during her stay at McLean. That's not what this trial is about. That's not what it should be about. And if it wants to play out in the court of public opinion, that's fine, but not inside the walls of these courtroom. So this person who said that she cares about Lindsay in this video, whether other people do or don't, this person who said that the prosecution of this case is an abomination, this person who said that the health profession needs to be held responsible for their care of the defendant, that's not a witness that presents facts to this jury. And I would also agree that the there is a problem with what relevant testimony that she could give. There is no indication that that what her experiences were in those seven years up until December of 2021 are exactly the same as they would have been when the defendant was at that short term unit at McLean. And the defense had the opportunity to ask that of Dr. Goodhart, and he did it. So there is wait a minute, I think she said, [00:13:16] Speaker 1: I don't know what the staffing was. Didn't she say, I don't know how many people were on? I don't know if it was a skeleton crew? She said on that particular weekend, [00:13:26] Speaker 3: she didn't know what the staffing was. Well, that's the only weekend we're talking about. Right. But now he wants to make this an issue about the practices and the common practice of the hospital. But that was not a question that was asked of her, nor would your honor necessarily have permitted it where he was trying to tailor the testimony to the exchanges with the defendant. So to then have the witness available to answer those questions that was at the facility during that time period, and then not take that opportunity and offer this subsequent witness and call it a rebuttal witness, it's not a fair line of examination. It's not a fair line of rebuttal where she wasn't there during the time period. So we would object for all of those reasons. [00:14:10] Speaker 1: I mean, just so everybody knows where I'm going. I can't imagine that that witness would be allowed to give her, in a sense, review of McLean's. If it's five-star and she may say it's two-star, you know, this is not trip advisor, I wouldn't allow that. But the question seems to be, for me, a closer call about what the standard staffing and programs may be available on a holiday weekend. Because the Commonwealth's witness said, I don't know that. And that seems to be something that maybe the parties could come to an agreement about establishing either, you know, there's got to be somebody who's still working there that says the weekend two weeks, the weekend after this wasn't a holiday, we have X amount of people there. We have X amount of programs that are available. On the holiday weekend, we do or we don't. That's, to me, that's where the the battle on this motion is. I have, I do understand the Commonwealth's objections regarding allowing people who watch the trial to then say I disagree with it and I want to testify about what I disagree with. That's, that's troubling, but I'm talking about the facts on this thing and that's, that's if it was anything other than those kind of facts and this witness was not, had not worked there, I'm not sure we'd even be having this hearing. [00:16:01] Speaker 3: And I would suggest that counsel indicated that in trial practice that people are reluctant to give information to the defense. But there are avenues, procedural avenues that he could pursue to get that information involving the court or involving subpoenas in which there's been no indication that he's actually tried to do. And again, I would suggest to the court that we have the McLean records from that time period in evidence and they are the best evidence of the contact that people there, staff that were there that day had, or there that those four days had with the defendant on that day. So from the perspective of if there's missing information there are avenues he could pursue if he wants to rebut it. I would suggest that this person's testimony is not relevant because they weren't there and I would agree that the better option from if defense wants to present this as a rebuttal would be from somebody that is there, but he has doesn't have that. And so for those reasons this motion should be denied. [00:16:55] Speaker 1: Is, and you don't have to commit to this at all, but it seems to me that it would be a very simple solution to get the staffing records or somebody at McLean's who can testify to this. What was the program availability on the mid-December weekend if you went in there as opposed to the weekend of New Year's? And it may be no different whatsoever and that kind of eliminates the argument. So I think the probably the best way to deal with this is to maybe have a voir dire of this witness. regards to what um so then the record's clear too but it also allows the parties to consider while this is while we're setting this up maybe there's another way to a lesser alternative so to speak that would [00:17:56] Speaker 3: reduce the prejudice to both parties um you know so. And I don't I would I don't know how a voir dire of this particular witness who clearly wasn't there and didn't have contact with the facility during that time period would answer your honor's questions. But I do agree. Maybe we can find out. I can ask the questions and she could we could see. I'm I [00:18:19] Speaker 1: understand the the problem that I kind of had as the case was going the individual that was probably he would anticipate could talk about the staffing the difference of a holiday weekend and a non-holiday weekend [00:18:39] Speaker 3: said she wasn't aware of that so um I don't know that she said she wasn't aware of the difference she said she wasn't aware of who was there on that weekend because she wasn't working that weekend so I think there's a slight distinction in that but again um the witness was available council could have crossed around that subject to any sort of objection and we could have addressed it at that time when the witness was on the stand. But again that witness is under summons and if council wants to recall her he can. There are avenues that he could pursue if he wants to pursue this line of rebuttal that short of calling this particular witness that's been proposed is the point that the Commonwealth will just to express. [00:19:20] Speaker 1: So I'm gonna I need to take this under advisement I want to review it um but I'm inclined just so everybody can kind of maybe make uh some idea where we may go with this I'm inclined to have an idea this witness or some other witness so maybe the defendant can get somebody uh who hasn't uh watched the trial because I do understand there's an issue regarding sequestration and but that may be a function of a trial like this that's being broadcast um you know how do we how do we guard against that but that's not going to affect really the relevance the prejudice uh the determinations I have to make you know and uh you know really under all the rules you know 401 403 all of those um considerations that I have to make. So I'm inclined to do that unless the parties can think of a a I won't say better alternative that's not fair to this witness a different alternative um that might address it. I don't think we're going to be able [00:20:26] Mr. Rankin: to agree on anything judge so it would really be up to the referee that make it right is what I'm trying [00:20:32] Speaker 1: to do is put that out there if the parties can agree I think the three of you know me if it I don't have a problem making the decision I really don't but I just kind of wanted to give everybody that opportunity to maybe craft the solution and if I have to do it that's that's kind of what I'm saying by saying I'm taking an under advisement um so I'll let the parties know sure your honor um if you're [00:20:56] Speaker 3: reviewing this taking an under advisement that you do look in more detail at those records um the McLean hospital or current evidence so that your honor can see the extent of the contact the extent of the notes of people who actually dealt with her because again that is the issue um that is the factual issue here is the contact that they that she actually had not what maybe she wasn't offered at other points but what she had while she was there so I'll ask that you just review that. I'll review that I'll review my [00:21:24] Speaker 1: notes regarding um the doctor who testified from McLean's um and then uh we can deal with this this this would be a witness that would be called later in the trial anyway um so uh give me a chance to do that review that uh get a decision to to the three of you and then we can depending what happens either schedule a voir dire or um go from there all right but all right thanks thank you for everybody for kind of uh agreeing to argue this a little bit earlier so give me a chance to review the the records and the arguments.