Heated Courtroom Arguments: Defense Attorney Challenges Prosecutors in Lindsay Clancy Trial — AB1E

[00:00:00] Speaker 1: I hear the arguments in regards to the defendant's motion for permission to call witnesses. I know that this was filed this morning, but it's kind of hand in glove with issues that were raised a couple of weeks ago, at least mentioned the same witnesses. So I'm going to hear first from the defendant, they'll hear from the Commonwealth. I will probably take it under advisement and review some of the other documents, but I want to make this decision as soon as I can so everybody can plan on how they go based on the decision. So, Mr. Reddington, let me hear you first on this. [00:00:47] Speaker 2: Thank you. Your Honor, obviously, I don't have to belabor the obvious, this is a murder trial, very serious business, and we've all been working very hard on the discovery, which, as you can tell, is voluminous, hundreds and hundreds and hundreds of pages of state police interviews. And I mentioned, you know, about what the government, they have cops, they have people going out and interviewing, they have videos, they have chemists, they have detectives, they have local cops, they want a cup of coffee, they can send five cops down the street to get one. I'm it, except for my son, Patrick, who helps me out getting coffee, all right? And the reason I sound frustrated is that they are objecting two weeks ago because they need time to review, to cross-examine doctors on very basic items of evidence that are there, items of evidence. Now, one of those witnesses is adding or bringing anything new to the discovery, if you will, and not by way of excuse, but, you know, I am a sole practitioner. In the past, May, June, July, in the past three months, I've had a murder, a rape, and two back-to-back federal trials that ended one week before we impaneled on this case. I have worked really hard to pull this case together with expert witnesses, civilian witnesses, private investigators been investigating. I provide everything to them as soon as I get it, and they have been doing the same with me. I haven't objected to one thing that they have offered. They put an AutoCAD, computer animated display, disc on my desk. Last week, I didn't complain about it, run to you and try to exclude it. I said, fine, no problem. Put it in my pile and move on. That's it. So to suggest that they need time to be able to cross-examine both, I've had trials with both of these prosecutors. They're both experienced. They're very, very familiar with the trial of major criminal cases. I feel that they're more than capable of being able to cross-examine, for example, number one, Dr. Volkovich, who is a board-certified emergency medicine physician. His report indicates that he has taken a look at South Shore Hospital. He's taken a look at the Brigham of Women's Hospital. He's taken a look at the photographs. That's their evidence. That's all he looked at. And all he's doing is basically what all of their South Shore doctors came in and testified to as to the nature of the injuries, in his opinion, the type of injury that she suffered. Talking about the injuries to the right and left wrist as well as the neck. In his opinion, dealing with suicide attempts, that it's a legitimate suicide attempt. There's no secrets. There's nothing new that they have to prepare to cross-examine him on. Dr. LaPosada is a doctor that is well-known to most of us, and I've been using Dr. LaPosada's fine services for the past decade or longer. I know that both of these attorneys are familiar with her. She's not bringing anything new to the table. She's bringing her opinion based upon their evidence as to the medical records, x-rays, all of the rest of the indicia of the injury that she suffered. Now, they're talking about Lindsay going out and hanging off of a window and then doing, like I said, the Spider-Man slide down the side of the house apparently. Absolutely ridiculous. She dove out that window, she hit her head, and she suffered what Dr. LaPosada refers to as a Jefferson fracture of the spine that is very, very, very typical for this type of an injury. When somebody dives into the shallow end of a pool, they get that injury, unfortunately. When somebody, you know, kids are on a boat and they're drunk and one of them jumps off a mast into the shallow end of the water off of Cape Cod, they get that type of injury. Superman, when he gets thrown off the horse six feet high, same injury. That's all. She's not bringing any esoteric theory to this case that they need time to prepare. Interestingly enough, the Brigham and Women's Hospital records do make reference to the Jefferson fracture right from jump. She also assists me, as she always does, on autopsy photographs, any indicia of injuries, and it's her opinion that if they try to say that there are bruises to these little babies that were inflicted by her, they're absolutely wrong, and Dr. LaPosada would indicate that these are consistent with either EMT. God bless those first responders, but they were in a panic, and they're trying to take care of these kids and pick them up and run them up to their trucks and vehicles. So, and other, obviously, the interossus injection into the legs, the shins, the thighs, all of these bruises are from medical intervention, not Lindsay Clancy. That's what she would testify to. That's it. They don't need time to prepare to cross-examine for that. Finally, I have Dr. Condi. Dr. Condi signed even better than a report. He signed an affidavit. And again, it's based upon medical records that we all have. Way back when this case first started, the government presented the case to the grand jury. First thing I said to Lindsay was sign a release. Let the government give all the medical records. We'll all have access to them. This case is obviously going to be predicated upon the medical records, psychiatric records. We signed every release. They got every document and had them into the grand jury. I get copies. They have copies. Condi would testify to the horrific, in his opinion, failure to comply with the standard of care that would govern psychiatrists, psychologists. Dr. Tufts, who's going to be testifying tomorrow, nurse practitioner Gelata, the other individual from the McLean Hospital, all records that they've had for years. So they don't need time to prepare for cross-examination. So weeks ago, counsel, after I gave them copies of all of these reports and affidavit, strike that, I'm sorry. The reports I just got and I just sent them the affidavit from Condi they already have. I disclosed to them what my opinion would be of the opinions from these doctors that would be testifying, and the report carries that out. I suggest to the court that to strip Lindsay's ability to present evidence in support of her defense. Number one, it would not be in the interest of justice. How I'd like to hear a DA stand up and say, in the interest of justice in this case, because weeks ago we got this information and we're not prepared to testify, to cross-examine the testifying witnesses. I think even your honor would agree, is a disingenuous argument. She came in and said to you, oh, rule 14 matters, and it applies to the government just as it applies to the defense, and therefore you should exclude these witnesses. Well, if I messed up, and it's my trial schedule that caused me to not be able to have written reports of the stuff that they've had for years to prepare to cross-examine these witnesses, then it's my fault, and it deprives her of effective assistance of counsel, because that would then deprive her of her defense. This is a pathologist, an emergency room doctor, and a doctor who would testify to the standards that would apply to these doctors that they're going to call as their witnesses, which is another interesting fillip, if you will, where they're calling Tufts, Gelata, the other individuals from McLean, all treating physicians of her that are all lined up to come in and testify against her on this case, fine, bring it, but at least give me the ammunition to counter it. [00:09:11] Speaker 1: Let me ask you this, let me kind of go backwards, in regards to Dr. Conde, the affidavit really speaks more towards the standard of care. [00:09:25] Speaker 2: That's right, that's right, he's not giving an opinion of criminal responsibility. [00:09:28] Speaker 1: Right, but I'm struggling to see how that comes, now maybe... [00:09:35] Speaker 2: Well, he's the doctor that I'm using for toxicology. [00:09:38] Speaker 1: That's what I feel, but the reason I'm asking that is, I'm not sure, in this case, is the standard of care necessarily as relevant as to, in regards, as opposed to causation. Do you know what I mean? [00:09:58] Speaker 2: Well, yeah, I think the standard of care does speak to causation. Why? He doesn't have to use it as standard of care, he can use it as his opinion as to the first doctor that he spoke to, she spoke to, Dr. Tufts, when she presents with a Bipolar I presentation and then Tufts prescribes an SSRI to her, which flies in the face of any rational psychiatrist and what they would prescribe and do. He's more than qualified to testify. [00:10:23] Speaker 1: No, that's a different question, and that may be more admissible than someone saying, oh, I've found what the standard of care, and I find that this violates it. If we've got an expert who says, listen, I am qualified, I looked at these records, I disagree with that treatment, I'd be more inclined to allow that than to get into the standard of care, which is obviously consistent more with the civil world. [00:10:56] Speaker 2: With that, I can reach out to Dr. Conde and have him delete reference to standard of care in his report and address the actual treatment as to an opinion as to its appropriateness. But again, on the issue that they're raising, that they need time to prepare to cross-examine, I don't think that lies, even if he revises his report by removing standard of care. [00:11:21] Speaker 1: Let me ask you this, because I haven't had an opportunity, this is probably what I'm going to have to look at tonight. Is Dr. Conde adding anything to the expert disclosures that have already been made? Because I know there's disclosures. [00:11:35] Speaker 2: He's taking the medical records, Tufts, Gelata, McLean Hospital, and just commenting on the care and the treatment that was presented to her as a patient looking for help. That's all he's doing. He's not adding anything. He's talking about the prescriptions that were provided to her, the SSRIs, the antipsychotics, the benzodiazepines, all of that. That's what his opinion is predicated upon, which is all of the prescriptions that the government has already introduced into evidence and is well aware of. [00:12:10] Speaker 1: Right, but I know that there was, the parties have already exchanged reports well, you know, months ago, and I know that everybody did that. And I haven't had a chance to review specifically the defendant's reports. And I don't, is there an expert who's going to address these kind of issues already? [00:12:33] Speaker 2: No. Dr. Conde was my toxicologist and my treating, not treating, but physician that would give an opinion as to the appropriateness of the treatment that she received, especially as it relates to the prescriptions. I mean, Dr. Lapisader is a pathologist, she has nothing to do with it, Dr. Zizel is a psychologist, he has nothing to do with it, Dr. Resnick is a psychiatrist specializing in infant infanticide, he's not addressing that issue, nor is Dr. Spinelli, who is a postpartum, you know, postpartum depression, postpartum psychosis expert. So, Dr. Conde is my expert for toxicology and care, level of care that she received, which guts the defense if their argument that they need time to cross-examine or prepare, results in an exclusion. [00:13:28] Speaker 1: Okay, Kamala. [00:13:30] Speaker 3: Thank you, Your Honor. With regard to Dr. Conde, one of my points is going to be that his affidavit addresses the standard of care, which is more of the civil issue, but you've already addressed that, with defense counsel's pivot that he would then instead testify about the treatment of the defendant in toxicology. Looking at the affidavit in which he outlines his qualifications, he's not a toxicologist, he's a physician, licensed here in Massachusetts, he's done a residency in general psychiatry, child and adolescent psychiatry, and forensic psychiatry, but he's not a toxicologist. And also, it's not just us having all the same records that makes for cross-examination to be fundamentally fair. There's more to cross-examination than just having the underlying data. It's also knowing more about the expert, being able to look into their publications and their prior testimony, and being able to prepare to rebut anything that they might testify to. And where we have this late disclosure, which was one week prior to trial, starting, that's fundamentally unfair to the Commonwealth. And I think what Dr. Conde would be testifying to, if it's just limited to her treatment and what was prescribed to her, that's covered by the other three experts that defense already has. They all talk about her treatment, the prescription she was on, and the effects those had on her. So I think that would be redundant, and it would be unfair to the Commonwealth to add this fourth expert to talk about the same things that the other three experts are going to talk about when we haven't had a chance to prepare for this particular expert. For Dr. LaPosada, what we have is a two-and-a-half-page letter to Attorney Reddington outlining her thoughts, but it doesn't say what her opinions are based on. It doesn't say which materials she's reviewed and what she's relying on. So I would suggest that it's an insufficient report. And again, with the delayed disclosure, for example, she talks about Jefferson fracture causing the injuries. Well, if we had this information previously and knew this is what they were going to argue, we could have obtained our own expert to talk about the mechanism of injury and Jefferson fractures and all of those things. But we weren't told until a week before trial that she would even potentially be a witness. And then we get this report on July 26th that's a two-and-a-half-page letter. [00:16:01] Speaker 4: But didn't we have multiple trauma surgeons, neurosurgeons, who've testified, who treated her? [00:16:09] Speaker 1: Couldn't, couldn't, someone would just ask, is that consistent with, and that's pretty much from looking at Dr. LaPosada's note. I'm not sure I would allow in opinions regarding whether or not it's a serious suicide or not. But she does indicate it's consistent with landing on somebody, on an individual's head. [00:16:34] Speaker 3: Well, Your Honor, we had a trauma surgeon from the South Shore Hospital testify who said that the injuries that Ms. Clancy sustained were a level one and she had to be transported to another hospital where doctors who were trained in those injuries could operate on her. So we didn't think that she would have the knowledge and the training and experience to testify about the nature of those injuries and how they occur. The trauma surgeon from Brigham and Women's Hospital is with the military and is overseas in the Middle East and so was unavailable. But had we known that this was going to be an issue and they were going to allege this particular type of fracture, we would have endeavored to get another expert in replace of the doctor who treated her at Brigham and Women's. But we didn't know that this would even be an issue until a week before trial. And again, this report, this letter is dated July 26th and it doesn't tell us which records, which reports or which, what medical journals or training or anything that these opinions are based on. [00:17:38] Speaker 1: Well, that could be done by a voir dire. I mean, the Commonwealth, the Commonwealth has at least inferred through their case that this was not a serious suicide attempt, right? I mean, and there's questions about whether or not somebody's hanging outside the window or not. And so why wasn't this an issue that the Commonwealth could have been anticipated would come up? [00:18:14] Speaker 3: The position of the Commonwealth isn't that it wasn't a serious suicide attempt. It's that the methods that were chosen were insufficient to achieve the goal. And the reasons for that, we would argue in our closing, I don't think we have to disclose that theory at this point, but we've never said it wasn't a serious suicide attempt. We've never said it was a fake suicide attempt. What we've endeavored to develop from the testimony is that the methods that were chosen were methods that would be unsuccessful, but we're not saying it wasn't a serious attempt. And I think the reasons for that will become clearer when the doctors give their testimony. But it's our position that she was attempting to kill herself that night, and there are various reasons and factors where she was unsuccessful in killing herself, but successful in killing her children. [00:19:04] Speaker 1: But there's been all kinds of testimony regarding it seems to be a dispute of whether or not she's hanging from the windowsill or goes out headfirst. There's some testimony that's been raised with the blood experts, things that she may have been hanging from the windowsill. Dr. LaPosado, it seems what they're seeking into is those injuries are consistent with somebody who lands on their head. [00:19:38] Speaker 3: So would the court allow us to call a witness who's not on our witness list to rebut that evidence? [00:19:45] Speaker 1: Yeah, I would consider that, sure. Yeah, I would have no problem with it. Yeah. And this is kind of what, you know, why I didn't make a decision on this earlier, because you have to kind of see how the case develops. And this issue of how this injury occurs is certainly, it's either been specifically and explicitly raised or inferred in multiple questions, you know, even to the length of, to the, you know, the cuts and things like that. It's been over and over and over. So if the Commonwealth seeks to get somebody to rebut that, I would strongly consider that. And in regards to Dr. LaPosado's opinion, we may need a voir dire in regards to, but I wouldn't imagine the voir dire would take that long. It would be, you know, did you view, you know, the x-rays? I mean, that kind of an injury is probably pretty clear on the x-rays or the MRIs. [00:20:50] Speaker 3: If we could get a list from defense counsel on what she's basing her opinion on so we can have our witness review the same material. [00:20:58] Speaker 2: Let me tell you right now, it's just simple. It's just the South Shore Hospital medical records, Brigham and Women's medical records that have already been discussed with the jury. [00:21:05] Speaker 1: Why don't we do this just so it's clear, because when a witness is on the stand, it's much easier to have something in writing to say, is this what you relied on? So if you could get from Dr. LaPosado what she is relying upon to form that opinion, like I said, I'm inclined to allow that opinion, and I would allow then the Commonwealth to present a rebuttal witness if they seek to. [00:21:36] Speaker 3: And just note our objection to that, but also the third expert, what we have here is a letter dated August 4th. That's a page and a half that's not even signed by, I believe it's Dr. Bolkovich. [00:21:54] Speaker 1: I'm more concerned with that is whether or not the opinion is admissible. The opinion, as I see it, is he's reviewed the medical records and it's his opinion. This was commonly, these are injuries that commonly observed in the quote, serious suicide attempts. [00:22:13] Speaker 2: We could delete serious. [00:22:15] Speaker 1: Yeah, I mean, or even suicide attempts. That, that's an opinion. [00:22:23] Speaker 2: Their doctors waxed eloquently about suicide and whether or not it's, I mean, they, they, we could delete serious. [00:22:30] Speaker 1: But, but I, I'm just concerned that that, how, how are we going to kind of parse out what he looked at? A hundred other cases and then we go through into all of those. So I'm going to have to take a look. That's what I'm going to take under advisement for sure. That doesn't mean he may have other opinions I'm going to have to look at. I think he talked about some of his observations as an emergency room doctor, I think, didn't he? Yeah, I'm, I'm more reluctant to allow in bad individuals, um, opinion that this was a suicide attempt. [00:23:20] Speaker 2: So they, they, they're, uh, yes, I'm sure doctors are able to talk about, you know, superficial, superficial, as we've heard for, for a week now, but his opinion that it's, it's consistent with what he's observed in his emergency room treatment is not admissible. [00:23:37] Speaker 1: No, that's not what I'm saying. What I'm saying is that he can't necessarily give the opinion, I've looked at this, it's my opinion, this was a suicide attempt, but he could certainly testify, I've looked at the cuts, these are, you know, the phrase superficial, um, I think that's been kind of mixed up in this whole thing too, that seems to be more of a medical term, um, as opposed to, uh, that. [00:23:59] Speaker 2: Well, no, they, they basically beat it to death with not being a medical term until we were able to show that in fact it's a deep, it was deep, 3.5 and two. [00:24:08] Speaker 1: Okay. Yeah. I mean, if you want to call this doctor, he's gonna say that that's a significant cut. Okay. Um, that's, that's different than saying, looking at that, I find that this is a suicide attempt. Um, just like, I, I, there's never been an opinion here that this was not a suicide attempt. Um, that's probably something that the jury's now, but it wasn't a week ago. Well, that's, that's going to probably be for the jury to determine. Um, but I would allow kind of going into the, uh, characteristics that have already been testified to the, um, so, and I, I don't, we need a, a further voir dire on that doctor as well. But I think he lists in there kind of what he reviewed, but. He did. [00:24:53] Speaker 4: Yeah. [00:24:54] Speaker 1: Yep. All right. Anything else in regards to those three witnesses? Nope. [00:25:00] Speaker 2: All right. [00:25:01] Speaker 1: No. So I'm going to take this under advisement, but just kind of for, um, what I'm inclined to do is, um, I'm going to take a look at Dr. Condi's report and compare it to some of the other reports. Uh, I'm inclined to let Dr. La Posada testify to consist the, uh, that the injuries are consistent with basically a fall on the head. Um, and, uh, the last doctor I've got to take a look at, um, kind of his language, but I would not be allowing in that his opinion that this is a suicide attempt. But he may testify as to all the other observations that, that he took from those records. [00:25:43] Speaker 2: All right. Understood. Just, uh, no objection for what it's worth. All right. [00:25:48] Speaker 1: And so I'll note the commonwealth's objection. I'll note the defendant's objection. Uh, and so, um, and like I said, I'm going to, I'll take it under advisement and everybody can, uh, renew those objections again. [00:26:01] Speaker 2: As it relates to Condi, once you make your decision, uh, you let me know, I can certainly, uh, reach out to him and have him delete this standard as to standard of care and just reference the actual treatment and prescriptions that you receive. [00:26:15] Speaker 1: Yeah. All right. All right. So I'll take a look at this. I'll have this tomorrow morning for everybody. Okay. When you come in. Great. All right. Thank you. I'll take a look at this. [00:26:26] Speaker 2: Um, just in case there's a problem. Um, Dr. La Posada has been working with, um, a gentleman by the name of Mr. Drake, uh, that, uh, Drake Laboratories, that is putting together an auto computer animated display of coming out the window, the injuries to the neck showing the vertebrae and that type of thing, which is all based upon evidence that's already in evidence here. So I just want, I haven't got it yet. I haven't got it yet. It's not done yet. So I don't want to not say anything about it now because they'll be objecting to it tomorrow. I'm sure. I assume. [00:27:03] Speaker 1: I assume we'll have to take a look at that. Yep. And here, give the Commonwealth the opportunity to view it, uh, and hear the arguments in regards. It may be something nobody has objection to or maybe. I don't know. All right. [00:27:16] Speaker 3: I would have an objection to it. You don't know. [00:27:18] Speaker 1: You haven't seen it. [00:27:19] Speaker 3: It goes back to the whole position that, you know, we have, we have the right to, if we want to obtain another expert. Sure. And then that expert could review that material and, and, you know, use it to form his opinion. Um, this is different than the, um, the 3D diagram of the house that the Commonwealth gave. The defense was on notice that that was coming, the basis of it, the measurements, what the house looked like itself. And so that was turned over. This is completely different. [00:27:45] Speaker 2: And I just note that, as I said, the medical records that the government has talks about Jefferson fracture. You might remember two weeks ago or two and a half weeks ago when they first raised their objection. I told you that I can't know what they're going to argue until they argue it. So I didn't know whether or not they were going to say that it's a fake suicide or that she didn't jump out the window. I had to wait to see what their opening was. Now I know I have to rebut it. [00:28:14] Speaker 1: We were almost out of here till you mentioned that 3D thing. So why don't, why don't we do this? We'll wait on that. All right. I'm not committing one way or the other in regards to that. We'll see. Um, you know, so you may be the testimony with the 3D, the testimony without the 3D. Um, we'll just kind of see, see where we go. All right. All right. Um, thanks everybody for kind of buckling down and going through that so we could resolve that as best we can. I appreciate that. So we'll be in recess on this matter till, uh, till tomorrow after tomorrow morning at 9:00. All right. Thank you. [00:28:53] Speaker 2: Court. All rise. Thank you. [00:28:56] Speaker ?: Thank you.