Lindsay Clancy Defense Gets Blow to Witness List

[00:00:00] Speaker 1: All right, so before we begin the impanelment, I know that there was a motion to eliminate filed by the Commonwealth last week, and it was to, and it's pleading number 129, the Commonwealth's motion to eliminate to exclude defendants' undisclosed expert witnesses. So I've had an opportunity to review the Commonwealth's motion in the attachments. I've had a chance to review the defendant's opposition, and so why don't I hear first from the Commonwealth, and then I'll hear from the defendant. Commonwealth? [00:00:45] Speaker 2: Thank you, Your Honor. The Commonwealth's moving for the court to exclude the four expert witnesses detailed in the July 7th witness list defense counsel provided to the Commonwealth, or in the alternative to continue the trial so that we can prepare for those witnesses. We received that witness list on July 7th. There were many nurses and doctors on that witness list, many of whom have worked with the defendant in the past, so we weren't clear as to whether the doctors were people she had worked with in the past or if they were experts that we weren't aware of. So we emailed defense counsel asking for information about these experts or these doctors, and he responded pretty quickly. I know in his memo he says that they're not experts, but they're clearly experts. They're not fact witnesses. It doesn't appear that they knew her, worked with her, observed any of the events leading to these charges. The subject matters that the defense lays out in his notice and in his memo are subject matters that lay witnesses would not be allowed to testify about. Things like mechanism of injury, mental health, medications that are prescribed and the effects of those medications, and psychiatric standards of care, all of which would be expert witnesses. Now, defense counsel is an experienced attorney who understands the rules, and by providing these names at this last minute, a week and a half before trial, was a strategic and intentional act to surprise us with these witnesses and not allow us to be prepared for them. We have a right to prepare for witnesses, to obtain materials, especially with expert witnesses, to find out where they testified before, what publications have they written, what is the basis of their expertise, and to get rebuttal evidence and or witnesses to be prepared for trial. If the Commonwealth had attempted to do the same at this last minute and bring up expert witnesses, they would be excluded without question. And I know the standard is different for prosecutors, but we all still have to follow Rule 14. And to allow defense counsel to call these experts would be fundamentally unfair to the Commonwealth. All right. [00:02:57] Speaker 1: Yeah, Mr. Reddington. [00:02:59] Speaker 3: First of all, I can't remember the last time the government, let alone defense, was excluded from presenting testimony by way of, quote, experts, end quote. Generally, it's a matter of fairness. What are they going to testify to? Does the government, in this case, they've got like 39 people working on this case, Judge, and to suggest that they need time to prepare for cross-examination of fundamental witnesses that depend on the direction of their case. For example, I have an emergency room doctor. He's a board-certified emergency room doctor that I consult with to help me understand and interpret the medical records, the extensive medical records. South Shore Hospital dealing with the initial admission and the injuries. Brigham and Women's Hospital, she coded on this fake suicide. She coded and almost literally her heart stopped at Brigham and Women's Hospital. I need to know terms that I don't understand that this Dr. Valkovich is going to assist me with and has been assisting me with them. Now, I don't know what the government is going to say in their opening statement. So I can stand here right now and tell you, in all likelihood, I wouldn't call Dr. Valkovich as a witness on this case. But it depends on what they say in their opening statement. In the event that after their opening statement, there are issues in play that I feel I would be calling the doctor, I certainly would supplement. And they've already got all their CVs. I've already given them the CVs. As it relates to the psychiatrists, I've given them the CVs. I've given them voluntarily videotapes of their interview and evaluation of Lindsay. I have given them their notes. They've got every scrap of paper that my doctors, that would be Dr. Zeisel, Dr. Resnick, and Dr. Spinelli, have. As it relates to, for example, the other doctor that's referenced in the defense disclosure to the government, Dr. Condi. Dr. Condi is not one of my experts. Dr. Condi is an individual who filed an affidavit dealing with the atrocious failure to have medical care that is consistent with the standard that is applicable, and that's in the civil suit. I summons them. He doesn't know me. I haven't sat down with him and gone over evidence and everything else. I said, you're a witness in that case. You filed an affidavit. I'm summonsing you, and I did. I have spoken with him, and I gave the government the affidavit that he filed in the civil suit. You then have my crime scene, if you will, blood spatter evidence. I don't expect that I'm going to be calling Dr. Condi, but when we get into this thing where they wanted to have whiteboards and drop fluids on it and experiments in front of the jury, you remember that I objected, filed an objection, filed a brief, and indicated that I would have to have, I wanted a Doebert hearing. Your Honor allowed that. I then spoke to Mr. Condi, Dr. Condi, I should say, who I've dealt with before. Very, very well-known crime scene reconstruction gentleman. I'm very qualified, board certified, on the boards and all these things. I'm not going to use him because we, as you know, are not going to be doing the experiment on the board. I am still going to consult with him as it relates to evidence that I think I have to ask him questions about, but right now, as I stand here, I don't expect to call him. So that's Dr. Condi on the affidavit on the civil suit. My crime scene, blood spatter expert. I have my board certified emergency room doctor, and then I have Dr. Lapisada. Everybody knows Dr. Lapisada. She's no stranger to the courts. I've used her on many, many, many murder cases over the years. Dr. Lapisada, as I stand here now, I don't know if I'm going to call her or not. It depends on, again, what the government argues in their opening. If they argue something in their opening that opens the door for me to slam them with Dr. Lapisada, you can bet I will call her. But they don't need weeks to prepare for cross-examination. That's ludicrous to suggest that. So I think I have complied, and then some, with Rule 14. So I'm asking that the court, not at this early stage, strike the witnesses, because I don't know if I'm calling them yet. And if I do, they'll get a report. They already have all their CVs. [00:07:57] Speaker 2: Ms. Frank, please. We do not have 30-some-odd people working on this case. It's ADA Buckingham and myself working on this case, along with our victim witness advocates. We've never made an allegation that defense counsel hadn't provided discovery pursuant to Rule 14 in a timely manner for the three experts that they plan on calling regarding criminal responsibility. What we're talking about are the four witnesses he's detailed in this last-minute notice of witnesses. And when he says that Dr. Condi is just a witness, he's not an expert because he's in the civil case and he hasn't talked to him, that doesn't mean he's not an expert. He's clearly an expert because he's talking about medical information, psychology, and medications, and the psychiatric standards of care that only an expert would know. And we haven't been provided anything but his affidavit, and his affidavit doesn't even state which standards of care is he talking about and what he bases his opinion on. And most of his opinion is more likely than not. So there's nothing in that affidavit that would be compliant or would fully comply with Rule 14. In terms of Dr. LaPosada, yes, I am familiar with her, and often in cases when she testifies for defense, she files a report at the last minute giving prosecution little to no time to prepare for what she's going to testify to. We have nothing on her or any of these other witnesses as to what they plan to testify to, what their opinion is. There are no reports, no notes, no statements. Those are all required information so that we can be prepared so that the process is fair. And defense has to follow Rule 14 as well. [00:09:36] Speaker ?: All right. [00:09:37] Speaker 1: I mean, I understand the defendant's kind of argument that not knowing exactly what the evidence is, it's difficult to say what witnesses you're going to call. But at this point, the Commonwealth has presented their experts and what the opinions are. The defendant has provided significant discovery regarding the three experts regarding criminal responsibility. The other issues, it's almost like it's premature at this point to rule on this. I mean, if the Commonwealth witness comes out of left field and gives an opinion that is completely different than what had been disclosed, that's a different analysis than if the witness says, I've been saying this for two years. I think that's a different argument, so I don't know yet. I'm assuming that the witnesses that the Commonwealth is going to call will testify consistent with what their opinions. And if that's the case, I may very well allow the motion. But at this point, if they varied significantly, then I might have to view it a different way. It's a difficult motion in regards from the defendant's standpoint because I don't have any opinions. Like Dr. La Posada, I don't know what her opinion is, right? I mean, it may be completely going along with the Commonwealth or against the Commonwealth, so it's hard to deal with that. Same with -- well, Dr. Conde, probably not -- is it Dr. Conde? Yes. He's going to testify regarding the standard of care. I'm not sure if that's going to be any different than what the defendant's other expert is going to testify to. And I was already an expert who's going to opine in regards to that. The other -- the other is Dr. Valentin, but that doesn't sound like that's going to be an issue because it doesn't sound like the Commonwealth is going to do the -- seek to introduce that demonstration. It was at Dr. Volkovich. And same with the emergency room doctor. I don't -- I don't know if anybody's even going to disagree with each other, you know? So I'm going to allow the Commonwealth's motion at this point, subject to it being renewed based upon what the evidence is as the case develops, if that makes sense. The Commonwealth's motion is to exclude the defendant's undisclosed expert witnesses. I'm going to allow that at this point, but -- I keep using the word "allow," but allow the defendant to renew that, depending on what the Commonwealth's -- either opening is, as you said, or what their experts say, if they say something that's unexpected. [00:12:47] Speaker 3: Well, the problem -- the problem with that judge respectfully is that it hard ties me on my opening, because I don't know until they make their opening if, for example, I would utilize Dr. Volkovich. I just don't know until I hear their opening. So if you're ordering me that I can't reference these witnesses or what their opinion would be, then it puts me in a very awkward position. [00:13:07] Speaker 1: Well, it's not that awkward, because you've got a situation where you're telling me you don't know what they're going to say. So how -- [00:13:14] Speaker 3: Because I can anticipate what they're going to say. Yeah. I have their prior statements that they've made. I've got their various releases. I've got their Raymond argument. I've got all of that. So I have an idea what they're going to say. I just don't know they're going to say it or not. [00:13:31] Speaker 2: Well, we go first, so then he'll know. Well, exactly. And then he can tailor his opening to them. [00:13:35] Speaker 1: Here's what we're going to do. So when I -- Here's what we're going to do. We're going to do just what I said, all right? I'm going to allow this motion subject to the defendant as the Commonwealth's case changes. Or if you want to come up after the Commonwealth's opening, if you feel that that has opened the door in some way, I have no problem hearing everybody over here. And same thing as the case unfolds, if you feel that something said that was unexpected or inconsistent with the earlier disclosure, by all that means, come on up to the sidebar and we can talk about that. Okay? All right. Anything else we need to address? [00:14:16] Speaker ?: No, Your Honor. [00:14:17] Speaker 1: All right. So what I'm going to do is I'm going to get off the bench at this point. We'll bring the jury up, the potential jurors up, and then we'll begin impanelment as soon as we get everybody up here. Okay? All right. [00:14:32] Speaker 2: Thank you. Thank you. Thank you. [00:14:35] Speaker ?: Thank you. Thank you.