Lindsay Clancy Back in Court! Will Murder Charges Be Dismissed or Will She Face Retrial?

[00:00:00] Speaker 1: 11 jurors were reportedly going to find that lindsey clancy was not going to be held criminally responsible for the murder of her three little babies cora dawson and callan uh there was one lone holdout juror who said no she is criminally responsible and ever since then we've seen jousting both in the court public opinion and in the court of law with the late september hearing well now another hearing in the lindsey clancy trial coming up on the flip side of this welcome [00:00:34] Speaker 2: to the global phenomenon surviving the survivor here's your host emmy award-winning journalist [00:00:40] Speaker 1: joel waltman what's up sds nation welcome to surviving survivor this is the global phenomenon bringing you the very best guests in all of true crime the most compelling stories uh in the genre and also the most fascinating trials nancy grace would yell at me for using the word fascinating but if you don't find the lindsey clancy trial fascinating something is uh amiss uh because it is this is a mother who now does not really admittedly uh say at least according to her defense attorney that on january 24th 2023 uh that she took three exercise bands and squeezed the life out of her little babies cord dawson and callan as a matter of fact the last time we saw kevin reddington uh in a courtroom he said the opposite he said we don't know who did this people were trying to figure out well what's going on here is he blaming someone else could it be the ex-husband uh created a lot of confusion uh but in the commonwealth of massachusetts you've got a double burden for the prosecution for the government they've got to prove uh guilty beyond a reasonable doubt and then criminally responsible or not criminally responsible and most people think that kevin reddington was uh clearly uh making a point that the government did not reach the first level uh of its burden september 4th 2026 after seven days of deliberations the judge declared a mistrial they were into their eighth day deliberations and again it was reportedly split 11 to 1 not criminally responsible now about two months later the defense is going to be fighting to prevent a second trial altogether i'll tell you what there was a horrific plane crash uh in palm beach county last night it looks like a missile if you haven't seen it you're probably better off not seeing it was a lear jet heading from austin to the bahamas and within seconds of this plane crash you go to x you go to the cesspool that is x and social media you go to uh facebook and these other places and there were conspiracy theories because it was about eight miles from the president's uh mar-a-lago residence that the plane was shot out of the air that there were communists that there were this i mean what is going on with social media it is a blight in many ways on our society and morgan and morgan is not taking it anymore they're going after these big social media companies i mean meta has got to pay billions uh they are the owners of facebook and instagram but uh morgan and morgan says it is not enough so coe is pinning a link in the chat if you just click that link you could get up to one thousand dollars because they are looking for the right people uh to make a case uh literally just clicking that link and guess what else clicking that link helps sts so please go ahead and click it uh it goes a long way for us without further ado here to hold my hand throughout these proceedings today she is the professor emerita university of nebraska school of law and the host of prof joe explains professor joe patuto uh prop joe hope you had a nice weekend welcome back yeah i guess i was traveling good morning yeah good morning yeah it's always tiring and then i know you and i are not morning people which is why i sound like i have a frog uh in my throat but what is the primary purpose of today's hearing [00:04:23] Professor Joe Patuto: the way you understand it well um reddington lost most of the um things he was pushing for at the hearing a week ago he wanted a full hearing to investigate the claims he wants to make that is that the juror did not follow the jury instructions without with regard to reasonable doubt that the juror used a phone and was not following rules and was getting information from outside the deliberation room uh that the juror lied on his questionnaire all those things the judge said no hearing no hearing no hearing so now what he's doing is he's back to his original motions that is the judge precipitously granted that mistrial and shouldn't have that he should have investigated more lindsay was entitled to that jury and because the judge didn't do his job she lost her right to the jury and she cannot be tried again it's a double jeopardy violation so that's i think the heart of [00:05:26] Speaker 1: where he is now yeah so i think that's going to be the crux of the argument today is going to be this double jeopardy again just to underscore what uh professor patuto uh was saying he really wanted at one point he wanted a full inspection basically uh an interview with this lone holdout juror michael this ronaville um you can never pronounce his name forgive me michael um but basically at one point kevin reddington literally wanted to be able to go through his phone right yes that no we're not doing that we're not conducting an investigation into a juror uh but as you just definitely stated uh now he's pivoting to this double jeopardy uh argument and i just i just don't understand it because she was not you know she she was not acquitted uh right i mean it was a mistrial in what sense could you get a [00:06:29] Professor Joe Patuto: double jeopardy argument double jeopardy protects your right to the jury that was originally impaneled so for example if you were at a trial and the prosecutor decided it wasn't going his way and he deliberately tubed it by doing things that were clearly reversible error just so we could start again the defendant could say hey double jeopardy i was entitled to this jury you messed it up you did it deliberately you don't have the right to retry that's the double jeopardy at least the crux of the devil double jeopardy claim he's making he was entitled to that jury so now he says number two the judge dismissed that jury when the judge shouldn't have the judge should have con conducted a fuller inquiry at the time and maybe replace the juror and with what because the judge didn't do that full inquiry he and clancy lost their right to that jury and they he cannot she cannot be tried again what the technical or what the term is that's used to decide what what the judge should do before declaring a mistrial is miscarriage of justice so what the judge has to decide is there's no sense going forward it's a miscarriage of justice to do it you're entitled to uh you're entitled to a new trial what the defense says is there would no it is a mistrial of justice to not give us the first trial the first jury because what you did you didn't have to do and if you didn't do it we would have gone to that jury we would have gotten the acquittal at the time excuse me you can't come back and do it again so that's where he is and basically what i think he's doing is just preserving his right to raise all this on appeal because i do not think there's much chance he's going to prevail [00:08:19] Speaker 1: before the judge today i mean the other kind of odd and uncomfortable thing is he's going to argue all this about the judge not doing what the judge should have done to the judge who did what he did um at what point i mean is there a point where he could ask for some sort of i don't know if it's an appeal or some some is there any instance where you can ask like for uh you know a judge in a more superior position to look at the case i mean i know that's more of an appellate issue but anything prior [00:08:50] Professor Joe Patuto: to that yeah he he could say that the judge was biased that when the judge decided to declare the mistrial he was not doing it objectively on the basis of the information he had following the law as he understood it to be but he was biased against clancy and they're entitled to have an objective judge you can you can move for removal of the judge on the basis of bias and if he did that and he prevailed there would be a new judge who would handle this hearing on whether the motion for a new trial the double jeopardy motion should be granted he has he hasn't done that i don't think there's any there's any evidence on the record that would allow [00:09:33] Speaker 1: them to make that claim yeah i mean on a personal level it seems like they uh you know that they're somewhat uh i don't know if they're friends but they know each other well they've i'm sure tried many cases there that's a live look right now uh new hampshire's in the house here uh one stayed over but live a live look at the plymouth county district courthouse and um we're going to be taking you inside there once uh the hearing starts which is supposed to be any minute you are watching live coverage of uh the lindsey clancy uh hearing here which could be uh largely revolving around uh double jeopardy um the other interesting thing here is that you know district attorney tim cruz kevin reddington has taken personal shots at uh basically at the beginning of the original trial said he's trying to put my client on a crucifix essentially well he hasn't really said anything publicly other than they're planning to you know essentially uh serve justice for for uh core dawson and callen but that doesn't necessarily mean another trial now do you think that we're going to get um a clear picture today of whether or not that moves forward kevin reddington himself in the last hearing i believe said well yeah i'd be ready initially he said at the end during the declaration of the mistrial he said i'll be ready next week but during the last hearing in september he said oh i could be ready the first week of june is everything [00:11:11] Professor Joe Patuto: pointing to a retrial here uh joe patuto i think probably um i i i still don't think that and i'll be i'd be happy to be proved wrong that there's much room for the defense and the prosecutor to come to sort of some sort of plea deal here because uh if she is not responsible if she is acquitted because she's not responsible there's no authority in on the criminal side to hold her and so uh and when kevin reddington has said he's not going to let her plead to anything that's an admission of the crime he wants an acquittal by you know by virtue of her not being responsible so with those two positions it's hard to see where they could arrive at some sort of compromise in a plea uh i think it is uh as there's a zero chance that the prosecutor will be willing to just say okay we won't retry without some uh assurance that she will spend some significant amount of time if not in prison in a treatment center i don't think he's prepared to say okay you know we're not going to go forward and then um look at the possibility that two months from now the hospital will say well the kids are not alive that was the triggering factor that led to the psychosis that led to her killing the kids now she doesn't have that she can go free i just can't [00:12:44] Speaker 1: imagine the prosecutor would be willing to look at that possibility yeah uh annie k always in the chat with a good question an interesting question here uh professor could an appeal predate a trial potentially [00:12:59] Professor Joe Patuto: yeah it depends on what the appeal is about uh there are there are things the double jeopardy claim for example would predate a new trial because the injury in double jeopardy is having to suffer the new trial so you can't do the new trial and then appeal saying there was double jeopardy because the injuries already happened so that claim uh would be heard um in advance of the new trial other things errors that might have happened in the trial that one might typically appeal you know later would have to wait until later although here since it's a hung jury um i don't know exactly what it is that they would claim um were trial errors that meant that the that the case couldn't go forward but the double jeopardy claim for certain would be [00:13:50] Speaker 1: heard before the second trial on appeal on appeal yeah some questions are rolling in by the way we're going to do a kind of a wrap of the day later on either five or seven tonight uh you can follow me on twitter at podcast sts or x at podcast sts instagram surviving survivor we're also on tick tock by the way now uh on uh at surviving survivor but little miss red velvet og who is an og uh why would they not negotiate a deal in other words why would the district attorney here tim cruise not want to deal protect i'll add this particularly knowing that it was 11 to 1 not criminally responsible why why does he [00:14:31] Professor Joe Patuto: appear to not be budgeted yeah well i think he wants some guarantee that she's going to spend some time uh in a facility whether a prison or a hospital before release and kevin reddington's position at least as he articulated the last time i heard him talk about it was no no plea to anything that entails prison time well that puts it over on the civil side and on the civil side you cannot say at least i don't i mean i can't i can't think of how you can get there maybe they'll be really creative but on the civil side you can't say hey we're going to hold you civilly because you're sick not criminally responsible but we're going to keep you eight years because on the civil side you the authority should be you're held until the medical people say you're no longer a threat to yourself or others and therefore you're entitled to be released there isn't a on the civil side there isn't hey you've got to spend this much time before they let you go the prosecutor i think is going to want something that says you're going to spend some so much time before you go those positions are not there's no place where they can come to a an agreement on them unless one or the other budgets and i don't see how it can be the prosecutor because the only way he can get some guarantee of prison time is to get some plea to something that allows the criminal system to have some sort of oversight of what happens next [00:15:56] Speaker 1: yeah by the way in the civil case of patrick clancy there was a hearing last week and they implied that lindsey clancy was going to testify at that hearing then right away kevin reddington shot that down and said there's zero chance that uh my client is going to testify what do you make of that joe [00:16:14] Professor Joe Patuto: well i thought at the time it was an unusual claim to make because she still has a fifth amendment privilege against self-incrimination and you know i can't imagine any defense lawyer who's going to allow his client to testify in another hearing under oath and say something that may jeopardize the opportunity for an acquittal on the criminal side so it's not a surprise now if um the criminal trial goes forward and however it's resolved then she's perfectly free to testify in the civil trial because there's not going to be any any consequence to her criminally at that point at least without appeals i mean they're still they still might want to say no because she might want to if it turns out that they go forward and she's convicted she's going to appeal so she still has a fifth amendment [00:17:04] Speaker 1: privilege she's going to want to preserve now just circling back to what you were kind of outlying earlier about making this double jeopardy argument today about uh you know arguments that that the mistrial shouldn't have happened i mean what can kevin reddington say like what what should have been done a like uh investigation on the spot that he should have looked at the phone all right we're looking inside the plymouth county courtroom right now a lot of ambient noise what's the um actual proceeding start joe and i will uh yeah we will look yeah but what can you say yeah let me [00:17:46] Professor Joe Patuto: address that he can say what he said at the hearing but he you know he's he's posed a couple of problems when the judges already said no two he took that emergency appeal to the appellate court to a judge on the appellate court to get the judge to say the judge needed to do more and that judge said no so he's already had two tries at it one before judge sullivan won on that appeal and he's lost both times so which is why i think this is not going to go anywhere today although you know we have to wait and see he's made what he's made what he wanted and what he lost on last week was he wanted to have a hearing where he could uh put the the holdout juror on the stand and interrogate the holdout jury really wanted to talk to other juries about what happened in the jury room he as you said wanted the cell phone records of the holdout juror so he could see whether the holdout juror had texted or talked to somebody or otherwise violated his oath as a juror not to talk about the case not to look at other information about the case those are all the things he wanted so he could have made let's theorize a different and a better claim but he's already lost on that so all he has is the information he had at the time and i suppose any independent investigation he's been able to do yeah and you know one of the issues [00:19:09] Speaker 1: uh at play here regarding all this is the jury questionnaire there's some people who say well this holdout juror didn't exactly fill out the jury questionnaire um in a kosher fashion uh has that ship sailed with these other uh denials by the judge or is the questionnaire sort of a separate thing unto itself besides [00:19:30] Professor Joe Patuto: the cell phones i think that uh and i think that uh reddington also challenged and wanted to wanted information he did wanted information about the questionnaire and the judge said and i think correctly that the questionnaire whether the juror uh misrepresented on the questionnaire and didn't is irrelevant to this because at the time at the motion to um to uh you know grant the mistrial no one knew about it so it wasn't raised so it's after the fact information we don't even know if it's true or not whether he lied on the form he said no but it's still after the fact information it was not available at the time that the judge considered the mistrial motion and not available when kevin reddington made his argument so you can't you gotta have finality on decisions you can't after the decision say oh god i found [00:20:25] Speaker 1: something else i could have argued let's do it again uh dixie doodles doing what the uh william sullivan needs sending strength and clarity to judge william sullivan and he's got a tough job here [00:20:39] Speaker 4: uh ahead of him you heard that registered media only uh this hearing is getting ready to begin in just a moment [00:20:53] Professor Joe Patuto: let's see how uh control a lawyer like kevin reddington is today i have not been a fan of his antics let me say [00:21:06] Speaker 1: um while we are continuing uh to wait here and speaking of that now the government has made it clear that they want some sort of gag order in place i think that might happen at the end of the uh hearing today he's going to tell both sides no more talking in the media to come too much [00:21:25] Professor Joe Patuto: of a service i think he will and i certainly think he should yeah uh and i think that's probably gonna [00:21:33] Speaker 1: happen um and here we go joe quick question from jerry michael even though the judge denied red's motion do you think he's still going to bring it back up i mean it's what you're saying he's like a tenacious pitbull defense attorney he's going to continue to harp at it and and i mean how much [00:21:52] Professor Joe Patuto: leeway does he have before getting slapped down well he may raise it again just to you know a thousand percent protect the record so that he can raise it on appeal but i doubt he's going to get up there and try to push and push and push again i i think that's it's inappropriate and i don't think the judge will allow him much leeway this time he's already tried it what once at the end of the trial again when he pushed to be able to go to the appellate court again at the appellate court again a week and a half ago i think four times is much more than a fifth time is way over the top yeah uh you see [00:22:34] Speaker 1: here and kevin reddington among others in this have become kind of lightning rods uh this person i agree about kevin agreeing with joe patuto that he's a little out of control followed the next comment is i love kevin reddington so um this trial is uh got people split um sort of down the middle about everything about her uh criminal responsibility not criminal responsibility uh criminal defense attorney too aggressive not aggressive enough etc uh elena bonia abad here very happy to be a part of this fantastic community hugs everybody from sunny spain uh there you go sunny spain better than rainy spain and uh got people uh i think it's uh charissa little saying he's doing his job uh yeah i'll take that on if [00:23:24] Professor Joe Patuto: i might i think he's over the top his job is to be a zealots advocate and he's done a great job with that and there i agree with you completely but he's also got a response ethical responsibility as a lawyer to stay within the ethical rules and the attack he made on the um on the the holdout juror uh at the time that the mistrial when he was arguing against the mistrial in my opinion violated that that ethical [00:23:53] Speaker 1: responsibility as a lawyer yeah uh welcome to vicky nola girl if you're new to surviving survivor we do uh live panel shows every day of the week and we cover trials and hearings like we're doing uh right now uh and when i'm covering trial solo sometimes i go off the deep end and start talking about things that my co-host my mother starts screaming about but um there's also i think a lindsey clancy civil suit um on top of the patrick clancy civil suit so how do these civil suits like weave their way in and out of all the uh you know the criminal uh filings and motions here yeah usually they wait until the criminal [00:24:39] Professor Joe Patuto: end is done because there may be evidence that could be used for one side or the other in the civil trial that's not available to them so long as the criminal trial is still ongoing we talked about one already lindsey clancy is not going to testify at the civil trial no matter how much it might help the claim that patrick is making on behalf of the boys uh because she's got a fifth amendment privilege that she needs to protect on the criminal side there are other things like that that can occur so typically the civil trial sits and waits until the criminal trial is over and then the civil trial proceeds there's also an advantage on the civil side to do it that way because some of the issues that might be resolved in favor of lindsey's side uh in the civil trial [00:25:30] Speaker 1: all right court is now in session we will listen in and then you'll get analysis from the professor on the [00:25:35] Speaker 5: what's that we have the matter of commonwealth versus lindsey clancy miss clancy is present she is represented by attorney kevin reddington attorney laura mcconnell attorney martin weinberg the commonwealth is represented by assistant district attorney jennifer sprain and for jared joe we have [00:25:51] Speaker 4: attorney heather o'connor all right good morning council good morning mr clancy all right so this is on for a series of motions today um the three that i i see are probably ones we have to address today are pleading number two one two which is the motion to preserve records uh producer records uh pleading two one five which is the defense motion to dismiss uh and then there is a 222 which is a commonwealth's motion to preclude prejudicial extrajudicial statements um is that everybody's kind of understanding of where we are common yes your honor all right defendant yes all right so why don't we first take up could i apologize could i interrupt your honor if it's possible [00:26:46] Speaker 6: could we handle them in the order of attorney weinberg which would argue the motion to dismiss first followed by attorney mcconnell on the other gag order motion whatever it is that the government [00:26:58] Speaker 4: found followed by the uh the juror issue now here's here so i've got later here's what but let's take up that the motion dismiss first um and then we will take up the the uh motion to preserve the uh questionnaire and other records issues which is um 212 that involves i think counsel as well as attorney o'connor uh and then we'll deal with the commonwealth's motion to preclude uh the prejudicial statements which would uh be argued by the commonwealth as well as attorney mcconnell i believe is that correct yes all right so why don't we uh first take up uh which is pleading number 215 the defendant's motion to dismiss uh i'll hear from the defendant uh parties should be aware i've had the opportunity to review um the motions to the oppositions um but with that counsel thank you judge good morning good morning [00:28:03] Speaker 7: this is marty wine that's called judge um the motion to dismiss respectfully asks the court to reconsider decisions that were made in the heat of battle um on september 3 and september 4 as the jury was deliberating and uh the jury passed certain notes on to the court and the court without the benefit of extensive briefing which you now have on the motion to dismiss made certain decisions that are closely tied to the foundational decision of whether or not manifest necessity existed to justify the september 4 mistrial order miss clancy like all defendants you're charged with felonies has two primary constitutional rights that are involved inextricably intertwined with the instruction issues the voir dire issues the jury issues that your honor was confronted with and both mr reddington and the prosecutor uh argued to you on september 3 and 4 one being her right to a jury trial her right to 12 jurors not just 11 who were impartial unbiased deliberating following the law whether or not they agreed with it or not your honor received two jury notes on september 3 qq said a member of the jury is unable to follow the instructions regarding reasonable doubt how should we proceed and then the second one that came late in the day and was addressed by your honor on the morning of september 4 was juror x has made statements acknowledging doubt but refuses to apply it to the verdict as the law states that is why we cannot come to a unanimous decision we contend respectfully judge that those two notes cried out on behalf of the foreperson and 11 jurors for a probing voir dire that would attempt to establish one whether or not the 12th juror was or was not honoring his oath following your honor's instructions particularly on a core issue that goes to the heart of what american criminal justice gives to defendants which is the burden being placed on the prosecutor to prove guilt beyond a reasonable doubt john adams the 125 miles north of here as i drove down from north to south today called the jury right this right the right central to the federal and state constitution the lungs of a democracy and we respectfully contend that these notes that were written on behalf of the jury called into question whether or not the jury trial right that miss clancy was entitled to of 12 jurors deliberating in good faith and following the law was it was not being complied with by the jury in the secrecy of its deliberations inextricably intertwined with that is the second constitutional right that being the double jeopardy right that being that a citizen charged with a crime particularly one carrying with it the gravity of the first of the murder charge in this case should not be subjected to the perils and burdens of the second trial unless there was manifest necessity that made the mistrial declaration an imperative rather than something discretionary to just summarize you know the contentions in the motion to dismiss and i know your honor has reviewed it and we've both sides have given your honor an enormous amount of reading because there's been lots of sjc decisions and federal circuit court decisions that have addressed the circumstances when war deers should occur when discharges of jurors should occur and when instead deliberation should stop first we you know we contend based on these juror notes and again respectfully that they do not unambiguously support the proposition that all 12 jurors were deliberating and following the honor's instructions that at minimum these notes required a probing voir dire that that voir dire would have included should have included a determination whether or not the 12th juror was deliberating in good faith whether they intended to follow the law whether they could intend to follow the law or beyond a reasonable doubt and if they had any issues whether they derived from personal reasons that that juror brought into the jury room as required by the supreme judicial court in the conners case whether instead they derived from disagreements among dissension among the jurors nobody here wants to chill jury deliberations or extinguish the right of a holdout juror if they truly believe that the commonwealth in this case has proven guilty on a reasonable doubt more often it's the reverse where the commonwealth you know is seeking to try to voir dire a 12th juror who is holding out for an acquittal and the cases that we've cited show a number of examples both federal and state where it's the commonwealth not the defense that's asking for a voir dire and trying to determine whether a holdout juror is or is not discharging their oath and their responsibilities and deliberating in good faith what's important here because these primarily state law issues about how does a court determine what how to respond to jury notes and understanding the burdens and difficulties of a judge bringing the jury back and running the risk that jurors some jurors will say one thing other jurors another empathizing with the discomfort this is not uh you know simply making judicial decisions about credibility about witnesses this is your honor making the potential credibility determinations about jurors and whether they are or not being candid with the court and deliberating in good faith [00:34:57] Speaker 4: excuse me i just i'll lose this i apologize but didn't i do that well respect didn't i bring didn't i do a voir dire didn't i bring the jurors in didn't i swear them in didn't ask each individual one not just that one jerk because you know why certainly as you know as you stated the the concern for coercion is something i have to worry about but but i i so you say i should have done it a second time [00:35:24] Speaker 7: not not not this not to simply echo the single question judge but respectfully to make a probing voir dire that would have for instance you match judge tettman's voir dire that's cited the new williams case which the commonwealth featured in its brief which is to try to get to the bottom of why a jury foreperson is writing notes that say a member of the jury is unable to follow the instructions and that a single question that led to the adoption you know an assurance by all 12 jurors is simply constitutionally insufficient to probe what was going on in that jury room and there's there's examples and we've cited them in the case in the case law and they're on page 28 of our motion to dismiss where the courts say you you don't have to the court doesn't have an obligation to believe a juror it needs to probe in order to make credibility findings about whether the jurors affirmation of your honors voir dire in fact is to be trusted particularly when there's a predicate of the four persons speaking on behalf of 11 jurors that may not adopt the reliability of what a 12th juror has said and [00:36:44] Speaker 4: and i can see this is not easy uh you know i've just you don't keep saying that i've got thick skin i have no problems i understand what this case is what these motions are about um i'm fine with that i understand the argument i've made those before um so so i i i understand that so so let me go let me go [00:37:04] Speaker 7: on if i can please to you know what defense the federal constitutional law requires which was not really provided to your honor in the heat of battle you know what it does is it puts a heavy burden on the prosecutor who four times subjected to any voir dire it's the prosecutor that had an obligation when the when there was such close nexus between the evident the issues that were being addressed about do i voir dire the juror what do i instruct them on it was going to lead to a decision whether or not there was manifest necessity for a declaration of a mistrial because absent of probing voir dire your honor had no predicate to discharge the juror you had no knowledge as to what caused this juror to be unwilling to follow the instructions if in fact the four persons noticed to be facially accepted and you know there was a potential here a viable alternative which is a probing voir dire could have disclosed that the juror wasn't following the instructions eleven jurors might have said that even if a twelfth juror said no i was following them and then your honor would have probed and asked about you know whether they could follow them um whether beyond a reasonable doubt was a legal instruction that caused any discomfort to a juror your honor then would have had a record to make credibility findings whether the jury foreperson other jurors were being correct in their concerns that were represented by these two notes but the burden was not on the defense to justify the voir dire the burden was on the prosecutor a heavy burden according to both the united states supreme court arizona v washington is the primary case 1978 in view of the importance of the double jeopardy right and the fact that it is frustrated by any mistrial the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar his burden is a heavy one the prosecutor must must demonstrate manifest necessity state court is the same commonwealth v steward 46 years ago in 1985 said that in view of the importance of this right the prosecutor must shoulder the burden of justifying the mistrial if he is to or she is to avoid the double jeopardy bar the burden is a heavy one both cases also speak to the necessity at the time of making decisions that so closely impact double jeopardy to weigh in the courts say on the record this is commonwealth v steward we shall be deferential to the trial courts exercise of discretion in ruling that a manifest necessity exists only if it is clear from the record that the judge has given careful consideration to the viable alternatives and to the defendant's interest in having the trial concluded in a single proceeding the discretion of a trial judge where double jeopardy is concerned is more restricted than the discretion commonly granted to trial judges for more routine matters and that's because when your honor goes back to the origin of the double jeopardy clause and it dates back to England and it dates back to the 17th century and the steward dynasty and they would conduct trials and if they didn't like the way the trials were going from the perspective of the sovereign they'd cancel the trial bring in a new jury arizona v washington speaks about the history of double jeopardy and it speaks to the fact that there were two essential reasons why double jeopardy was such a cornerstone constitutional right the first one is that the state with all its resources in power should not be allowed to make repeated efforts to convict an individual for an alleged offense because it subjected that individual and the subjecting couldn't be higher in this case to the ordeal and compelling the defendant to live with a continuing state of anxiety and insecurity and in the first degree murder allegation what could be harder for an individual than knowing about the stakes in living through the first trial and living through the lengthy trial and then having to subject a second time but it also talks about a second value of double jeopardy which is essentially to prevent the state from having two chances to convict rather than one and the court say and this is us v jorn and arizona v washington it enhances the possibility quote that even though innocent a defendant may be found guilty because the reality is the prosecutor learns from the first trial more about the defense than the defense learns about the prosecution because of the way the discovery rules you know are written and there's the risk that somebody innocent through two trials not one can suffer a conviction for this profoundly and gravely serious charge so the federal supreme court has built up these protections and it requires manifest necessity so when your honor receives notes like this there's kind of three different ways to to interpret them one is the way that the defense does which is that their facial requests for the court to probe the foreperson at least if not all the jurors as to why this note was written and what what was going on with an instruction a caution we don't want to hear about the subjective communications of jurors during deliberations that you're entitled to the privacy that the rules require but to try to probe from the foreperson why twice they would write notes that indicate that a 12th juror is not following the law and we as the defense contends that facially unambiguously that that's what the foreperson was asking the court to do and they even said how should we proceed second is that there was some uncertainty what a doubt mean was that beyond a reasonable doubt that the prosecutor that the 12th juror believed there was there was guilt or is it some speculative doubt that would have been consistent with innocence we don't know without probing from the foreperson what they meant in duck in vote rr when they said that the jurors made statements acknowledging doubt of guilt says doubt but it could have been doubt of guilt again there's no certainty but the burden rests on the prosecutor and if there was a viable alternative here and i suggest the viable alternative whether your honor felt the notes were ambiguous or whether your honor felt the notes unambiguously required for dear and then the issue is what kind of for dear there was a viable alternative which is a probing for dear that could have established that the juror was not deliberating consistent with your honor's instructions which could have established further that the reasons were personal rather than simply because of the internal chemistry of jury deliberations which could have led to a discharge of the juror which could have led to a deliberations continuing with an alternative juror and that's the viable alternative that we claim countered the manifest necessity that the rule requires for double jeopardy you know we've cited and i'm not going to simply repeat them in the in our pleadings to the many sjc decisions which make the decision to hold a the hearing or to do a judicial inquiry or to do a four deer mandatory not discretionary commonwealth versus raunchy common commonwealth versus ralph r commonwealth versus connor many of the precedents williams this recited to federal precedents usv lineman marinas which says when a colorable claim of jury taint surfaces during jury deliberation the trial court has a duty to investigate the allegation promptly the quote painstaking investigatory process protects the defendant's constitutional right to an unbiased jury as well as his valuable right to have to have his trial completed by a particular tribunal more recently the first circuit dealing with the boston marathon bombing case decades later when it turned out that they might have been uh you know false statements on apple on during four deer the jurors were using social media again said a district judge does not have a discretion to refuse to conduct any inquiry at all regarding the magnitude of the team producing event some inquiry is reasonably calculated to determine whether or not the jury was being truthful or not and your honor has the stake cases we've given you incumbent and shall and require whether a single question is sufficient we have cases judge that we've given you that show that judges have the right power and historically have found the jurors claim that they are deliberating in good faith to be unreliable untrustworthy to be countered by the credibility and trustworthiness of other jurors and i know from your honor's statements on the transcript your honor had this discomfort of feeling like you should be weighing juror credibility but just like we do when when your honor's selecting a jury in a high profile case before the trial starts and jurors said i've read about the clancy case it wouldn't simply be a a single question well can you forget what you read it would be what have you read so that your honor and counsel can make a determination whether the juror even if they were claiming to be unbiased and claiming to be able to essentially erase everything they knew became before they came on [00:48:08] Speaker 4: the jury you know really could and i mean let's let's be honest the the inquiry of voir dire is significantly different than an inquiry during juror deliberations where i have to be careful right not to delve into the jurors subjective reasoning or deliberative content that's that's a complete i mean it sounds good and i understand it but it's a different level of analysis right i think it is a different level of analysis but [00:48:35] Speaker 7: the but the voir dire you do pre-trial demonstrates that you can't just accept as conclusive a juror's saying to your honor when you say can you follow the instructions yes i can that that's not conclusive in the face when it collides with what the jury foreperson is saying was really occurring during the jury deliberations um commonwealth versus olivario we've quoted at page 28 of our brief a judge need not accept a juror's view of whether they can share whether he or she can perform her duties the united states versus christian said it makes no sense to let a juror's statement i can follow the law serve as an automatic free pass if other evidence supports the findings to the contrary so let me briefly then address the commonwealth's um positions which they expressed in their in their memorandum first they say that the notes didn't say to your honor that the reasons for this 12th jurors not following the law were personal nowhere in the case law and i've read a significant amount of cases and i know your honor has is there any kind of requirement that the jury foreperson put into a note not only that someone's not following the law but the reasons for it and that makes perfect sense which is that you know the jury for a person is unlikely to know the reason and many of these cases including the williams case say that when the juror is not following the law then it's the responsibility of the judge to ask the questions to try to determine whether or not it's primarily because they have a fight within the jury room in which case this charge is not allowed under state law or whether or not primarily it's because of whatever personal reasons and biases brought into the jury room and sometimes these two reasons coexist and we and the courts weigh judges discretion but the discretion is weighed only after a probing voir dire rather than before it second the commonwealth says well it would be coercive i mean they even use the word inquisition like we're like your honor's probing voir dire would be something out of spain in the 15th century and case after case say that it is that you need to be sensitive we need not to seek disclosure of subjective deliberations but that jurors are questioned non-coercively by experienced superior court judges without invading the privacy and without invading the confidentiality of jury deliberations so the idea that you can't do it is simply collides not only with their burden of proof but with all of the case law that we've given you that not only can but other judges have and it's led to credibility findings that's within the province of the court three is the commonwealth talks about the brief uh request for sjc intervention that's simply not on the merits there was trunk there was almost no briefing there was almost no argument there was truncated argument and the ruling was simply denied denied the extraordinary relief of intervening into a state court matter that decision is not entitled to wait in terms of your honor's determination about double jeopardy fourth the commonwealth talks quite a lot about commonwealth versus reed as if that's a precedent that's adverse to a finding in favor of the dismissal it's a case i know something about where the four deer requests came after not before the mistrial order after the jury was separated after the jury had the potential contact with the media and other jurors was there a [00:52:37] Speaker 4: question on that i apologize i read through it right read necessarily regarding the polling of the jury [00:52:45] Speaker 7: was that an issue in that it would have occurred during the trial right after yes it was the the issue there was a look you know there was no objection to the mistrial there was no request to pull the jury there was no request unlimited instructions after the fact after the jury disbands as opposed to here where mr reddington objected to the mistrial asked for the vaudeau while the jurors were still intact and that you know and and made all of the proper objections in the reed case the objections began because the jurors after they were disbanded started to disclose things about their deliberation so the reed case really although it has language in it that's relevant it's holding its overall themes are are factually and opposite to this case and and finally to finish judge the commonwealth makes the argument of course that your honor had discretion and as i've cited to the court the discretion when it comes to double jeopardy is far more narrow than it is on the ordinary evidence and instruction issues and on this record respectfully the commonwealth didn't discharge its burden of proof they didn't ask the court to to weigh miss clancy's right and all of the reasons for that right as a balance against a viable alternative that existed on september 4th which we've set out in our pleadings and i urgently ask your honor to reconsider the trial decisions and to grant the motion to dismiss on grounds of jury trial right double jeopardy right both in the federal and the state constitution thank you sir [00:54:45] Speaker 8: good morning a deadlock jury has historically been um the traditional example of when manifest necessity requires in this trial and in this trial when the jury is deadlocked um is entrusted to the sound discretion of the trial judge and sound discretion is determined by two factors giving counsel a full opportunity to be heard and carefully exploring all viable alternatives at the time which the court did over and over again every time a note came out every time the issues were raised there were the reason the discretion is given to the court is as defense counsel stated and as the your honor acknowledged um is to prevent coercive measures from occurring from forcing a verdict especially in the sensitive area of a lone holdout juror and what it doesn't matter whether the juror is a lone holdout for guilty or not guilty the same reasoning is applied the same protection for that lone holdout juror and their opinions should be protected now the two notes written by the four person claiming that one juror wasn't applying the law regarding reasonable doubt it's basically writing what what was happening in their opinion and it suggested a disagreement about the weight of the evidence how to apply the law how to to compare the law to the evidence and judge the evidence that was before them and that's clearly all part of deliberation and who was right in the interpretation of the evidence and in deciding whether there was doubt or reasonable doubt that's for the jury to decide not for us to decide not for the court to decide there was no indication in these notes that there was an issue personal to that one juror there was nothing about the issue having to do was something that was only solely happening within or to that juror it was clearly a note or multiple notes detailing that there was an issue regarding deliberation it was clearly issues about the case in the jurors relationship to the other jurors and to how the deliberations were going and none of that would have or should have prompted the court to isolate that one juror that holdout juror and conduct a more extensive individual inquiry than what was was done by the court there was no allegation in the notes of a lack of impartiality bias extraneous influence or inability or refusal to deliberate that might otherwise call for a more probing individual or group guard air any post-trial news reports concerning the jurors are completely irrelevant as the court is aware whether or not there was manifest necessity has to be determined by what the court knew at the time and not anything that was said or exposed later on in the media and said by people when they were not under oath or not in a courtroom and your decision to declare a mistrial should be assessed based on what happened here in this courtroom allowing post-trial accounts to affect the analysis would in read my quote would create endless confusion and controversy end quote in cases where mistrial had already been declared it is clear from the record that this juror did not refuse to deliberate he refused to agree this court took every possible tack to address the four persons notes while avoiding the risk of pressuring that lone dissenting juror or exposing the jurors deliberations the limited voir dire that your honor conducted of each juror and then the follow-up re-instruction on reasonable doubt to the entire jury was a proper exercise of the court's discretion it directly addressed the four persons concerns expressed in the note it avoided the risk of coercing the lone juror and it avoided intruding into the deliberative process now in in their memo defense lists different questions that could have potentially been asked and i believe he he argued that in his argument just now that the court could have delved further in questions but i can't think of a single question the court could have asked either the four person or the holdout juror or anyone else that wouldn't have gotten into the deliberative process because the issue was a disagreement about reasonable doubt and how to apply it to the facts so how do you address that and determine who's right and who's wrong without asking well how are you applying it to the facts what facts are you crediting which facts are you discrediting you would have to get into the deliberative process in order to determine who's applying it correctly and who's not and again that would be putting the court's interpretation of what's correct into the deliberative process determining are the eleven right or is the one right it is precisely the approach that the sjc has directed to avoid the coercion of a lone dissenting juror and the prohibited disclosure of substance of deliberations in this case the single justice deferred to your honor's assessment of the juror's ability to follow the law and implicitly approved of the court's balanced response and it was a balanced response because you asked each juror individually under oath you were the one who looked them in the eye and asked them the questions and was in the best position to judge their credibility and you credited their answers you were the one to be able to decide whether they were following your instructions in the east ed that they could it was a balanced response that included a generalized instruction unreasonable doubt and then i believe it was the following day but it might have been both that day and the following day where you told them not only the instruction unreasonable doubt but you told them they had to follow the law whether they liked it or not whether they agreed with it or not and there was no objection to that there were no notes saying that the juror disagreed with the law or you know refused to follow the law or the court's instructions in fact there's a case commonwealth versus i'm not sure how to pronounce a child or chalve chlve 46 mass 847 where the sjc deemed it erroneous when the judge did an individual colloquy with the so-called so-called so-called holdout juror who was aware that the judge knew that holdout juror's position and the sjc deemed it coercive to give that loan juror an instruction and that's exactly the situation we had here where the second note named basically named the juror by giving their number and saying what the issue was and that note came out of the jury room so the the holdout juror knew that this note was sent out knew the court was aware that they had been exposed as a holdout juror and what the issues were and so that's exactly what the sjc that's the scenario the sjc said would be coercive there's also commonwealth versus connor and there's a warning in that case as well where the sjc specifically warned that the approach used in that case risk invading the province of the jury and there was a hearing in that case and defense counsel has referenced that case as well as grounds for why a more in-depth hearing should have been held here but the when the court found inquiry needed in connor first of all that wasn't a deadlock jury and in that case a note was sent out with very specific details that the juror was eccentric anti-social was having hygiene issues refusing to deliberate those are all very specific issues that go to the exceptions that are detailed throughout the case law that the one you should have a hearing is when there's a lack of impartiality bias prejudice extraneous info information being brought into the jury room or refuse to deliberate so that's different than what we have here and in connor they do say that a hearing should occur in those scenarios but they also say that any hearing must be specifically tailored to what is happening in that case so even if the court determined that a hearing well actually a hearing did happen a hearing happened in this case you heard from both sides and you made a decision to do an individual inquiry of each juror you limited it and tailored it to the question being the the issue being posed by the foreperson and the jury and you you dealt with that by the individual forward air and the general instruction so there was a hearing and you did carefully tailor and craft the court's response just like connor says the court should and most if not all of the cases that defense cites in their memo where hearing happened was when there was very specific evidence exposed in juror notes or in details during the trial that exposed issues with bias impartiality extraneous info being information being brought into the the jury room or a refusal to deliberate and so there's not one case i believe cited in defenses memorandum where there was a mistrial that occurred and that then there was a motion to dismiss that was allowed denying the problem wants opportunity to seek justice for the victims in the case i think all of those cases were when there was a mistrial because of information learned during the course of the case and then there was a retrial in fact there's a few cases cited by defense in multiple motions one of them being clark versus the united states where a mistrial was declared and then a second trial occurred and the defendant um was found guilty uh it was retried and found guilty um so there's i couldn't find a single case where there was a mistrial and then a motion to dismiss was allowed on the grounds of double jeopardy preventing the commons from going forward with the case typically what happens is there's a verdict of guilty there's an appeal the case is overturned and the remedy is a new trial which is what is happening potentially here in this case where there could be a new trial for the defendant protecting her right to a trial the general individual voir dire that your honor conducted of each of the jurors avoided any questioning that could have affected the jurors judgment or conveyed any improper silent messages to the deadlocked jury and you as the trial judge were in the best position to assess the credibility of the jurors during the individual voir dire and to tailor the instructions and how you handled the case from that point on re-instructing unreasonable doubt after the individual individual voir dire directly addressed the four person's concern regarding the jurors supposed misapprehension um of the instruction without isolating that lone dissenting juror and potentially coercing them into changing their vote and jurors are presumed to follow the court's instructions and so they were given that instruction on reasonable doubt not once but twice so they're presumed to follow that instruction furthermore that one juror may opt to dig in their heels in the face of the majority does not automatically call into question that jurors understanding of or ability to apply the law someone can understand the law and be able to apply it and come to a different conclusion because they credit or discredit evidence in a different way than the other jurors do and that's a right that should be protected and it could be that the other jurors the 11 jurors were wrong in the way they applied the law it's not for the trial judge to choose sides in a deadlocked jury and decide defense also brings up language that the court uses when the court said that you had no choice but to declare mistrial um and that's based on the case law and the statute under general laws 234a section 68 c a jury can't be sent out again what without the jurors consent in this case law cited in our memo that there's no obligation to ask for consent and that you can make that assessment based on the totality of the circumstances so what we had here was a very lengthy trial many witnesses we had six days of deliberation that included 26 to 27 hours of deliberation prior to be getting being given the tuy rodriguez instruction so really no choice was another way of saying that in the circumstances of this case there existed manifest necessity for mistrial now even if a more extensive inquiry of the juror could have somehow been accomplished without getting into the substance of deliberations which the commonwealth does not believe was possible the remedy is not a dismissal of the indictments entirely thereby foreclosing any pursuit of justice for the victims a mistrial was properly declared due to manifest necessity of a deadlocked jury the defendant's motion to dismiss should be denied and also i just like to point out to the court there was a ninth circuit court of appeals decision uh that just came out regarding uh removing a holdout [01:08:51] Speaker 4: juror and that was found to be error do you have that site is that it you are it's not um i don't have [01:08:57] Speaker 8: the site but i can provide it to defense and the court i just found out about it this morning thank you all [01:09:02] Speaker 4: right all right may i brief what that would you rather briefly please very good [01:09:13] Speaker 7: you know in terms of remedy judge the remedy it cannot be contested if there was no manifest necessity the remedy is that there's no second trial the law is completely clear about that so it goes back to whether or not there was manifest necessity which goes back to whether there was a viable alternative to the declaration of a mistrial and i would urge the commonwealth versus ranchi which is one of the citations given to you by the prosecutor during the you know in the heat of battle when these issues arose and a juror received a note from a foreperson saying we're concerned that one juror is not able to productively contribute to deliberations that's very similar to here say what a jury for a person is saying the juror is not following the law what what should we do and the court said and this is the sjc 2023 where reliable information comes to a judge suggesting a lack of impartiality bias extraneous influence or an inability to deliberate on the part of one of the jurors the judge should conduct a voir dire of the juror and they were critical of this judge who did not conduct a sufficient voir dire a judge is required to hold a hearing to determine whether there is good cause to discharge a juror reasons of the cause of the failure to deliberate are not normally part of a jury note the jury foreperson wouldn't have that biography of a dissenting juror but that is what would come out of a probing voir dire whether or not the cause was personal and satisfied conners and therefore led to a discharge which therefore continued deliberations or to the contrary i'm not saying that the outcome of a more probing voir dire necessarily would have led to a discharge the law is uniform that a probing voir dire is required even though the decisions that we've given to your honor come out in multiple ways as to whether discharges of jurors were or not upheld ordinarily a discharge follows from the probing voir dire because ordinarily the majority jurors convince a judge that the loan holdout is not deliberating in good faith and then the courts determine whether or not the discharge order was not upheld and that's the reason that the law is not filled with double jeopardy because the sjc ordinarily stops at discharge because the discharge occurs deliberations continue there's either a conviction or an acquittal so finally i would respectfully say judge that there was a viable alternative here that viable alternative was a probing voir dire one of the potential outcomes was a discharge and the continuation of deliberations and we simply can't superimpose on these notes what the commonwealth asked you to superimpose that these notes were some euphemism that's their word for mere disagreement on the jury those juror notes said a juror is not following the law i respectfully request that your honor not only consider but grant the motion to dismiss all right thank you sir thank you just briefly this is it [01:12:46] Speaker 8: this is the last back of one thank you sir just addressing uh what council brought up about ronke there the note said we are concerned that one juror is not able to productively contribute to deliberations and that's exactly what the courts have repeatedly said is that's one of the exceptions is not being able to deliberate and earlier uh defense council mentioned the williams case same scenario where that juror himself said i can't deliberate so that's completely different than what we have here where you have a member of the jury is unable to follow the instructions you do the individual voir dire you do the general instruction and then we get the question about um refuses to apply um acknowledging doubt by refusing to apply it and when we all know that the instruction is there's not a an absence of doubt it's a reasonable doubt um so what the court did was appropriate all right thank you um i'm i'm [01:13:37] Speaker 4: going to take this matter under advisement um i just want to know uh so everybody can maybe relax a little bit i appreciate uh citing to john adams uh but as someone who lived and worked in quincy for many many years who drove by president adams house every day for 35 years who actually has a bobblehead of john adams uh i try to remember all of president adams uh lessons and writing so i will also try and remember those lessons uh when i'm making this so i appreciate everyone's uh arguments the uh the writings were uh excellent and very helpful uh but i'm going to take this under advisement uh and i'll get this out uh as soon as i can uh so now why don't we move on to the uh second motion which would be pleading number two one two which is the defendant's motion to preserve uh records and for limited inquiry into uh juror dough um i would imagine first uh hear from the defendant then i think attorney o'connor has entered uh her appearance uh then here for the commonwealth as well yes your honor i i agree with all uh the [01:14:59] Speaker 8: plan i just uh would like to object to not object i just i'm asking for the motion to be denied on his face without argument uh for two reasons one is that um the filing the commonwealth received was missing three exhibits a c and h and the other is that no valid legal purpose um there is no valid legal purpose for the requested actions um as your honor stated in your findings on the motion for an evidentiary hearing none of this material can be used in the motion to dismiss so there's really no purpose and no stated purpose for any of this information to be sought and provided so i'm asking that it be denied on [01:15:38] Speaker 4: its face all right i i understand the argument i just want to make sure everybody feels that they were able to present their position uh i'll hear it and then i'll make my decision in regards to that so uh the defendant wants to uh argue this and then we'll hear from attorney o'connor all right [01:16:02] Speaker 6: well here we are round two you know we all like to think that in this country when someone is charged with a crime they're entitled to a fair trial we like to think that you're entitled to a fair jury we like to think that you're entitled to fair application of the law we don't want to pretend that a judge is the guy hiding behind the curtain like in the wizard of ours we want to have fairness is what we want and this young lady came into this courtroom back in july and we picked the jury and the jury sat for about seven weeks and they deliberated for about a week and when you have jurors you expect that the jurors are going to be honest in their disclosure to the court of their background you expect that the jurors are going to disclose any issues that may compromise their ability if you will to be fair and impartial to a young woman like this who presented evidence to this court and jury that she was a person that was suffering from significant mental disease significant defect consistent with the instructions that the court gave as it relates to lack of criminal responsibility and this young woman put herself on her country which country as we say they are and expect that that jury is going to pass between the commonwealth and the defendant and they're going to be fair in their evaluation of the evidence you don't bring your background into a jury room and suppress it as was done in this case this gentleman mr doronsville no i'm going to i'm going to stop you right there no you're not going [01:18:02] Speaker 4: to stop me well no you i am no you're not because all right then this hearing's you know because there's no need to bring out that juror's name all over the internet that's through the internet that's through other people there's no need here in this courtroom to use that if everyone else is referred to him either juror or no and if you want to refer to him that's the way he's to be referred that's all he's got more face time than i do well that's you know that's but that's not through this [01:18:32] Speaker 6: any of the rulings i made and his attorney from houston is sitting in the back well that's great too but you know just let's we we don't need this just okay fine then let me continue with what was not given to you at the time the jury form was submitted because i know in your rulings you say that anything that came subsequent that was discovered subsequent such as the juror who indicated that this individual was on his cell phone he was scrolling through his cell phone i know that you are very familiar with the superior court rule that requires a superior court judge to instruct the jury that they are not to have cell phones or electronic devices in the jury room or during the trial they are not to use cell phone devices to research either the law or the facts of the case you have evidence that this individual was researching filicide he was researching altruistic filicide his podcast representative indicated on his podcast after he had panted to him and requested please call me please call me and i'll put you on my podcast he indicates that he told him that he had to look up these terms now i'm not aware of jurors being allowed to have cell phones in their jury room how that happened in this case i don't know it was discovered because the other juror made the statement and perhaps you were as shocked as i was to determine that this jury on this case after seven weeks of trial had cell phones and were looking on it whether it's him whether it's all of them it's a concern and a significant one granted discovered after the mistrial but doesn't that give you pause doesn't that raise the bar as to whether or not this hand woman was granted due process in this case so in addition to which which you have this individual that's how i refer to him as basically not complying with the orders of the court so when this individual comes into court and he files his jury form which i would suggest would be exhibit number one if you will on this argument and i do believe you have a copy of it his jury form right do you have that yes we all had it during the time okay so we have it um do i have to offer it again into evidence or can i reference it as as far as being thank you so one of the questions that you're asked is whether or not you have been arrested and your honor may recall that he indicates that he was arrested objection giving [01:21:38] Speaker 8: the protected court information so it asks that any argument about um whether or not this person has arrest or a record be done at sidebar or in a closed courtroom no that's it well hold on i think i made the decision [01:21:52] Speaker 4: on that objection all right so the objection to commonwealth has made the argument that you're making now is that made in the uh pleadings it was that were about it as far as the disclosure or [01:22:06] Speaker 6: non-disclosure of of and his representation to you and counsel during the voir dire that's that's not [01:22:15] Speaker 4: protected that's not corey that wasn't what i asked the question was is the issue relating to the what you were just about to go into regarding arrest was that referred to in your memo that was impotted that's all [01:22:31] Speaker 6: it was it was referred to that the individual we've been hogtied by orders not to disclose anything and this is the first opportunity that i have to indicate to you what the evidence and the facts are as it relates to this individual's jury form i referenced it in the motion i referenced it in in the request that we had to have a hearing i referenced it when i indicated that i wanted to have an inquiry of this individual not to harass him not to berate him but to find out what the truth is of what went on i asked i wanted to summons the the podcast lawyer to have him testify because he doesn't understand what attorney-client privilege is and he was shooting his mouth off in his podcast talking about what the juror was telling him incredible disclosing confidential communications that were undercutting the legitimacy of this juror's good faith so i wanted to have the questionnaire is is [01:23:32] Speaker 4: confidential by statute what is confidential the questionnaire what's your point my point is that you're talking about disclosure of confidentiality on with somebody else and this is this is the commonwealth's argument at least the objection is that the the actual questionnaire is confidential [01:23:55] Speaker 6: by statute okay so if you take the confidential all in the interest of justice of course to make sure that this young lady get a fair trial let's put that aside we'll call that confidential well how am i supposed to argue it i mean i have evidence that this man was not honest on his form and how is it that i am not able to argue that or present that to you as evidence nobody knows anything other than he's the holdout juror no he's not a holdout juror and i think the evidence is important for you to know understand what was going on in this man's mind and look and he was submitted [01:24:36] Speaker 4: as an exhibit by you it was mentioned in impounded memo by you i've read it i don't forget i was there you were where i was there during the uh impalement uh and so okay it's been raised by you and it's you provided that and i'm just addressing the commonwealth's objection that you're about to you know in open court raise a document that is by statute confidential so go ahead well thank you [01:25:12] Speaker 8: not only not only um is the juror questionnaire confidential by statute but a person's criminal record whether there is one or isn't one is confidential by statute and i'm not suggesting that defense counsel can't argue it i'm asking that we go to sidebar or in a closed room discuss these issues commonwealth does have information that i can give to the court about these allegations or these this material that i believe defense is going to ask about that could affect the rulings and whether or not [01:25:46] Speaker 6: this should be public material it is public material because you have information that has been provided he told this court all right see now now i'm confused as to what i can say and what i can't say if there is a forum that this man filled out and he did not honestly answer the questions that does not come after the mistrial that is a fatal infection of the independence the honesty and the integrity of this juror and that's where we should start question is whether or not a person for example has had a criminal arrest am i allowed to talk about what he said in open court you don't impound the voir dire right that's that's that's part of the record right okay so urana recalls that we stood over there and the gentleman was then questioned and urana had information that his form checked off regarding criminal record jen sprague asked him pointedly while he was under oath does this uh... attorney sprague said i know attorney sprague i know i'll tell them for a long time i just think it should be some level of respect i don't want to disrespect by that certainly i i know her as jen sprague not attorney sprague but i'll call her attorney sprague so you have a form that clearly inquires whether or not a person has an abuse prevention order he didn't disclose that not only did he not disclose that but he told you and attorney sprague on the voir dire that the issue of the arrest was in february of 26 he did not disclose to anyone his arrest from 2021 with the wife he didn't disclose the beating of the nephew in 2025 so i would like to offer as an exhibit for the record because i have to make a record the criminal complaint 2115 ci triple zero three oh six eight september 27th of 2021 and police report if i may [01:28:29] Speaker 8: objection if we may put sidebar briefly i know defense council doesn't like to do that but i'd prefer not to [01:28:34] Speaker 4: violate the law well listen why don't we all dial us back a little bit all right and i'll see council over here inside bar and uh we can deal with it over here [01:28:48] Speaker 1: all right a quick break here uh joe petuto um i cannot remember a a moment in court to be honest that has been quite this contentious um now there always seems to be a little leeway with kevin redington because of his age and his experience and his amount of time arguing and and the fact that he knows some of these people personally but at one point he mentions the lone holdout jurors name uh and say you know saying that he's got a criminal record and he's just going on and on and the judge says i'm going to stop you now because he got annoyed that he said his name and kevin redington no you're not i'm going to stop you no you're not and they got into uh an argument and ultimately he's like i'm the judge i decide is this getting away from judge sullivan right now uh joe if you can hear me joe's having a little technical issue as she uh finagles with that i will say uh i i personally don't remember i'm just going to bounce uh joe back into the back room while the coe tries to help her out uh things got heated here um listen we've seen it uh not quite to this degree uh beforehand with kevin redington uh look half of you love kevin redington half of you uh can't stand kevin redington half of you think lindsey clancy is criminally responsible half of you think uh she's not criminally responsible that is an impromptu uh poll here let me just see if joe's back it looks like joe unmute yourself and let's see if we can get you yeah she's not hearing me uh coe we're gonna have to have joe go out and come back because that that is uh the way to do it uh so um kevin redington uh fought back and said you're not gonna stop me judge and they battled it out and um to the prosecutor's credit she kind of rolls with the punches and what she said just now is look i need a sidebar because i don't want to break the law implying that maybe kevin redington is by releasing confidential information now when this all happened uh back in real time people were furious with kevin redington that he compromised uh the loan holdout juror that he referred to him as a male uh there are other people that dox this loan holdout juror but it caused quite a fury and uh when kevin redington first went up uh to the uh dais this morning to uh to argue his points he said here we go round two of this and he just opened up uh a can of uh agitation um and it was pointed directly at this judge so um has it been entertaining yeah has it crossed the lines of uh impropriety um probably i wish we had joe joe if you can hear me you're gonna need to go and she can't because i can tell she can't but uh coe or or uh steve you're gonna have to tell joe to go out and come all the way back in um thank you coe i appreciate that so very uh very fascinating now he also refers to a podcast um this might have been the fox news thing um i'm not sure where the loan holdout and i gotta be honest i didn't see this uh in real time i read about some of this but kevin redington talks about the loan holdout juror again saying that on this show that he was on he himself admitted to the fact that he was using a cell phone inside that deliberations room and he was using it to look up certain terms presumably doubt and reasonable doubt and uh to that kevin redington said doesn't that give you pause doesn't that raise the bar uh and he said the individual is not complying with orders of the court the prosecution kept jumping in and saying look you are compromising this person's um confidentiality this needs to be done uh in a sidebar and kevin redington kept saying no now they're finally in a sidebar i mean man would i like to be a fly on the wall there but i don't think there's another attorney except for maybe uh marty weinberg who argued uh the first motion uh and might have a few more years experience in kevin redington who might be able to get away with this i think kevin redington can get away with this because of his age uh and march i'll use martina's phrase right here he's a cranky old man um and some think it's disgraceful and uh others say it is not disgraceful now there's also reports that it wasn't just a lone holdout juror um yeah that would not go over well with the judge from caleb flynn's case or the judge in uh the adelson cases um redington would last five seconds with the judge from the caleb flynn case but uh there are arguments arguments to be made that all the jurors were using their cell phones so then how do you decide that um so much happening in this short amount of time uh where kevin redington uh to use a phrase the kids use seems to give zero and it rhymes with lux he really does at this point in his career seems to give zero lux but you know uh it's not that it rhymes with that word um but should he is he putting his client into some sort of compromised position right now i don't know is he advocating so zealously that it's going to pay off for him i don't know uh one thing that does feel sort of certain here and correct me if you think i'm wrong as i feel like judge sullivan is losing a little bit of control here uh he needs to uh as they say in baseball you know when a batter hits a home run and then you want to brush the next batter off the plate uh you brush him off of the fastball does judge william sullivan here need to brush kevin redington out of the batter's box a little bit as you're getting too close to the plate does he need to be brushed back i would argue yes um let me know what you guys are thinking we're on a uh tell you what jolted me on a monday which usually takes me all day to uh wake up so uh and tonight well we're going to give you a full the coes cutting clips of this um but we're going to bring you a uh a recap show tonight i believe at 7 p.m eastern time um so there you go did i say something wrong because someone's saying we know what you mean joel uh sometimes i'll say things that are incorrect because i'm in the heat of the moment but you get what i'm saying um karen totally agrees with me so she is not being a karen karen thank you appreciate that um and is he you know look here's a comment his choice is picking this juror based on juror lies i mean one of the other questions is he cherry picking arguments surrounding this juror but not necessarily making it broad enough in other words are are the other jurors were the other jurors using cell phones but he is implying that it was only the loan holdout juror now it is true that this juror's name is all over the place all you have to do is google loan holdout you're all well aware of um [01:36:45] Speaker 6: first i would like to introduce and i and i could certainly submit i know that we're already got clips that i could play now but i'm sure the d.a would object and you'd probably sustain it so i won't play the clips in the courtroom i have the request for the abc news interview of the individual that was broadcast on september 10th of 26th i have the video and the transcript that i would offer i have is the next exhibit that i would offer would be the impanelment expert excerpt of july 22nd 2026 which was the voir dire that i referenced in the course of the argument your honor i have request for nbc 10 interview which was reporting on their investigation into this individual that bald guy attorney for the law exhibit d brockton district court records which i believe you already have that you've indicated you will accept what you're placing under seal the police narrative in the docket i believe that you already have that you've placed under seal i have the request and would submit the juror notes which i know the government has already referenced and has submitted wherein the juror tellingly the foreperson of the jury indicated that they basically were unable to come to an agreement because an individual was unable and the word keyword is unable to apply the law of reasonable doubt as you instructed it to the facts of the case and then you sent them back after additional instruction and very tellingly the foreperson of the jury came back and indicated the juror number indicated that he and the word is refused to accept and apply the law as your honor gave it on reasonable doubt i have that as an exhibit i have a request that the court take as an exhibit the the youtube statement video and transcript where the juror breaks his silence end quote i have the request for trial expert of september 3rd and trial excerpt of september 4th so we will submit those as exhibits to this oral argument your honor in support of the motion i know that the court has i believe the transcripts and we can submit those to make sure that you that you have access to them what is of significant import in addition is you may recall our banding back and forth wherein i said that you were kind of soft on the instruction and you said that you were kind of hard on the instruction then we all laughed and indicated about a brass band basically recalling that the concern that i had and again i would hearken to that is the forelady was very very active and these jurors as your honor knows 11 of them along with the alternates spent significant amount of their time in this case the forelady was very expressive if you will in her notes that she submitted to the court and then your honor responded and i objected and noted that it struck me that the court was almost chilling the forelady's ability to communicate with the court which is interesting because the government is arguing to you that you did everything right and that all of the instructions were right and that your rulings were right and that you were right that you were right that you were right but the problem is that the forelady i suggested to the court was being possibly chilled in her inquiries of the court because you were pretty forceful about don't tell me anything of what's going on i just want to know basically if there's a verdict or no verdict and i requested that not be the case and and what's important there is that you would recall that at this point and counsel again argued that you had the right or they had the right to go back again if they so wished and i asked on the record that you inquire of them if they wish to go back again she objected upon me attorney sprague objected again and i said to you look how can this jury know that they have the right to go back and i think i use the expression i think that most of them would go back for another eight to ten days to deliberate this case if they had to and then you ruled that you were not going to make that inquiry so with all of those factors your honor including the initial disclosure the jury form what we represented at the sidebar the exhibits that you have regarding this individual um the concepts of of that has overtaken the meritorious and good aspects of this case mental health uh what is wrong with the mental health system in our country has been overshadowed by this individual's uh deity and it's not right so i'm asking that you allow the motion to allow me to inquire of these individuals including the guy in the back [01:42:04] Speaker 4: of the courtroom all right so just so we have the the records uh that will be offered those will be admitted the ones that we spoke about over here uh at sidebar will be sealed but also be admitted thank you okay [01:42:20] Speaker 8: if the commonwealth could get copies of exhibit a c and h at some point we never received them okay sure [01:42:26] Speaker 4: all right um sure yeah we'll get those commonwealth you wish to be heard then i'll hear from uh [01:42:33] Speaker 8: attorney o'connor commonwealth your honor um the commonwealth um as i stated at the beginning thinks that this motion should be denied on its face um there's no legal purpose for what's requested here all of this information even if it is accurate was discovered um or spoken about after the mistrial was declared so it's not relevant to the motion to dismiss on double jeopardy grounds so there's really other no motion or hearing that it would be relevant to also it would be potentially opening the door into examining um the statements and actions of the other 11 jurors um as there have been multiple statements after the declaration of the mistrial by many of the jurors um detailing some questionable activity um use of phones um considering whether treatment's an option um at a prison when determining their verdict um talking about joint press conferences before evidence closed um so if the door was open to examining this specific door then all of the jurors um would be included in that if we're basing it on extra dish extrajudicial statements made after the declaration of the mistrial [01:43:49] Speaker 6: uh i don't think that we ever found out if the government actually received information on their motion to get access to criminal records of jurors that's that's one of the things that's asked right so i'm gonna have [01:44:07] Speaker 4: to if i if i allow that then they turn it over if i have if i don't then they won't turn it over so [01:44:14] Speaker 6: that's i think though again i i think they don't know what i'm just saying but isn't that one of the things that's asked well yeah because i haven't got it so i'm inquiring as to whether it exists but i think that i i'm entitled to i don't think respectfully i don't think i need you to order them to turn it over they have to turn it over if they haven't if they don't do why'd you ask if you didn't have [01:44:33] Speaker 4: to ask because it's in the motion and the reason i'm saying this listen it's in the motion right we're having an argument on the motion i have to rule on the motion and if it's a situation where you're asking for a piece of information if i rule they have to turn over they have to turn over if there's another avenue for you to get it i'm not foreclosing that i already have a bass line [01:44:56] Speaker 6: all right well that's all it's a simple answer yes we do and no we don't all right but they'd [01:45:00] Speaker 4: rather have it me forcing it so so i'll make that decision all right could i inquire further your [01:45:06] Speaker 6: honor i know that mr cruz is sitting here and i know your concern your main concern is picking a trial date could we find out today what mr cruz's intention is why don't we hold on why don't we get [01:45:18] Speaker 4: through this motion okay because then we get another motion all right then we get through that motion then we can talk about where we go in regards to this case okay so we'll just try and go we'll just go step by step all right and i as i said i know that attorney o'connor had uh i don't know if she wishes to be heard uh she had uh entered an appearance last time counsel [01:45:43] Speaker 9: thank you your honor your honor jared doe did not ask to serve on this jury jared doe was summonsed and came to court because that is what citizens do when called to complete their civic duty this is the whole the defense read jared doe's questionnaire they heard the commonwealth ask about what jared doe had disclosed on it they could have followed up on that they could have asked any questions they wanted about what was in that questionnaire but they didn't the defense asked only two questions did jared doe have any reservations about the insanity defense and could jared doe accept that the commonwealth carried the burden on criminal responsibility jared doe's answer was yes i would listen to all the facts and yes jared doe accepted the commonwealth's burden there was no challenge for cause no corromptory the defense just declared itself content and jared doe sat from that day to the mistrial only one thing changed in what the defense knew about jared doe and that was the vote the jury's notes told everyone what the vote was one juror jared doe was not voting with the other 11. but let's look at what those notes did not say they did not include any complaint of outside information no allegation of inappropriate phone use no refusal to delivery what the second note did say is that jared doe made statements acknowledging doubt not reasonable doubt just doubt take that note as true and it describes a juror who was talking explaining a view and engaging with others this court did what the law requires it questioned every deliberating deliberating juror one at a time under oath every one of them juror don't included swore that they could follow the court's instructions the court accepted each response the court then re-instructed the jury on reasonable doubt and made clear that reasonable doubt does not mean proof beyond all possible doubt so if the jurors didn't who accused juror doe of actual misconduct before the mistrial well that was the defense the jury notes voiced an opinion about how reasonable doubt applied to the evidence the defense took that an opinion and made it an accusation every juror had just agreed that they could follow the law but the defense seemed to take the position that the majority must be right and told this court that it was juror doe who refuses to listen to the law the next morning they went further defense counsel told this court that juror doe looked you in the eye and lied a disagreement in the jury room had become in the defense's telling a juror who lied to this court under oath the court didn't accept that it read the note in the court's words carefully and strictly and found that the note did not indicate that this was a person who had refused to follow the law the commonwealth agreed there was no indication that juror doe was intentionally trying to mislead the court later that morning as the mistrial was declared defense counsel went further still he told the court that juror doe was a clear and present danger taking a position that was intractable regardless of proof beyond a reasonable doubt and the reason in the defense's own words what is it we don't know the defense was then granted a temporary stay to file an emergency petition with the supreme judicial court seeking an order for this court to inquire into the ability of juror doe to apply the law claiming that the floor person had identified juror doe as biased that petition was denied the stay was lifted and the mistrial was declared all that was known when the court declared that mistrial was that the jury disagreed about reasonable doubt and the defense believed it must be because juror doe was lying the law requires more commonwealth viaranchi requires reliable information that suggests a lack of impartiality bias extraneous influence or the inability to deliberate before questioning a sitting juror but all that was present on september 4th was a note that indicated a disagreement on how to weigh the evidence but that is the deliberation process so why are we here not because of the questionnaire the defense read it had the ability to question it and chose not to and accepted it not because of a phone every juror was allowed to keep one not because of anything any juror reported before the mistrial no we are here because juror doe did not vote the way that the defense needed so after the mistrial the defense went looking into the one juror who stood between them and the outcome that they wanted the defense relies on television in podcast interviews after jurors saw what the public and the defense had to say about this case and the defense wants to put only one juror under investigation search only one phone pull only one criminal history the juror who disagreed but the law on this is settled whether a mistrial was necessary is judged based on what was known at the time of the judge's decision in their memo the defense admits that everything it now offers came later they stated three things have come to light since the mistrial none was before the court on september 4th in reed v commonwealth jurors came forward after a deadlock mistrial with a different story about what happened in the jury room that was not raised in any of the juror notes the supreme judicial court said that such post-trial disclosures cannot retroactively alter a trial's outcome this court applied that same rule in its october 21st quarter and the defense's own motion to dismiss says that what an inquiry would have shown is not dispositive of that motion so the court needs nothing from juror doe to decide the motion to dismiss it has the september record that's all it needs however the defense opened its memorandum in support of motion 212 with serious allegations about juror doe and to be clear juror doe does not concede any of those allegations but serious allegations when made still have to come through a waffle door so let's look at the door that the defense is trying to walk through the defense cites united states v french commonwealth v r r r and sampson v united states every one of those cases involved a verdict a conviction that the defense then sought to overturn here there is no conviction the jury couldn't agree the remedy in those cases was a new trial miss clancy doesn't have to prove juror do did anything about juror doe to get that because she's already potentially getting that the defense also relies on commonwealth v kincaid and its statement that information learned by a judge cannot be ignored now we agree that a judge should not ignore competent evidence but that's not the same as saying that every allegation requires further investigation kincaid involved a conviction and a specific after trial report that the jury had learned about information that the court had deliberately kept out of the trial on that report the judge questioned the jurors found the jury had been exposed to outside information found that that information created a high probability of prejudice against the defendant and ordered a new trial kincaid also limited the questioning the judge could ask what outside information was mentioned and by whom but not what jurors thought about it here the defense attempts to combine several different allegations to reach that threshold but none of them identify any outside information that reached this jury that tainted this jury that is what fiddler and kincaid require before post-trial questioning begins and let's not forget that kincaid affirmed the grant of a new trial it didn't dismiss the charges it didn't treat the other jurors votes as a verdict it didn't prevent another trial the defense here is asking to stop a retrial to apply the law of double jeopardy claiming that a mistrial never should have been declared Kincaid's words of cannot be ignored do not come close to reaching that far the defense wants this to be about jared dole but it's not the defense knows this court cannot choose between one juror's view of the evidence and the 11 others its own memorandum concedes that so it now offers three other theories candor on the questionnaire candor under oath and phone use because in the defense's own word none of that concerns how juror go voted so let's break those down starting with the oath on september 3rd based on the note received the court told counsel it would ask each juror whether they could follow its instructions defense counsel said that question would be useless and i quote so you really think someone's going to come in here and say yeah i'm not able to follow your instructions seriously but jurors have said exactly that when it was true in commonwealth versus olivaria the jury's note said a holdout juror had looked up reasonable doubt in three different law dictionaries and brought those definitions into deliberation the judge questioned her about that and was only when she said that she could not promise to follow the law as the judge gave it that she was removed that is not this case in olivaria the note told the judge about something a juror did with extraneous information that is what opened the door to allow an inquiry about that without asking how the juror weighed the evidence the juror notes in this case told the court something different not what juror did but what juror thought they said juror saw a reasonable doubt differently from the others so this court asked the one question it properly could based on the information before it can you follow my instructions every juror including juror go swore that they could the defense says juror lied when swearing to follow this court's instruction on reasonable doubt but how how would you know if juror do lied to prove that you would specifically have to ask juror do what evidence did you believe what did you doubt what did you see differently from the others council this is kind of we kind of argued [01:58:00] Speaker 4: this i know you didn't get a chance to argue but we've kind of argued the the double jeopardy issue so um so if you could maybe move on and just give me a chance that if there's anything else you want to add in regards to the specific requests that um were made relating to uh your client but i think this [01:58:21] Speaker 9: pleads into those specific requests because the yeah i know they do i've read it okay i read the i read [01:58:28] Speaker 4: the motion i've just uh i've read your opposition um so that's so i just kind of wanted to um just kind of let you know that i had reviewed those those positions sure so the other two theories that they [01:58:43] Speaker 9: raised the questionnaire and the phone they are different because they don't ask how juror do weighed the evidence but those requests fail for their own reasons on the questionnaire the defense relies on clark v united states but clark was a criminal contempt case brought by the government against a juror who schemed her way onto a jury brought outside information into the juror room and actually physically covered her her ears with her hands when other jurors were trying to reason with her here as a defendant's lawyer admits juror don't check the box disclosing a prior arrest [01:59:20] Speaker 4: i'm going to kind of stop kind of see why i stopped everybody in regards to going to the specifics about the questionnaire um i i don't want to open the door i don't want to kind of revisit this issue but statutorily uh that is um i'm going to have that i have that in front of me so i don't really need the argument in regards to what was contained on the actual questionnaire okay okay so there's nothing [01:59:50] Speaker 9: here like in clark and clark itself shows who brings that kind of case against a juror when there's a belief that there is a lie and that's the government not a defendant trying to seek not to have another trial on the phone allegation the defense relies on television interviews another juror gave six days after the mistrial the claim is that juror doe scrolled on a phone at times while talking to others not that juror doe looked anything up not that juror doe contacted anyone about the trial just that a phone in hand at times and we also need to consider the sources here in that interview this juror revealed their own vote which experts they believed and predicted how a new jury would vote that's not a neutral witness to the disagreement between the 11 and one that's someone with a story to protect and that is exactly why reed v commonwealth said courts do not decide these questions on post-trial accounts once jurors leave the court's control they hear the coverage they defend their own positions and their accounts can change none of those theories surfaced both of those theories surfaced only after the mistrial and neither one can change what this court knew on september 4th so that brings me to the records massachusetts rule of criminal procedure 1782 is not a way to find out whether something exists under that rule commonwealth violent prone requires a specific factual showing first including that the records are relevant have evidentiary value and that the request is made in good faith not as a fishing expedition the defendant's own words were we don't know and a guess was not a proper basis for inquiry on september 4th and it's not one now that is not a factual showing it's just casting a line to see what bites never mind the fact that all of that is hearsay he's not hearing directly from the juror my understanding and i haven't seen the the information he's relying on because he didn't actually submit it to the court was that he's relying on even third parties statements to try to reach a burden here starting with the starting with the question here section 23 states that it should be held in confidence and jurors answer that honestly because they're promised that privacy handed to the fence because a jury couldn't agree and that promise is broken for every juror who comes after the defense had juror does questionnaire in july and as the eighth circuit put it in united states v humphreys it is the defendant's duty to investigate to question and to assert a challenge prior to the return of the verdict the defense did not do that it's not he's not to do that after the probation record is confidential under section 3 section 33 it exists to qualify jurors and for nothing else and the phone a personal phone holds the most private information a person has and looking at one phones where every juror was allowed to keep their phone is not the same allegation as a juror receiving outside information about a case if the allegation of just looking at a phone was enough every juror's phone in almost every case would be open to search so your honor the only thing that changed what anyone knew about juror doe at the time the mistrial was declared was the vote if that's enough to put a juror under oath to search their phone to pull their history then the lesson to every future juror in this commonwealth is simple agree with the majority or potentially be investigated in july juror doe told this court i would listen to all the facts in september juror does swore that they that they would follow this court's instruction the court accepted both that is a juror who did exactly what every juror in this commonwealth is asked to do and the law protects that juror it does not investigate that juror for those reasons and those within my opposition which is incorporated by reference juror doe asks that this court to deny the defendant's motion as it relates to juror bow all right thank you may i just have one sentence response [02:04:07] Speaker 4: yes because at this point right after that we're going to take a short break [02:04:11] Speaker 6: juror doe also interestingly enough established the fact that if you are a quote holdout juror you possibly can make up to half a million dollars oh for heaven's sakes my point all right so i'm going to [02:04:25] Speaker 4: take that uh pleading which is pleading uh 212 under advisement as well uh of course can take a very short break at this point uh then we'll come back out and we'll argue the remaining motion to preclude prejudicial statements uh pleading number two two two two all right so it'll be the short recess all right all right two out of three uh motions [02:04:53] Speaker 1: have just been argued the first uh will be taken under advisement that's the so-called double jeopardy uh uh motion uh joe petuto um i know you're having some technical yeah but i listened on my phone yeah i mean this was pretty heated uh this was uh kevin reddington said you know i'm not going to stop and the judge says you are going to stop and uh on and on it went what's your uh what's your biggest [02:05:23] Professor Joe Patuto: takeaway from what we just witnessed well i said i'm not a fan of kevin reddington and i'm going to i'm going to emphasize that i'm not a fan the his behavior is unacceptable from a lawyer in a courtroom to a judge and the judge lets him get away with more than the judge should uh so i'll start there um to tell a judge no you're not no you're not is incredible behavior on a lawyer from a lawyer it's not zealous advocacy the first lawyer who spoke um and made the made that argument uh what was his name maury maury weinberg marty marty marty marty sorry his argument was a bell ringer it was cogent it was articulate it was organized it was forceful he argued zealously but he argued professionally and i thought his argument was just great i didn't agree with with some of the points he made uh and i will say overall when you hear these arguments when they cite cases or holdings from cases that are independent of the facts you can get a very different picture of what the law is and i thought this last lawyer the holdout jurors lawyer was very good at bringing in some of the facts that the defense used to say well here's what the law says and then she came in and clarified what the facts were i thought her argument was very good i think the state made a mistake and not having an experienced appellate argument art lawyer argue their position i thought the state's lawyer made the points needed to be made but she could have made them better the the one the one uh one uh argument that she did make that i thought was really very very good was the disagreement was not on the what happened to deliberations but on the verdict and that's really where i think this argument is uh with regard to what occurred uh kevin reddington and maybe somebody in the chat will be more uh imaginative than i the big argument the big fight was he wanted to name the holdout juror in open court he wanted to refer to the holdout jurors criminal record at least to the extent he thought he had it in open court he wanted to list what was in the questionnaire in open court not that he couldn't make those arguments the prosecutor was clear they could have done it sidebar but he wanted to do it with with the gallery watching and i cannot think of a reason in law why he needed to do it in open court except that he was trying to generate more publicity for for the defendant [02:08:17] Speaker 1: and it works we're sitting here talking about it i mean that exchange came uh a little bit after kevin reddington gets up so again marty weinberg argued uh first and then kevin reddington got up and i can see uh space coast has a shot of uh outside the courthouse and there are many many many reporters and microphones uh for what will likely be some post um post hearing uh comments that we'll bring to you but there's still going to be one more motion argued inside the courtroom uh but kevin reddington got up and he's like here we are round two of all this um and started off by saying look we'd like to think everyone gets a fair trial this jury sat for seven weeks uh and he says when you have jurors you expect the jurors will be honest about their background and also disclose issues that prevent them from being fair and partial uh and and goes on to make his argument again that she was seeing suffering uh she was suffering from significant mental defect my question joe is i feel like some of the onus um it's easy to yell at kevin reddington and does he deserve it i think probably but i feel like the judge is letting this get away from uh him as well letting this all get away uh he has a past relationship obviously with kevin reddington it's a small community we have judges on from the commonwealth everyone knows everybody maybe he doesn't want to like come down too hard but i think the judge needs to really step in here and show that he's got um what it takes to control the courtrooms that too harsh [02:09:57] Professor Joe Patuto: no it's not too harsh i agree with you completely and the fact that all the lawyers know each other and the fact that uh judge sullivan and kevin reddington may be friends or at least know each other well outside of court is more reason for him to be in control of that courtroom to avoid the perception of favorable favoritism here so yeah i think he should be i think he should take control and not let what occurred occurred i mean at one point um the judge said you cannot name the juror's name and of course reddington said but it's all over everywhere and the judge said i don't care where it is you can't do it in the courtroom and you cannot refer to the questionnaire that is a confidential document and reddington said i should be able to talk about what happened in open court and what he was talking about was the voir dire which was an open court where the lawyers were able to ask the the the potential jurors questions before they were seated but he then segued into providing information i think providing information again from the questionnaire that he was told he could not use now the bigger issue here is jury duty is not something that people run around to want to do it's an intrusion on their lives it takes up time that they could be using using for other things they do it it's a civic duty and to have this sort of you know consequence when you exercise your civil duty has the real potential of discouraging people from serving and it's that greater question that has to be part of the balance when one discusses what's appropriate for a lawyer to say what's appropriate to be said in open court [02:11:46] Speaker 1: and how he should comport himself yeah uh miss randy 82 here uh reddington is poisoning a future juror panel uh if this gets retried he's voraciously uh defending his client but completely unprofessional and disrespectful i mean joe petuto what about um you know possibly impinging on a future jury and the way they look at this and see how we make sure we're keeping an eye in that courtroom you know it always [02:12:15] Professor Joe Patuto: has the potential of doing that but what i have been what i have found sometimes to my great surprise is there are people in a community that will not know about this case without with all the publicity that's gotten with all the you know media people today and the stories today there will still be people in that community who could be jurors and will not know anything at all about it or will not know much so that's been the case you know with other trials with other jurors with other juries and i think that will turn out to be the be the case here uh lisa louise i'm a massachusetts resident and [02:12:55] Speaker 1: you can bet i'll never serve on a jury and i'll cite this case conundrum as why she'll get up there and say look i watched the lindsey clancy trial and i don't want to sit on on this jury because maybe i'll get investigated is what she's saying which is uh interesting now professor pertuto one of the things i don't fully get is i thought we already this is like deja vu all over again i thought we already argued this and the judge already uh issued his ruling which was you know an investigation of the cell phone invest it's not happening so how are we getting into arguments about all this all over again and again why isn't the judge saying look i've ruled on this stop move on yeah he did do more [02:13:38] Professor Joe Patuto: of that with with the with the juror doe i guess they're calling him juror doe's lawyer he said you know it's in the briefs i've read the briefs we've you know we've heard this already he did more of that with her than he did at least to my ears than he did with kevin reddington that's exactly what he should be saying you cannot keep re-arguing and re-arguing and re-arguing and the fact that a lawyer has passion the fact that a lawyer has a terrific reputation the fact that the lawyer is zealously zealously rep representing his client does not permit him to keep re-arguing something that's been decided it's over it's done with um and you know when you compare him to uh you told me his name was marty one marty yeah he also made a vigorous impassioned uh uh argument zealous in in defense of lindsey clancy but the difference in how he did it and how he presented himself and how he make [02:14:42] Speaker 1: made the argument was night and day yeah i mean one is much more professorial if you will uh and that is marty weinberg whereas kevin reddington to me is like uh kind of a street lawyer you know just up there he's brash and he's just uh going off the cuff but the thing that uh everyone is talking about now uh the moment is when kevin reddington while arguing this motion says you don't bring your background into a jury room like and he names he names the holdout he says mr and his last name right the judge hops right in goes i'm gonna stop you and kevin reddington no you're not he's like yes i am no you're not and i think they went back and forth even one more time uh and then the judge sort of backs kevin up and tells him to stop and then he goes on kevin reddington um and there's no admonition or anything but then kevin says this individual was scrolling on his cell phone on a podcast he uh the holdout said that he had to look up terms and he's implying that it was doubt and reasonable doubt doesn't that give you pause doesn't that raise the bar um you know this is to use a legal term hearsay because it's what he's hearing but apparently it's coming from the you know the the horse's mouth i guess the proverbial horse's mouth um but then all the arguments that the attorney for uh juror doe made where look if you're gonna look at my client you have to look at the other 11 jurors who also had questionable issues going on but again i feel like this was all argued so what's happening it's like [02:16:21] Professor Joe Patuto: we're going around in a circle he he keeps making the argument in the hope that the judge will let some something in that the judge will change his mind i don't think it's going to happen i think the law is for me clear that this is not territory that should be intruded on the information he's talking about happened after the decision as to a mistrial you cannot take the future to criticize what you did in the past i mean yes i guess if you lived in the third dimension you could say gee i knew it at the time even though i didn't find out about it later you have you you argue the motion on what you know at the time not what you're going to find out tomorrow what doesn't happen until tomorrow uh and he keeps trying and trying and trying uh and as i said i started out this morning joel saying i'm not a fan of his yeah i'm sure but i'm not a fan he's definitely not everyone's cup of tea [02:17:23] Speaker 1: but it goes on here um kevin reddington says you know he's not complying with the this individual did not comply with order orders of the court was he arrested or not he says and the commonwealth's like objection kevin reddington says no you're not object like he he knows the prosecutors too so he keeps calling her uh by her first name uh and that judge keeps saying please call refer to her as ada sprig or attorney sprig and then when when they get into this argument over being arrested or not again judge williams sullivan jumps in he says i make that decision not you to which kevin reddington responds we've been hogtied uh this is the first time that i can argue all this to you so he's basically saying look before you were stifling my arguments now i'm in this open court and i'm just [02:18:14] Professor Joe Patuto: going to go wild that's not the way well but nobody's and this is what the prosecutor said nobody's stifling his opportunity to make the argument but he should be doing it sidebar because the information is confidential and some of what he's talking about is not um it comes from reports it doesn't uh you know i mean media reports or podcasts it's not coming from the documents themselves and i think what the judge should have done was when they started saying we are going sidebar get over here and not let him talk anymore and threaten to hold him in contempt if he didn't didn't follow what the judge said to do because he allowed him to talk in open court in ways that he shouldn't have been able to talk in open court and that would be true even if everything that he learned from me reading reports or hearing reports turns out to be accurate but we don't know that that's true and you heard the prosecutor say i've got responses to some of this but i don't want to break the law i want to provide it to you know to [02:19:19] Speaker 1: the defense but i want to do it at sidebar um i'll be honest first of all uh by the way the holdout juror has another attorney i think handling civil matters uh who was in there the bald guy but this is a lawyer brought in i'm sure from the commonwealth just to argue uh for him because he is you know his name is being invoked um in this hearing uh ceo you just get a little nervous i'm seeing a shot outside but um i assume we all are on the same page that you know uh but you know we're going back inside before we go outside correct uh court isn't a short recess this is law and crime yeah go ahead sorry no [02:20:03] Professor Joe Patuto: i was just gonna say i just recall something that kevin reddington sort of squeezed in after the judge told him nothing except what's on the record you're going to be able to talk about and then he talked about the juror making what did he say a million dollars i don't remember the number half a million bucks half a million you know that's nowhere in any record he gets that from it has to be from some report somewhere uh and he wants to bring it in after the judge told him you know all of that if you want to talk about it we'll go sidebar i don't understand why the judge didn't say when this started we are going sidebar period right now not in another word sidebar you can hear how i would have done it [02:20:46] Speaker 1: yeah spacey giving us some uh much needed updates this is the uh pool feed here and uh we did see a live view it sounds like the uh interior camera the courtroom may have had a problem [02:20:59] Professor Joe Patuto: so they're trying to get that oh crashed in the i i'm thinking somebody threw it threw it against the [02:21:05] Speaker 1: wall or something it did it all on its own um so kevin reddington again uh not to harp on this but this was the most dramatic part of the morning um again he says i have evidence this man was not honest on his juror questionnaire for him how am i supposed to argue this and then the judge said it was mentioned in the impounded memo and he goes don't forget i was there exclamation mark um and then kevin reddington now requests uh to put into evidence all these news clips what i mean what's going to happen i mean he talks about a clip for abc news i think the fox news interview that the lone holdout did this podcast that he does so what's going to happen it's going to go into evidence and then what it's [02:21:52] Professor Joe Patuto: irrelevant so go in but the judge should not be considering it uh on the question as to whether the motion for the uh the decision to grant the mystery or uh yeah order the mistrial was appropriate what he's doing you don't get here i'm just interested in how some of the podcasts and others report this because they may well just say he was not allowed to make the argument for lindsay clancy which is not true but that's what he said and if you're not careful about how you report this he's going to look like some poor malign lawyer trying to represent this poor malign client who's not able to make the arguments that are relevant and need to be heard yeah um this is part of the argument you [02:22:42] Speaker 1: you haven't seen his questionnaire you don't know uh if he lied uh that's part of what uh the attorney for uh juror doe was arguing this was um relatively minor and if i said this i would be skewer but kevin reddington because of his slightly advanced age he referred to the jury for person as the for lady for lady imagine if i said that can't you can't use the word lady in 2026 you get screamed at but he refers to her as the four lady and said she was being chilled by the court and says what is wrong with the mental health system is being overshadowed by the lone holdout juror so i mean well but let me say [02:23:26] Professor Joe Patuto: what is wrong with the mental health system is irrelevant to the criminal trial yeah so it could be overshadowed it could be buried it doesn't matter that what those weren't that was not the issue with [02:23:38] Speaker 1: the criminal trial i think he's doing it on purpose so to sort of litigate the court of public opinion right he wants people to know okay the lone holdout juror may have done this and this but the real issue is mental illness in this country and he's obviously doing that to set himself up um if and when there's another trial um now one of the other interesting things is you know he pointed out um and again i think it's when he were he angrily referred to the lone holdout jurors being in the courtroom and he referred to him with a male pronoun so i am assuming it's the guy who's handling some civil lawyer yeah not this woman who argued but he also said tim cruz is in the courtroom today he is the district attorney and unless you think we are not a global phenomenon spain is in the house welcome to spain um but he said look tim cruz is in the courtroom today he kind of just brings things up and he goes are we going to find out what what his intentions are and the judge is like don't worry we we have to file i mean we have to argue some other motions and we're going to get there but it's he has kind of an interesting he sort of just throws out whatever's on his mind but he was essentially not taunting tim cruz but literally just saying look you're going to let us know today are you just going [02:25:00] Professor Joe Patuto: to like string us along here you know i think he's more calculated than that i don't think it's gee something occurs to him and out it comes i think he's got a pretty good idea of what he's going to say and makes it sound as though he just you know spoke before he thought but i'm you know i'm getting to be biased against him as i sit here because i don't like i don't like his behavior i don't like it that's not how lawyers should be presenting themselves in court passion yes zealousness yes pushing your arguments when the arguments need to be made yes not being cowed by the judge and the judge's rulings yes but you also need to be professional yeah by the [02:25:45] Speaker 1: way someone did remind me that judge sullivan's short breaks this is a short break i mean takes like much longer you know another judge uh aka the caleb flynn judge judge pratt she would have been back in exactly five minutes but each judge is different each jurisdiction is different um he did refer kevin because i'm looking at my notes uh when speaking about the loan holdouts uh attorney he said including the guy in the back of the courtroom um he's referred to him twice now uh and he's obviously got a a bone to pick with him but uh the government gets up after all of this sort of insanity and again says what it said earlier it said look this should all be denied on its face it's all already been argued and discussed i mean they kind of make a good point joe yeah they do they did but i still think they would have been [02:26:36] Professor Joe Patuto: better having a strong appellate lawyer make the points because i think they could have they could have made them more persuasively i mean she did not once talk about one of the massachusetts supreme court opinions that says you know when when the majority on the jury says gee we've got someone who won't cooperate and won't deliberate that might just be code for we don't like him and we're fighting and so you've got to be really really careful uh when you when you hear what jurors say because they're obviously not getting along they haven't probably haven't been getting along for a while they're angry at each other they're tired you know and so what they're attributing to his you know refusal to cooperate the supreme court of massachusetts said may simply every reflection of they're deliberating and they don't like the way it's going and they're not happy with each other uh if you have questions for [02:27:35] Speaker 1: the prof uh now's the time while we are awaiting the third and final argument and maybe more uh to come but uh the budgie father looks like he has two birds on his face interesting um hey can jur doe sue kevin reddington and the court for violation of his rights defamation and harassment the judge not reigning red in makes him culpable there's quite a bit of immunity uh that is [02:28:06] Professor Joe Patuto: provided that's right the answer is no to the judge what about the defense attorney uh you know that's that's that's that's that's a little trickier what he says outside of court that might be defamatory i think is open season what he says in court it's a little it's a little it's a little more difficult because he's making the argument on behalf of his client his client has a sixth amendment right he's got the obligation to zealously uh represent her and so i'm not sure the extent to which you can go after a defense lawyer for something said in court uh but clearly the stuff he's been saying outside of [02:28:47] Speaker 1: court uh yeah yeah what's sort of wild about this joe is if you go back to the to the trial uh first day i've talked about this first three days there was a reporter or two following kevin rennington can you imagine a retrial here and it looks like we're headed that way is going to be um very divisive um and very polarized and it's going to be a bigger i think than trial one and a lot of uh heat uh directed at both [02:29:19] Professor Joe Patuto: sides but i agree i'm not sure isn't judge sullivan's i had heard that he's scheduled to retire next uh [02:29:27] Speaker 1: spring he has a mandatory retirement at 70 which is coming up now i've heard that they'll make exceptions you know allow him to maybe uh try one more case if this is his case but i don't know maybe they're better off with a new uh judge i don't know but yeah he's a part he's apparently got a mandatory retirement at age 70 that's a law in the commonwealth and he turned 70 i think in the spring i think his [02:29:53] Professor Joe Patuto: rulings have been certainly reasonable uh and i think he's been spot on a lot of times and he hasn't been pushed around when he's making a ruling so on that front i think he's done a very good job he's uh he's personable and i think that works well with the jury i think his command of the law is very good really my criticism with him is that he's not controlling the courtroom and particularly kevin [02:30:21] Speaker 1: reddington yeah um they usually retry within 90 days i mentioned this at the top originally kevin reddington said look i want to go again next week after the mistrial was declared but now uh he said um look i've got i can't go till june you think he's gonna um allow that you think he's gonna wait [02:30:43] Professor Joe Patuto: you know another or whatever five i don't know when lisa louise said 90 days i don't know if she's talking about massachusetts in particular because lots of free trials take longer than 90 days to go look at uh for one example donald donna idelson you know once that uh that trial didn't go because of the conflict of interest history was 11 months when katie meg banawa the hung jury there i think it was a couple of years before that retrial i hope nobody holds me to it but i think it was quite a quite a long time so 90 days i i i know i've never done any research on this but i think 90 days as a general [02:31:24] Speaker 1: proposition is a little unusual yeah uh court dog daniel in the court house today he might be in his rv in the parking lot he's best buds uh with your nemesis joe with uh kevin reddington but uh joe in your opinion did judge william sullivan declare a mistrial prematurely and do you believe the defense has a legitimate argument that lindsey clancy's constitutional protection was violated i guess [02:31:53] Professor Joe Patuto: i'd answer that quickly no and no uh remember that jury was out what eight days they had come back twice or three i'm trying to remember how many times they actually came in to indicate or say that they weren't making any progress uh and i think the judge gave them quite a bit of time to deliberate uh i do not believe that on the basis of what the judge knew that there should have been a deeper inquiry i i think what the what what uh what juror doe's lawyer said was really correct and that or maybe it may have been the prosecutor how are you able to get into did you really know what reasonable doubt meant uh in the kind of inquiry that the defense was talking about without inevitably starting to pick apart what evidence how did you decide this and then end up making a judgment that one side on on the facts was more reasonable than the other which is exactly what [02:32:54] Speaker 1: the judge is not supposed to be doing we're getting a camera quake here all right here we are we're back [02:33:02] Professor Joe Patuto: i'm going to miss that courtroom officer i like her voice yeah final motion we have is [02:33:11] Speaker 4: motion number 222 commos motion to preclude prejudicial statements um and so what i'm going to do is i'll hear first from the commo and then i'll hear from attorney mcconnell okay come on thank you honor [02:33:27] Speaker 8: counsel for the defendant has engaged in substantial publicity pre-trial during the prep during the trial and post-trial that has inevitably tainted potential future jurors with inflammatory statements about the prosecution of the case the facts of the case the evidence presented evidence not presented at trial and jury deliberations restraints on further extrajudicial statements are necessary in this case to protect the integrity and fairness of the judicial system in genteel versus state bar of nevada the limitations granted in that case were aimed at comments likely to influence the actual outcome of the trial and comments likely to prejudice the jury venaire and that's what we're asking for here because both sides have a right to a fair and impartial trial what we saw at times during the course of this trial and after were statements calculated to affect the public perception of this case statements targeted at the juror where defense counsel said that the other jurors were robbed by that holdout juror that he hopes that person could sleep well at night statements personalizing the relationship he has with the defendant saying that she's like a daughter to him statements asking for a presidential pardon even though that's not possible statements asking for the president to call the district attorney to pressure him to not retry this case and when asked if those that request was inappropriate his response was i don't care and then also statements about your honor when asked about your mandatory retirement approaching he said i'm going to try to hire him and see if he'll come work for me no selly is a great guy he was a wonderful defense attorney before he became a judge statements like this are calculated to affect the jury's perception of the case and the fairness of the system fairness of the judge presiding over the case and they're just inappropriate because as stated in re cobb quote if a judicial system is to operate fairly rationally and impartially as it must and if the administration of justice is to proceed in an orderly manner judges and attorneys alike must act with responsibility towards those principles now the defense attorney arguing this motion says that our concerns are speculative because we don't have a new trial date yet and argues that things like a change of venue or sequestration or limits on what the parties can say later on in the course of the case would remedy our concerns but the public isn't going to just ignore prejudicial and inflammatory and inappropriate statements just because we don't have a date on the docket yet and a lot of the remedies that are proposed if these statements continue won't work a change of venue where do we go what county what state what country do we go that hasn't seen this trial hasn't heard about this trial hasn't heard or seen the defense counsel's comments sequestration doesn't change what is heard up to that point limits to these statements should be imposed and i know the argument might be well it's already out there so so what's the harm the harm is the continuation of it if it stops now then it can recede into the background and we can move forward and hopefully find a jury at some point if that's the route we go to hear this case in an impartial and fair manner without all of this extraneous influence the other concern of attorney mcconnell is that the commonwealth and defense council are subject to different rules in our proposed order the prosecution is already subject to a different rule rule 3.8 governing prosecutors which is much more strict than rule 3.6 and up to this point and going forward we have not violated those rules we have not made any extra judicial statements that are inflammatory about this case attorney buckingham and i have said nothing but no comment in this case you can impose those same restriction on us if you want to we have no objection to that because i am not looking for 15 minutes of fame in this case what the commonwealth wants is justice the cora dawson and calen [02:37:56] Speaker 4: council thank you [02:38:06] Speaker 10: thank you your honor your the government is asking your honor to restrain council's speech before it even occurs which is a prior restraint as your honor is well aware it is my belief that the government has absolutely failed to meet the standard to justify such a prior restraint there's been no evidence aside from alleged statements made by attorney reddington to infer that any potential prospective juror in the future has actually been exposed or affected by these statements we don't know that yet as we sit here today which i know after the conclusion of this motion hearing we'll be discussing this there's no jury that is potentially to be impaled if ever we do not have new trial date so the future of when this is actually going to occur is completely up in the air which is why my argument is it's purely speculative we do not know right now here now whether or not any potential juror is actually going to have been affected by this prior restraints are the most serious and least horrible infringement on the first amendment rights and they're only permissible as found in shake we shake which is cited in my opposition's 44 mass 658 they're only permissible when the harm from the unrestrained speech is going to be expected to be grave and all but certain we do not know attorney madrid reddington may by all means not even make another statement until a retrial in this case this is unfortunately the nature of what happens when there has been a mistrial declared in a case there has been substantial publicity in this matter through media coverage and all that is why mechanisms which the government brought up today after reading my opposition exist such as change of venue postponement voir dire your honor and council is able to voir dire potentials perspective jurors to determine whether or not they've actually been affected by anything said or seen also any order has to be made with detailed findings of fact i do not believe the government has been able to give your honor anything in which you could make findings of fact to justify a prior restraint all that has been said is that his statements attorney runnington made has inevitably tainted a future veneer and i would state to your honor that it would not the limit limitation on a first amendment freedom of speech must be no greater than absolutely necessary and essential to protect the potential governmental interest the harm that they're seeking again is just merely speculative notably your honor i would say this is not a case that obviously there has been many cases that have been affected by the public and the media this is not a case where attorney reddington has been litigating the matter to the public in the media the only interviews he ever did were after a mistrial was declared and again it's query whether or not any statements he actually made during those interviews would have actually tainted a further uh jury veneer the government cites gentile in their motion i also cited in my opposition i don't believe it helps the government's argument i think it actually hurts it this was specifically a case in which an order was i'm sorry i strike that an attorney was disciplined after speech occurred and an order was imposed to have a restraint and it was only up until the time of trial the government is seeking a blanket restriction on speech from counsel not only up until trial but post trial to repel it proceedings and so on so it's essentially forever we don't know how long this will be we don't know even when the trial will occur the also issue that occurs in that too again just going back to the mistrial piece your honor this is what we have to deal with moving forward that's why these mechanisms exist in our judicial system to try to fraught out any potential bias and prejudice rules 3.6 of the massachusetts rules of professional code of conduct already is in place it already governs council rule 3.8 governs prosecution that is what should remain in place and what should continue to govern govern council it already puts on structure as to what council can say and cannot say and it's discipline after the fact of a statement that an attorney has made because as a free society we prefer to punish those who with a few that actually abuse this order as opposed to just silencing people to begin with one thing that the government does not take into account relative to the proposed order is again it's it's a one it's a one-sided order whereas in gentile it applied equally to all attorneys and i know the government just said oh well you know put it on both sides your honor it's it's confusing all their proposed order is doing is now essentially i don't know which one controls i don't know that your honor is able to determine which one controls they're not able to make any statements about any discharged juror yet they also aren't they can elaborate or without elaboration say what rule 0.36 allows however is found in gentile with general terms of degree such as general and elaboration now an attorney is stuck guessing as to what is able to be provided a safe harbor as of what crosses over into elaboration which they're now going to face discipline for i also would go back to the fact that your honor rule 0.36 also allows attorney reddington which i think he has done candidly the vast majority of times he has made statements is his right to have a responsive statement when there has been undue substantial prejudice to miss clancy let's keep in mind this is not a case where miss clancy has been going out and doing press conferences and interviews he is not only her attorney but he's her voice too so not only are we infringing on attorney reddington's first amendment right we're also infringing on my client's first amendment right here in order to defend herself the government spoke about how it's important to have an uh a fair trial for both sides by entering this proposed order the government is seeking it would effectively prejudice the defense to inevitably have an unfair trial as attorney reddington wouldn't be able to respond to inquiries in the public part of the issue with the publicity in this case too and i think it's important is the attorney's ability to be able to speak to what is actually occurring in the case relative to hearings and things of that nature because it actually sometimes defrays the public frenzy that occurs when you know things get carried out of you know out of court and you know through all of that the proposed order also just does not remotely tie it to anything relative to you know any discharge jurors their attorneys and their ability to speak which i think is largely why we are here today is what is actually occurring outside the courtroom and not by counsel in this matter so your honor with that i would say that i do not believe the government has has met their burden at all to justify a prior restraint um and that your honor would be unable to make fines of fact there has been no retrial date there's no jury to be impaneled we don't even know if and when the jury is going to be impaneled and more importantly whether or not any prospective juror has actually been exposed or affected to that to the point where they will be unable to set that aside and rule [02:45:37] Speaker 4: favorably on this matter so thank you all right i'm gonna also take that motion under advisement as well so the last remaining matter in regards to this i guess there's generally two ways to handle this at this point i would be to a pick a trial assignment date to see what these motions what the outcome of these motions are or to pick a trial date so that we have a date on the docket that we may or may not get to depending on what happens on the motions um so i i thought i'd kind of hear from both sides as to what the positions are um because healing it one of one of two ways is going to significantly affect trial preparation and scheduling and things like that so i just kind of wanted to uh see first uh what the commonwealth's position is um and what you can tell me in regards to the status of uh the case at this point attorney sprain thank you your honor the commonwealth's preference [02:47:00] Speaker 8: would be to select a trial assignment date or status date to determine the outcomes of the motions and to determine what the parties intend to do with those results either side could appeal findings of the motion and that could take a significant amount of time so i prefer to set a trial date once all of that is resolved and we can pick a realistic trial date at that point once we have full knowledge of what's going on um the plan would be to pick a trial date at some point but uh i think that picking the trial assignment date or status date in the interim would make more sense in my kind of [02:47:37] Speaker 4: analysis on how to go forward is the commonwealth made a decision how they're going to uh proceed [02:47:42] Speaker 8: with this case well your honor this would be a retrial as to how what that looks like yeah uh will depend uh we're not at that point yet i think once we get the decisions on the motions and see what happens from there then we would decide what that looks like but it would be a retrial okay all [02:47:58] Speaker 4: uh attorney rake [02:48:07] Speaker 6: why do we not know if the next trial is going to be murder in the first degree or a lesser charge or no charge to suggest that they need to find out what you're going to do on these motions and if they're going to be any appeals assuming that they're denied is specious they don't need to wait for that to determine if they're going to take a run at her again on first degree i have to know logistically if it's going to be triple homicide first degree or something else there are a number of things that come to play not the least of which are witnesses trial preparation the elephant in the room is your retirement and i will tell you right now that i would prefer that you be the trial judge you've sat through seven weeks of this trial you know the witnesses you know their demeanor you know the evidence you know the facts and obviously you bring a great experience to the bench and i i have no problem with that and i and i would want your honor to be the trial judge in this case but i also know that the time unfortunately is is is coming quickly upon us i would also represent that from a tactical standpoint on this case after confirming with my client regardless of what your order is on the double jeopardy motion to dismiss there will be no appeal that would delay a trial we would if counsel feels that which i do and i know mr weinberg does that it's very very meritorious issue we would still pursue but we don't have to have a stay we can still have the matter proceed to trial so the ball is in mr cruz's court and to spin everyone in the breeze with family emotional everyone was affected by this case whether or not it would be trial counsel whether or not it would be stenographers the clerk the court officers your honor me everyone was affected by this case and i'm sure it affected mr cruz and unfortunately he stands alone to make that decision and to suggest that we need to kick the can and get a trial assignment date which in my opinion would effectively remove you from the mix as far as being a trial judge in this case on the reason ostensibly that there may very well be an appeal and we have to see what's going to happen on the i am not going to have this woman sit incarcerated for the next year or two or three i want a trial and i want it with you and i want it [02:51:14] Speaker 4: this spring all right well here's here's what i'm thinking is a very short trial assignment date so i can at least um address some of the motions here um with the thought that on that date whatever the commonwealth decides to do if it's either first or second jury drew however the commonwealth that i'm not trying to push that but when we come in on that trial assignment date sometime in march that would be my thought at this point is to pick a trial date uh at some point i understand uh so this would give everybody a couple of weeks to maybe kind of look at their calendars it's kind of difficult to kind of throw a date at you right now but that would give me the opportunity to review the motions to uh issue at least some of the decisions that might go into the commonwealth's decision as to how they want to proceed but also doesn't punt this 60 days down the road um and this will allow a date like i said i'm thinking sometime in march if we can do that or earlier if possible but i think march is probably realistic give everybody a chance to look at their calendars uh and we can talk about that maybe in two weeks um if it can't if it can't be done we'll have to talk about how we how we do that we squeeze it in earlier a little bit later but just so everybody knows what uh what i'm kind of aiming for in regards to that so is there a date that maybe in the next two weeks we could put her on for in i'd say status because trial assignment i don't want anybody reading into this the decision in regards to motion to dismiss it may be to commit here and say the motion dismisses a lot or maybe it's denied um so it's status and or trial assignment if that makes sense i don't want anybody reading the tea leaves into my scheduling language um sometime maybe towards the end of uh [02:53:26] Speaker 11: november 10th is a monday november 10th is eight days 25th is a tuesday i don't know how that works for council i said november 24th 25 or 10 10 10 is a monday 25 is a tuesday am i yeah i'll say i'll say november 23rd oh well yeah and just you know just for scheduling judges you know i mean i'm starting a murder in a week at [02:54:04] Speaker 6: fall river and i have another one in february so i'm concerned about you know scheduling it your honor knows that i have the matter in pittsfield that would have to be moved um in light of your deadlines that you're dealing with so it's just there's a lot of there's a lot of things in play here um do you think there's a possibility we could know what we're doing by that date first second whatever let's say again do you think there's a possibility we could know what we're doing by that date is it the first by november 23rd no whatever date we you you tell me what day you want to put this on for [02:54:43] Speaker 4: and i'll make arrangements to be here watch i'm just i wanted to think i think i'm picking a date [02:54:49] Speaker ?: basically for me to report to to all of you uh it's a motion to dismiss allowed or not allowed [02:54:58] Speaker 4: if it's not allowed we'll pick a trial date on that date so this would be a very short hearing we could even do it uh we could do it by zoom if the parties wanted to do it it's just reporting [02:55:10] Speaker 6: i really won't be any arguments i just say november 10th if that works that's only a week yeah i'm not [02:55:17] Speaker 4: sure uh i'm not sure i get that done you guys but um uh maybe the 20th that what's going to come up [02:55:32] Speaker 11: i'm sorry i have to be in fall river and superior court in denim in the afternoon um about the 16th [02:55:50] Speaker 4: good morning come on fine all right i'll do my best to have a decision in regards to that it may may require a supplemental memorandum of law in regards to that but um as long as i don't have to do it i don't care all right so do you want to say the 16th how's that you want 9 a.m or 2 p.m what works best for either what was that 9 a.m or 2 or 2 p.m all right please thank you i'll be doing in person as a we get we can do this by zoom if that makes it easier for everybody you know how much i hate zoom but it's but this is just getting dates [02:56:32] Speaker 6: what we prefer to be here in person okay all right i know miss clancy would like to be here as well i know she wants to be involved in all decisions all right so we'll have this [02:56:49] Speaker 4: all right all right now be for status slash trial assignment okay all right thank you all right council everyone thank you very much i want to thank everybody uh who's here miss clancy thank you so [02:57:08] Speaker 5: we'll be in recess on this matter at this time all right so you heard it there uh they did not pick a [02:57:21] Speaker 1: trial date what was interesting there uh joe patuto is both the government well the government is really the primary variable but they indicated that there will be a retrial uh that's what attorney sprake said but she made it clear she doesn't know what that retrial will entail and then kevin reddington got up uh what do you mean uh you don't know i need to know if it's going to be a first degree murder or less this is quote unquote specious and uh he also said kevin reddington that he would like judge sullivan to preside over this case because he knows the case and uh called the uh you know 800 pound elephant in the room because he's set to retire um what's going to happen here i mean they're [02:58:10] Professor Joe Patuto: going to retry this case it looks like yeah it looks like it doesn't it well i said earlier i didn't see i think maybe both sides would like to be able to get a settlement but i didn't see how they were going to be able to do it given the position seem really intractable there's no place to find a middle ground or any ground between the two positions yeah uh we are uh i know spacey and uh [02:58:35] Speaker 1: the coe are are looking out because we might get some sound outside of uh the courthouse uh in a little bit um and so we'll see if that happens um this was another crazy hearing he also said he would take the trial date um and i'm sorry he would also take the gag order which was essentially uh the last argument uh that they argued he would take that under advisement what do you what do you make of this whole gag order issue on that one the um the uh commonwealth went first and said look this guy kevin reddington has already tainted future juries does this mean we're gonna have a change of venue where are we gonna go she even said are we gonna need to go to a different country which is extreme i mean look i'll do it was the lindsey clancy trial huge yes um to people who don't typically watch true crime were they aware i mean i've talked about this i went to some soccer games with people uh who literally english is their second language and in broken english were telling me all about the clancy case and i was like i couldn't believe it you know people are interested from all around um but is it that big a case joe where they're going to actually have trouble um seating a jury and they talked about [03:00:01] Professor Joe Patuto: possible jury sequestration and change of venue yeah i don't think so i you know it is a big case but i think maybe they'll do a change of venue but i'm not even sure they're going to need that things will recede between now and the trial in march and there will be lots of people who just don't know a lot about it or we'll be able to say they can put aside whatever they know and they don't know much and be able to you know be able to handle the case i thought the um actually the arguments on the um gag order were interesting uh i'm not sure i was trying to sit here and think you know i i taught first amendment law and i've done some stuff there and i was trying to think whether in fact you can call what the judge would do a prior restraint uh certainly a judge when there's a trial you know when you're starting when you've got a trial date and you're moving to trial can do things to protect the trial he's got jurisdiction over the trial the difference here is they're in limbo between the trial that's ended and they don't really really not set as to another trial going and so her argument was well this is like any other prior restraint you can't tell people they can't talk they're entitled to talk and there are all these remedies but i'm not i'm not entirely sure that that argument works because there are rules of professional responsibility that dictate what lawyers should be able to do in public and this one you know it doesn't fit quite it's neither here nor there but i think the judge would have some authority to put some you know constraints in place to try to limit or at least control what's said i thought it was interesting that the state's argument was exclusively on the prejudice prejudice or the problem with sitting a jury and they didn't talk about you know the the um the administration of justice and restraints on attacks on jurors or on you know those sorts of things that kevin reddington has also talked about or even defamation it's interesting to me that they didn't include that in the argument that they made about the gag order [03:02:20] Speaker 1: hmm uh here's a unpopular take for some and popular for others but a retrial will not bring those kids back even both sides of the family uh don't want a retrial i don't understand uh what throwing more tax dollars is doing except helping cruises ego you got to keep in mind too he's a politician he's an elected official he's been there for many many years and he is tough on crime people would counter argue that saying look these kids need a voice and they need justice and they need these prosecutors to mete out that justice that she doesn't belong in a psych hospital but she belongs uh in a uh psychiatric hospital it's an argument that it's like a political argument trying to get a republican to understand democrats democrats understand republicans you just go around and around in a circle uh chasing the tail maureen gunn i so enjoy sts joel coe prof joe and all the terrific staff mods and members of the chat it takes a village thank you uh i appreciate that i think joe appreciates that follow joe on joe prof joe explains uh this trial is the reason i found sts thank you for finding us uh miss randy so originally uh kevin reddington said look i wanted i want to retry this next week that was in the heat of the moment then some time passed he said june i can do june now the judge threw out march and he didn't seem to have any kind of problem at all with march being the date which is december january february it's believe it or not it's only about four months away and note that he said that without [03:04:01] Professor Joe Patuto: knowing whether the prosecution will recharge murder one i mean he claimed he needed to know right away because he couldn't decide what to do but then he was able to decide the trial date without knowing [03:04:13] Speaker 1: yeah so i mean you got to call his bluff a little bit because he's saying it's got to be it's got to be summer i can't do it before uh now he's saying uh maybe maybe uh uh march will work um then attorney mcconnell who got up there she's also an attorney for lindsey clancy so now there's sort of uh you know there there's a an attorney for each facet of the trial now and attorney mcconnell got up arguing why there should not be a gag order what what's your gut tell you what do you think the judge is gonna rule in terms because you know kevin reddington's probably going to go out to those microphones uh in a moment and make a comment or two uh he's going to be hounded by reporters uh should he be allowed to talk openly i mean there is a first amendment but uh [03:05:04] Professor Joe Patuto: yeah if if he were only going to do what lawyers generally do i would say yes but to the extent he you know sort of uses you know goes off on a launching on a launching pad and gets gets so enamored by what he's saying that he says things that are really inappropriate uh i think there should be some sort of order and i don't think he can control himself i think when he starts on his flight of of rhetoric he's just so charmed by it that he keeps going and going and i'm not so sure that he can get himself under control and i think i really think he's doing he's doing a disservice to the administration of justice and the appearance of how a judicial system should operate so yes i think the judge should issue some sort of a war order and i think on balance he will yeah here's an interesting [03:06:03] Speaker 1: question i actually know the answer to this uh kurt on patel uh can it be a bench trial it can if the charges are reduced so cannot be a bench trial if it is a murder one and that is why kevin reddington i was asking i need to know is this a murder one charge if it is anything less uh joe patuto do you think that uh the defendant would ask for a bench trial what's the process for that is it the defendant asks and it's granted or does it have to be argued how does it work well it depends a little on on the [03:06:36] Professor Joe Patuto: state where this happens but generally it's going to be the defend defense that asks for it because the defendant has a right to a jury trial under the sixth amendment so the state can't ask for it and and get a bench trial over the defendant's objection it has to be the defendant that asks some places the state is allowed to weigh in and argue reasons why they think it needs to be a jury trial but by and large if the defense asks for it it will be granted the place where the state usually has some concerns about a bench trial is that there are rules and it wouldn't apply in this case but there are rules on what the sentence might be if it's a bench trial it gets complicated and so prosecutions sometimes doesn't want it to be a bench trial because it's going to limit what they think the sentence would be not applying here so that wouldn't be a reason for them to object i don't know how they'd feel about judge sullivan doing it i mean i think kevin reddy thinks thinks this guy is his friend um i mean he made the argument that the judge has experience he's smart he knows the law he knows the facts of the case but i think what i heard unsaid was and you also let me do what [03:07:51] Speaker 1: what i want to do and i think you know i can win with you yeah uh and here's a question um revolving around that uh from toronto uh in a second trial uh professor if it's the same judge aren't they just going to rule the same way on any motions to protect themselves why would they change their mind in a [03:08:13] Professor Joe Patuto: second trial um i guess i'm not i'm not quite clear what what uh the question is i mean the motions that they're doing now clear he's going to decide before the trial starts um i i'm i don't know enough about the what what's what's motivating that question to really be able to give you an informed opinion [03:08:33] Speaker 1: yeah i think uh maybe uh you know person's just wondering same judge same you know same take on evidence presented already that we're going to see again i mean speak speaking of that joe we're just waiting a little bit here to see if we get a press conference or not or any comments um but how i mean how different would assume it's assume it's a they retry on the same first degree murder charge how different does the retrial look from the original trial well i hope and i think that it [03:09:12] Professor Joe Patuto: will be a very different case on the state's part that it will look more like the closing argument that the prosecutor made than it will like the opening argument yeah she really didn't you know she really wasn't trying to commit suicide and she was controlling parent all of that i think will be out the next time uh i think the state or the commonwealth may try the next time to find a um an additional or at least a different expert witness on the mental health issues here uh and uh you know what what uh you know i think they can do better on who they would bring as their expert and i'm i suspect they may try so i think that would be different on the defense side i don't know that he's going to do anything different he's going to again try to challenge the medical system and the doctors and say it's on them not on my client uh the only possible difference would be and joe you alluded to this at the outset of the show and that is if some of his sort of uh soft comments about uh we we have no evidence that she even did the act whether he is going to intend to pursue that in another trial as compared to conceding as they did this this last time that she did the act but she wasn't responsible because of the mental [03:10:45] Speaker 1: condition yeah i mean it'd be wild if there's a retrial and kevin reddington gets up in the opening and says there's no evidence my client did this right i mean there's a there's a decent chance he could do that is that because of the two-tiered system in the commonwealth about proof beyond a reasonable doubt and then i mean so now they have to he basically conceded [03:11:08] Professor Joe Patuto: one of the thresholds i guess well the way they do i'm going to call it insanity because that's what most states in the call it that is not responsible um there is an inherent uh contradiction in an insanity defense because in order to say you know i'm not guilty because of the insanity you're saying i did the crime i did the crime but i'm not guilty because and there's an inherent contradiction there there's a few jurisdictions that say in order to take care of that you do it in a bifurcated way you do the first part which is prove that the individual did the crime and then you have a second part where you then say was was she insane when she did it and there are different different ways that that's done california is a guilty but insane other places do it as a doesn't matter it gets too complicated but anyway it's a two two ways to do it a lot of the jurisdictions in massachusetts is one of them do it as one and the theory is you can't really separate it very well because um murder for example requires an intent to kill and inevitably in the argument on she didn't do it may come in there was no intent and if there's no intent that you can't be guilty of that crime so it gets mushed anyway so a lot of jurisdictions say we're just going to do it in one he argued as i recall kevin reddington that he wanted a bifurcated trial here so they could first handle you know the guilt part and then get into was she responsible and the judge said no [03:12:44] Speaker 1: by the way uh c spacey letting me know uh he's keeping an eye outside the courthouse and apparently not much talking going on so maybe uh kevin reddington is taking a little bit of a different approach [03:12:58] Professor Joe Patuto: right now uh just keeping an eye well my guess is given the motion that's in front of the judge he's not going to want to wave a little red flag in front of a ball he'll be very you know yeah yeah [03:13:11] Speaker 1: maybe he's gonna just yeah he'll walk a very good point so um and the government generally does not speak and his attorneys uh or the other attorneys for lindsey clancy are not going to speak if kevin reddington doesn't speak but spacey's just keep an eye an eye on that um court dogs back there too and uh he's uh he's buddies with uh k red so we might might get him through uh uh court dog but uh i understand the situation that uh that kevin reddington is in but we'll hang out a few more minutes uh court dog give me a thumbs up or thumbs down if you think it's happening or not uh he thinks it is it is things it's our dog thinks we might get kevin ready anyway you know he's indefatigable it's one way to put it yeah well uh court dog has his rv there and he gets you know suck him right into the rv um but this is going to be uh interesting uh nevertheless um here's a question that's come up before and this is exactly why i don't think she's testifying we talked about it earlier joe but can the state use statements from lindsey in her civil suit in her next criminal [03:14:29] Professor Joe Patuto: trial absolutely absolutely you have a privilege against self-incrimination what that means is the government cannot force you to be a witness against yourself when there's a criminal consequence to it in other words you're going to be convicted of a crime and sentenced what you do on your own testify in a civil trial has nothing to do with the fifth amendment privilege you want to go out and you know and tell the world that you committed murder well the prosecution would be happy to hear it and it would be introduced to trial so yes it would be admissible yeah would you [03:15:05] Speaker 1: just lost court dog i don't know if the wi-fi went out in the rv but so court dog keeps his uh rv out there and uh if you watch the trial uh kevin reddington took a big liking court dog travels around the country going to trials so uh shout out to court dog who was very cool and said look if i can get kevin reddington into my rv uh he'll talk to you guys so i'm going to give him a couple minutes um just to see if we can pull it off and if not i appreciate the um the uh attempt by him uh no matter what if you have questions uh for joe petuto let's spend the next few minutes doing that um let me add joel to [03:15:45] Professor Joe Patuto: mandy that's why uh the civil trial usually follows the criminal trial so that a plaintiff uh in a civil trial is not hindered in in the case that he or she can make a cause of the worry about how you know what what could be used against him or her in the criminal trial um [03:16:09] Speaker 1: let's see here november 16th so that's the next date which is i think a week from two weeks from today it's either monday i think it's a monday it's a monday yep yep and it's going [03:16:22] Professor Joe Patuto: to be a 10 a.m hearing which at least i mean civilized yeah i mean that's going to be a hearing [03:16:28] Speaker 1: just to pick a trial date uh i mean that should be quick i mean well no he said what they're going to [03:16:35] Professor Joe Patuto: do is he's going to be i think he may have he may well he may may have ruled on the motions by then that's what he's going to try to do and anything else that comes up he called it a status hearing rather than a uh what did they call it uh i got the words wrong but it's a pick a trial date hearing because he said he didn't want to pre-judge and let people think that he's already decided he's going to deny these motions and there's going to be a trial so he didn't want to call it that so but if by that time but if he rules that there can be a trial then you're absolutely right they [03:17:14] Speaker 1: will set the trial date yeah um all this uh a lot a lot of you know balls being juggled that are still uh up in the air here um and it's just unclear uh which way it would go here's a question from little miss red velvet professor joe who would make the exception for this judge to preside over the retrial even though he's due to retire that's interesting who that's the most places you would [03:17:43] Professor Joe Patuto: call that the assignment judge it's the senior judge on the trial bench that would uh judge sullivan would say i'd like to stay and finish this up and it would be the senior judge on the trial bench most places i say they call it the assignment judge who would likely be the one who would give him the green light [03:18:04] Speaker 1: yeah and i mean what you know it's kind of unprecedented i mean not unprecedented because it's happened before but as far as us covering trials i haven't seen it happen yet um how much leeway do you think they give judge sullivan i mean there is a law that says at age 70 and i believe i want to say it's like may june right when the trial originally was supposed to start but i mean uh i guess a judge uh who's the boss of the judges uh we he can create some leeway uh yeah you know and [03:18:35] Professor Joe Patuto: there are lots of places i don't know if this is true in massachusetts where you can call back a retired judge to sit on a trial um they do that sometimes the senior status at the federal level and you know sometimes they've got a lot of cases that they're hearing so you can call somebody back so it's not unprecedented unprecedented for a retired judge to sit on it to sit on a case and in a case like this it's probably i would guess although you know i haven't gone out and looked at all the states but i would guess it's probably the norm that you would let somebody finish up certainly if you were in the middle of trial you'd let get the person finish up and i think in a case like this where you know he's done one trial already uh that that would be the that would be their inclination to let him do it [03:19:23] Speaker 1: unless he doesn't want to yeah uh wendy marino here this is also a great point i mean if they pick a date don't they also have to decide uh i mean what's the order of that joe in terms of charges wouldn't well [03:19:36] Professor Joe Patuto: wouldn't the defense have to know usually you have the charges and then you get the trial date i don't know that there's anything that says it has to be done that that way that the that the prosecutor has to be ready to say but if in fact on november 16th the judge says here are my rulings on the motions uh then i suspect the prosecutor is going to be willing to say and here's what we're going to [03:20:03] Speaker 1: do or i can tell you you know within a short period of time now yeah uh 13 mandy with the uh super chat thank you a bunch of questions coming in and i gotta let joe go in a few she traveled all weekend back from uh across the pond here but can the cw have lindsey reevaluated by a new expert i heard kevin reddington say he's not going to give them another crack at her um if they want to reevaluate her [03:20:32] Professor Joe Patuto: does the defense have its hands tied uh i'm not sure that they're going to they would be able to do that because the question is not is she able to stand trial where you know her status now might be relevant but if the question is you know what was her state of mind at the time uh i don't think the judge would be likely to grant a state's motion to have another expert you know evaluator yeah uh by [03:21:02] Speaker 1: the way on the way in on the way out moving sideways forward uh please hit the like and subscribe button uh we've also got a patreon page for uh sts diehards that we are building up as soon as i get advice from spacey uh nina stanick here uh why has the prosecution not yet decided i mean what's going into this decision making do you think joe that's a good question uh you know i think partly it's uh you [03:21:29] Professor Joe Patuto: know they're probably still may still be weighing what happened at the first trial what can be done differently you know that sort of thing but it also may just be tactical that they do not want to you know show their hand until they have to and the decision on the motions might have an impact i mean if the judge decides uh that the the mistrial should not have been granted you know then there's not much that they're going to be thinking about in terms of how they're going to charge it so i think [03:22:02] Speaker 1: they just want to wait and you know not alert until they have to uh racer girl uh here but uh back to the civil can lindsey clancy be subpoenaed while her criminal trial is ongoing and then force her to testify in patrick clancy's civil trial wouldn't she have to plead the fifth i mean you said it [03:22:23] Professor Joe Patuto: already that the yeah she will she will yeah notice it's not because of what's happening in the civil trial it's because testifying in the civil trial will open up consequences in the criminal trial for her which is the only in the fifth amendment you know where is it that it doesn't matter where you assert the right you can do it in front of a congressional hearing but the reason why you can assert it is because it may subject you to criminal penalties yeah uh we've addressed this [03:22:53] Speaker 1: to a degree but uh from denise uh prop joe do you think uh honestly that they'll be able to find a fair venue and jurors that will know very little about this case i mean the voir deer i have a feeling is going to be much longer uh the jury voir deer for this trial but i mean what are they going to have to do to ensure that the that that the jurors are copacetic and ready to go well they'll do what [03:23:16] Professor Joe Patuto: they've done you know what they do every time which is to ask the jurors if they've heard anything about the case did they form an opinion about the case they'll go into things to try to get at it peripherally you know such as you know what newspapers do you read what you know what podcasts do you watch uh to get some idea i saw a trial recently and i don't remember the question that the prosecutor asked but it was a kind of a general think about question that had nothing to do with the trial but it was very interesting because the the answers that the jurors gave really did give an insight into maybe the way they would think about a criminal trial or about you know the particular facts of the case i i think they're going to be able to do it and may take them a little longer and but yeah there are lots of people that you know for those of us who follow true crime it's just hard to believe but there are lots of people who don't pay very much attention in this case probably more because of the attacks on the medical you know in the psychiatric health profession and what went on but to know the nitty gritty to know exactly what happened to know you know what uh facts about the defense there are going to be lots of people even in massachusetts that don't know a whole lot look at this jen getting uh personal [03:24:40] Speaker 1: with the married people i have a question for all the married folks in the chat how many of your significant others sleep in the basement uh jen i'm proud to announce that uh i don't have a basement they don't have basements uh calvin says uh we should have a discord server i think we do uh spacey please if you can uh let calvin know about that and uh over the next weeks maybe month i am going to get much more uh proficient in both discord which i know nothing about and patreon which i know nothing about but um thanks to spacey we're moving into the 21st century here um i would agree with andy school here she's a long time uh follower people are kinder in person with those holding opposing political beliefs sadly people losing human face to i would agree i would agree with that on everything uh most people are not as tough uh in person um as they are online kelly mcclellan do you find it strange that neither side is wanting a change of venue uh that they're not neither i mean the government basically said yeah uh maybe we need one the government even kind of i mean i know that they were stretching it but they said we might even need to move this out of this country yeah well that [03:26:01] Professor Joe Patuto: wouldn't be lawful so that's not happening um you know it's very inconvenient to have a change of venue if you're the lawyers the prosecutors have their offices near the courtroom they've got the you you know they're they're clerks everybody else who's working there they can go home at night uh it's it's an easy commute for them they're all those issues of convenience for the lawyers uh and probably for some of the witnesses because some of the witnesses are going to be local also that push towards lawyers [03:26:33] Speaker 1: they're saying we don't want to change the venue um let's see here uh there was a question that caught my attention and now i can't seem uh to oh this was it right here it's up on the screen i forgot i brought it up uh learn to speak i don't know what that says dog uh why did the jury not seem to understand the bifurcation aspect of the trial that seems like something that wasn't really [03:27:07] Professor Joe Patuto: delved into in the case because it wasn't bifurcated it wasn't bifurcated so there wasn't anything for them to understand nobody argued in fact uh nobody argued that she hadn't committed the the act of killing the kids uh the question was whether she was responsible for it so that was kind of a given now what happened was which is why uh the opening for kevin reddington to change the tack here is there is lindsay didn't testify and i do not believe that anybody testified directly saying that she did it i'm not even sure that patrick said patrick's evidence was clear that she committed the crime i mean if she if there was any of that in the first trial it would be very hard for him to switch and say you got to prove she did it because there's no evidence that she did now i will say on the basis of the evidence that we saw i think it's a pretty easy case [03:28:05] Speaker 1: to say that she did it yeah now this is an interesting comment actually uh why a change of venue in the alex murdoch trial i mean south carolina and where he was tried is such a small county i think this trial even though alex murdoch's been in the news for years this trial has a higher profile but you think that's what it is that you know cotton county i think it was where they tried it's [03:28:27] Professor Joe Patuto: just so small right joe well and it's also the murdoch murdochs are very is a very prominent name in that county i mean there were what a history of them being judges they you know they were sort of all kinds of uh patrons of the community uh as i understand it everybody knew the name everybody i'm putting in quotes and that would be independent of the criminal trial and also there was all the other you know news about the family you had the boat accident where the young the young woman was killed and that got a lot of publicity and then you had the trial and then the issue about the clerk of [03:29:06] Speaker 1: the court so i think that all added up in murdoch yeah um maybe a couple more questions uh court dog's feed is going in and out and uh he was trying to shout out the court dog for making the effort to to try to get us uh kevin reddington and we will get him uh eventually uh judy herbert uh perhaps the most generous of all i'm sorry uh coe uh might take a while to uh he ran inside to court to check in okay so i'm gonna give joe if you have to run please no hard feelings you let me know uh i might just stick around here for uh maybe two three four five minutes just to see if we get an indication uh because i know kevin reddington did promise court dog but things happen we did yeah uh so you can stick around and express your disdain to him if you would like or uh i don't know i don't think we're going to necessarily get him because i'm sure he has his mind uh on a bunch of other stuff but uh i listened to the coe we'll give it a few minutes just in case um and if anybody misses it we'll uh we'll post it for you um you know for sure uh here's a question for tough question for you from little mr red velvet prop joe if you were the da if your last name was cruise would you uh change the prosecution team or add to it hi little miss red velvet uh she shows she's on she sits in in the [03:30:39] Professor Joe Patuto: chat of procto explains that occasion um i thought one of the lawyers the actually the one who argued today jennifer whatever her last name was spring was strong spray was stronger than the other lawyer other prosecution other prosecutor um and if they're and if they're prepared to change tack on what they did i think she's capable of doing the prosecution uh but uh i also don't think it would be a bad idea to switch out and bring new people in but they'd have to learn the case and that's you know i know that i've heard i've heard experienced trial or say well you can get ready for a case in three or four months but you know that kind of assumes that you're going to be able to pay maybe 80 of your work time attention on it and not just pick it up as a you know a new thing i think they what they really need to do is look at the expert witnesses that they use the first time and you know focus more on that or at least make a better case as to why the the expert evidence doesn't matter i don't know why they just didn't argue yeah she might be psychotic and yeah this and yeah that but that's not the question before you the question is did she know right from wrong could she control what she did and so let's let's you know we can we can say we don't think she was psychotic but i'll give you that you still have to answer these other two questions and focus on the issues that really matter yeah uh [03:32:17] Speaker 1: 13 mandy uh saying something i said earlier i'm not going to bring that com her comment up because i want to get to this one but she says the case wasn't big until about three weeks in it took a while for this case uh to gain steam and now it's huge and i actually am worried about a retrial because i think there's going to be protests outside the courthouse every day it it's going to be a mess um denise says this is the first case and i i cannot relate to this that my friends were able to talk to me about it was actually nice that i could finally discuss true crime with them i probably drive them crazy i disagree a lot of people uh i disagree a lot of people knew about i agree no i mean i'm i i agree with you i think many more people than not knew about it i mean all i mean the fitness instagram people were talking about i mean everyone was talking about lindsey clancy now are they following it the way you're following it and and watching a podcast on it i doubt it but [03:33:16] Professor Joe Patuto: i mean people are following it uh well but don't you think what they know is that she killed her three kids and she said that she you know because of postpartum psychosis uh that she was impelled to do it without a lot more and that in itself would you know sort of garner a lot of intention by people who don't usually follow true crime but you know whether they knew know it in a way that would make it an issue as to whether they could serve on a jury is something that well we'll see but i i kind of doubt it [03:33:49] Speaker 1: yeah um hopefully he doesn't come in on this comment but i'll pull it up because uh agree with prop joe reddington needs a correction collar but um you know that's a little stronger than the [03:34:01] Professor Joe Patuto: way i would put it but yeah he does need somebody to keep him under control yeah my little guy mike [03:34:07] Speaker 1: my puppy is a maniac and i got this thing that like sprays air and it scares mikey but he knows when i hold i don't even have to hit it anymore he just knows when i hold that thing up uh he's got to watch out little mr red velvet back uh they know about it here it's news in the uk um and uh if you haven't ordered here mariella go to mariella felds.com she made this for me and it is a beautiful wool felt portrait of downtown fred brown and it is way cooler in person i kept keep the plastic on it i don't want anything going wrong but if you want one of those you got to go to mariella felds and no i don't get paid i just love the artwork and she's part of sts nation so uh please support her she's she's an artist after all um here's three more questions joe and then we'll call it okay can they can they put on a completely different defense and retrial and can the prosecutors mention the first trial [03:35:13] Professor Joe Patuto: um technically they they're probably not supposed to mention that there was another trial but i think it's going to come up um and can they put on entirely different defense theoretically yes uh but if there are any witnesses who testified at the first trial and now they're going to be saying something different they're going to be impeached so i mean the risks to putting on an entirely different defense uh and if kevin reddington is interested about the court of public opinion uh it seems to me that putting on an entirely different defense might not uh be the best thing to do for the people outside the who are not on the jury that he wants to persuade um uh dixie doodles like the name oh we just read [03:36:00] Speaker 1: that let me bring up uh adam bluefire who i think i always say this i think he's from spain i think i remember that adam but uh no idea uh what's joel and joe's joe's opinion is more important than mine on whether a retrial uh could also result in either a mistrial hung jury or just fall apart and if it did then presumably it couldn't be great question great question i mean what if we go through the whole process and we get to the day and they can't decide then what well the could is they can retry [03:36:34] Professor Joe Patuto: a third time the wood is is different as to whether the prosecution would decide uh that you know they feel strongly enough about this that they want to take a third whack at it um that i think i would say it's doubtful but i don't know this prosecute this prosecutor so yeah um you know one thing at um [03:37:01] Speaker 1: you know it was just interesting to hear kevin reddington and core do like this about face and say look we don't even have evidence that she ever committed this crime what he was again what he was trying to do there and joe correct me if i'm wrong was to sort of do the bifurcation himself was to say look we have to show enough evidence and then we have to show that she's not criminally responsible a lot of people though took it as though he was pointing the finger at patrick clancy so i guess my question is with that kind of defense i mean is it is it putting patrick clancy like in in the proverbial [03:37:38] Professor Joe Patuto: crosshairs well sure because i mean if she didn't do it and if the claim is that she didn't do it the obvious question is who did there's absolutely no evidence whatsoever that an intruder came in left you know and then went and murdered the three kids i mean in what world and why would that happen the only other likely candidate is patrick clancy and kevin reddington in a in one of those you know impromptu conferences he had outside the court at one point he was asked a question about patrick uh clancy and it was in the context of do you think it's unfair you know that people are saying gee maybe he had a hand in it and he was really kind of cute he wouldn't answer no and then later when asked the question he did he did make a much stronger case for saying patrick didn't have any in any involvement but it's got to be unless joe you can think of another candidate it's got to be patrick or lindsay and if now you're saying it's not lindsay you certainly are implicitly saying patrick now he can say all we're saying is they're not there's not enough evidence to convict lindsay beyond a reasonable doubt we're not saying there's enough evidence to convince any to convict anybody else beyond a reasonable doubt either we're just saying there's not enough for her but that's kind of a cute little line to try to walk [03:39:02] Speaker 1: um just got confirmation from uh the dog court dog uh kevin reddington is uh understandably too [03:39:11] Professor Joe Patuto: preoccupied so uh it's not gonna oh i think he's just been cowed a little when he does not want that get quarter so he's just yeah careful that could be it but uh i have no doubt that court dog will get [03:39:24] Speaker 1: him for us so um i think that will uh bring us to a wrap here now we're going to come back later with the panel some uh massachusetts judges and attorneys uh to go through this at seven o'clock uh eastern time um and we will continue to stay on top of uh hearings that pop up during the day and shows at night and we're uh gonna be covering the tepe murders uh come december 7th so that's our next big [03:39:51] Professor Joe Patuto: trial awful awful i'm gonna think i think i'm gonna do a rant at five about reddington today what happened today i haven't gotten it all out of my system yet so i love it all right well if you want [03:40:04] Speaker 1: to watch a jersey italian woman rant nothing better than that so uh prop joe explains yeah we are pretty what proficient at it i would say yeah you guys it's a it's a skill you guys are good at so that's [03:40:18] Professor Joe Patuto: right you got to be born with it you know you just can't acquire it's not you can't be taught it [03:40:23] Speaker 1: that's right um so five o'clock for prop joe explains seven for us you can follow me on uh x at podcast sts for precise show times instagram surviving the survivor we're on tick tock now at surviving the survivor love you america love you plymouth massachusetts and we will see you all later today have a great day be safe so long thank you