About this transcript: This is a full AI-generated transcript of MA v. Lindsay Clancy — Lindsay Clancy Hearing from COURT TV, published November 2, 2026. The transcript contains 40,025 words with timestamps and was generated using Whisper AI.
"Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good..."
[00:00:00] Speaker 1: Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone.
[00:01:51] Speaker ?: Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone.
[00:02:10] Speaker 1: Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning, everyone. Good morning.
[00:02:32] Speaker ?: Good morning.
[00:02:32] Speaker 2: Good morning.
[00:02:41] Speaker 1: Oh my gosh.
[00:03:11] Speaker 3: We're just waiting on Kevin Reddington right now. He did pull up.
[00:03:39] Speaker 1: We're just waiting on him to walk up right now. We're just waiting on him to walk up right now. We're just waiting on him to walk up right now. We're just waiting on him to walk up right now. We're just waiting on him to walk up right now. We're just waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now.
[00:05:04] Speaker 2: We're waiting on him to walk up right now.
[00:05:11] Speaker ?: We're waiting on him to walk up right now.
[00:05:13] Speaker 2: We're waiting on him to walk up right now. We're waiting on him to walk up right now.
[00:05:22] Speaker 1: We're waiting on him to walk up right now.
[00:05:29] Speaker ?: We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk up right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:06:52] Speaker 4: We're waiting on him to walk right now.
[00:06:53] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:03] Speaker 5: We're waiting on him. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:09] Speaker 4: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:12] Speaker 1: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:15] Speaker 4: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:18] Speaker 1: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:21] Speaker ?: We're waiting on him to walk right now.
[00:07:22] Speaker 6: We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:24] Speaker 2: We're waiting on him to walk right now.
[00:07:25] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:27] Speaker 2: We're waiting on him to walk right now.
[00:07:28] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:38] Speaker 7: We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:40] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:45] Speaker 3: We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:47] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:52] Speaker 3: We're waiting on him to walk right now.
[00:07:53] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:07:56] Speaker 3: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:08:02] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. 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We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. 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[00:25:26] Speaker 4: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:25:33] Speaker 1: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:25:40] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:07] Speaker 6: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:12] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:25] Speaker 4: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:30] Speaker ?: We're waiting on him to walk right now.
[00:26:31] Speaker 4: We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:33] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:35] Speaker 4: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:38] Speaker ?: We're waiting on him to walk right now.
[00:26:39] Speaker 4: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:43] Speaker ?: We're waiting on him to walk right now.
[00:26:43] Speaker 4: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:47] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:50] Speaker 4: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:54] Speaker 5: We're waiting on him to walk right now.
[00:26:55] Speaker ?: We're waiting on him to walk right now.
[00:26:55] Speaker 5: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:26:59] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:27:54] Speaker 1: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:27:57] Speaker ?: We're waiting on him to walk right now.
[00:27:58] Speaker 1: We're waiting on him to walk right now.
[00:27:59] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:28:40] Speaker 4: We're waiting on him to walk right now.
[00:28:41] Speaker ?: We're waiting on him to walk right now.
[00:28:42] Speaker 4: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now.
[00:28:46] Speaker 8: We're waiting on him to walk right now.
[00:28:47] Speaker ?: We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. 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We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. We're waiting on him to walk right now. This court is now in session. Please be seated. Good morning, Your Honor. Can I proceed?
[00:32:47] Speaker 5: Yes, please. Your Honor, before the court today, we have the matter of Commonwealth versus Lindsay Clancy. Ms. 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 Sprague. And for Jared Doe, we have attorney Heather O'Connor.
[00:33:05] Speaker 7: All right. Good morning, council. Good morning. Good morning, Ms. Clancy. All right. So this is on for a series of motions today. The three that I see are probably the ones we have to address today are pleading number 212, which is the motion to preserve producer records, pleading 215, which is the defense motion to dismiss. And then there is a 222, which is the Commonwealth's motion to preclude prejudicial, extrajudicial statements. Is that everybody's kind of understanding of where we are? Yes, your honor. Yes, your honor. All right. Lieutenant? Yes. All right. So why don't we first take up--
[00:33:56] Speaker 4: Could I follow this? Could I interrupt your honor if it's possible? Could we handle them in the order of attorney Weinberg, which would argue the motion to dismiss first, followed by the other gag order motion, whatever it is that the government filed, followed by the juror issue?
[00:34:16] Speaker 7: Yes, because I've got it later. But let's take up the motion to dismiss first. Yep. Okay. And then we will take up the motion to preserve the questionnaire and other records issues, which is 212, that involves, I think, counsel as well as attorney O'Connor. And then we'll deal with the Commonwealth's motion to preclude the prejudicial statements, which would be argued by the Commonwealth as well as attorney O'Connor, I believe. Is that correct? Yes. So why don't we first take up, which is pleading number 215, the defendant's motion to dismiss. I'll hear from the defendant. Parties should be aware I've had the opportunity to review the motions and the oppositions. But with that, counsel.
[00:35:11] Speaker 9: Thank you, Judge. Good morning. Good morning.
[00:35:14] Speaker ?: Good morning.
[00:35:15] Speaker 9: At its core, Judge, the motion to dismiss respectfully asks the court to reconsider decisions that were made in the heat of battle on September 3 and September 4 as the jury was deliberating. And 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. Ms. Clancy, like all defendants 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 the court ruled 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, born 25 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 Ms. 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 and 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 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 in a mis-trial declaration an imperative rather than something discretionary.
[00:39:09] Speaker ?: Thank you.
[00:39:10] Speaker 9: To just summarize 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 wardiers should occur, when discharges of jurors should occur, and when instead deliberation should stop. First, 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 Your Honor's instructions. And 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 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, or 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 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 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 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. Excuse me. I'll lose this. I apologize.
[00:42:12] Speaker 7: 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 I ask each individual one, not just that one juror? Certainly, as you stated, the concern for coercion is something I have to worry about. So you say I should have done it a second time.
[00:42:36] Speaker 9: Not to simply echo the single question, Judge, but respectfully to make a probing voir dire that would have, for instance, matched Judge Tettman's voir dire that 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 examples, and we've cited them in the case law, and they're on page 28 of our motion to dismiss, where the courts say 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 juror's affirmation of your honors voir dire. In fact, there's to be trusted, particularly when there's a predicate of the foreperson speaking on behalf of 11 jurors that may not adopt the reliability of what a 12th juror has said. And I can see this is not easy.
[00:44:00] Speaker ?: You know, I've --
[00:44:00] Speaker 9: You don't have to keep saying that. I've got thick skin. I have no problems.
[00:44:04] Speaker 7: I understand what this case is, what these motions are about. I'm fine with that. I understand the argument. I've made those before. So I understand that.
[00:44:14] Speaker 9: Let me go on, if I can -- Yeah, please. To, you know, what defense of the federal constitutional law requires, which was not really provided to your honor in the heat of battle. And what it does is it puts a heavy burden on the prosecutor, who four times objected to any voir dire. It's the prosecutor that had an obligation when there was such close nexus between 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, 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 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. His burden is a heavy one. The prosecutor must demonstrate manifest necessity. State court is the same. Commonwealth v. Stewart, 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 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, and the courts say on the record, this is Commonwealth v. Stewart, we shall be deferential to the trial courts exercise of discretion in ruling that a manifest necessity exists only 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 Stewart 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 in compelling the defendant to live with a continuing state of anxiety and insecurity. And in a 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 U.S. 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. 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 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 was going on. And 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? The second is that there was some uncertainty. What did doubt mean? Was that beyond a reasonable doubt that the 12th juror believed 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 vote RR when they said that the jurors made statements acknowledging doubt of guilt. It says doubt, but it could have been doubt or guilt. Again, there's no certainty. But the burden rests on the prosecutor. And if there was a viable alternative here, and I suggest a viable alternative, whether your honor felt the notes were ambiguous or whether your honor felt the notes unambiguously required voir dire. And then the issue is what kind of voir dire. There was a viable alternative, which is a probing voir dire 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 our pleadings to the many SJC decisions which make the decision to hold a hearing or to do a judicial inquiry or to do a voir dire, mandatory, not discretionary. Commonwealth versus Raunchi, Commonwealth versus Ralph R., Commonwealth versus Conner. Many of the precedents. Williams, we cited two federal precedents, U.S. v. Lamar 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 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 there might have been false statements during 4D, during 4D, 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 taint-producing event." Some inquiry is reasonably calculated to determine whether or not the juror 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 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 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 before they came on the jury, you know, really could.
[00:55:23] Speaker 7: I mean, let's be honest, 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 juror's subjective reasoning or deliberative content. I mean, it sounds good and I understand it, but it's a different level of analysis, right?
[00:55:45] Speaker 9: I think it is a different level of analysis, but the voir dire you do pretrial demonstrates that you can't just accept as conclusive a juror 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. Commonwealth versus Olivario, we've quoted at page 28 of our brief, "A judge need not accept a juror's view of 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." Let me briefly then address the Commonwealth's positions which they expressed in their memorandum. First, they say that the notes didn't say to your honor that the reasons for this 12th juror's 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 foreperson 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 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 your honor's probing voir dire would be something out of Spain in the 15th century. And case after case, say 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 deliberation. So the idea that you can't do it 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 is within the province of the court. Three is the Commonwealth talks about the brief request for SJC intervention. That's simply not on the merits. 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-year request 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.
[00:59:50] Speaker 7: Is there a question on that? I apologize. I've read through it, right? I mean, that's a real effect. Yeah. Regarding the polling of the jury? Was that an issue in that? That would have occurred during the trial right after?
[01:00:01] Speaker 9: Yes. The issue there was, you know, there was no objection to the mistrial. There was no request to poll the jury. There was no request on limited instructions after the fact, after the jury disbands. As opposed to here, where Mr. Reddington objected to the mistrial, asked for the voir dire while the jurors were still intact, 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 factually and opposite to this case. 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 weigh Ms. 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. Counsel, thank you. All right.
[01:01:46] Speaker ?: Call over. Good morning.
[01:01:48] Speaker 6: A deadlocked jury has historically been the traditional example of when manifest necessity requires a mistrial. And a mistrial, when the jury is deadlocked, 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. The reason the discretion is given to the court is, as the defense counsel stated and as Your Honor acknowledged, is to prevent coercive measures from occurring, from forcing a verdict, especially in the sensitive area of a lone holdout juror. And 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 foreperson claiming that one juror wasn't applying the law regarding reasonable doubt, it's basically writing what was happening in their opinion. And it suggested a disagreement about the weight of the evidence, how to apply the law, how 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 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 with 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 and the juror's 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 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 . 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 create endless confusion and controversy in cases where a 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 person's notes while avoiding the risk of pressuring that lone dissenting juror or exposing the juror's 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 person's concerns expressed in the note. It avoided the risk of coercing the lone juror. And it avoided intruding into the deliberative process. Now, in their memo, defense lists different questions that could have potentially been asked, and I believe 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 11 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 on reasonable 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 on reasonable 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 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 it, Chalve or Chalve, C-H-L-V-E, 486 Mass 847, where the SJC deemed it erroneous when the judge did an individual colloquy with the 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 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 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 risked 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 when the court found inquiry needed in Connor, first of all, that wasn't a deadlocked jury. And in that case, a note was sent out with very specific details that the juror was eccentric, antisocial, 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 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 issue being posed by the foreperson and the jury. And you dealt with that by the individual for there 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 a 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, information being brought into the jury room, or a refusal to deliberate. And so there's not one case, I believe, cited in defense's memorandum where there was a mistrial that occurred, and then there was a motion to dismiss that was allowed, denying the problem with 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 was found guilty. It was retried and found guilty. So 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 Commonwealth 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 Vardir 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 Vardir and to tailor the instructions and how you handled the case from that point on. Reinstructing unreasonable doubt after the individual Vardir directly addressed the foreperson's concern regarding the jurors' supposed misapprehension of the instruction without isolating that long 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 ought 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. And that's based on the case law and the statute. Under General Laws 234A, Section 68C, a jury can't be sent out again without the jurors' consent. And 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 being given the Tui 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 is 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'd just like to point out to the court, there was a Ninth Circuit Court of Appeals decision that just came out regarding removing a holdout juror, and that was found to be error. Do you have that site?
[01:16:06] Speaker 7: It's not.
[01:16:08] Speaker 6: I don't have the site, but I can provide it to defense and the court. I just found an ode about it this morning. Thank you.
[01:16:15] Speaker ?: All right. All right.
[01:16:17] Speaker 7: May I brief you about that one another? Briefly, please. Very good.
[01:16:21] Speaker 9: In terms of remedy, Judge, the remedy 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 v. Ranchi, which is one of the citations given to you by the prosecutor during 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, where the jury for a person is saying, "The juror is not following the law. 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. A judge should conduct a vordere of the juror, and they were critical of this judge who did not conduct a sufficient vordere. 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 vordere, whether or not the cause was personal and satisfied Connors, 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 vordere necessarily would have led to discharge. The law is uniform that a probing vordere 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 vordere because ordinarily the majority jurors convince a judge that the loan holdout is not deliberating in good faith. 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 vordere. One of the potential outcomes was a discharge and a 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 jurors not following the law. I respectfully request that Your Honor not only consider but grant the motion to dismiss. All right. MR PRICE: Thank you, sir. Thank you.
[01:19:57] Speaker 6: Just briefly?
[01:19:58] Speaker 7: This is it. This is the last. Thank you.
[01:20:01] Speaker 6: Well, he started. Just addressing 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, 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 vordere, you do the general instruction, and then we get the question about refuses to apply, acknowledging doubt but refusing to apply it. And we all know that the instruction is not an absence of doubt, it's a reasonable doubt. So what the court did was appropriate. All right, thank you.
[01:20:47] Speaker 7: I'm going to take this matter under advisement. I just want to note, so everybody can maybe relax a little bit. I appreciate citing to John Adams, 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. I try to remember all of President Adams' lessons in writing, so I will also try and remember those lessons when I'm making this. So I appreciate everyone's arguments. The writings were excellent and very helpful. But I'm going to take this under advisement, and I will get this out as soon as I can. So now, why don't we move on to the second motion, which would be pleading number 212, which is the defendant's motion to preserve records and for limited inquiry into juror Doe. I would imagine first hear from the defendant, then I think Trini O'Connor has entered her appearance, and then hear from the Commonwealth as well.
[01:22:09] Speaker 6: Yes, Your Honor, I agree with the plan. I just would like to object – well, not object. I'm asking for the motion to be denied on its face without argument for two reasons. One is that the filing the Commonwealth received was missing three exhibits, A, C, and H. And the other is that no valid legal purpose – there is no valid legal purpose for the requested actions. 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 if you're denied on its face.
[01:22:51] Speaker 7: All right. I understand the argument. I just want to make sure everybody feels that they were able to present their position. I'll hear it, and then I'll make my decision in regards to that. So the defendant wants to argue this, and then we'll hear from Attorney O'Connor. All right.
[01:23:14] Speaker 4: Well, here we are, huh? 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 Oz. We want to have fairness is what we want. And this young lady came into this courtroom back in July, and we picked a 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. DeRonsville --
[01:25:12] Speaker 7: I'm going to stop you right now. No, you're not going to stop me.
[01:25:15] Speaker 4: Well, no, I am.
[01:25:16] Speaker 7: 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. Keith, it's all over the Internet. You know what? That's through the Internet. That's through other people. There's no need here in this courtroom to use that. Everyone else is referred to him either as juror or no, and if you want to refer to him, that's the way he's to be referred.
[01:25:40] Speaker 4: That's all. He's got more face time than I do.
[01:25:42] Speaker 7: Well, that's, you know, that's -- but that's not through these rulings I've made.
[01:25:47] Speaker 4: And his attorney from Houston is sitting in the back room. Well, that's great, too.
[01:25:51] Speaker 7: But, you know, just let's -- we don't need this. Just --
[01:25:55] Speaker 4: 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. And his podcast representative indicated on his podcast after he had pandered 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 woman was granted due process in this case? So in addition to 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?
[01:28:27] Speaker ?: I do.
[01:28:28] Speaker 4: Do you have that? Yes. We all had it during the time. Okay. So we have it. Do I have to offer it again into evidence or can I reference it 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.
[01:28:50] Speaker 6: Objection. Giving you the protected quarry information. So I'd ask that any argument about whether or not this person has arrest or a record being done at sidebar or in a closed courtroom?
[01:29:00] Speaker 7: No. Well, hold on. I think I made the decision on that objection, all right? So the objection to Commonwealth has made, the argument that you're making now, is that made in the pleadings that were impounded?
[01:29:16] Speaker 4: As far as the disclosure or non-disclosure of – and his representation to you and counsel during the voir dire, that's not protected. That's not quarry.
[01:29:30] Speaker 7: That wasn't what I asked. The question was, is the issue relating to what you were just about to go into regarding arrest, was that referred to in your memo that was impounded? That's all.
[01:29:44] Speaker 4: 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 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 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. The question here is confidential. The question here is confidential by statute. What is confidential? The question here.
[01:30:49] Speaker 7: What's your point? My point is that you're talking about this closure of confidentiality with somebody else. This is the commonwealth's argument, at least the objection, is that the actual questionnaire is confidential by statute.
[01:31:09] Speaker 4: Okay, so if you take the confidential – all in the interest of justice, of course, to make sure that this young lady got a fair trial. Let's put that aside. We'll call that confidential. No, no, put that aside. 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.
[01:31:47] Speaker 7: It was submitted as an exhibit by you. It was mentioned in an impounded memo by you. I've read it. I – don't forget, I was there. You were where? At the trial? I was there during the impalement. Okay. And so it's been raised by you, and you provided that. And I'm just addressing the commonwealth's objection that you're about to, in open court, raise a document that is by statute confidential.
[01:32:21] Speaker 4: So – Go ahead.
[01:32:23] Speaker 6: Well, thank you. Not only 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 to 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 this should be public material.
[01:33:00] Speaker 4: It is public material because you have information that has been provided. He told this court – see, now I'm confused as to what I can say and what I can't say. That's why. If there is a form –
[01:33:13] Speaker 7: I was confused what you were going to say. That's why I'm just trying to give you some guidance in regards to that.
[01:33:17] Speaker 4: I appreciate that, I think. If there is a form 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. The 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 part of the record, right? Yeah. No. 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 affect – Attorney Sprague. Just that I know – Attorney Sprague. I know.
[01:34:31] Speaker 7: I just think there should be some level of respect.
[01:34:34] Speaker 4: I don't want to disrespect by that, certainly. 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 2115CR0003068, September 27th of 2021. And police report, if I may.
[01:35:42] Speaker 6: Objection. If we may report sidebar briefly. I know the defense council doesn't like to do that, but I'd prefer not to violate the law.
[01:35:48] Speaker 7: Well, listen, why don't we all dial us back a little bit, all right? And I'll see council over here inside a bar. And, uh, we can view it over here.
[01:35:58] Speaker ?: Okay.
[01:35:58] Speaker 7: Thank you. Thank you. Thank you.
[01:36:01] Speaker ?: Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you.
[01:43:37] Speaker 4: We are all well aware of. First, I would like to introduce, and I could certainly submit, I know that Mr. Verano has 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 '26. I have the video and the transcript that I would offer. I have as the next exhibit that I would offer would be the impanelment excerpt of July 22nd, 2026, which was the voir dire that I referenced in the course of the argument, Your Honor. I have a request for NBC10 interview, which was reporting on their investigation into this individual. I have as 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 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 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 have access to them. What is of significant import in addition is you may recall our bandying 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 and 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 a 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 what's important there is that you would recall that at this point the 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. And she objected, pardon 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 used the expression, I think that most of them would go back for another 8 to 10 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, the concepts that has overtaken the meritorious and good aspects of this case. Mental health, what is wrong with the mental health system in our country has been overshadowed by this individual's 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. Including the guy in the back of the courtroom.
[01:49:18] Speaker 7: All right. So just so we have the records that will be offered, those will be admitted. The ones that we spoke about over here at sidebar will be sealed, but also be admitted.
[01:49:31] Speaker 8: Thank you.
[01:49:32] Speaker 6: Okay. I think that Commonwealth could get copies of Exhibit A, C, and H at some point. Sure. We never received them. Okay, sure.
[01:49:39] Speaker 7: All right. Sure. Yeah, we'll get those. Commonwealth, do you wish to be heard? Then I'll hear from Attorney O'Connor. Commonwealth.
[01:49:48] Speaker 6: Your Honor, the Commonwealth, as I stated at the beginning, thinks that this motion should be denied on its face. There's no legal purpose for what's requested here. All of this information, even if it is accurate, was discovered 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 the statements and actions of the other 11 jurors, as there have been multiple statements after the declaration of the mistrial by many of the jurors, detailing some questionable activity, use of phones, considering whether treatment's an option at a prison when determining their verdict, talking about joint press conferences before evidence closed. So if the door was open to examining this specific juror, then all of the jurors would be included in that if we're basing it on extrajudicial statements made after the declaration of a mistrial.
[01:51:02] Speaker 4: Thank you. Your Honor, I apologize. Again, I apologize. I always do this. I apologize. 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.
[01:51:17] Speaker 7: That's one of the things that's asked. Right. If I allow that, then they turn it over. If I don't, then they won't turn it over.
[01:51:26] Speaker 4: I think, though, again, I think they have.
[01:51:29] Speaker 7: No, but I'm just saying, but isn't that one of the things that's asked?
[01:51:32] Speaker 4: Well, yeah, because I haven't yet it, so I'm inquiring as to whether it exists. But I think that I'm entitled to it. 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 have it. That's what they do.
[01:51:44] Speaker 7: Then why'd you ask if you didn't have to ask? Because I didn't do anything yet. The only 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 it over, they have to turn it over. If there's another avenue for you to get it, I'm not foreclosing that.
[01:52:06] Speaker 4: I already have, but that's why. All right, well. That's all. It's a simple answer. Yes, we do, and no, we don't.
[01:52:12] Speaker 7: All right. But they'd rather have me force it, so I'll make that decision.
[01:52:17] Speaker 4: All right. Could I inquire further, Your 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?
[01:52:28] Speaker 7: Why don't we, hold on, why don't we get 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, fair. So we'll just try and go, we'll just go step by step. All right, and as I said, I know that Attorney O'Connor had, I don't know if she wishes to be heard, she had entered appearance last time. Counsel.
[01:52:56] Speaker 10: Thank you, Your Honor. Your Honor. Juror Doe did not ask to serve on this jury. Juror Doe was summonsed and came to court because that is what citizens do when called to complete their civic duty. In July, the defense read Juror Doe's questionnaire. They heard the Commonwealth ask about what Juror 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 Juror Doe have any reservations about the insanity defense? And could Juror Doe accept that the Commonwealth carried the burden on criminal responsibility? Juror Doe's answer was, yes, I would listen to all the facts. And yes, Juror Doe accepted the Commonwealth's burden. There was no challenge for cause. No peremptory. The defense declared itself content and Juror Doe sat. From that day to the mistrial, only one thing changed in what the defense knew about Juror Doe. And that was the vote. The jury's notes told everyone what the vote was. One juror, Juror 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 Juror 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 juror, one at a time, under oath. Every one of them, Juror Doe 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 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 foreperson 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 Villaranchi 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 and 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 Reade 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 Deau 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 Deau. And to be clear, juror Deau does not concede any of those allegations. But serious allegations, when made, still have to come through a lawful 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. Ralph R., and Samson 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. Ms. Clancy doesn't have to prove juror Deau did anything about juror Deau 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 Fidler 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 Gerard Doe, 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 Gerard Doe 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. He said, "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 v. 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 Doe did, but what Juror Doe thought. They said Juror Doe saw 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 Doe, swore that they could. The defense says Juror Doe lied when swearing to follow this court's instruction on reasonable doubt. But how? How would you know if Juror Doe lied? To prove that, you would specifically have to ask Juror Doe what evidence did you believe? What did you doubt? What did you see differently from the others?
[02:05:10] Speaker 7: Counsel, this is this kind of, we kind of argued this. I know you didn't get a chance to argue, but we've kind of argued the double jeopardy issue. So if you can maybe move on, just give me a chance if there's anything else you want to add in regards to the specific requests that were made relating to your client.
[02:05:33] Speaker 10: But I think this pleads into those specific requests because the-- Yeah, I know they do, but I've read it.
[02:05:38] Speaker 7: Okay? I read the motion and I've just, I've read your opposition. So that's, so I just kind of wanted to just kind of let you know that I had reviewed those positions.
[02:05:53] Speaker 10: Sure. So the other two theories that they raised, the questionnaire and the phone, they are different because they don't ask how Juror Doe 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 ears with her hands when other jurors were trying to reason with her. Here, as a defendant's lawyer admits, Juror Doe checked the box disclosing a prior arrest.
[02:06:33] Speaker 7: I'm kind of stuck, kind of seeing why I stopped there, but in regards to going to the specifics about the questionnaire. Sure. I don't want to open the door. I don't want to kind of revisit this issue. But statutorily, that is, 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.
[02:06:58] Speaker 10: Okay. So there's nothing 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 1. 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 v. Lamprone 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 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 questionnaire, Section 23 states that it should be held in confidence. And jurors answer that honestly because they're promised that privacy. Handed to the defense because a jury couldn't agree, and that promise is broken for every juror who comes after. The defense had Jurado's questionnaire in July, and as the Eighth Circuit put it in United States v. Humphreys, 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. He's not to do that after. The probation record is confidential under 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's 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 Jurado 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, Jurado told this court I would listen to all the facts. In September, Jurado swore 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, Jurado asked that this court to deny the defendant's motion as it relates to Jurado.
[02:11:17] Speaker 7: All right, thank you. Is that the court's response? Yes, because at this point, right after that, we're going to take a short break.
[02:11:24] Speaker 4: Jurado also, interestingly enough, established the fact that if you are a, quote, holdout juror, you possibly can make up to half a million dollars on gold funding. That's all right. That's my point.
[02:11:38] Speaker 7: I'm going to take that pleading, which is pleading 2-1-2 under advisement as well. The court's going to take a very short break at this point. Then we'll come back out and we'll argue the remaining motion to preclude prejudicial statements, pleading number 2-2-2. This will be the short recess.
[02:12:00] Speaker ?: Board, all rise. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. 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The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. 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The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:16:03] Speaker 1: The court's going to be the short recess. The court's going to be the short recess.
[02:16:05] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:16:38] Speaker 1: The court's going to be the short recess.
[02:16:39] Speaker ?: The court's going to be the short recess.
[02:16:40] Speaker 1: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:16:43] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. the court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:17:03] Speaker 1: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:17:06] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:17:38] Speaker 1: The court's going to be the short recess. The court's going to be the short recess.
[02:17:40] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:18:02] Speaker 1: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:18:07] Speaker ?: The court's going to be the short recess.
[02:18:08] Speaker 1: The court's going to be the short recess. The court's going to be the short recess.
[02:18:10] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:24:34] Speaker 2: The court's going to be the short recess. The court's going to be the short recess.
[02:24:36] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:25:46] Speaker 1: The court's going to be the short recess.
[02:25:48] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:27:24] Speaker 7: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:27:31] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:27:55] Speaker 1: The court's going to be the short recess. The court's going to be the short recess.
[02:27:57] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:28:40] Speaker 2: The court's going to be the short recess.
[02:28:41] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:28:52] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:29:04] Speaker ?: The court's going to be the short recess.
[02:29:05] Speaker 2: The court's going to be the short recess. The court's going to be the short recess.
[02:29:07] Speaker ?: The court's going to be the short recess.
[02:29:08] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:29:12] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:31:00] Speaker 2: The court's going to be the short recess. The court's going to be the short recess.
[02:31:02] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:31:29] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:31:46] Speaker ?: The court's going to be the short recess. The court's going to be the short recess.
[02:31:51] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:32:12] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:32:18] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:32:24] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:32:29] Speaker 2: The court's going to be the short recess.
[02:32:30] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:32:37] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:32:41] Speaker ?: The court's going to be the short recess. The court's going to be the short recess.
[02:32:43] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:32:53] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:33:08] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:33:29] Speaker ?: The court's going to be the short recess. The court's going to be the short recess.
[02:33:31] Speaker 2: The court's going to be the short recess. The court's going to be the short recess.
[02:33:33] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:33:42] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:33:50] Speaker ?: The court's going to be the short recess.
[02:33:51] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:33:59] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:34:02] Speaker 2: The court's going to be the short recess. The court's going to be the short recess.
[02:34:04] Speaker ?: The court's going to be the short recess.
[02:34:05] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:34:24] Speaker ?: The court's going to be the short recess. The court's going to be the short recess.
[02:34:26] Speaker 2: The court's going to be the short recess. The court's going to be the short recess.
[02:34:28] Speaker ?: The court's going to be the short recess.
[02:34:29] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:34:32] Speaker ?: The court's going to be the short recess.
[02:34:33] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:34:50] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:35:16] Speaker 2: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:35:19] Speaker 1: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:35:39] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:36:22] Speaker 10: The court's going to be the short recess.
[02:36:23] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:36:50] Speaker 1: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:36:53] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:39:47] Speaker 5: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:40:14] Speaker 7: The court's going to be the short recess. The court's going to be the short recess.
[02:40:16] Speaker 5: The court's going to be the short recess.
[02:40:17] Speaker 7: The court's going to be the short recess.
[02:40:18] Speaker ?: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:40:26] Speaker 7: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:40:37] Speaker 6: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:41:58] Speaker ?: The court's going to be the short recess.
[02:41:59] Speaker 6: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:42:17] Speaker ?: The court's going to be the short recess.
[02:42:18] Speaker 6: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess.
[02:42:32] Speaker ?: The court's going to be the short recess.
[02:42:33] Speaker 6: The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. The court's going to be the short recess. 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 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 counsel are subject to different rules in our proposed order. The prosecution's 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 extrajudicial 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 restrictions 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 Vecora, Dawson, and Cowan.
[02:45:10] Speaker 7: Attorney McConnell.
[02:45:19] Speaker 11: Thank you, Your Honor. Your Honor, the government is asking, Your Honor, to restrain counsel'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 a 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 remains to 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, 484 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 Reddington may, by all means, not even make another statement until the 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 counsel is able to voir dire potentials for executive 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 Reddington made has inevitably tainted a future veneer. And I would say to Your Honor that it would not. The 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 and 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 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 struck 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 through appellate 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 frot out any potential bias and prejudice. Rule 3.6 of the Massachusetts Rules of Professional Code of Conduct already is in place, already governs counsel. Rule 3.8 governs the prosecution. That is what should remain in place and what should continue to govern counsel. It already puts on structure as to what counsel 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 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 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 confusing. All their proposed order is doing is now essentially, I don't know which one controls. And I 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, state what Rule 3.6 allows. However, as found in Gentile, with general terms of degree, such as general elaboration, now an attorney is stuck guessing as to what is able to be provided and safe harbors 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 3.6 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 that 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 a fair trial for both sides. By entering this proposed order that 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 things get carried out of court and through all of that. The proposed order also just does not remotely tie it to anything relative to, you know, any discharged errors, 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 met their burden at all to justify a prior restraint. And that, Your Honor, would be unable to make fines of fact. There has been no retrial date. There is 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 would be unable to set that aside and rule favorably on this matter. So, take care, Your Honor.
[02:52:53] Speaker ?: - Thank you. All right.
[02:52:57] Speaker 7: I'm going to also take that motion under advisement as well. So, the last remaining matter in regards to the schedule. I guess there's generally two ways to handle this at this point. I would be to 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. So, I thought I'd kind of hear from both sides as to what the positions are because healing it one of two ways is going to significantly affect trial preparation and scheduling and things like that. So, I just kind of wanted to see first what the commonwealth's position is and what you can tell me in regards to the status of the case at this point. Matrice Franklin. Matrice Franklin.
[02:54:11] Speaker 6: Thank you, Your Honor. The commonwealth's preference 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 motions 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, the plan would be to pick a trial date at some point. But I think that picking the trial assignment date or a status date in the interim would make more sense. All right.
[02:54:48] Speaker 7: In my kind of analysis on how to go forward, has the commonwealth made a decision how they're going to proceed with this case?
[02:54:56] Speaker 6: Well, Your Honor, this would be a retrial as to what that looks like. Yeah. Will depend. We're not at that point yet. I think once we get the decision on the motions and see what happens from there, then we would decide what that looks like. But it would be a retrial. Okay.
[02:55:11] Speaker 7: All right. Attorney Ray again.
[02:55:17] Speaker 4: 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 have no problem with that. And I would want your honor to be the trial judge in this case. But I also know that the time, unfortunately, 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. And if counsel feels that, which I do, and I know Mr. Weinberg does, that it's a 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 appeal, I am not going to have this woman sit incarcerated for the next year or two or three. I want a trial. I want a trial. And I want it with you. And I want it this spring.
[02:58:28] Speaker ?: All right. All right.
[02:58:30] Speaker 7: Well, here's what I'm thinking, is a very short trial assignment date so I can at least address some of the motions here. With the thought that on that date, whatever the Commonwealth decides to do, if it's either first or second, jury, jury, 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 at some point, I understand. 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 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. And this would 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. And we can talk about that maybe in two weeks. If it can't be done, we'll have to talk about how we do that, if we squeeze it in earlier or a little bit later. But just so everybody knows 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, I'd say status. Because trial assignment, I don't want anybody reading into this, the decision in regards to the motion to dismiss. It may be to commit here and say the motion to dismiss is allowed. Or maybe it's denied. 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. I don't want anybody reading the tea leaves.
[03:00:32] Speaker ?: I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves.
[03:00:34] Speaker 7: I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves.
[03:00:38] Speaker ?: I don't want anybody reading the tea leaves.
[03:00:39] Speaker 8: I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves.
[03:00:54] Speaker 6: I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves.
[03:00:56] Speaker 8: I don't want anybody reading the tea leaves.
[03:00:57] Speaker 5: I don't want anybody reading the tea leaves.
[03:00:58] Speaker 8: I don't want anybody reading the tea leaves.
[03:00:59] Speaker 7: I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves.
[03:01:02] Speaker ?: I don't want anybody reading the tea leaves.
[03:01:02] Speaker 8: I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves.
[03:01:07] Speaker ?: I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves.
[03:01:11] Speaker 4: I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. I don't want anybody reading the tea leaves. There's a lot of things in play here. Do you think there's a possibility we could know what we're doing by that date? First, second, whatever. Say that 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. You tell me what date you want to put this on for and I'll make arrangements to be here.
[03:01:58] Speaker 7: I just wanted to think of picking a date basically for me to report to all of you as a motion to dismiss allowed or not allowed. 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 by Zoom if the parties wanted to do it. It's just reporting. There really won't be any arguments.
[03:02:24] Speaker 4: I'd just say November 10th if that works.
[03:02:28] Speaker 6: That's only a week, did you? Yeah, I'm not sure.
[03:02:30] Speaker 7: I'm not sure I'd get that done in regards, but maybe the 20th?
[03:02:37] Speaker 6: Well, sir, come on.
[03:02:40] Speaker ?: I'm sorry.
[03:02:41] Speaker 8: I have to be in forward against Superior Court in Dedham in the afternoon. How about the 16th?
[03:02:59] Speaker 4: Good morning.
[03:03:03] Speaker 7: I'll do my best to have a decision in regards to that. It may require a supplemental memorandum of law in regards to that.
[03:03:15] Speaker 4: As long as I don't have to do it, I don't care.
[03:03:18] Speaker 7: Do you want to say the 16th? You want 9 a.m. or 2 p.m.?
[03:03:22] Speaker 5: I'll do it at 9 a.m. or 2 p.m.
[03:03:23] Speaker 7: What works best for me?
[03:03:25] Speaker ?: Either.
[03:03:26] Speaker 5: What was that?
[03:03:27] Speaker 7: 9 a.m. or 2 p.m.? Aye, 9. Aye. Please.
[03:03:34] Speaker 5: Thank you. I'll be doing in person as a Zoom.
[03:03:37] Speaker 7: We can do this by Zoom if that makes it easier for everybody. You know how much I hate Zoom, but this is just getting dates.
[03:03:45] Speaker 4: We prefer to be here in person. Okay. All right. Thank you. I know Ms. 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.
[03:04:02] Speaker ?: Who's it at 10? 16. 10 o'clock. 16.
[03:04:06] Speaker 7: All right. All right. That will be for status/trial assignment. Okay.
[03:04:14] Speaker 1: All right.
[03:04:15] Speaker 7: Thank you. All right. Council, everyone. Thank you very much. I want to thank everybody who's here. Ms. Clancy, thank you. So we'll be in recess on this matter at this time.
[03:04:23] Speaker 5: On the record, this matter has continued to November 16th, 2026 at 10 a.m. for status and possibly --
[03:04:44] Speaker ?: Thank you.