Lindsay Clancy appears in court as start of murder trial nears.

[00:00:00] Speaker 1: good afternoon your honor may i proceed yes please your honor before the call we have the matter of commonwealth versus lindsay clancy miss clancy is present she is represented by attorney kevin reddington and the commonwealth is represented by assistant district attorney jennifer sprague and assistant district attorney shannon buckingham [00:00:22] Speaker 2: all right all right well good afternoon council good afternoon good afternoon miss clancy all right so this is on for our final trial conference i know there's a significant amount of motions eliminated so my thought would be to kind of go through those at this point then after we do that talk about any logistical issues talk then a little bit about uh impalement and how we're going to do that and then if there's anything else that the parties feel we need to address prior to uh the next date and the next date my understanding is kind of for uh final final trial conference on july 13th uh with planning to begin impanelment on uh july 20th that's my recollection of the calendar so why why don't we kind of just go through the motions and eliminate as i have them um and um and the first one which is number 94 uh is the commonwealth's request for individual voir dire um so my my they haven't quite finalized the way i think we should uh handle uh the impalement because i'm going to ask basically the general questions um and the issue that i think we want to talk to everybody about what you're doing now because that motion brings it up um is the question of a question the issue of a questionnaire um or not um and so why don't we just jump right into that at this point um what are your thoughts in regards to utilizing a questionnaire i generally don't do it um but i know in other cases and other judges and we'll do it i've done it occasionally but uh [00:02:23] Jennifer Sprague: attorney sprague thank you your honor um i i have done it in other cases i don't like to use them i like to see the jurors response um physically to the questions um and um and i think we can ask follow-up as needed um during the individual voir dire so i prefer not to use one all right it's ready [00:02:43] Shannon Buckingham: i agree in the sense that i like to see the jurors respond see how they react with their body language is you know we try to look at books that they may be carrying everything we get some information on the person or the individual uh on the other hand i have had cases where we have used the questionnaire and i personally endorse it uh and the reason is that the questionnaire generally goes much deeper than what the individual voir dire sidebar or whatever would be so many times as you know in your cases i'm sure you've done them yourself where you have the jurors fill out a questionnaire we get a copy of it we can scan it we can look at the answers then we go through the actual questions for the statutory questions and then any sidebar questions this is a very complex case obviously with significant issues of extreme emotion as well as very very sophisticated scientific psychiatric issues so i think this is one of those cases where subject to your discretion a questionnaire might be helpful i know i did submit as well a motion for individual voir dire with suggested questions again i think i'm pretty sure the questionnaire i'm not sure actually it's been a while since i submitted those [00:04:00] Speaker 2: motions about a month or two yeah well my my thought is i've looked at the questions that were submitted uh very similar both sides i think we we all kind of know what the issues are going to be what we have to uh talk to the jurors about um i'm gonna take a run at drafting it it'd be a one-page questionnaire my thought if we do it um it may be just concentrating on the kind of unique issues that we have in this case as we said psychiatric issues pharma pharmacological issues things like that um and that might allow us to kind of streamline a little bit on that um but if we don't use that i think i've tried cases with every all of you so what we generally would do is we'll um bring the jury out i'll ask them as a group the group questions and then we'll just bring them in one at a time and my thought would be to just have one juror come into the courtroom at a time um make i'd ask some of the questions and that allow reasonable follow-up to both sides uh and then to exercise challenges at that point um so that's you know there's no nothing new about that procedure but i am going to take a look at drafting a questionnaire that might just focus us a little bit it might help kind of speed up because it's going to be asking some kind of more uh in regards to medical questions and things like that it might the jurors might find it easier to to answer that in writing rather than uh orally so so we can address that my thought would be to hold that one off until the september 3rd uh july 13th i'm sorry uh the final trial conference at that point um comal that make sense yeah it makes sense yes all right all right all right the next motion is let me see number 95 which is the commonwealth's uh motion for a sequestration order i did see that there was uh a defendant's motion for a certain exclusion from that um sequestration order um comal with any objection to those names that were listed for the exception yes your honor um i would ask that they [00:06:34] Jennifer Sprague: be sequestered until after they testify i would try to meet with these witnesses uh the defendant's parents and her sister um they have refused to meet with us for trial prep so i can't tell you when or if i'm definitely going to call them um i kind of have to see how things go as the trial progresses um but the information that they would testify to whether called by myself or defense council would go to the heart of the defense um they would be talking about her behavior leading up to the uh murder of her children and um the things she said and did um and i wouldn't want them even unintentionally influenced by each other or um you know other people so i'd ask that they be sequestered until after they testify [00:07:20] Shannon Buckingham: all right mr redington well here we go again standing right out of the gate that is absolutely improper to represent that they refuse to meet with the district attorney first of all we have been extremely cooperative with allowing witnesses or not so much allowing but indicating that we when i say we i mean myself representing lindsey um and of course her supporting family have indicated that we don't have any problem i i i couldn't have bent over backwards more on this case to allow them to talk to doctors get reports get every document get every medical record everything they need everything they want then they get a call i get a call from allison her sister saying um you know da wants to talk to me i'm like fine talk to the da they talk to pat they pat called me before yeah talk to pat they talk to pat her mother and father they they want to talk to the mother and father they can talk to the mother and father i'm not aware of anyone saying no we will not allow you to interview us and when you think about it what is the extent of the interview it's her mother and father and her sister who lived this torture along with pat october november december january lived with her and her family to try to help out they know every statement they made this isn't a murder case with a drive-by and an identification issue that we're worried about people perjuring themselves this is a case where you've got a woman who's got a mother and a father who are very supportive who have something to offer but it's limited what they observed what they did to try to help during that period of time that lindsay and patrick were consulting with doctors when she went to mclean hospital and they were taking care of the kids and helping out that's it so to suggest in a case like this that the government wants to exclude her mother and father and sister i think is extremely objectionable [00:09:40] Jennifer Sprague: yaron i spoke to her sister myself and she told me herself that she refused to answer any questions to us until she was sworn in by a judge so that is that is what happened she would not speak to us [00:09:53] Speaker 2: i understand actually i understand both these my my inclination the motion uh is for permission to allow um the defendant's father defendant's mother and defendant's sister um to be uh excluded from the sequestration order um my understanding is that they have been uh interviewed by some of the medical professionals i believe um so and i would imagine that everybody's looked at those um so there's some some i guess uh indication of what they would be testifying to um and so they i'm going to uh allow the commos motion for sequestration order which is 95 and i'm also going to uh allow uh the following individuals to be excluded from that sequestration order be michael musgrove the defendant's father paula musgrove the defendant's mother and allison osga the defendant's sister sure and if the parties if they testify and the commonwealth wants me to give kind of a it's probably probably the opposite of a limiting instruction but some kind of uh explanation that they were present during the course of other individuals i i'd consider doing something like that okay all right next motion is number 96 it would be the commonwealth's motion eliminate to preclude improper lay opinion testimony um [00:11:29] Speaker 5: council thank you your honor your honor the commonwealth has filed this motion um similarly to the argument just made by eda sprig we do expect many of the witnesses in this case to have very close personal relationships with the defendant and therefore um have some observations obviously that they would be called upon to explain however the danger in this circumstance is that there is a significant amount of mental health issues that we expect to be raised in various ways and so the commonwealth's motion is just requesting that the lay witnesses naming her ex-husband her family members her friends who are close to her that they not give opinions of overall having to do with diagnosis having to do with medication that's information that will be presented during the course of this trial through the course of medical records as well as particular various um doctors and experts that will be testifying to those topics so the commonwealth is just asking that um this motion be allowed so you are seeking to to keep out [00:12:38] Speaker 2: things like oh i think she was depressed or i think but you're not seeking i imagine to keep out [00:12:44] Speaker 5: things like well she seemed better or things like that well i think the case law allows for witnesses to testify to their specific observations of um the person's behavior but anything that having to do with the types of medications even if it's types of medications that they were advised by the defendant that's hearsay that wouldn't be admissible in that form um anyway so it's it's those types of statements any opinions about um what her mental condition was i think are not relevant and um the most relevant information it comes from the experts and the doctors themselves what about if someone's testifying [00:13:26] Speaker 2: um you know a friend or family member um that they've seen her and um after a certain date she seemed worse what would your position be on that i think they would have to be able to articulate [00:13:39] Speaker 5: specifically what the behaviors were and that would fall into that category of their direct observations of the defendant's behavior okay all right mr rankton [00:13:50] Shannon Buckingham: your honor right one of my pet peeves if you will is trying cases by in limine and this is the thing that we're all involved with now is that we try cases by filing boatloads of motions to exclude this to exclude that stipulate to this agree to that whatever happened to a trial where you put a witness on the witness stand they elicit their direct we can cross objection you make rulings that's what i think the way it should go but understanding that they have a right to file a motion in the interest of justice i guess they want to exclude any witness that would testify that i thought lindsay was depressed i've known her for x number of years i've seen her as a mother my opinion is that she was an incredible person wonderful person great mother that's objectionable that's he is a this is he is a i object to being hamstrung on having evidence presented as to observations made by people whether it's friends or family or even guys at a bus stop that the government would interview that is evidence that would be i suggest admissible i certainly don't expect that i would elicit on direct or cross a witness's opinion a lay witness's opinion as to her psychiatric mental state obviously that is totally outside the can of a person a citizen to be able to give that an opinion so my position on this motion is i would agree that i'm certainly not going to elicit an opinion as to her medical condition or psychiatric condition but i think that i am entitled to elicit as i'm sure the government perhaps could try you use as an example uh whether or not somebody wants to say she seemed to have a good day she seemed to be better you know they're going to try to elicit that so if that's the case i think it's admissible what someone's opinion is as to what she looked like sounded like how she was acting with the kids what she was doing with the children taking them to the doctors taking them playing with them in the backyard or in the playground that's admissible so well i think uh in regards to the motion eliminates [00:16:18] Speaker 2: we've done enough cases all of us that you know why i look at them is it just gives some guidance to the council as to what uh what the lane is here in if and this goes to this motion or any of these motions if during the trial is the the evidence changes a little bit or makes it something admissible by all means you know these aren't any concrete you can certainly bring that up um but i'm going to allow the motion eliminate to preclude uh and it says improper lay opinion um i'm not sure it doesn't sound like anybody's really disagreeing too much with this um the the lay people not to say well because of this medication she's better or because of that medication she's worse um but i think without seeing the whole foundation generally a lay person can say well she seemed happier she didn't seem as happy so i would allow that generally but we'll get to it and then the evidence as it comes up in regards to the foundation may open the door or close the door but um but in regards to improper kind of lay opinions as to expert issues yeah that's that that motion will be allowed and that's number 96. and i don't think [00:17:41] Shannon Buckingham: the motion is necessary i think it's readily apparent to any of us that that would not be admissible [00:17:46] Jennifer Sprague: yeah there's no reason for objection yeah we'll see where we go um all right number uh next motion is [00:17:53] Speaker 2: number 97 common motion eliminate to preclude defendant from mentioning to the jury nor eliciting statements [00:18:00] Speaker 5: of the defendant any doctor um so commonwealth i'll hear you on that so your honor um again as your honor said we and our motions are just attempted to flag issues before um we have to litigate them in front of the jury so this is just a pretty standard motion in cases involving uh criminal responsibility defense where there's no concessions about um that particular defense so in this case um and we're just raising for the court and identifying that um you know procedurally how these cases play out being the fact that the um issue of criminal responsibility is really raised in defendant's case and then rebutted by the commonwealth following the defendant's case that according to the law in commonwealth versus pn tadosi and chisholm the more recent case that reiterates this that there isn't a mechanism that circumvents the rules regarding the fact that the defendant can't elicit in their case in chief statements of the defendant and so we're just flagging this for the court at this time the commonwealth hasn't made any determinations as to whether we would intend to get into those topics on cross-examination but as this line of cases uh outlines for the court and reiterates time and time again under the case law that that can only come out when the door is in fact opened by the commonwealth by the opposing party as to the specifics of the statement certainly experts are free to give testimony based on their um overall analysis of the case and that they can rely on particular information that's not in evidence but they can't testify directly about the [00:19:43] Shannon Buckingham: statements themselves all right and mr brenton in regards to this motion yet again in the interest of justice in this case i guess we don't want any juror to hear why patrick clancy and his wife lindsay would go to consult with doctors because of depression because of the life that she was living which was one of horrific misery because of medications and they can't they don't want that to come out as to why they're consulting with the doctors which begs the question where we have medical records that are going to be certainly introduced as central to the defense that a jury is going to have access to so the question then becomes what do we how would how would i handle that i call dr gelata and i say to dr gelata um who are you i'm a doctor and did you know lindsay clancy yet and was she one of your patients yes and then what i can't ask her why she was there i can't ask her what her complaints that's a different [00:20:43] Speaker 2: different scenario if the i think what the commonwealth was looking for if they put on an expert who's going to provide their opinion as to criminal responsibility um that that doesn't open the door at that point until cross-examination to comment on statements that were made by the defendant to that doctor the statements that were made to other people that may be admissible in other um for other grounds i i don't think that wouldn't be covered by that motion eliminated that's [00:21:20] Speaker 5: correct john and what the commonwealth is specifically referring to is the scenario in which we get to the co the commonwealth does intend and we have on our witness list several of the treating physician treating uh mental health providers for the defendant and we do intend to offer um testimony and therefore we're offering the statements and he's free to cross-examine them on that that's not the issue that this motion raises the issue this motion raises is at the conclusion of the commonwealth's case when we rest our case in chief and the defendant puts on his experts if he chooses to do so regarding the topic of criminal responsibility it's at that point where this motion comes into play it's at that point where the p anteducey case the chappelle case the chisholm case all are instructive as to how that expert then gets testimony and we raise this so that the expert doesn't testify and unintentionally offer an admissible evidence and that's what the line of the case is talk about why this is important and why procedurally this is this is the way in which to properly address it so it's not about those treating physicians it's more about the experts that are going to be talking about criminal responsibility and it's more about the defendant's own statements regarding the events of what happened or you know what she testified or what she told those doctors in these interviews that they used to then rely upon their opinion so that's the the issue that this motion raises in the commonwealth is raising to the court it would go both ways correct each each side's expert would have that um chappelle or the other cases well not no because when the commonwealth gets to their rebuttal and we call our experts if we choose to elicit the statements of the defendant we can do so as a statement of a party opponent as long as the statement goes to the mental condition as opposed to evidence of the crime in and of itself all right all right so i guess i misread the [00:23:09] Shannon Buckingham: motion when it says government is seeking to and i quote preclude defendant from mentioning to the jury nor eliciting statements of the defendant to any doctor it doesn't say experts hired by the defense i would [00:23:23] Speaker 2: not foreclose your cross-examining their expert um because you are allowed to cross-examine their expert on the basis of uh what what whatever they're relying upon at that point i understand that's the expert [00:23:41] Shannon Buckingham: let's put the experts over here i'm talking about the treating physicians i'm talking about when patrick would take his wife in the condition she was in as a vegetable practically and see these doctors and they would prescribe this medication this motion says any doctor now i understand it's limited to [00:23:59] Speaker 5: retained experts that's fine i have no problem just to be clear that is the first line of the actual [00:24:05] Speaker 2: language of the motion that refers to we're going to go to set we're going to go to neutral corners we've kind of arrived at um the position that this motion which i'm allowing deals with the retained experts all right any other statements that were made by miss clancy to a doctor if there's an argument that it's admissible under some other theory um either side just has to come up and argue with me what their theory is so that that would not those type of statements would not be covered under uh that motion all right so i'm going to allow it as written as to the retained experts okay all right next motion [00:24:59] Jennifer Sprague: is the commonwealth's motion for review yes your honor uh the commonwealth is requesting uh that we do a view um specifically uh 47 47 summer street uh where the clancy's lived in duxbury cbs at 189 summer street in kingston and 3b restaurant in cordage park plymouth um i believe the homeowner uh attorney michael fitman is represented by attorney peter mcguire who i believe may be um on the zoom i'm not sure [00:25:30] Shannon Buckingham: just so you know you're under we have no position [00:25:34] Speaker 5: it said he just indicated that it would not let him unmute according [00:26:00] Speaker 2: all right attorney mcguire good good afternoon your honor attorney mcguire on behalf of the homeowner all all right good afternoon um thank you for joining us um and what is your client's position in regards to the uh commonwealth's motion for a view on uh this address [00:26:20] Speaker 6: thank you ron the the homeowner the cart homer is opposed to the motion the cart homeowner did give the commonwealth access to the property they had unlimited time to photograph measure examine the property um the homeowner has felt like he has gone sort of out of his way to be accommodating to this point in the hopes that it wouldn't involve uh folks sort of arriving at the home it would be massively disruptive to the homeowner your honor certainly well knows and i know from my prior employment that a view is an event i don't want to call it a circus it's not a fair word but it's an event a bus shows up there's there's probably state police given the nature of this case he has neighbors he's in a neighborhood he has a live-in domestic partner who works from home they have pets i'd also note your honor that you know given the complexity of the matter that all the parties face in this case that exact date and time of that view are probably unsure and probably subject to change at this point i don't know how long my client would have to have his home available to to the court so for those reasons and given his cooperation and sort of leading up to today's date [00:27:23] Speaker ?: where he's been very accommodating i think to the government he would ask the court not to further disrupt his life and further allow this disruption i don't have any opinion that sort of merits as to [00:27:32] Speaker 6: whether the government needs or does not need a view here but we do feel like he has accommodated in every way a full videotaping of the of the premises and measuring of the premises photographing of the premises so i i don't think he feels the need for further examination of the property around he'd ask the court to deny the motion to compel him to to allow the examination well would would the homeowner [00:27:55] Speaker 2: feels the need for the view or not it's really the court's decision um to measure of course that's what i'm saying to balance out uh the interest of this this case uh also considering uh under commonwealth versus mattis and other cases uh the the homeowner's privacy interests and the logistical concerns of the homeowner um which i'm certainly willing to do um but yeah commonwealth thank you honor uh we did go [00:28:25] Jennifer Sprague: in with the homeowners permission to take photographs to take measurements however seeing something in person seeing how things relate to each other how long it takes to get from the basement where these children were executed one by one up to the bedroom where the defendant went after doing so um seeing the height from the window that she dropped down to seeing how low that window is from the perspective from the ground is something that the jury is entitled to see in person and i find it very disingenuous of the homeowner who's an attorney and not only is he an attorney he was a prosecutor in our office so he knows how we handle cases he knows how we do trials and now he's a defense attorney in this county who works with our office so he knows how things work and he bought this house after the horrific murder of three children occurred in that house knowing that there would be abuse someday so i find it very disingenuous that at this point he's concerned about his privacy so i would ask that the motion be allowed well i'm not [00:29:26] Speaker 2: going to make any comments in regards to that what i'm going to do is just uh look at this under the case law which requires me to balance out the interests of the parties in this trial as well as the public as opposed to the privacy interests and like i said the logistical logistical concerns of the homeowner council has made a good argument for him but what i'm going to do is i'm going to allow the motion for review i'll issue an order um that will address some of the logistical concerns as stated by council to give as much notice as we can uh to limit the number of people that are in there uh and in a lot of other cases that we've done in council you i'm sure you're aware of it uh they're almost invariably into private homes and private establishments and we've issued orders i'll issue an order in regards to that so i'm going to allow the commonwealth's motion for review and just [00:30:39] Jennifer Sprague: so the court knows and the homeowner knows we've made arrangements with the state police and the local police to have officers there to block off the street um so that there aren't anyone any other people there other than court personnel and the jury okay all right so i'll i'll allow this you in order [00:30:54] Speaker 2: in council if uh when your client gets it uh if he wants to contact and speak to the court um and has any suggestions i'll listen to them but this view is happening so just so it's clear all right thank you okay thank you all right so that was pleading number 98 pleading 99 is commonwealth's motion eliminate to allow introduction of photographs of the victims while [00:31:37] Jennifer Sprague: alive um thank you your honor um so come off is looking to admit a single photo of each child as well as one photo of the three of them together and the reason we're looking to admit the photo of the three of them together is because when you look at the photos individually um it can tend to give a skewed representation of the actual size of the children um so when you have the photo of the three of them together it kind of indicates the the actual size of each child in relation to each other i have the photos that i want to use at trial i've showed them to defense counsel i can hand them to the clerk [00:32:13] Shannon Buckingham: mr reyke have you seen these photographs yeah thank you and i we have no we have no objection to that [00:32:19] Speaker 2: motion all right so i'm going to um all right so i'm going to allow that all right next motion is commonwealth's motion eliminate to admit autopsy photographs of the victims and crime scene photographs um you probably could is there any objection to that uh mr reddington this is again [00:32:54] Shannon Buckingham: one of those odd situations where you have a motion in lemonade before a trial where in the trial traditionally the government shows counsel the photographs they want to use i'm well aware under the old bastardash argument and all of that they're going to get these in yeah at some point subject to the court's discretion you can crop you can review you can limit but that usually takes place during the trial i don't know at this point in a vacuum if it's something we can decide now but i certainly honestly trust in your judgment as to i mean you've tried enough horrible cases in your career you understand that the impact of gruesome photographs and so i defer to the court's discretion and experience [00:33:38] Jennifer Sprague: again your honor this is uh just a situation where the coma likes to be prepared and likes to flag issues for the court and for defense counsel we will share the photos from the autopsy of each child that we would like to use with defense counsel and i'm sure he'll let us know if he objects to any of those and we can address it at trial but it's more to flag the issues for the court um so that none of us are surprised during the trial and issues don't come up during the trial to delay the proceedings [00:34:04] Speaker 2: no i appreciate that and i think uh so when we get to that point uh close to when you're going to introduce the um the autopsy photos and crime scene um maybe just show counsel maybe we could have a sidebar um and kind of go through them i would anticipate um well as the three of you know some of them are coming in um it's just which ones and limit numbers and things like that so we can address that so i'm going to allow that um at this point um subject to the specific uh photographs all right next is the commonwealth's motion which is number 101 commonwealth's motion to use a 3d model [00:34:56] Jennifer Sprague: of 47 summer street during the trial yes your honor we would like to use this model as a chalk part of the reason we went into the homeowner's home to do the measurements was so that our chief digital evidence officer could create this digital model it'll be of the full exterior of the home and then each floor level inside the home and i think that it would be a much better way for witnesses to identify where they were when they saw certain things or where they were when certain things happen and give the um the jurors a better perspective and a view and i think that will correlate really well when they go on the physical view it's almost complete when it is complete i can provide a copy to the court as well as defense counsel but i think it would be a really helpful chalk in the jurors understanding of what happened in the house that night is it a model or is it just on the screen it's on the screen oh okay it's not a physical model all right it's digital all right mr kind of hard [00:35:53] Speaker 2: kind of hard to um agree or disagree with this because it's not done right um i would just indicate [00:36:00] Shannon Buckingham: your honor that i've had cases where um 3d models such as this as proposed have been used by the prosecution as well as one case i had one done but um i have generally no objection to the use of the 3d model i think what we have to do is just take a look at it and see exactly where they want to put what and based on whose testimony which won't be until the trial but i have [00:36:24] Speaker 2: no objection to the i'm gonna i'm gonna allow that subject to actually seeing it and seeing as the the foundation comes through um but like i said so at this point i'm going to allow that and that's to come in basically as a chalk yes all right now number 102 pleading number 102 is the commonwealth's motion to use a physical demonstration during the testimony of sherry crook which seems to kind of dovetail into the defendant's motion in limit a regarding the testimony of uh kerry crook so why don't you hear [00:37:06] Jennifer Sprague: first from the commonwealth and then i'll hear from the defendant thank you your honor uh so sherry crook is uh works at the massachusetts oh sherry crook i'm sorry that's okay and uh she did um some blood pattern analysis in this case uh she looked at photos um from the crime scene and um based on her training experience i anticipate her testimony would be um describing the type of pattern we will not be asking her to describe based on what she saw what happened in the home that night um i think that's what defense may be concerned with in their motion um it would be more of these are the types of patterns that blood leaves um on a surface depending on how it gets there whether it's splattered or or transferred or or drips um so she would be explaining what each of those things are and then she would be uh testifying about uh what she saw in the photographs and whether the uh the blood she saw in the photographs whether it was a smear a splatter or a drop what i'm asking for my motion is to do a demonstration some jurors will be visual learners and some will be auditory learners i think the auditory learners can hear the testimony and understand what's being said i think for the visual learners a demonstration which is allowed um under the case law and under the rules would be helpful to that type of learner and what i would like to do is have a surface be it a poster board or something like that where we spray a substance we drip a substance and we smear a substance and it won't be the color of blood but something like similar consistency and the the expert would be saying well that's the type of smear that was here it would just be a chalk basically a demonstration so that the jurors can have a better understanding of her testimony of what what a splatter is what a drip is what a smear is so it's just to better help them understand the testimony i would do that at the beginning i would remove the chalk and then i would get into the crime scene photos and the testimony about that so that would be the [00:39:07] Shannon Buckingham: commonwealth's preferred method of her testimony all right mr reddington uh absolutely absolutely objectionable inadmissible there are cases i did file a motion i did cite the cases this has been excluded repeatedly this is referred to as voodoo forensics uh it is total speculation i could go on and on it's junk science blood spatter testimony and testimony of governments all over our country have tried over the years as you all know to introduce testimony of chemists to say or a state police crime lab person to say i believe this is a pattern that matches what is on the floor it matches what's on the bed it matches what's on the steering wheel they're entitled to take a look at a photograph of the actual smear drop spatter whatever it may be and opine in their experience as to what the cause of that source of that and their opinion as to how that was deposited on that particular surface they're not allowed to give speculative testimony as to how they think that it was deposited they're taking poster boards and smearing paint or whatever it is that we're going to try to do according to this motion in front of a jury where this is a courtroom demonstration so you have number one the issue of the courtroom demonstration concerns number two and more importantly call it what you want it's blood spatter testimony and that's expert testimony even if you know in what do they call it the country of nania somebody wants to admit that as evidence you have to have of why dear you have to have sherry crook come in and testify so that she's subject to cross-examination and your observation as the gatekeeper under dobear under the case law that allows that type of testimony so i think this motion is a little too soon and i think it has to be after avoid this field is not junk science and [00:41:27] Jennifer Sprague: i looked at the two studies that were cited by defense counsel and the first one was absolutely refuted when defense counsel made the same argument in commonwealth versus vasquez 462 mass 827 in 2012 where the court said that adhering as to the scientific reliability of expert evidence is generally not required where we have previously admitted expert testimony of the same type where the testimony is offered for the same purpose and this type of testimony this blood spatter analysis according to the court had been accepted generally in the courts of the commonwealth the earliest case i could find was from the 1980s but it goes back even further and even the studies that he cites say that blood pattern pattern analysis has been around for 150 years and accepted by the courts and in that vasquez case the court found that the report defense counsel cites does not say that it's not reliable in fact it says in the case it says the report does not conclude that blood spatter analysis is unreliable the report notes that understanding how a particular blood stain pattern occurred can be critical physical evidence because it may help investigators understand the events of the crime and then if you look at the more recent case study that defense cites the 2021 study in that study itself it says these results should not be taken to be a precise measure of the operational error rates and it says these results do not account for operational quality assurance measures such as technical review or verification and it does not account for the fact that in this study there was a small number 76 participants from different countries who use different terms to identify what they were looking at which could result in some of the inconsistencies so this has been around for 150 years it's been approved by the court um and um it's it's a reliable scientific um method and it should be admissible without a double-air lamigan we use here's i think [00:43:37] Speaker 2: we do need a void here right um for a number of reasons number one um i don't really know what this witness witnesses training experience is in regards to this this science uh secondly in regards to the um the courtroom demonstration i don't know i mean when i hear what's going to be substance like blood i think it's hard for making a decision without knowing or seeing the actual substance without seeing exactly what is going to be done um so i i'm gonna not i'm not gonna take any action on that um if the commonwealth wants to introduce that they will just have to have a voir dire at some point of both the witness as well as the the actual demonstration to kind of see i can't let you talk about visual learners i can't picture uh exactly how it would work and before i would put that from a jury i'd want to at least know exactly how it's going to be done and how [00:44:40] Jennifer Sprague: the jury's going to view it is that something we could do on july 13th um yeah i don't see why not turn you ready then do you think all right i'll check with the guys to make sure that'd be great so [00:44:53] Speaker 2: i'll take no action on that with the assumption that we may take that up on the 13th all right and i think the last of the motions eliminate um is the comos motion eliminate to admit the 9-1-1 call made by uh patrick clancy [00:45:14] Shannon Buckingham: she had a creighton motion that i have no objection to oh i saw that okay yeah [00:45:19] Speaker 2: i'll get to that yeah i saw that with the with the number of individuals so i'll allow that as well all right in any regards to this which is pleading number 103 uh the motion regarding the 9-1-1 call [00:45:34] Jennifer Sprague: come over thank you your honor so uh the first issue about confrontation won't be an issue because mr clancy will be testifying at trial as to um you know whether this is an excited utterance as i lay out in my motion mr clancy calls 9-1-1 when he finds the defendant in the backyard on the ground you can hear him relaying information uh to the 9-1-1 operators um they're asking about her injuries he's saying that she has cuts on her wrist and neck they're telling him to apply pressure he's telling them they're not bleeding i don't need to do that um so it's about her treatment it's about her condition [00:46:14] Shannon Buckingham: it's it's the ongoing emergency one i could i can cut to the chase on this i can't i apologize i want to direct you presentation i'm very familiar with laura as well as the the facts in this case in this 9-1-1 call which i would as lawyers always do object for the record as we say but i'm going to concede that the case law is overwhelming that if the person is making a statement under the stress of an emotional event which this is obviously the person making a statement on a phone to 9-1-1 which are routinely admitted in trials i'd be wasting the court's time if i was to object and have a hearing and so i don't have an objection to that i have an objection to it being admitted just because it's horrific but legally i have to concede that there's no basis to object so i would have no objection [00:47:11] Speaker 2: all right so my my inclination is and i apologize i i had the motion i didn't realize that i had the copy of the 9-1-1 once i haven't heard it um and so um in regards to if it's admissible based upon the prejudice against the probative value that's what i'm [00:47:31] Shannon Buckingham: going to have to listen to you can play it now i don't have a problem i'm not going to play it now i mean at some point if it's coming in it's going to be coming in in this courtroom so i don't [00:47:39] Speaker 2: have a problem that's for another day uh especially where i've got to listen to it uh to see if if all of it's admissible some of it's admissible or you know portions of it just like like any type of evidence but my inclination is from having read it and being aware of it um is that i'm inclined to allow all of it but i just before it goes in front of a jury i just kind [00:48:04] Jennifer Sprague: of want to make sure that i've kind of vetted it um your honor if you were to decide that some portion wouldn't be admissible would we be able to argue about that um oh absolutely yeah yeah [00:48:14] Speaker 2: no so it's it's just so i guess this is the initial whether it's it's either all in if i find that if i find that i think that some of it has to or should be excluded or redacted um i'd allow both [00:48:29] Jennifer Sprague: parties to kind of uh argue on that and i know defense has said he's not objecting to it coming in um but if the if the court and listening to it has any question about any certain portion of why it's relevant and would lay it out when i'm sorry yeah okay all right um are those the those are the [00:48:48] Speaker 2: motions eliminate that i have um come off anything else nothing at this point something may arise [00:48:57] Jennifer Sprague: between now and the final final free trial um but nothing at this point all right mr reddington any [00:49:03] Speaker 2: other motions eliminate at this time no yeah i mean like i said i i i understand in the final prep it's always things come up so if there's an additional motion to eliminate or the parties see something that they have to they want to want us to address on the 13th just file it as soon as we can no way i get that um oh yeah yeah all right and then um the party's going to file a joint uh trial memo i did provide one to defense council i'm just waiting for him to fill out his portion we've kind of addressed probably 99 of the what's in there the only reason i'm kind of looking for it at this point is um the agreed statement of facts that i can read to the jury um i i really want uh both parties to kind of work on that and get that in regards to that um outside of jury selection um do the parties have an estimate as to the length of the trial and i know [00:50:15] Jennifer Sprague: it's a diff this is a difficult one to um to estimate but your honor um what we've been telling witnesses when they ask the same question is anywhere from four to eight weeks my last trial was a little over three weeks and it didn't involve many of the issues that we have here or the number of potential witnesses that we have here um there's also some scheduling issues that may impact how long we go each day how many breaks we take each day um so the hope is closer to four weeks but we've been telling people anywhere from four to eight weeks okay attorney brankton estimate i mean i think eight [00:50:53] Shannon Buckingham: weeks is estimating on the outside but i think it's more like four or five yeah okay uh you you go to four [00:50:59] Speaker 2: one well my thought would be to hopefully go till sometime in the afternoon i know that we may have to end early on certain days um for a number of reasons it may be difficult to do a whole day but we've got most of the day for most of these trials days kind of cleared out um i think we're just going to have to see how the the case unfolds um in regards to that but the hope would you know we could go past one o'clock if if everybody could do that all right and i think in terms of telling [00:51:36] Jennifer Sprague: jurors how long the case would be i think four to six weeks would be reasonable yeah yeah all right [00:51:43] Speaker 2: and then in regards to um i know they've seen some uh exchange all the expert reports [00:51:52] Shannon Buckingham: been exchanged i expect i'll be sending to them tomorrow um i may have one more report i mean which i will as soon as i get it be sending to them um it's kind of a work in progress obviously but i have [00:52:06] Jennifer Sprague: received i think all of their reports at this point yes um the three experts for the commonwealth have submitted their reports um they may be submitting amended reports to the court just with some corrections or clarifications but not changing the general content right the parties agreed to an exchange of the uh reports yes everything's been exchanged all right i have to ask that i [00:52:33] Speaker 2: figured that but i had to ask that um all right any other issues did um from the pre-trial uh issues [00:52:42] Jennifer Sprague: that we should address right now come off nothing other than logistical issues and one issue that we [00:52:50] Speaker 2: would like to address at sidebar all right uh mr anything other than we can they can see everybody [00:52:55] Shannon Buckingham: at sidebar no i i obviously have to put together uh the rest of uh my witness list and provide that to the government but as your honor and governor knows i've just had two back-to-back trials so i haven't had a chance to put pen to paper but i will get that done next week all right all right [00:53:12] Speaker 2: kelson can i see it say bar [00:53:42] Speaker ?: so so