Trial Day 28 - Mistrial Declared

- School is now set to clean, you see it? - I would want to count the accuracy. - Yes, please.

“- You're on a before we have the matter.”

Call off for us as Lindsey Clancy, Ms. Clancy is present. She is represented by Attorney Kevin Ridington. The commonwealth is represented by Assistant District Attorney Jennifer Sprig and Assistant District Attorney Sheet in Buckingham. - All right, good morning, good morning council.

Good morning. Good morning, Ms. Clancy. - Good morning, Your Honor. - All right, so at the end of the day yesterday, it was a note that was sent in from the jury.

And we put over to today to address it. Call off the head of the opportunity to review that note. - Yes, Your Honor. - All right, a defendant had an opportunity, yes, Your Honor. - All right, and so I will hear from the parties

as to how the each party suggests a request. I deal with that note.

So, I want to hear from the Comwell first.

- Thank you, Your Honor. I apologize for my voice. So, Comwell's suggestion is that the jurors are being instructed to return to the deliberations without any further instruction over there.

The basis for that request is Comwell Thurse's Runky, R-O-N-C-H-I, 491 Mass, 284 from 2023. In that case, it's a similar situation where it's reported one juror is having issues with the other jurors.

And it says in that case where reliable information comes to a judge suggesting a lack of impartiality, bias, extraneous influence or inability to deliberate that there should be an individual warrior hearing, regarding that.

We don't have any of those circumstances here. There's no indication of a lack of impartiality, or bias, or extraneous influence, and no indication of inability to deliberate, in fact, if it's deliberated for a very long time

in this case, and very conscientiously. So, what we have here is a note that indicates a disagreement about how to weigh the evidence and that's deliberation. So, it's a Comwell's position.

Especially considering the fact that you're on our board here at each of the jurors yesterday, and they all said that they could follow your instructions.

“So, when you couple that with the requirements of wrong key,”

I don't think an individual of our dear is necessary. If you're on our desk determine to do one, we would just ask along the lines of all the case law in this area, wrong key, Williams, Torres, the host string of cases that the juror

be instructed not to comment on the deliberations, and that the juror be told that he or she cannot be discharged unless a personal problem unrelated to their relationship with the jurors, or their views on the case, and that any attempt

or any comments by the juror that tend to get into deliberations that you're on our interrupt, and remind the juror that we're not to get into that, and that questioning be ceased of the juror, unless he or she indicates that there is a personal problem

unrelated to the case of the relationships. - All right, thank you. Defend it. - Thank you very much, Your Honor. Appreciate the opportunity to argue this to you.

A couple of points that occur to me.

First of all, as Your Honor is well aware,

a defendant, any defendant in this court room or any court room in our country is entitled to have a juror who is true to their oath, who will agree that they will apply the facts as they determine them to be proven beyond a reasonable doubt

to the law as given to them by you as a judge, or any other judge. If a jury consists of people in this one person who is refusing to actually apply the law to the facts as determined for reasons

that are not rising out of the case, but are personal to the jurors' position regarding their review of their oath and how they should apply their oath. In other words, if it's personal to this individual,

“which I believe it is based on the first question”

that you had, and I have never seen a situation like this

where a four person on the jury is so courageous as to speak on behalf of 11 jurors and indicate the jury number, which I will not mention, and I quote, "Has made statements acknowledging doubt, but refuses to apply it to the verdict as the law states.

who under their oath stood in front of you yesterday when you did the individual of the idea

“and according to this information, under oath,”

looked you in the eye and lied. That jury told you that he would be able to apply the law to the facts as you asked them. And based on this note from this jury, it clearly and unequivocally indicates

that they are basically 11 to one,

and this person will not apply reasonable doubt to the evidence to return a not guilty verdict. I would ask that the court would, and I know it's awkward. I'm familiar with the law, I know that we try to protect and preserve the sanctity, if you will, of the jury.

We don't want to invade their deliberations. We want to keep that private, obviously. That's a good thing to do. But when you have a situation where you have not won but two notes that clearly indicates

“that this individual has acknowledged doubt,”

but refuses to apply it to the verdict. He is as the law states, he is not being honest with you at the sidebar.

I would go so far as to reluctantly say

that the individual has made a false statement under oath to this court. There has to be an issue that is not arising out of deliberations in the facts of this case, but the individual is refusing to apply your instructions

on proof beyond a reasonable doubt to allow that jury to return a verdict of not guilty. - I just wanted to put on the record that the note does not indicate that this juror lied to your honor when responding.

The note indicates that the parties disagree on what is reasonable doubt or what doubt is and how it should be applied, and we're in no position

to judge if the 11 or right or the one is right,

but there's no indication that the juror is intentionally trying to mislead the court or lie to the court. - All right, thank you. Well, is all three counsel or aware? The case law spells out kind of the concerns

that everybody has in a situation like this, where it says the discharge of a deliberating juror is sensitive undertaking, fraught with potential error. It's to be done only in special circumstances with special precautions.

A judge must take the utmost caution to avoid invading the province of the jury.

“Now that's what I'm concerned with in this point.”

And it's even under the statute. During deliberations, a juror properly may be discharged only for reasons personal to that juror having nothing whatsoever to do. Nothing whatever, I'm sorry, to do with the issues of the case,

or with the juror's relationship with their fellow jurors. In this case here, I see no showing of the need for an inquiry of this particular juror. The note that we were referring to the one from late yesterday afternoon indicates

that the juror says acknowledged doubt but refuses to apply it to the verdict. Well, the instruction that the SJC has suggested we give in regards to reasonable doubt. And the both parties agreed to says the reasonable doubt

does not mean proof beyond all possible, though. And so in reading that note carefully and strictly in the way that I have to before I possibly invade the province of the jury, that note does not indicate that this is a person who has refused to follow the law.

And in addition, as the parties recognize, yesterday, we brought all the jurors and including the juror who is at issue here. And we asked, I asked whether or not those jurors could follow the instructions, including the instruction I just referred to.

And the all the jurors indicated that they could. This is not a case that there's any indication that the juror has refused to deliberate or has any reason has indicated that they would not follow the law or that they're physically suffering

or there's no note from the juror that indicates that the juror cannot or will not be able to continue deliberating in some of the other cases talk about. So for reasons of that, I'm not going to do a further inquiry of this juror over the defendant's objection.

If my thought would be though to remind them that it's their duty

to accept the law as I give it to them. And that they have to follow that law.

“And I think this is what I told them a week ago.”

They have to follow whether they like it or not. So I'm going to give them that instruction and remind them of that. So with that, I was just going to ask if the court also instruct the jurors or remind them that any future notes should not contain information about deliberation.

You have a couple of things. Sure, it's the law of the matter. No, it was just that I have an objection to appreciate. And I do have an objection. And I am again citing Article 12, 6th Amendment,

United States Constitution. This goes beyond Massachusetts law. This is constitutional. It's a structural, I suggest, respectively, defect. In the procedure that we're engaged in, we're elevating form

over substance. And that's your own is ruling. I understand I've objected. But I would ask that you not instruct the jury that they cannot indicate anything.

And I understand why traditionally we tell jurors, don't let us know what your division is, or what your split is. But in this case, I'm concerned that if you do that, that for a person is going to feel that that is some type

of that she violated something and might feel that your honor is kind of coming down on her and not to do that.

“And I think it's too delicate right now with situation.”

And in addition, and finally, I would ask that you not just

give them as I describe it yesterday, a soft inquiry. You will listen to my instructions. I would ask that you specifically direct their attention to proof beyond a reasonable doubt and re-instruct them on that forcefully.

I think I did day yesterday, didn't I? You did a yesterday, you did it soft, you didn't do it forcefully. And I'm asking maybe what do you want me to do? I want you to get a brass band.

I read the instruction as written by the SJC. The fact that I perhaps didn't give it my full inflection, I'm sorry about them, I'm an actor. I've just given the instructions. Well, my point to actually simply is that you're

kind of glossing over the issue. The issue is, this juror will not, according to that note, apply the law of reasonable doubt.

“And that's why I've requested, you know what I've requested.”

So I know what I'm going to do. But just in case the record is good. I am specifically not glossing over this issue. I have thought about this issue long and hard. I know that it benefited the jacks,

but the characterization that I'm glossing over it, trust me, that's not the situation. I've been thinking about this for quite a while. So that's what I'm going to do. I'm going to just give that instruction,

as they said, that they have to follow my instructions. I'm not going to reiterate the reasonable doubt at this point, it may come to that again, if as we go through it. And I'll try and give this with more pizzazz than a gave yesterday, I suppose.

So with that, we'll bring the jury back in. And I'll ask the questions. I'll give those kind of that instruction. And then we'll send it back out. OK.

Good afternoon, ladies and gentlemen, before they are going to go, William Sullivan, this is the spirit of going. Yes, please. You're on a present before the quote. We have 12 deliberating germs and six offnets.

And the matter, Commonwealth versus Lindsey Clancy, Ms. Clancy is present. She is represented by attorney Kevin Rettington. The Commonwealth is represented by assistant district attorney Jennifer Spray, an assistant district attorney

Sheen and Buckingham. All right, thank you, Madam Clerk. Good morning, everyone.

What I want to do is first ask you those questions,

and then move on from there. So the first question is we all know, is going to be, is any member of the jury red scene heard or over anything from any source about this case it would affect your ability to be fair in impartial church?

No, no, no. The last of these questions is, is there any other serious matter or can serve bearing on your services adjourn this case? That anybody needs to bring to my attention at this time. Thank you.

All right, so I did get the note yesterday. And one thing I would say, if there are any notes in the future, and I'm not saying there are, but if there are, just don't make sure we don't put down where everybody is numerically, OK?

But what I wanted to do was give you, go over one thing.

it's your duty as jurors to accept the law as I stayed at you.

“You should consider all of my instructions as a whole.”

You may not ignore any instruction or give special attention to any one instruction. You must follow the law as I give it to you, whether you agree with it or not. The law that I'm instructing you on is the law

that's been established by our legislature in our pellet courts, and it applies to everyone. And you must apply the law as I have instructed you, and you have a copy of the instructions that I gave you. You should still have them back there with the juror.

And with that, you may now resume your deliberations. Court, all right. [INAUDIBLE] The jurors are next to the law in this motion session. Do you see it?

All right. Can't say they would need to address at this time. No, you don't call it defendant.

One second, you don't call it defendant.

No, thank you. All right. So we'll be in recess on this matter. Thank you, everyone. What?

All right. First that access, thank you. Correct the purpose of the record. We return back to the matter. Commonwealth versus Lindsey Clancy.

All of us have to press an exploding majority. All right. Council, have you seen the question? Yes, Ronan. Yes.

All right. And the question is, it is with a heavy heart that we report, we are unable to come to a unanimous decision. And we'll not be able to. My-- well, let me ask what is the party's position in regards

to that question. Your honor, I'm a Commonwealth perspective. Since the two instruction has already been given, and then there was legislation to deliveration out of that,

“I think that it would require a Ms. Trial at this point.”

Sorry, Regan. Your honor, my understanding is that this court has the discretion

to have the jury sent back for the second time.

The first time that there was a report, we did not treat it as a report of deadlock. We did not instruct them under Tui. We did not give them soft Tui. We didn't give them anything.

We just sent them back to deliberate. So technically, we have one report of deadlock that you're on to give the Tui Rodriguez charge to. I believe under the statute, as well as the case law, this court has the ability to send the jury back.

The fact that that jury for person wrote, and usually it is with a heavy heart that we are unable to come to a decision. Based on the earlier questions that we have, I think it would be a sound and a wise decision

for this court to send it back under the law. Well, I would find that under case law, at Massachusetts case line statutory law, the jury did not ask to be sent back, which it would be a possibility if they had requested it

to be sent back to them. But under the statute in the case law, I don't feel I have any choice but to declare a mistrial. - Well, I would like to be heard in one of them.

“- That's why I asked you before, but go ahead.”

- Well, I just got that first one.

And it gets the other one. - Hi. - Your honor, I would suggest to the court that as we are pretty much all familiar with under Karen Reed versus the Commonwealth, the Supreme Judicial Court through Justice Judges

back in February of 25 held at Under Rule 27, V of the Massachusetts Rules of Criminal Procedure, quote, "Give's a trial judge discretion to require a jury to return a verdict, but charges on which they have agreed before declaring a mistrial,

as it relates to, and again, I continue quote, "Judged may first require the jury to return verdicts "on those charges upon which the jury can agree, "and direct that such verdicts be received and recorded." It was on furtherance, and I quote Rule 27,

"D also permits the judge to pull the jury "when a verdict is returned, and before the verdict is recorded, "however, a judge is not required to accept a partial verdict "before declaring a mistrial, so I'm asking that the court "would entertain a poll of the jurors

"as to whether or not there has been a decision "on murder one, murder two, manslaughter, "anything like that, and if that's the case, "and I certainly would argue that double jeopardy "as attached to those judges cannot be prosecuted again."

- All right, come on. - I would object to that, Your Honor, we'll go into the deliberations. I think we're in a different scenario here than the Reed case, where I believe in that case,

he did reach a verdict on certain charges and not on others. But I think here where we've had a jury who's been deliberating for six and a half days who's come back on multiple occasions saying that they're deadlocked who've been given to me.

I don't think anything else is required at this point, other than the declaration of a mistrail, unfortunately. - All right, over the defendant's objection,

- All right, we'll be in the jury.

- Well, we're waiting for the jury to give me for raising this issue. I would ask that before you formally declare a mistrail that the court affords us the opportunity to take a two, eleven, three appeal,

direct to the Supreme Judicial Court, single justice on this issue because of any number of dishes that are of concern, others that have been addressed in the motions, the objections.

But I further raised the issue of the American with Disabilities Act.

“I believe that this is a situation where”

there is a clear and present danger that this individual for some reason, what it is we don't know, but is taking a position that's intractable, regardless of proof beyond a reason of that.

So I want an opportunity to take an appeal to the single justice of the court and put us that opportunity. - How much time do you need to do that? - I'd have it filed today and argue tomorrow.

- Saturday? - They would do it on an emergency, yeah. I mean, I could actually-- - So we're gonna tell this jury to come back tomorrow? - I'm just trying to--

- I don't fear. - They don't care. - The reason I'm asking it, I know, but as they're walking in, you're asking for this. I'm just trying to find out what it is

that you're asking for. - What that's all. - So you're asking for emergency stay at this point? - Yes. - And the jurors don't have to come back tomorrow.

They can be told, they don't even have to come back. If I lose the motion, but if I win the motion, then obviously they would have to come back Tuesday.

“- I'll, if you want to go up and petition”

to the SDC for a stay, I'll give you an hour before we bring the jury back down. I think it's just a request for the stay of the Declaration of the Destroy. So I'll hold off for an hour and then we'll come back

and in regards to that. - Okay. - All right. - All right. - All right.

- What's the-- - It's closed now, so I should introduce you. - We're gonna put purpose at the record. We return back to the matter. Commonwealth versus Lindsey Clancy.

All of how do you suppress an excluding majority? - All right. Council, it's my understanding that the SJC issued their order that the emergency request for relief was denied and the temporary stay is lifted.

And so it would be my intention at this time to call the jurors back in, and as I indicated to before to declare Mr. I. - I understand your honor and at the risk of incurring the wrath of the court.

I'd like to raise an additional issue just for purposes of the federal law

“because this I believe constitutes a violation”

of the United States Constitution in a federal issue. In our circuit, which is the for a circuit, when a jury reports through a for-person that admitted deliberation that a juror refuses to follow the law, the issue was handled

under federal Rosa Criminal Procedure 23B, but the law itself that we're dealing with clearly indicates that a judge has the authority to excuse a deliberating juror for, quote, "good cause" and quote in a lot of the remaining 11 jurors

to return a valid verdict and/or with the substitution of one of the jurors that have been waiting, obviously, as alternates.

While the first circuit acknowledges that a jurors

refusal to follow the law or instructions, classitudes good cause for dismissal that does in prose procedural issues as to how the court would navigate and which would require a hearing. The court standard is the United States

vs. Supple Vater FCP, ULVDDA, for a circuit in 1993. And in that case, your honor, which is significant precedent for a circuit addressed the underlying concept

of nullification, and we're a juror. Refuses to follow the court's instructions. And in the supple Vater case, the court held that while jurors possess a raw power to a quick for any reason, they have a significant duty

and their duty requires them to apply the law as given to them by the court. If a juror abdicates this duty, it triggers the court's authority to intervene. And the court would then have a procedure

where you would inquire just like a hearing like we were suggesting that the court should have a hearing. So I would suggest you run at that clearly

under the first circuit of law.

Federal law, as well as I can mean to the court. Massachusetts law, that we have a juror who has, according to the four-person, is the only person who is basically holding out, so to speak. And unfortunately, they're not holding out

but they're holding out as a result.

“That even though they have agreed and expressed doubt,”

they are refusing to apply the law as you have given it. So I would ask again that you conduct a hearing and understand that you're probably going to deny that. - For reasons as I stated earlier this morning, that request will be denied.

All right. So we ready to bring the jury in. - All right, all right, let's go to the secretary. - This court shall not set, we can see it. - All right, for the purpose of the right day,

we return present for the court. 12 deliberating jurors in six often, it's in the matter of common law forces, Nancy Clancy, all of the party's a present. - All right, thank you, Madam Clerk.

All right, members of the jury, at this point, I'm going to declare that the jury is deadlocked, and I'm going to declare a misrail. All right, I just wanted to make a comment. And I'm kind of a history buff.

And during World War II, Winston Churchill was the prime minister for England. When England pretty much stood against Nancy Germany alone. And so Churchill, oftentimes, had to talk to the citizens

and say, let us brace for our duties.

I always like that phrase.

And I thought of that phrase when all of you were agreeing to be honest jury. They agreed to brace for that duty. In each one of you knew how long the case was gonna go. You knew how difficult the case was gonna be

to listen to facts-wise, but still you brace for that duty. And I just kind of wanted to oscillate, you know, I watched every day, day after day, week after week. All of you performing that duty that you're brace for. And I just kind of wanted to let, you know,

I understood how hard everybody worked in this case, understood that you all gave everything you could, and probably more than you thought you could. And so on behalf of myself, I just want to thank you so much,

“that you should be proud for what you did.”

You brace for that duty, you perform that duty. And I just kind of wanted to thank you but I have myself in behalf of the Commonwealth of Massachusetts. Thank you so much. The only thing I am gonna ask one more thing

is that what I'd like to do is be able to come back and thank you personally. I've talked to the council for just a couple of minutes. So if you can stage just for a couple of minutes, not to go over the deliberations or anything like that,

but just to thank you personally, again,

for just an incredible commitment and dedication

that each and every one of you showed here. So I just want to thank you so much and with that, you're discharged. Thank you. - All right, all right.

- All right, this is a two-way call. - Juris, the rest of the court will discuss the session.

“- All right, and I think what I had said”

at the end of the evidence, I just kind of wanted to echo again, I wanted to compliment all three council. I try like this so hard, so difficult. And so I just kind of wanted to thank the three of you

for your efforts and regards to this. And so with that, if you talk, I think we should probably pick a status date where we are at trial assignment date. - So I want to talk with you as we are.

- If possible to have this on for a hearing on a motion for required finding reconsideration 25B212sday, and my request assuming that you deny that motion would be that we impend on the following Monday. - That would require a math check, my schedule.

And also, so what I'm going to suggest, I understand that's the request. In my thinking is to try it sooner or later, but I'm not sure that sooner, and it's a situation. I also have to check the trial court schedule,

council schedule, witnesses schedule. But my thought would be to try this. If we could do it maybe sometime later in the fall. But why don't we pick a date maybe a couple of weeks down the road so everybody could get their calendars together

and kind of see where we go. - All right. - What about the 25B2, the motion for required finding reconsideration within five days? - We can file it.

Do we have to have a hearing within the five days? - That like to, but I mean-- - I know you'd like to, but maybe we could do it later

- We're not going to be out of the state until the 22nd.

- All right, was on its file.

“Do you want to pick, we could do it's pick that status date,”

trial assignment date, and actually then do the argument of the 25, I'm real 25, maybe that week of the 28th. (laughs)

- Supposed to have supposed to start a merubbing pit-spilled.

I'm hoping that that's going to be continued.

“So I would ask if it's agreeable with the court”

and council if we could have Tuesday the 29th. - Come on. - That's fine.

- So what do we, what do we do that?

- 29th. - If that be a two-foc, where are nine? - Doesn't matter to me. - Let's see. - Nine o'clock.

When we see nine o'clock, we commend. Do we'll have the defendant right in? - Yes, please. - Awesome.

“- And the matter of Commonwealth versus Lindsey Clancy,”

the court declares a mistrial. All prior bail orders remain in full force and effect this matter is continued to September 29th, 2026 at 9 a.m. for status at trial assignment in the Rule 25 motion in a format.

- No, council, thank you. - Thank you. - All right.