Expert Legal Analysis of the Lindsay Clancy Trial

Welcome to the MK True Crime Show.

“I'm Dave Aaronberg, former state attorney for Palm Beach County,”

aka the Florida Lawman and current managing partner of Dave Aaronberg law.

And I'm joined today by my amazing co-host Ashley Merchant from Atlanta,

GA criminal defense lawyer extraordinaire. Now we'll be back on Thursday with the new episode of the MK True Crime Show. But in the meantime, let's take a look back at our coverage of the trial that has gripped the nation, the Lindsey Clancy trial. You'll also hear from our colleagues at MK True Crime, Mark Gargos, and Matt Murphy on in the well,

and Mark Eiglarge and Johnna Spielberg on positively legal. See you soon, and we hope you had a great labor day. So we heard a little bit more from Dr. Mack.

We heard one of the big issues is whether or not Lindsey Clancy was hearing voices.

You know, every day I listen, I'm like, okay, they're going out of again about these voices. Did she hear voices? Did she report hearing voices? And we heard from Dr. Mack, if we could place that ate where Lindsey said she did hear, allowed male voice right before killing her children.

Her experience that is called a voice occurred in the late afternoon. Do you recall what she reported about the voice? Her experience was that the voice was of a male, and it was loud. And what did the voice say?

“The voice said to the effect of you should kill the kids.”

This is your last chance so that you can kill yourself. And what did she say happened after she heard this voice? She engaged in the activity of taking her children's lives. Tough to hear, tough to listen to. We'll Dr. Mack then got into it a little bit with Kevin Rettington. I think in what you were talking about, typical Kevin Rettington fashion.

If we could play saw to 11, where he is talking to Dr. Mack on cross and says, finally,

you don't know what investigate means. She described that she went ahead to take her life or attempt to take her life with multiple steps. She went to her room upstairs in the house and took the various medications that were present. She caught at her wrists and at her neck. So, so tell me about this judge. Oh, oh.

Sorry, can we go back? Okay, no worries. Okay, well for some like reflexes that 11. Okay. So, the judge is hearing a lot of bickering with Kevin Rettington back and forth with the state. Tell us about this judge. I mean, he seems to have a great demeanor. He seems to handle everything and stride your local. Tell us about the reputation of this judge.

Yeah, he judged all of it. He's very well-liked. He's been on the bench for, you know, quite some time now.

“And, you know, as, you know, practicing judges are so different. You know, and I think that's the most”

important thing for people who are watching trials to know that, you know, some are really, really serious, some are, you know, some tell like to be a little bit more casual on the bench. And I do think that, you know, he's, he's a little bit more relaxed. I would say than maybe some other superior court judges are. He seems to be getting, during the, the cross examination with Dr. Mack, he certainly was frustrated with the doctors. What seemed to me to be an attempt to sort of skirt almost all the questions he wanted to, he didn't really want to answer many of them.

He, he wanted to push back. He wanted to ask questions best by, and, you know, obviously that's sort of all of our natural inclination when we don't want to answer yes or no, is to sort of, you know, give a little bit of input or clarify. But I think the judge was really starting to get frustrated towards the end of it and really have him to redirect more than once. Dr. Mack, to say, like, listen, we're in a quarter off. The way it works here is the lawyer asked the question, answer the question of keenness of the question. It's okay. But, you know, we don't, we don't need it almost in some ways started to feel like more of an argument back and forth than it did a question in an answer.

We actually have a clip of that at, um, so at 14, which was the judge representing Mack and reminding him of the roles, let's take a listen to that. He's distorted reality is a symptom, yes or no, not waxing and waning with the answer, yes or no. Are you referring to an authority there? Dr. Green, Dr. Holdon, here's the way this works. All right, you don't really ask a lot of questions. You answer the questions. All right, if I told you before, if you can't answer a question away, it's framed. Just let me know. And I'll tell councils to frame it in a different way.

All right, that's, that's the rules. That's how it works here. So go ahead and straighten it for me.

So this is how it works. I asked the questions. You answer the questions, but it's so frustrating.

“Well, and I think, too, it doesn't look good for whoever's witness it is, right? So it's the Commonwealth's witness. He obviously, you know, he's been called to, you know, present their position that she was of sound mind.”

And so when he, he's having difficulty even answering basic questions and pushing back, you know, how is it going to reach to a jury? Probably not well. Oh yeah. And we actually saw Kevin Ridington kind of loses temper a little when, you know, when Dr. Mack laughed or giggled, um, got that as that 12. What is your understanding of what the case scale is seeking to find out?

I answer this in the context of the purpose of the NMPI and what the NMPI is to die.

What are you smiling for? This is not funny, sir. The state. Well, you know, next question. NMPI case scale focus. What does it mean, sir? There was no indication whatsoever of any malingering exaggeration or anything along those lines in that test. Would you agree with that?

“If you're talking about the NMPI correct. Well, that's what we've been talking about.”

I don't know. I'm looking at each other, right? I wasn't sure if he's getting it, but I'm not sure what you're referring to. I'm referring to you saying that an appease you're out of me is a tear. And it's not. Okay. You're on your own. Is there a question before the next question? I already asked the question. I'm looking at him staring back at me. All right. We'll let you just hold on. You can rephrase that.

“Did anybody over the weekend tell you that in fact you were wrong and that it is a surgical procedure?”

And that a natural tear has nothing to do with that procedure other than repairing. Did anybody talk to you about that at all over the weekend? No. You know, you don't want to bad through the witness. And I know that Reddington has a very good report of the jury, at least it seems like that. And the jury has been with him the entire trial and not with this expert. But I got to say I thought that he was a little too aggressive with the witness in making fun of him for like not understanding the question and for smiling.

I don't know. I wouldn't have wanted to push it as far as he did. You could start to lose points with a jury. What do you think about that, Catherine? Yeah. I think you can see it both ways. You know, it's it's, you know, those uncomfortable moments of silence where he sort of asked the question and then he gets a question back. And then he just lets it hang. And the, you know, why you smile? And this is a murder trial. I think it's.

You know, it's it's difficult because I always feel a little bit for a witness who's really running beat up on the stand.

But it's, I saw this, I saw his sort of smirk and smiling as almost like a frustration. You know how sometimes we do that. We sort of like chuckle out of like, okay, we're in a sort of a battle here. And I do agree with you that, you know, cross examination is a very fine line because you don't want to lose the jury. And I think as you said that overwhelmingly the jury is probably with writing to me just comes across as, you know, more like well. And I would say that with most of the Commonwealth witnesses, even when he pushed on them, he was still he had other moments where he was softer and a little bit more, you know, kinder and he does a really good job at that balance.

And it's been mostly aggressive with Dr. Mack. And so I could see losing a little bit of points with the jury to say like, okay, like less and up on them, you know, a little bit, but maybe other jurors think it's deserved. So it's, you know, it's a test. Yeah, the only reason I think he could get away with it in that instance is the questions that he had before that were things about that really just credited the doctor, you know, about him being excluded from testifying. I would come out with that. I would completely agree. It was, it was, I mean, it was brutal, you know, it was a lot.

But he had asked a series of questions leading up to that this morning about the doctor being disqualified in federal court and, you know, his opinion not being in his area of expertise and some things. So I'm wondering if the jury, you know, at that point didn't necessarily trust anything coming out of that doctor's mouth. And one of the reports that we actually have is throughout the cross and we'll play the shot in a minute, shot 13, but throughout the cross, Dr. Mack was repeatedly saying that he couldn't answer, writing to his questions as he asked them.

You recall saying that a person can be post-partum and it has to be within four weeks. You recall saying that Friday?

What I would have intended to say.

“No, no, what did you say to the, come on, what did you say to the jury last Friday?”

Dr. Please listen to the question and just answer the question as asked. Okay, you understand that world health organization is different, right? What is, what is that time frame sir? I'm not sure what it is, I think you said it was 12 weeks. How about the proposal to amend the DSM-5? Well, the proposal specifically around the proposed diagnosis called post-partum psychosis and for that it's a six week period.

So, you've got four weeks, you've got six weeks, you have 12 weeks. Would you agree sir that post-partum depression, post-partum psychosis can occur up to a year or even a year or longer? I don't know, but I am telling you what the DSM says in terms of how the diagnosis and how to code it. Oh, I'm with you, I think they need someone who knew the answers to the questions.

I don't know from an experts, never a good thing.

Well, I also found interesting is the last witness that we heard from was a forensic psychologist. So, we heard from Dr. Matthew, who's a forensic psychiatrist and for our viewers at someone with a medical degree.

“And then we heard from Dr. Kirk Heilbrun, I believe, is how you say his name, who's a forensic psychologist, and that's someone who has a PhD.”

So, they're both doctors, but one's a medical doctor and one's a doctor of philosophy. And they both did testing together for the commonwealth. But they came to different diagnoses, which I thought was interesting. Dr. Mack, who we've been talking to, did not diagnose Lindsay Clancy with bipolar disorder. But Dr. Heilbrun, who testified for the commonwealth, did diagnose her with bipolar two disorder.

So, I thought that was interesting, and I'll be curious to see how the jury sort of reconciles that. Before we, before we lose you all, we have our local Massachusetts expert here. How can you tell us a little, because a lot of people have been asking, what happens when there's an NGRI? I mean, we know how most of the time. Oh, we've asked Paul that out, NGRI.

Oh, yeah, you're right. Thanks, Dave. Not guilty of a reason of insanity. There you go. So, for our listeners, the options the jury has here are, you know, guilty, and she goes to prison, or knock guilty by reason of insanity.

You all don't really have, I mean, other than, like, a lesser included,

“you don't have, like, a guilty, but mentally ill, or some alternative, like that, right?”

That's right. So, it really is the traditional, you know, whether she's guilty of, you know, knock guilty that this has been proven and put, really, that's not on the table here, or lack of criminal responsibility. And now, we heard, we haven't had the charging conference yet, but we did have a brief hearing at the, I think, was Thursday, maybe, of last week,

in which they discussed the potential instructions.

And so, both the Commonwealth and the Defense asked for first in second degree,

and then attorney Redington asked for the lesser included of involuntary manslaughter. They talked a little bit about involuntary intoxication. So, we'll see, that's going to be fleshed out a little bit more. But really, the options on the table, I think that it's very unlikely that involuntary manslaughter would have been given in this case. But so, essentially, we are looking at whether it's

guilty, and she goes to stay prison, or it's a knock guilty due to lack of criminal responsibility at which point she's severely committed by the state. And then it's re-evaluated every year as to whether she can really release. So, those are really the only two realistic options on the table for this trial. >> You have those pieces in your closet that you find yourself reaching for over and over again,

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That's qu-i-n-c-e.com/mk-tc. Before we get into the final witness in the Lindsey Clancy trial,

but I really want to know what your thoughts on the trial are so far. You know, I don't know that my thoughts are very different from most attorneys that have been watching this trial, which is that the prosecution is doing a terrible job

and then you contrast that with the amazing job from Kevin Reddington.

And it's really spectacular. It's hard to believe these prosecutors have been doing this for what 15 years. No, no, they're seasoned prosecutors and they've tried a lot of cases. Well, you know, I don't know how much of this is Reddington and how much is them. It just feels like their inability to present a cogent compassionate humane case is stunning to me.

And that's not really Reddington.

“Yeah, I think that's an interesting choice of word.”

So how would a prosecutor go about putting on a compassionate humane case, particularly when the accused person is accused of murdering three children? I mean, I think, and the reason I'm saying that is you normally, I think, would expect prosecutors to kind of kind of go for the swing for the fence on this. And I wouldn't expect them to try to be humane and compassionate.

So I'm curious to know how that might look.

Well, I think if you would just, as a prosecutor, you can demonstrate some basic humanity with the witnesses that you're presenting. I didn't get any sense of that when they were examining Patrick at all. The examination that they conducted of the medical examiner, when they went into such excruciating detail, which, you know, we've all done murder trials.

We know that you're going to have testimony from the medical examiner, but it doesn't need to be nearly as graphic as they did it here. The, the, also on to knows a bit about wearing the hair bows. Oh, my God, I don't think I started about the bows. Yeah, I mean, it felt like it was pandering.

I'm not saying that you need to stand up there and say, "Oh, oh poor Mrs. Clancy over here."

“I think you have to have some appreciation in front of the jury”

that you understand what everybody is going through.

The way that they, she crossed examined her mother, her mother-in-law, was just something that seemed to exhibit no understanding of the grief and the trauma that everyone involved in this has gone through. Yeah, the, the grandparents are victims as well. I saw that a lot, especially with Patrick.

I mean, when, when she questioned Patrick and made that poor man talk about the kids birthday parties. I mean, the fact that you had a door, they explore a birthday party. I mean, and I don't remember what it was, my kid had a door party, but, you know, the fact that they had a door up birthday party for age four,

like those were things that, that's not an element of the case. It's not relevant to the facts of issue. And that just seemed like piling on to me. And it was painful. It was clearly painful to Patrick. It was painful to everybody in that courtroom.

“I think the jury is going to be angry about that.”

Because that is not compassionate. You know, the question is very, it's very simple here. It actually is very simple. It is whether or not she had control of her own brain at the time, essentially. So, you know, they didn't need to go into how old these kids were,

and what they had at their birthday parties and, you know, how great the, the family life was and how tragic this is. So I'm pretty sure everybody understood that. It'll be interesting when we hear from the jurors how that came across to them. But I also think, and I'm curious about what you think Doug,

I think Kevin running to sort of met that. And maybe he's gone overboard a little bit because of that, which I'm all there for. I've enjoyed every minute of it. But it's, you know, to me, if the state doesn't go very deep into something,

I don't necessarily go that deep into it either. I feel like he's sort of matched them. And that may be why he's gone a little bit overboard. I've heard some people talking about how he went, you know, maybe he's gone a little overboard.

Maybe he has a little bit, but I still love it. I'm curious when you think about that. If it's sort of, you know, matching. When you're saying going overboard, what specifically are people saying, where he went overboard, and then I could respond to that?

Yeah, you know, it's not so much just anything like one instance, but he has gone over certain reports multiple times. And I know he's trying to really build a record and trying to just establish that. But, you know, beating up the experts, which lets me honest. The experts have been really easy to beat up on.

You know, particularly the ones this week, which we're going to talk about in a minute. But, you know, maybe beating them up a little bit too much. You know, I think that, I think he's leveraging the fact that the state has looked so in an unsimpathetic in those circumstances.

He's done a wonderful job of humanizing.

“I think his client throughout the testimony.”

He's done wonders with using the state's own experts in order to present his case, which of course is what we're all trying to do when the state is presenting their witnesses. But I don't know that he's gone overboard. I think that he's got certain points that he really wants to hammer home to the jurors. And that is what he's been doing.

Doug, I want to get into some of the actual expert testimony with you, because I know that you've been watching this very closely. We have Dr. Gregory Satthoff, who's FBI behavioral analysis unit forensic psychiatrist.

He was the third and final rebuttal witness for the Commonwealth.

His testimony began Tuesday afternoon. He says he's previously treated between five and seven female patients who were incarcerated for killing their children. He's a senior psychiatrist for the FBI's behavioral analysis unit in Quantico. He says he's not being paid for his testimony. That's come up quite a bit.

But a be that as it may. He has interviewed Lindsey Clancy personally via Zoom twice for a total of around 11 hours. He says reviewed medical and court records. He's also interviewed Patrick Clancy by Zoom. He affirmed Dr. Halberd's testimony that Lindsey's description of a command hallucination was highly,

a typical. I want to play slot 11, Doug, which is his comments on that. And then I want to talk to you about it on the other side. It's not 11. It wouldn't necessarily just keep playing over and over again as if it were on a tape,

which Ms. Clancy told me that it was a voice. It's the same thing in the same tone, repeated over and over and over until she had strangled count.

“And is it typical based on your training experience for someone to hear command hallucinations and them for them to stop abruptly?”

I know committing the act is not my curative of the voice. I've not, I've not ever seen that. Doug, what do you think? Is that an effective testimony that would favor the Commonwealth there that might help move the needle for the jury on this? You know, it seems to me that almost any discussion given the Massachusetts standards for NGRI for not go by recent insanity.

Any testimony that really gets into the voices in her head where she is being commanded is almost more helpful. I think to the to the defense than to the Commonwealth. I mean, it has to be addressed, right? It has to be addressed, but this idea that there's this external or internal voice there seemed to be some contradictory testimony. As to whether it was external or internal, but this voice that's commanding you would seem to, would seem to favor the defendant would seem to favor Lindsey to me.

All together, I thought the, you know, I thought the mode and you may be about to get to this, but I thought the most important testimony today was the very last question that.

Editington asked during his cross of satoff where he read the Commonwealth's opening statement and asked satoff at satoff agreed with it. I think that was very powerful as well. I think that was definitely one of the most powerful. I actually don't think this witness was that detrimental to the defense. I mean, you know, he, I think Kevin running to and turned him on a lot of things and I almost feel like he felt bad at certain points.

I loved the fact, I think one of the really strong things that they had him do was support the defenses expert when Kevin running to ask him, you know, about the defenses expert and isn't he a really well known source, you know, is he one of your trusted colleagues that bolstered their expert. I think that was really powerful testimony. I think that's going to help.

“We actually do have what you were talking about if you want to take a listen at satin 19, that's where he's talking about the prosecutions opening argument.”

And, um, I think it's great. We made a calculated decision. She was a woman who no longer liked the life she thought she wanted. It was getting harder and harder for her to control. And when she saw the opportunity to escape, she made the selfish choice to take it.

And to take Cora, Dawson, and Colin, first, before attempting to take her own life.

Seek out a quick and easy fix when she was feeling depressed and anxious and when she didn't get what she expected.

She chose the alternate route. She would seek a different doctor. She would change medications after days. She disengaged from treatment that she didn't like the plan and after only four months in treatment. She made a choice, a deliberate and intentional decision that she did not want to try anymore. And because no one could take care of her kids the way she wanted them to.

She had to take them with her too.

“Would you agree that the evidence and your opinion supports that contention, sir?”

I think that statement that you were really minimizes what she was going through. And that was a, that was a, that was a win for Reddington. That was one of those great cross-examination. I just, it could have backfired what if the answer wasn't what he was expecting. I know, I didn't know the answer to the question.

That is exactly what I was thinking. That is a during during questions.

I mean, the really always say only ask leading questions on cross-examination.

You know the answer to, I mean, you might already own a firearm.

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B-Y-R-N-A.com. The jury has the roughest job of all to determine whether because of that, she knew what she was doing was wrong. And I am seeing plenty of evidence. Evidence of plenty to prove that she did know what she was doing was wrong. Okay, I'm going to ask you about that, but let's get another Dr. Kirk Heilbrun.

Soak, and you do that one more time. Say positively, legal. All right, let's go to sought number two, more of Dr. Kay. Go ahead. Outristic fellocide is a term that's used that means killing your kids out of love, not because you're trying to be cruel or for material gain or because you want them out of your lives or any of that.

But killing them out of love so that you could, basically, they wouldn't have to suffer.

So you could prevent their suffering. And what she did, I thought, was begin with what I said a minute ago was a highly lethal and very serious suicide attempt. That helps. That was preceded by months of thoughts.

“Does it an impulse is about, you should harm yourself, you should kill yourself, you're brain is damaged, that sort of thing.”

And that I think is the beginning of the way to understand what happened that day. The second point is that, as I've said before, she didn't like to leave her children. Whether that was for date night or school or going back to work or, and even plausibly, and I'd like to leave her children. And if she had taken her own life, then her children would have been without her and she thought that they would suffer. All right, John, I see both sides of this, right?

One, you got a voice telling you that killing the kids would be a good thing, you know, and that's why she did it. And the other thought is, okay, I do know right from wrong, whatever the state's alleging, if I'm taking myself out because I can't live in this world, so depressed.

You buy that, you think that's what she did? If I can't be your mother, nobody can be your mother. You believe that, well, hold on, do you believe that number one, but more importantly, do you believe the state proved it? That's my question to you, John, you don't know that that was proven, come on.

Well, now hang on a second.

Sure, the question again. This guy, this guy really posited an alternate theory, right? Because you've got the big shot hired guns that the defense brought on, who have successfully said this same thing before, right? Dr. Resneck, I believe, said the exact same thing. They're all paid.

They're all biased. And they're going to say what they get paid to say. Yes.

“But when it comes, so here's the thing that maybe if you have jurors, and I hate what attorneys do this, but we might hear in this case,”

when you tell jurors not to leave their common sense at home, make sure you bring your common sense out there, right? When you do that, but but the state's rebuttal experts to me make more sense. Common sense. Okay.

Then the other hired guns.

And if jurors does that analysis, they might come to this. All right, so more on the voice, because the voice is key, either she heard a voice or she didn't. There's no test like you can do a DNA test. Try to determine whether someone's telling the truth. A fingerprint test did she really touch the phone or didn't she if that was an issue?

This is just opinions. People who shat and their diapers who couldn't even speak English hear me out, who grew up, then had schooling, and then somehow now have an opinion. That's not science, John. It's just an opinion.

And we all have, you know, delight. Right. So here's Dr. Halbruns. I didn't lay into it too hard. His testimony about the voice and why he doubts that she really heard a voice. That's not number three. Let's hear that.

Then the next bullet was inconsistencies in her account.

To me, when asked about this, she said the voice said,

“"This is your last chance. You have to kill the kids so you can kill yourself."”

And it just kept repeating that. And only that. And only that. For about 18 minutes or the duration of the time, it took to do this. There were other times, though, for instance, when she was in the hospital

after this happened and was talking to a psychiatric attending. When she said that the voice had said other things, for example, the children will suffer without you or you have to take the kids with you or things like that. So inconsistency is important because it suggests inaccuracy. In other words, which version is accurate?

Is it the first? Is it the second? Is it neither? I mean, here it couldn't be both because she said, "I only heard this to some people."

She said that. And then I heard this plus this to other people. She said that. Oh, so she must be lying, doctor. You know, John, here's my problem.

I don't have any mental illness that I know of. And I tell different versions of different things at different times, depending on how I feel. This is not an exact science. And she was doked up.

And there were times where they talked to her where she was not in a good place. And every word is getting weighed. And the fact that she added a little bit more to one person. Now all of a sudden means she's a liar. Yes, I see the person's and his raised.

I will call on Johnna. Go ahead, ma'am. In the back. The girl in the back. What do you want to say?

Go ahead. Lindsay, Clancy. New. When she was talking to Dr. Heil Brune.

That he was a, that he was a prosecutor hired gun. She knows this. Yes. You can change.

“So just did you, you kind of made an analogy that, you know, sometimes you'll tell a story differently depending on who you're talking to, for example, right?”

By accident, I meant, but I hear what you're saying. Go ahead. So she knew that too. And at that, at the point that she talked him, because that was another thing that came up, that he had talked spoken to spoke to her long after the incident, for example, right? She had plenty of time to rehearse, to talk to her attorney, to get the feel, read the room of what she needed to set to make this work.

I want to, we got with the, I can go on front hours with you. And, and, but we got Chris Hansen coming up and before we have him, I want to get to this one.

I want to get your take on it. It's not five. Okay. Something happened in the trials.

A second reference to religion, which didn't belong in this trial.

Let's go to side five, and let's talk about it. I want to get you to. It's been a, obviously, a long trail in a lot of work on the part of everybody involved from the court to the staff to prosecute this to myself and needless to say. The strain on Lindsay Clancy. I have to move for a mistrial, reluctantly.

The reason is that this is intentional and this conduct on the part of the prosecution. You know this whole idea of injecting Roman Catholic faith, the concept of model sin into this trial. Based on your ruling in the past, we conjunction with the fact that they brought it up again.

“I believe it was intentional and this conduct, and I feel that the court should grant the motion from this trial.”

Okay, so first of all, that wasn't the clip that we're where he said something. This was the Hylbrun testifying about something about he, he opened about religion. No, no, he was talking about what Clancy said to him. I know, but then he gave his opinion, because well, that's not actually true about Catholicism or whatever.

He's not an expert in that, and here's the thing.

The judge then stood up, that's your issue. You know, you know, you know, you know, you know, you're a little bit. He stands up and this was the best thing that happened to the defense in my opinion. I don't think the defense actually wanted a mistrial. The defense clearly just wanted to preserve this issue for appeal. And if you don't move for a mistrial, you don't get it. He knew that that would be denied.

But here's what happened. The only one that jurors trust elevated guy who stands all the time in that black polyester. He said, folks, disregard what that guy said. He's not an expert. He's not qualified.

“I mean, I think that hurt the prosecution. What do you think, John?”

It probably did on that one very narrow issue. Yes.

But so our good friend Mark Garagos also has a theory on this because when it comes to that religious remark, this was the second time the religious remark came up.

True. And potential for mistrial. Okay, here's why that's important because if, in fact, the prosecution was intentionally trying to cause a mistrial, which I don't believe they were. I don't believe they were. You can, if your mistrial is granted, it can be granted with prejudice. That means the rank going to be a second bite of the apple. So he's preserving his, he's preserving his right to appeal, but it wasn't going to, and it shouldn't have been grounds for a mistrial.

I think it was a minor minor issue. What did you think? I won't, I won't betray what was in the chat. What's your feedback?

“As we take this, the jury is out, and I think the jury's recess for the day because we're taping this in the afternoon.”

By the way, breaking news that's no surprise. If they go past tomorrow, Friday when this drops, 330 in the afternoon and they recess, then I'll, I'll make my prediction. But I think they come back before 4 o'clock east or not. Yes. So for the thread, and we're probably, we're probably violating every confidentiality thing, I'm actually here at Mark, but on the thread, the comment that I saw this morning in Mark and I are on the west coast.

The comment that I saw was that was, you know, I want to say who did it, but they weren't impressed. One of our, one of our co-workers in a case who came to say the least was not at all impressed. And I thought, Mark, they were talking about the prosecutor. They were actually talking about Reddington, I think. They weren't. They thought it was disjoin it. I think, and they didn't say that, but I weighed in immediately and like, and I hadn't watched the prosecution.

I've watched it now, but I, you know, I figured modern era, I'll, I'll be able to skip through the parts that it, you know. I thought they were talking about the prosecutor. And, but listen, this is a, the judge mark in Massachusetts limited each side to, I think, the quote was about an hour in closing. And Mark, I cannot imagine, like, you're talking about the liberty interests of somebody who murdered or was accused of murdering three kids. And with these vastly complex issues regarding mental health and the intersection of criminal liability and all these medications.

Can you imagine Mark arguing this case and being limited to an hour, I can't, I can't wrap my head around it. And that's not a criticism of the judge. That's not at all the way they do Massachusetts. I think this judge has handled this case remarkably. I agree, the only, the only part I would disagree with him in reasonable bites and differ, I would have granted the mistrial motion the second time that Readington made it.

And the idea, I don't even think Readington caught it the second time the moral sin comet, but for those who aren't in the weeds,

“the, the witness after the judge had already excoriated the prosecution for setting up this question about mortal sin with, I believe it was the mother and law.”

Because he had the grandmother of these babies. Then comes back and when Readington is cross-examining this guy, this expert put on the prosecution, he just wades right into it. And he knew exactly what he was doing. And anybody who says differently, obviously doesn't know that experts are allowed unlike other witnesses. And almost it's, say, it's for verboten if they don't, to read the testimony of what has happened in the trial so that they're conversing with it. Because otherwise, have you asked hypothetical questions if it's not tethered to the evidence?

So he knew exactly what he was doing. It was intentional, it was outrageous, and it was Oregon v. Kennedy, which is the scotist case for when you're goating somebody into a mistrial that, that once in jeopardy attaches. Yeah, this was, this was a really interesting trial for me to watch. And this is one that as you and I have been talking about for weeks now, this is one where I, I really can understand and see both sides on it.

“A lot of times I've got very strong opinions on where I think a trial should land. You know, you know, postpartum is real.”

And then the question, of course, is this postpartum depression, is this postpartum psychosis. But the law in Massachusetts, Mark, is like, it's almost like it was written for this case. And unlike any state that has the Macnauton rule, which is essentially for the viewer, just means somebody doesn't understand the nature and quality of their actions, which is a very high bar.

Massachusetts has a third prong, it's called, and it's called the Macool rule.

In California, we use Macnauton, most states use Macnauton in Massachusetts, it's the Macool rule where it is. It lacks substantial ability to appreciate what they're doing essentially, which is a mouthful that I still can't wrap my head around North. And there's the, I said, I think I told you before their, their definition for this is almost the Rubik's cube, I mean, it really, it really is and it's the language is so broad. And then they have prong to so you're suffering from a mental disease or defect number one, I think that's been established.

Number two, you either don't know the essentially the wrongfulness of what you're doing, not the language that they use, but that's the just of it, just like Macnauton, but in Massachusetts, they have a third prong. Mark, and that is, even if you know that it's wrong, if you're unable to conform your conduct to the requirements of the law, you can be found criminally not responsible under a mental illness defense, what we would call insanity. And, and they say not criminally responsible, I think it's the language that you say.

You know, somebody pointed out today, I didn't hear it, but, and I hope I'm not repeating something that is internet generated, but that part of the jury instructions as well. And by the way, on our chat, people were amazed that jury instructions came before the argument. But that's kind of the state of the directory procedure for us in California, but other jurisdictions not. But also, apparently there was a jury instruction that says, if you find her not guilty, you know, that by reason of the mental infirmity, that she goes to a psychiatric institution.

So they knew that. And if that's true, that's like, you know, combine that with, with basically everything that else has happened in this case.

And Lauren Conland, who I think will join us today posted something on L.A. Mag about the betting on Pauli markets. I would have bet some big money if I had known that that instruction was coming as well, because that's a hall pass for jurors. Big time. Are there actually, is there actually a betting market on this? Oh, yeah, yeah, Lauren posted this morning. There's a betting market that dramatically went down in terms of the odds for murder within the last couple of days. And I may be pinned to the giving of the manslaughter, because for those who aren't in the weeds, he had the reddington had asked for a manslaughter instruction. He got it, which is a lesser included. I didn't think that was much of a surprise.

I was a little, some of the reporting he had wanted to, one of the instructions on investigation.

“And people were like, oh, he's saying it's a bad investigation. He wants to point the finger at Patrick that I don't think that's what he was doing at all.”

I think what he wanted to argue with that investigation instruction, because for those who don't know, you're almost always, you're in a fight from the defense standpoint, when you want to get an instruction that says or you want to do cross examination, the challenges, the quality of the investigation.

I think he wanted to use the instruction to talk about the mental health system and the lack of investigation and the lack of kind of follow up and everything and use that.

“And also to the point where people were criticizing his closing, here's my theory on that and I've been there done that.”

I've had high profile cases where people have said, you know, Mark, you, you killed it on the cross.

Your closing was disjointed and they don't understand this because I, some, some cases, some most ironic, the, my best closings, I haven't had the best result.

My worst, you've kind of laymen view of my closings are when I get spectacular results and the reason is the cases are one are lost in jury selection. And what closing does for you, it to some degree ties things up, but it really is more this. It's giving the one or two people that you think it's going to drive your verdict for you. The arguments that they need that you hope after it's a hungry or an acquittal, you're going to hear those people come out.

I always call them my general or my lieutenant and they're going to mimic what you gave them in order to kind of persuade the others in closing.

“And I think that's exactly what he was doing and it's exactly why he didn't even use the whole hour.”

Well, it's, you know, this was, this was fascinating to watch, I think I think that Kevin Rettington ran circles around the prosecution from the, from the minute they stood up right in the, the openings, it was such a vast, kind of chaos of, of difference between between his skill, his experience and, and look, the guy is the best trial or smart guy think they're always the ones that they have the skill and the experience of trying to make cases, but they also have that talent that you can't teach, right, they're sort of born to do it.

This struck me as, you know, and I don't know, I've never met him, but in watching this trial, he's, he's got all of that, but you know, and the prosecutor got up in much, we talked about this before she's reading her notes and opening, which is, that's the death now, okay, you can't do that you lose the jury. He was a little different, and Rettington was, I, I expected today to be a slam dunk, now his, his tone was excellent, his presentation was excellent, his, like there were, there were so many, like his, the way he used his voice, the way he referred to his client, all of it was so good, but I thought, and this is just me, I thought he got, he did get a little bit disjointed and I think that what he could have done maybe a little bit.

And look, this is 2020, I'm, I'm on the sidelines watching this, so it's very easy to criticize, like I'd be the world's greatest quarterback in the world, if, you know, if it was a player's performance was based on my criticism, right, and by the way I can't even throw a football, so it's easy for me to criticize, but I was expecting, was expecting something a little, I was expecting another level from him, it was still very good, but the prosecutor kind of came back and I wasn't. It wasn't the, it wasn't the collapse on the prosecutor by the prosecutor that I expected, so each side kind of returned to earth a little bit, the prosecutor stood up there, and although I hate that flipping of the freaking yellow and legal pad, Mark, it's like if you can't remember the facts, what the hell are you doing, but it's 30 minutes, 40 minutes, what are you doing, but also to his point, let me tell you what I think he was doing, because I've done this as well.

He is, by the way, he's looking at the jury, nobody on TV is looking at the jury, and part of what I think he was doing, and why it looks disjointed as we're looking at it as a fourth wall, he's looking at individual jurors, he knows which jurors he picked, he knows who he thinks with him, he knows who he thinks is going to drive the verdict form, and he's throwing arguments, and he's getting, he's waiting for, there's an interaction, you,

“if you're not, and this is to your point Matt, you're so spot on, if you're reading or flipping the notes, you're not looking at the jurors, and if you're not looking at the jurors, what the hell are you doing?”

I mean, you've got an audience of 12, it's not the millions of people who are watching it on TV, right? She wasn't, she wasn't as bad as I thought she was going to be, but damn it, that just drives me crazy, and look, there are so many, we got three little kids here, and we got some really, really important issues to address, and I just, I don't know, man, I just wish that this thing sorted itself out with better lawyers.

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“The Lindsay Clancy Murder Case, three children ages five, three, and seven months were strangled by their mother, a mother who's supposed to love and protect them.”

When I first heard those facts, I knew nothing about the case. I just heard those facts. I said that woman should rotten hell, but really having a trial.

And then I looked at the case a little closer, and I learned a lot more about it. I said, "Well, wait a second, okay. She didn't have enough fare," so she wanted to, you know, like the Susan Smith or some of these other killers, there's no where's the motive. Well, why would she do this? And then I learned that defense was arguing insanity. She wasn't capable of knowing right from wrong and adjusting her conduct, she suffered from mental illness and disease, and I looked into the facts and I said, "Oh my goodness, this may fit."

But I kept an open mind as I watched this trial, and yes, I provided legal analysis, but I kept an open mind and had no side that I was more partial to, and I listened.

And I listened to that opening statement of the prosecutors gave. I went, "Oh my goodness. My goodness, she must be guilty." Then the defense got up there, and he told me, and I weighed a second, what a history. She did all that. She was begging for help. She was on all these drugs, and she had all these issues, my goodness. So I didn't know what to believe, and I carefully listened to every witness waiting, and candidly hoping for that one fact that would make me think, "Ah ha, they got you. You knew right from wrong, game over."

“That never came out. It didn't happen. In fact, I'm still watching this trial, and I've heard competing experts. And yeah, I'm partial to some, I think some have more experience with postpartum psychosis than others.”

But let's just look at it in the light, most favorable to the state for just one moment. You got witnesses on one side, you got witnesses on the other, experts on some, experts on the other, and let's just say they all seem credible and believable, which is probably what jurors may think. If that's the case, then there's only one verdict that speaks to truth, and that's not guilty by reason of insanity. Let me explain why. The law in Massachusetts, maybe not in some other states, but in Massachusetts requires the commonwealth, the state to prove beyond a reasonable doubt, criminal responsibility, once that defense has been alleged.

“And at best, we've got probably maybe, did she hear voice? Did she hear that voice? That persistent male voice? Maybe she did, maybe she didn't. Was she responsible legally? Some experts say yes, some say no.”

So if the defense argues in closing, that the law requires a knock guilty by reason of insanity, verdict, then game set and match, that's exactly what they should be doing. If you're hearing this after the verdict, then this rants entitled, the jurors got it right, if they found or not guilty by reason of insanity, if they didn't, well, I'd say this isn't title, the jurors got it wrong, or if they're hung, which I would expect, because there's so much anger, so much anger for what she did, and I get that, that maybe they just couldn't put that to the side.

But ultimately, this is a legal argument that I'm making, those three kids deserved better, but you do not punish someone in our society who has a mental illness and is not responsible for their conduct, and I believe that the evidence is equally consistent with that as it is with guilt and as such, the only verdict that speaks to truth is not guilty by reason of insanity. I live in Manhattan Beach as many of you know, and I grew up in LA and look, not far from where the Beach Boys are from, and one of my favorite songs from the Beach Boys is a song called Heroes and Villains, and I was listening to that this morning, it really made me think of the Clancy case.

And I think that we've gone down a little bit of a rabbit hole here on the Lindsey Clancy case where people are being lionized.

I've heaped praise myself on Kevin Rettington and the job that he's done from a tactical standpoint, and I've also, I've been critical of the prosecutors in this, but it seems like there's so much emotion around this case that a lot of people are villainizing others. And one of them is this reporter who got in trouble for winking at the camera. Now I totally agree with Lauren, she needs to get out of the story and she needs to stop trying to blame other people. I felt really bad for her initially because she went to the camera and it's an awkward moment and apparently there's some history between her and the camera guy and something about a heel getting stuck someplace.

“She's gotten death threats, okay. Kevin Rettington is not a saint and he's an incredibly talented, I think, professional who's doing a really good job defending is quiet.”

The prosecutors aren't villains here either, I think they've made a series of mistakes, but we got three little kids.

When it comes to who also lives here, right, and let's not forget that, like that's that is the central issue the entire case. We're talking about mental health. It's not like a test, we can't take a blood test, you're doing a scan and figure out whether somebody is bipolar or whether they're suffering from depression and versus psychosis or which drugs are working and which drugs aren't. It's self reporting.

“So a lot of the decisions that were made in this case of all the people that I believe let down these little kids.”

These people, the young psychiatrist who originally, she went to who looked like she was 12, these people are relying on the words of Lindsey Clancy in their diagnosis and I don't. This is going to upset some people here, I know based on the the tender and the emotion in this case, but a lot of people, there's a lot of blame and a lot of fingers and a lot of directions that we can point fingers.

And there's a lot of second guessing we can do regarding who did what, but at the end of the day, the person in my view who failed these kids the most was Lindsey Clancy.

She knew what the thoughts that were in her head and despite her struggles, which I think are very real. At the end of the day, you know, the question here is whether or not she was criminally responsible under the law on the state of Massachusetts. And I think that we all on these cases in the modern era need to take a step back, take a deep breath, and sometimes let the process play out. I think that this case is going to wind up, especially with this judge, it's going to wind up in the place that it should.

“And and I don't think she's going to be convicted of murder, I think maybe I could be wrong on that maybe after what we saw today, but I think we all just have to remember that.”

You know, in our in our in our emotions, it's important not to villainize people who in the end haven't done anything wrong. And then includes a lot of the people here in this case mistakes have been made by the prosecution by the psychiatrist who are involved by the nurse practitioners. We can argue that all day long, but at the end of the day, the person who is on trial here is Lindsey Clancy and my heart just breaks for these little kids.