BREAKING: Lindsay Clancy Jury Still Deadlocked - Is There ONE Holdout Left?

the least.

Hey everyone, I'm Megan Kelly. Welcome to a special edition of the MK Show. It's

320 Eastern Time and there is breaking news in the Lindsey Clancy trial. We have had a note from the jurors, from the jurors to the judge. And we anticipate it, it possibly being an update that the jury was hung, hopelessly deadlocked and not able to come to a verdict. Instead what we have gotten via court TV, which is serving as pool for this case, is that there is anger and frustration being

expressed by the defense attorney, Kevin Ridington, that he slammed down some

“paperwork that the judge then gave Ridington, I think additional paperwork and”

Ridington pushed it back at him, that the prosecutors continue to look upset, but

they're not reacting like Kevin Ridington is with physical anger, that the judge

was raising his voice at Kevin Ridington, that Kevin Ridington defense attorney again was head snapping forward, raising his voice to almost audible, clearly a disagreement between the defense lawyer and the judge and the prosecutors not particularly happy, though, more stone-faced. But Ridington visibly, quote, upset via court TV, the after the disagreement burst out in that fashion, they wield Lindsey

Clancy up to the bench, the judge's bench, and there was an exchange with her, we don't know what was said, typically you don't bring the defense, the defendant, to the judge, to the court, and the bench, that's extraordinary. We don't know

why they did that. And then they started bringing the jurors back in the room, we

expected to hear a note that would say something, read something along the lines of we're hopelessly deadlocked and we can't reach a verdict. But instead, the judge started calling up the jurors one by one and conducting individual vodier, who are Q&A, of each juror. And that's underway right now, and we have no idea what this is all in service stuff. We want to bring in our legal panel, which is here

to help us navigate it all. We've got Phil Holloway, we've got Dave Aaronberg, and we also are pleased and thrilled to be joined by our pal, Ashley Banfield, of the great podcast, "Drop Dead" series. And of course, Phil and Dave, co-host, M. K. Drew Crimes, show on our M. K. Drew Crimes channel. Guys, thank you so much for being with us so quickly. This is a pretty extraordinary Aaronberg. What do you think is happening?

“You know, the only thing I thought would be happening would be the declaration of a mistrial.”

They clearly haven't decided. I think that Readington is probably very upset because he wants this to be a mistrial and not have any more pressure on the jury to stay out there. He knows that if you keep pressing the jurors more likely than they would find something to compromise on perhaps the guilty uninvolentary manslaughter. So what I think is happening is that Readington had wanted and anticipated a home jury of mistrial right now and the

judge seems to be prolonging it. Let's give him more time, more time. That's my guess. Okay, so that's maybe why he's doing the one by one. These are live pictures from inside the court right now. There's no audio if there is will take you there. But right now, the judge, we believe is still conducting his questioning of the jurors. Phil, what do you think is happening? Because I heard some speculation, this could, this could come down to

potential bullying even of the holdout or holdout that might be in that room. Well Megan, the parties are now apparently seated back at their tables and the defendant is no longer at the bench. The reason she was there is because she has right to understand and participate and be aware of everything that's going on. So if there's something substantive having an

“happening where important decisions are being made at sidebar, that's why she was there.”

I suspect, and the jury's coming in now, I suspect this is about to be a Hungary and a mistrial. Ashley, what do you make of it? So I have a whole different feeling on this because I've been through a couple of these situations where jurors are angry and frustrated and noisy. We're not hearing that. But I tend to think that if they're bringing each juror in separately, there's a good chance that they're questioning their behavior and if someone is being difficult, but I'm thinking

about Kevin Reddington being angry and throwing the papers back at the judge and then throwing them on the floor and his head was in his hands at one point in thinking, I wonder if they're trying to remove a juror, a difficult juror, maybe the one who's out juror. And then Kevin Reddington doesn't get his mistrial and Kevin Reddington probably wants the mistrial because he's probably giving it a deal. Because I think we're now their standing in the judges coming in. Let's check in.

For the listing audience, both the prosecutor and the defense lawyer are on their feet.

“Deliberating jurors is six often that's in the matter of commonwealth for us as Lindsey”

Clancy, all of the patties surprise us. Thank you, Madam Clerk. Good afternoon, everyone.

I just wanted to go over a couple of things this afternoon. First off, I want to remind you

that you are required to follow my instructions on the law as I gave them to you. All right. I also want to at this point go over the instruction that I gave you about we used to build out. All right. And so. Meas and build out. The burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant is guilty of the charges made against her. What is proof beyond a reasonable doubt? Well, the term is often used and probably pretty well understood

that what's not easily defined. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. For everything in the lives of human beings is open to some possible or imaginary

doubt. A charge is proved beyond a reasonable doubt. If, after you've compared and considered all of the

evidence, you have in your minds an abiding conviction to a moral certainty that the charge is true. When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs, based solely on the evidence that has been put before you in this case. I've told you that every person is presumed to be innocent until they are proved guilty and that the burden of proof is on the prosecutor. If you evaluate all the evidence and you

still have a reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted. It's not enough for the Commonwealth to establish a probability,

even a strong probability that the defendant is more likely to be guilty than not guilty. That

is not enough. Instead, the evidence must convince you of the defendant's guilt to a reasonable and moral certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence. This is what we mean by proof beyond a reasonable doubt. All right, and with that, I'm going to ask you to resume your deliberations.

“Well, I think we were right. I think we had a right. Wow, Dave.”

Yeah, so it looks like they're having a dispute about what the legal standard is that will control their verdict. And in particular, reasonable doubt. What amounts to reasonable doubt? We, there was court TV had reported that there was something wrong in the jury room that that's what they, they were reporting that they'd been told something was wrong in the jury room via the note. But we don't know what, what, what was wrong? What happened and what led to the judge doing that?

What do you think that was? Well, I can see why I actually had that guess because of what court TV reported. But I think now we see that Phil and I had a right that this was simply just the judge going and telling the jury go back in there and keep deliberating. And here's the definition whereas you had the defense lawyer upset because he wanted the minister. He was like, stop

“coursing them, stop pressuring them. And that's what happened. So I don't know what went on”

behind the closed doors, but you give a lot of discretion to the jury. The jury can yell and even almost threaten each other. Just can't get beyond a point where it's physical violence, we let that go on. So that's why the defense lawyers like columnist trial, columnist trial, get rid of the jury, the jury who we think is, is ruling for the state. So yeah, that's why I think happened. The judge has said, keep deliberating. Well, there's one piece missing from

this. I mean, we don't know what the, we don't know what the note said. The note, you know, let's be careful. The note did not say we are deadlocked. And the judge, sorry, out of far as I saw, didn't, did not read the note or let us know what it said. It could have been something very simple, such as like a juror is not wanting to participate in the deliberations. I've actually had that in a case where we had to bring the jurors out and had to ask them questions

one by one, kick somebody off and bring in an alternate. So the defense may very well have said, judge, this is the same thing as a, as a hung jury. But I'm going to, I'm going to wait until we know what the, what the note said from that jury before I can decide whether the judge did the right thing. If they were in fact deadlocked and he sent them back to deliberate again, that's evaluation of the

If he does that, I can't imagine this judge would have done that because he already gave them

the charge, the so-called dynamite charge to make them one last chance at reaching a verdict and my understanding is you're not allowed to make them go back again. But that's depending on what the note says. If the, if the note had said, we're still hopelessly deadlocked and he just

“did what he did. I think he's in trouble. But it doesn't sound like that's what the note said.”

Again, court TV reporting the note conveyed that there was something wrong in the jury room. And then all we heard from this judge actually was, I want to remind you, you're required to follow my instructions on the law, on the law. So they have a question about what the law is.

I want to go over my instructions on reasonable doubt reminding them the burden of proof is

on the prosecutor and then defining reasonable doubt for the jury does not mean beyond all possible doubt. If after you've considered everything, you have a moral certainty that the charges are true then that's that's good enough for a conviction. And then reminding them that she's entitled to the presumption of innocence, a probability of guilt is not enough, even a strong probability is not enough. You must reach a reasonable and moral certainty that satisfies your judgment as jurors

when it comes to the charge and then sent them back out. This obviously very much upset Kevin

“Readington, the prosecution, not as much. So what do you, what do we to make of it?”

Ashley, I think Kevin Readington is pissed that he said moral certainty. I can't believe he said moral certainty. A reasonable doubt, yes, moral certainty no. I don't think that belongs in a jury room.

I think the reasonable doubt issue. I'm always waiting for the question and Megan, you know how

many times a jury comes back with the very first question saying to find reasonable doubt. And so I'm thinking maybe, oh forgive me, Ashley, I apologize, but Readington is addressing the judge, let's listen. This jury that refuses to listen to your instruction and reasonable doubt, comma. Thank you, Your Honor. We have the note from the jury. There's no way to determine what the deliberations are, who's correct, who's incorrect, nor should we attempt to, because that's

part of deliberations. I think what Your Honor has done by asking each jur, if they're able to follow the law and then giving a general instruction on reasonable doubt, is appropriate and under comma versus Ralph, so we do not have an objection to what the questions or the re-instruction. All right, well, I'm sure as parties understand, as they say, the discharge of deliberating jur is a sensitive undertaking. I was just specifically responding to the specific

question that was asked. I don't feel that it is proper for me to side with one side or the other of the deliberations. I don't feel it's a proper, for me to say I agree with one jur, or you'll love it. At this point, I've asked if they are able to follow my instructions, according they swore earlier that they could. They've said to that, at this point that they can, that was specifically

“addressed towards the specific question. And that's what I'm doing. So the defendant's objection”

is noted, and we will be in recess on this at this time. Thank you. All right. All right. All right, so we're back at it. And what we missed in the beginning there, according to Lauren Collins, who's been reporting on this, is that Kevin Reddington said something to the, like, quote, if we come back here in 30 minutes with a mistrial because of this one juror, she writes, he wants to remove this juror. And then you had prosecutor spray saying that judge Sullivan's instructions were

appropriate. Reddington had also said there is one juror who refuses to listen to the law in open court. Go ahead, Ashley. Wow. I thought a lot was like one person is making it difficult for others. I don't know why I thought that, but I certainly thought that this is a moral decision among this jury because they didn't ask for a lot of evidence or readbacks, which would make a legal problem. Right? They're discussing legal issues. No, I think they're discussing moral issues. And maybe

this one juror is not following the law that allows for an insanity defense or a not responsible defense. It is such fascinating, a such a fascinating development, though, to see him so angry because I think that what he's seeing is that this could be my mistrial and at 11 to 1, I think I get a deal after this. Yeah. You, this is, I got to tell you, this is reminded me, by the way, we're now are joined by Matt Murphy. The gangs all together, the best true crime

reminding me on our podcast read this summer, we've been doing an MK confidential crime series and

this week we're doing Scott Peterson and you are going to hear audience about tonight or tomorrow.

“I can't remember which night it is. I think it's tonight about how in the Scott Peterson deliberations,”

the jury foreman was removed. He was removed and replaced because he went in and told the judge that he felt bullied by his fellow jurors and no longer believed he could come to a verdict based only on what was happening in that room. He didn't feel safe anymore and he felt like he was going to be forced to come to a verdict based on something other than just the evidence and he was replaced by another juror. And here we are, I mean 20 plus years later, in this trial,

zeroing in on one juror who the defense says is refusing to follow the law and we now know Matt from

the exchange we just heard. This is about one juror which would suggest though we don't know that they've got an 11 to one split in that jury room. Yeah, sure would and he's seen the note none of us have. But yeah, this sounds like the four persons sent out a note saying we have a juror that's not deliberating. That's typically what happens when a judge gets note like this they'll bring in everybody. Can you follow the law? Can you go back and deliberate and it's a group of people

better frustrated with somebody who is who they feel isn't going with them. And that person was probably foredired by the court and said no, I'm deliberating. I'm talking everybody and I'm following the law. That's a that that reasonable doubt instruction that moral certainty actually. That's the that's the letter of the law in the state of Massachusetts. We used to have the same language in California and until the legislature actually removed it and it now it's just proved to an abiding conviction.

So for the viewer, what does that mean? A biting conviction? It's old language. A biting means something stays with you. Conviction means that based on your common sense, your life experience following the law and considering the totality of the evidence, you believe the person did it and you believe it's strongly enough that you could look yourself in the mirror in a week a month of year and say you know what I still think the defendant did it. That's the that's the

way we would always explain it. But one of the problems you're making is that the prosecution

didn't really explain any of this a lot of the jury. So we'll have to, we'll have to, we'll have to do it. So they're confused. I'll just back on. But this it started deliberating again. This business of one hold out and refusing to deliberate is very interesting because because what does the judge do? I'll tell you something, Garagos told me I would have won the Scott Peterson case. I would have gotten a not guilty or a hung jury, a hung jury basically, which would have been a win, at least for the time

“being had the judge not kept removing jurors who were on my side. That's how he sees it. But he,”

it is, of course, you can imagine as a defense attorney being in there and the jury for person is saying, I want to vote a certain way, but all the other jurors are bullying me and I now no longer feel I can vote the way I want to vote because they're all ganging up on me. And instead of the judge, this is Garagos's point. Instead of the judge calling in the bullies, jurors and saying, what are you doing to this poor juror? He bounced the juror. He got rid of the juror and replaced him

with an alternate, which, of course, outraged Garagos saying, you're, you're getting rid of the one who's the hold out. That's bullshit. And this is not fair under the law to my client. And honestly, this whole thing is giving me vibes of that because Kevin Readington is the one who's outraged. And I don't think wanted to see that individual Q&A of each juror. He's probably very pissed off that there's an 11 to one gang up and thinks that a mistravel should be declared because I'm

gleaning Phil. He probably thinks right now that's the best he's going to get because he's probably gleaning like we are. It's 11 to one probably against him. I kind of take it the other

“way. I think that Readington might think that it's 11 to one in his favor. Otherwise,”

he wouldn't have agreed to maybe let one of the holdout jurors go. But I want to go back to the jury being questioned at sidebar. We've talked about this before. It's unlawful and improper for the judge to send them back to continue to deliberate if they say that they are hung. However, the jury, if they wish to go back, they can be allowed to go back if they agree to. So the judge can send them back again if they all agree to go back and deliberate. So he could have been

addressing that issue. I can envision a scenario. This is something of speculation because we don't

look, we're deadlocked because we got one juror who won't follow your instructions. So then he brings

him out and he says, okay, well, you, if I talk to the jury about following my instructions, would you be willing to continue to deliberate? And if they all came up there and they all did, it wasn't just one. And if they all said, yes, judge, we will go back if you give some further instructions, that could explain what's going on. But in the absence of the the contents of that note, we just have no idea all we can do is speculation. I think I may be able to help the reporting

from inside the court at this point says that the note had an instruction from the four person saying there is one juror that refuses to listen to the law on reasonable doubt. And it was Kevin Rettington that one of the juror removed. So I actually do believe how he knows it, but that he thinks

that obviously if they're not following the letter of the law, they think that that hold out juror

is not following the letter of the law so that you can actually find them not guilty because of the responsibility factor. So I think it is pretty interesting and actually to your point Phil, you're right, if they come back with a deadlock twice that's it,

“Massachusetts law says it's over, but I don't think that's what the note said. I don't think they”

didn't, I don't think the juror who's the four person said were deadlock. The note actually just said, one juror refuses to listen to the law on reasonable doubt, which is different from we can't agree. >> Well, I've had this in court. >> This had a very-- >> So yes, this Christina Rex is reporting, she's with WBZ. She is reporting what you said, Readington, arguing in open court, the Clancy case says to the judge, the court has instruction

from the four person saying there's one juror who refuses to listen to the law that you've given him or her unreasonable doubt. Prosecutor agrees with judge's approach, which is to read the general instruction on reasonable doubt to the jury. The judge says he doesn't feel it's a proper to decide with one side or the other. I think that she means side with one side or the other on deliberations. Quote, it's not appropriate for me to say I agree with one juror

or 11 judge says, insinuating there is an 11 to one holdout issue here. So it's 11 to one inside there, but why do we think that Kevin Reddington believes he's got 11 of the jurors on his side, because he wanted the one juror bound. Are we possibly looking at a debate about whether she might be found the real not guilty, not forget not guilty, because because that is an option on the jury form, that that is a choice they have available to them. But we're not gleaning that

“from these notes. No, not at all. What I think was that I think Kevin Reddington is seeing with”

this note saying, one juror cannot follow the law according to reasonable doubt. It may say to Kevin Reddington, aha, following the law and reasonable doubt would get me to a not guilty by reason of insanity or not responsible in Massachusetts. And that Murphy knows this. What do you make of it? Matt knows. And I'm just going to ask him to weigh it. Go ahead, Matt. Oh, but he's he's been able to see them right now. And we that's one thing that we we haven't.

And when you stand up to do a closing argument, especially in murder case like this, you really do get a vibe from the jury. And even when they're stone faced, you'll some of them are like they're with you and you can tell. So he's got a he must feel that. Otherwise, it's like, I'm watching this. He wants the originally one of the court to declare a mistrial. He could talk himself out of a really good verdict by doing that potentially. He's

of the court if the court declares it. And it's 11 to one and 11 were on his side. Then a mistrial is meant to declare that he's got a theoretically go through this whole thing again. You know, they'll enter into negotiations, Megan, if this thing hangs. But I don't know, then again, Phil Dave, we all have had crazy experiences with theories where you think they're with you or against you and you think the whole doubt is this person and we're so often wrong. It's, you know,

yes, yeah. I told a story with Ashley last night about a case of one of my colleagues did where there was an ex-con who had his constitutional rights restored. And it was hanging 11 to one

“of my, my buddy was like, I got to get rid of this guy. I don't know how I don't know how. And I think he got”

he was later he was sick or something and he basically bagged out. He was the one hold out for guilty.

And it was, and he was a former prisoner who's like, these guys are all full of crap. You never know.

And Kevin Reddington must have a vibe, but he doesn't know either until, you know, until, you know, until, I don't think they told the lawyers, which, which, which juror, you don't think they told the lawyers, which juror, no, no, no, no, no, no, no, no. This is such a pickle. This is such a pickle. What, what would you, what would you guess Matt, the judge, is asking each juror, we're telling? Can you, can you follow the law? Can you follow the law? Is the court has instructed you? Can you

That's that, that's the generic question. Some version of that. We ask the each juror and most of them will not. And he might be going as far as saying, is there somebody that that's refusing to deliberate or participate in the process? But that basically requires them to sit in a corner of their arms, arms crossed. If they're talking and they continue to engage, that's usually considered deliberation under the law. And, and the court's comments on that, the court has to be

very careful before they remove a juror because if, if it goes against the defense, that's just virtual guaranteed reversal on appeal, if the court is not very careful. So they don't like to do that. jury deliberations, Megan, are the wild west. And the stuff that goes back, the law takes the, takes a view that we almost don't want to know. Okay. And, you know, who knows what's going on back there? And, and we won't know. But if it's 11 to one, that votes, I think, well for the

defense in this one, but they could be hung between a murder and a voluntary manslaughter,

“a remember that instruction, or they could be hung between a wall and, and this not criminally”

responsible language in the state of Massachusetts, for insanity, we just don't know. I mean, what, how would you, let, let me ask you this, Matt, how would you be playing it if you were in that corner? First of all, okay, I got the key shot here, Megan. I would have, first thing I would have done is I would have combined with Wregton and demanded to this court that we need

a more time to argue the case. Megan, I'd never done a murder closing where I haven't spent

at least an hour explaining the law. The prosecutor was up there. She did a much better job in closing, been at any other point, in my opinion, in the entire trial. But then to spend 40 minutes on a case with this complexity with this many witnesses with 13 different prescribing indications and everything else we saw, 40 friggin minutes, I was pulling my hair out watching this, Megan. So the first thing I would have done is I would have taken proper time explaining the law of the

jury. If I was parachuted in, I would have objected to the court giving the reasonable doubt and instruction, but we don't know the language at the note. The reasonable doubt language that we just listen to is very pro-defence in the state of Massachusetts. That moral certainty thing.

“Yeah, it is. What are the problem with Massachusetts and Marquillagos never talk about this?”

They're law and insanity. Megan, they use what's called the McCool rule under the Macnauton rule, which is almost every other state. If a person is suffering from mental illness, they can still be held criminally responsible, as long as they understand the nature and quality of their actions. Massachusetts has a third prong. Even if there's mentally ill, even if they know what they're doing, but are unable to control their conduct,

they can be found criminally not responsible. That basically, the language is so amorphous in the state of Massachusetts that the jury gets to do pretty much what they want. That was Marquillagos announced the best explanation that I've heard. It's a big fat who knows. This case has been crazy. If I can pivot really quick, Megan, the one thing I feel very strongly about in this case is that woman who's taking pictures of the chers, she should be in custody. That is an outrageous thing,

but maybe that's a conversation or a different show. That whole thing was nuts. She allegedly said, "Oh, no, I just wanted a picture of Lindsay Clancy, which by the way, you can get any day on your screen." Then they allegedly found a picture of the juries of the jurors in her deleted photos. So this woman's, she's in for a world of her system does its job. I hope she's potentially looking at 20 years. I doubt she's going to get that. But my god, some sort of message needs to be

“sent because you cannot intimidate jurors. That's what that does. They understand their”

pictures being taken by some nut who's out there and has been told by the judge never to do that.

For what purpose? For intimidation, especially in case like this, this I profile as much interested in it from the outside world. Okay, so go ahead, Ashley. I know you wanted to weigh in. So I'm always fascinated by what's reasonable. Again, most of the cases that I've covered, I often see the first question comes out from the jury. Judge, can you please define reasonable doubt? Of course, there is no definition for it. Everybody has a different level of

reasonable. I think it's okay for my kids to drink at 18 because that's the law where I'm from. And it's not reasonable to other people that my kids could have a beard at 18. We all have a different level of reasonable and every person didn't shoot partying after we sprayed when they walked into the jury room. They brought all those experiences in there with them. And so my feeling is that the reason the judge had to describe reasonable doubt again, or at least give them the instruction,

is because the 11 feel like the one is being unreasonable. You can't get the juror bounced though for that reason fill, right? Like if that's by the way, I just want to tell the listening audience,

we are 10 minutes before four. They have never gone past four this jury. And this is we're going

stick around this courthouse on the Friday of Labor Day weekend, as opposed to put this

thing to bed if it's at all possible in the next 10 minutes, are very sunny back here. So we continue to watch. Yeah. Yeah. Go ahead, failure thoughts. Well, we don't, you know, reasonable doubt. I like to tell jurors that it's a doubt for which a reason can be attached. And it's really can be just that simple. And in this case, you know, the burden is on the prosecutors to disprove the insanity defense beyond a reasonable doubt. And you're right, Megan, you can't just toss a juror because they

have a difference of opinion. You could toss a juror if the court is satisfied that a juror is refusing to participate in deliberations. If they just sit back and cross their arms to say, I'm not participating in this anymore. I told you all what I wanted to do and I'm not going to

participate. That would be enough probably to get a juror tossed from the case. But if they all say

that they are willing to continue to listen to the judges' instructions, follow the instructions, a difference of opinion. See, the four person may be wrong about this. It may just be that one person has a genuinely held conviction on what they believe the outcome of the case should be. And that's not a failure to deliberate. That's just a home jury. That's what that is. And so I really think that even though we aren't technically there yet, it looks like we are definitely

sort of going down that path. I think we'll know something here shortly whether or not this jury is going to continue to want to keep working. I think Reddington believes that the juror was

“probably not going his way. That's why he wanted the juror to be bounced. I think that he believes”

that he's got this 11 to one. He would not otherwise be wanting that juror often to match point. This is what I was going to say earlier that we know those of us who have tried these cases. We know from the time the jury is seated, which ones we think we might be able to persuade, and which ones are going to be a little harder. And then as you go through the trial, in this case it lasted a month, Reddington has had a long time to spend in that courtroom with this

particular juror, whoever he or she may be, and has a very good sense of whether or not that juror might be sort of leaning his way or not. So I think that that explains his frustration. He believes that he's got this 11 to one. He believes that there's one juror that needs to be substituted with an alternate. And then he thinks he can get out of here with a clean not guilty or not guilty, not guilty by a reason of insanity. I don't think there's any chance that it's

going to be a straight not guilty. The prosecutor has some interesting choices to make right now Matt, because if the jury does come back hung, if they can't turn this one juror around, and it really was 11 to one in favor of not guilty by reason of mental defect,

“does this prosecutor want to try this case again? They do not. With these charges?”

No, they don't. And look, the Ashley and I again, we were talking about this last night. We need to happen as there needs to be the elected DA who's a friend of our friend, Ted Aaronberg. Dave says he's a great guy. I don't know. He needs to sit down with these prosecutors probably in the room with Reddington and see if they can reach a some sort of a compromise

that everybody can live at. The problem is if they're 11 to one for insanity, you know, to use the

California term here, Reddington is not going to be super motivated to make a deal. If he thinks that he can get her, get her that, you know, that after a second trial, he decides to be motivated to resolve it. We also don't know what happened behind the stands leading up to this. I don't know if these two prosecutors dug their heels in and refuse to talk better, if there's any discussions about, you know, there's a lot of ways you could sort of bake this pie, so to speak, that you

could find a middle ground like a voluntary manslaughter or maybe you do. You run the three deaths concurrent to one another. There's ways that you could structure it so that, you know, nobody would be happy, but there would be some middle ground. So if they're going to be motivated, you'll get a draft. But if it's the other way, if it's 11 to one the other way, the prosecution probably is going to say screw it, we're just going to retry it. Right, because even though we're all

right now, assuming Kevin Reddington has, has gleaned that there's one juror that's for the prosecution and 11 that are for him. We don't know that. We should make clear to the audience. We don't know anything. They didn't actually read the note to us. We just know that Kevin complained in court saying, I want the juror removed and was so angry about, we think about the judge's refusal to do that, that he was throwing papers and kind of getting in the judge's face and then the judge was raising

“his voice and we believe because Kevin announced to the court that that's what he was angry about.”

That, in fact, that's what he was angry about. So that's just, and we don't know what the notes said.

word. I think we do. I don't think that's the exact word, but this is the reporting from the court

room. The court has an instruction from the four persons saying there is one juror that

“refuses to listen to the law on reasonable doubt. I think that's here.”

Well, how do we, why do we go from that to that juror is definitely good for the prosecution? It's illegal. It's illegal. I think Matt's suggestion there that Kevin Readington might be thinking, hey, oh, I'll go, I'll go another round. If it looks this good, I'm not sure that that would happen. That is an enormous, but like, I just don't, I don't get, if I hear that the juror is saying, wait a minute, is that happening right now, Debbie? Wait a minute. Oh, okay.

They're, they're lining up to go back into the courtroom, but this could just be the dismissal for the day. It, it doesn't necessarily mean the jury's doing anything, but dismissal for the day would be interesting, too. I mean, it would mean they're, they're not close, and they're not like give us 10 more minutes, we're on the verge. But if the, if the note is, is a juror's, can you read it again? Ashley, sorry. I don't have an friend of me. Yeah, let me jump back to it.

Okay, the court has an instruction from the four person saying there is one juror, and this is not verbatim of the note. This is a description of the, the happening. Court has an instruction from the four person saying there is one juror that refuses to listen to the law on reasonable doubt. And then of course, that was followed by the judge's reading and instruction on reasonable doubt. And the judge said, so why, why couldn't it be? I'm, I'm the hold out, and I don't want to find

her guilty of anything. I want to find her not guilty by reasonable defect to be. And all the other jurors are saying to me, no, you shouldn't do that because she's guilty beyond a reasonable doubt. And I say, no, she isn't. I have a reasonable doubt. I'm like, I don't, I don't see why we're leaping, starting with Kevin Reddington to it's 11 to one of the defense's favorite. I'm trying to listen. Am I just to dance to get it? I don't get it. Well, I think we're doing that because we all

watched the trial. And we watched these, these prosecutors who are not ready for prime time, Megan, and then you, you get into Massachusetts law. And it's so amorphous. It's so big. And I'm so glad

“that I never had to prosecute cases there. Reading the stuff. I think that's why people are”

jumping to that because they were outclassed by the defense attorney from the opening statement on

the Heath. And I think that's why everybody is jumping to that. But you're right. We never know

in a situation like this. And it could be, again, it could be between the wall and something else. But yeah, I wasn't impressed with anybody's closing argument and that's not clear enough. So you think this jury is kind of on their own trying to figure this out. You and I spoke about this. We keep saying we spoke last night on my podcast. Let's be clear. Yes. Right. Well, it's fine to talk socially too.

I don't know what these cases people out there that want to go conspiracy theory. But I think what critical is that, in listen, I'm not litigating it. But I think you do get a pretty solid vibe after five, six weeks in a courtroom of what jurors or more sensitive to your position. Many of them will make eye contact with you, not make eye contact with your defendant. Or yes, make eye contact with your defendant. And so perhaps that's the vibe that Kevin

Readington and the metric today. There's at least one report. I think was from was it learned calling somebody reported that not, not one juror. No, it was just as served. jury and not one looked at Lindsey Clancy for today. Whatever that means. Keep going. No, that's significant. But for whatever his reason Kevin Readington is no dummy, right? Whatever his reason is to want that juror bounced. He's got a solid vibe, which he has a

master over the last five, six weeks of who's who. And I think he probably feels like he's got multiple people on that jury in his pocket. And there's only one that person ate.

“I know that you have to run it actually as to you, Matt. Coincidence.”

This is that room started, Megan. The jury is all leaving. And I'm in Canada on an island. It could be difficult. So she plans. Allegedly reportedly. But you're in good company because the jury is also leaving. That's so we will have no verdict nor any declaration of a mistrial today. All the action

is now over inside that courtroom for today. Thursday, September 3rd, it will resume tomorrow. The court is in session, even though it's we're going in the Labor Day weekend. So Matt, goodbye, Ashley, use well. We're going to be joined by Jonathan Spielbore and Dave Aaron Burke, who

had dropped his back with us two in a second, I think. Jonathan, your reaction to the drama going

because they don't like my position on this case. They love you. They don't like Mark Eigleins,

but they don't like you. I don't, I have an opposite approach. Here's my theory why Kevin Reddington was acting all pissed off. He is putting on a dog and pony show. He wants the world to think this loan hold out is in his favor. So we slams his papers on the table. We have no idea

“whether this one hold out. That's why I'm saying. We have no clue, but but if we go by his face”

in his reaction, we're all going to think that it's in his favor. Yet we do not know. So this is part of his dog and pony show. And I'm going to wait and see, this could easily be pro prosecution. And the fact that the jurors, according to Ashley, who just left, didn't look at Lindsay Clancy today, or I'm sorry, you're pointing to me, not me, but somebody called Justice Served who's been

covering the court. That is very important having, having done this a million times before when the jury

does not look at your client, you're in trouble. So there you have it. That's, I like, I'm trying not to be obtuse, but if the, if the note from the form and read to the effect of we haven't heard the exact one juror refuses to listen to the law unreasonable doubt, that does not tell us in which way it could be somebody sitting there saying, I have a reasonable doubt. That's all I'm going to, I'm not voting to convict. I have a reasonable doubt. And all the 11 are saying, how could

“you possibly have a reasonable doubt, which would be acting by Kevin Ridington, if that's what's”

actually happening. And he knows that. He doesn't know anymore than we know. The judge wouldn't

have told him that the jury hasn't told the judge or the courtroom more than what's in that note,

because all communications from the jury, we get to know Dave Aaron Burke. I mean, I guess in that Q&A, that would have been on the record. But the judge right now doesn't know which juror does he, or, or which way the juror is pushing? No. No. The judge and the parties would not. But why would Kevin Ridington lie about it? Like why would he put on an act? Because eventually, we will know the count. I know the judge is not allowed to ask, but jurors will talk. Well, wait. But let me just,

let me just quickly say, because he doesn't know. So you shouldn't walk away from his behavior saying he knows. He doesn't know. He hasn't been told. So he's gleaning. So he had to make a decision in the moment. What to do? Do I, what do I actually think? And it might be he actually thinks this, that the 11er for him and the holdout is for the prosecution. And he wants that juror gone. Or it could be that's just the way he's going to play it. I don't know. I guess I don't think

it's acting. I guess I don't know if it's acting because he argued that the juror should be bounced. Right. So if he thought the creating an appeal at his hand, well, but that's it. He is taking a position. But wow, what if he, since he doesn't doesn't know, demanded that juror be bounced. And the juror got down. He got his wish. And then it's a guilty verdict. I mean, that that's a dangerous thing. I got a fault. You know, we may not, we don't know what Ridington knows. And

let's not forget, there was a very long sidebar before the jury came back in and before the judge started speaking in a way that we could all hear it. They, they talked at the bench for several minutes before they brought the jurors up one by one. We don't know what was said. And so we don't, we're making an assumption that that's all the notes said. We don't really know what the note said. It may have said more. Ridington might know a lot more about what's going

on in that jury room than we do right here. We're just kind of reading the T-Leaves based on what we've seen discussed in open court. But we weren't privy to what happened at that sidebar. So if you put that together with, with Ridington and John, I don't think he's, I don't think

“he's acting. I think he really did want that juror gone because there's not a story. Let's”

talk about the court room that the, the prosecutors are, you know, very emotional almost in tears and looking very defeated as well. So something, there's more to this than we know. There's something that was said at that sidebar, I think, that caused Ridington to be so firm and secure in his position. He really thinks that it's going his way. That's just me reading the T-Leaves, remembering that there was a extended sidebar discussion. And we just don't know what was said.

Well, then why didn't, why didn't the prosecution say, you know, I don't do anything with this juror declare a sidebar. They're telling that they can't come to a, I mean, declare a mistrial. They can't come to this case because they, they didn't do a very good job at least in, in throughout the trial. So I'm happy. And how do we know it's 111? It couldn't it just be one

Does it? Could be. We don't, we don't know. No, we don't know. But that's,

the, oh, it was from what that judge said that I, that was just reading the judge mentioned siding with 11 or siding with one. So that, that comes from the judge. You can be speaking hypothetically. All right. I mean, you know, that's a personal own act right now from people in the courtroom saying that it's 111. Again, but they haven't seen the name of either, I guess. I'm just trying to get to go back to the exact, the exact quote from the judge, which my team is

going to have to set me. I can't find it now. But yeah, I had, I object to the court's ruling said Kevin Reddington after the judge ruled that the current members of the jury should continue deliberations.

But, and he, and then he claimed one juror refuses to listen to the law held on a second. Here's

here is what the judge said. It's not appropriate for me to say, I agree with one juror comma or 11 says the judge insinuating that there's an 111 holdout issue here. So you're right. It's not, he didn't say in those words. There's only one holdout. But he said, it's not appropriate for me to say, I agree with one juror or 11. So it certainly appears that there is a split on an issue between 11 versus one. And we glean from the fact that the judge read the reasonable doubt instructions

that it was over that issue. And indeed, there was also this reporting from, again, this Christina Rex, Readington, argued an open court that, quote, the court has an instruction from the four person saying there's one juror who refuses to listen to the law that you've given him or her on reasonable doubt on reasonable doubt. So that's pretty good, pretty good math that it's 11 to one right now and that that's the issue. There are arguing over. Yeah, I agree. And that seems to be

that's consistent with all the other posts and tweets that are coming out of the courtroom.

“And Readington, let's just remember, he knows this case inside and out. He's lived this case for”

years. He's lived this case for the month long of his trial, but for years he has lived this case. And so he knows it in his bones. And so his instincts are telling him that that juror, that one juror is not following the law on reasonable doubt. I suspect that what we're seeing is Readington is aware that he has, he believes he has 11 people who have said, you know, there's reasonable doubt in by the way. The law is skewed in the defense favor on this in the state of Massachusetts

on the issue of insanity. So he thinks that the wind is at his back. He thinks that he's got those 11 jurors and that there's one back there who's just saying, look, I'm not going to vote under any circumstances to acquit her. I don't care what the judge says or something like that.

“That's what I envision going on back in the jury room, Megan. I think that we'll see”

more progress, maybe tomorrow. If it truly is 11 to one, they might be able to pull that juror on their side, but if they don't, do it quickly. And that juror is as stubborn as Readington said that they are, they may, they may tell the judge tomorrow morning or very soon that they are, in fact, stuck 11 to one. All right, standby. Let's take a look inside the courtroom. We're told that the jury was being dismissed, but there is action inside the courtroom. I think it could just be the

big buy. Let's watch. You're right, a person before the court. We have 12 deliberating jurors and six often, it's in the matter. Come off for us as Lindsey Clancy. All of the parties are present. All right. We'll get to know everybody. What I'm going to do is excuse you until tomorrow morning at nine

“o'clock. All right. And then I'll speak to you at that point tomorrow morning. So remember the instructions”

that I've given you, over and over again, stay away from any coverage about this, they'll talk about this case. And I will see everybody tomorrow morning. Okay. All right. There. There a juror.

Couldn't clean anything from their faces. Lindsey Clancy's face always looks grim as it should be.

Kevin Readington, Stoneface, there, nothing from the prosecution. So they're gone. They're being dismissed until tomorrow morning, showing back up at nine. I mean, my own guess is by 10, we're going to have something that they're, they're either going to say because they they already went back in there after the judge interviewed each juror one by one. So it's possible. It's possible. They could come back in first thing or by 10 and say that person is still obstreparous and will not

listen to law and the person gets balanced. They go back in there. But I'm just going to guess that

know, they could bend the juror to their will. But whoever it is is very strong because we are what 36 hours into deliberations now and they haven't bent and they've had multiple charges by the judge. You know, John, this this person doesn't seem like they're going to bend whatever their verdict is. This is true. And we've had a couple of opportunities to call it quits without a verdict and that didn't happen. So the tone and the tender and the temperature in that entire courtroom. I know everybody is

on edge. Nobody wants to let this trial go without coming to a verdict either way. But I can't

help it go back to and look, I'm not trying to be hyper critical of Kevin Remington. I think he did

a fine job in this case. But throwing your papers on on the table and getting angry is for the cameras. And he will have preserved this issue on appeal. If in fact he loses this case and there will be an appeal if he does for sure. So I just I'm not convinced that the one hold out is a pro defense hold out. I mean, I or the the other way. I'm not convinced that this is going to go Kevin

“Remington's way on this. And I think that's why I'm saying I'm not calling him a liar. I'm calling”

him a esteemed posture in this case because he doesn't know. We don't know. And when the jury doesn't look at your client, you guys you both know. If the jurors aren't looking at Lindsey Clancy, what does that tell you? What do you think, Dave? I think it's amazing that you know

that there are six alternate jurors hanging around the courtroom. What do they do all day?

They're not allowed to be in there. They're waiting for the Scott Peterson situation. They are, but it's different than in Florida where if you dismiss one, those alternate jurors are home and they're done in Massachusetts. They go to a separate room and do what? I don't know. They wait until that's what they do in California. Interesting. They're in the courtroom. I'm sure they're in a separate room, but they have to come into the courtroom for everything that happens. So that's why

they're brought in. And then, and then just FYI, if if a juror gets replaced by an alternate, the jury has to start all over again. They will be instructed to start at square one because all 12 of the jurors need to be on board with the verdict and the process. And this

alternate, if they get subdin, will not have heard one word of deliberations. The alternates are

at the courthouse, but they're not in the jury room. That's only for the 12 jurors. And you don't,

“you have to start all over again if that were to happen. They sit in a separate room all day,”

every day, as long they've been deliberating, apart from the regular jurors. And I guess, I don't know, they're allowed to watch TV. I guess, all day, it's crazy. But not the news. So I don't, I just don't know if, and I love John. She's so smart. I just don't know if it was. I think Renatin is being sincere. I think really he believes that that juror is against him and he's got it. 111, let's get this juror off and the judge refuse to do so. So I don't think it's

an act or playing to the cameras. I think that's who this guy. Dave, why did they have Lindsey Clancy come up to the bench? Her lawyer was there. Her lawyer was representing her. Why did she have to come? This is a guess. Obviously, we don't know the answer. Because it was a sub, the judge was making some substantive decisions up there. Hold on, Phil, you already answered this one. There is a reason I asked this of Dave, but you go Dave, you haven't thought it. Isn't that it? It's a, that

it's a substantive thing. And these are a substantive decisions that he's making. And she probably wants to be up there. I would think so. Am I missing something here? Now, you were right, Phil. Dave had nothing useful to say to you. Well, that's not true. That's not true. I want to point out our colleague, our infantry crime colleague Ashley Merchant posted on Twitter. What if the Clancy jury hold out is the guilty vote? That would explain why the defense, Reddington wants a verdict

“from the other jurors and doesn't want this jury forced back into deliberations again. And I think”

it's just that simple. Well, yeah, I think it's just that simple. But that, I mean, yeah, that I mean, that we've been debating that. That's, that seems to be what at least Kevin wants us to believe and what Kevin believes. I think Kevin does believe that because it would be really reckless to argue bounce the juror, bounce the juror. If you thought secretly, it was a jury for you. A juror for you. I mean, that would be incredibly stupid after all that effort. He would like to win this case.

So, yeah, it could be. It definitely could be. But what we need the audience to understand is, we don't think Kevin knows. We think Kevin is gleaning, just like we're gleaning from Kevin's behavior. But there's what we're gleaning and there's what we know. And all we know for sure is that the judge called them in there. He instructed them began with, you are required to follow my instructions on the law. I want to go over my instructions on reasonable doubt. And then

to listen to the law on reasonable doubt. Does Kevin know more? Did the judge expand? Does even the

judge know more? These are things we have no idea about. So yeah, go ahead. No, I was going to say the note likely did not say, hey, judge, 11 of us want to quit and only one of us want to convict, what should we do? Right? I don't think the note said that. It was much more nebulous than that, which is why to assume that we know the division is just something that we really can't hang our hats on because the instruction that he came back and gave them, the reasonable doubt

“instruction could go either way, depending on what the content of this note is. And I think”

if the content of the note was vague, that's probably smart on the foreman's part, right? But

and it sounds like there's no space. Why can't the juror be saying, Janna? I have a reasonable doubt. I have a reasonable doubt. I don't believe she should be held responsible. I have a reasonable doubt, and I'm not voting for any of those charges, murder one, murder two, or manslaughter. I'm not doing it. And why can't it be the other 11 are saying, you have a doubt, but it's not reasonable. Exactly. The prosecution didn't have to prove this case beyond all doubt, just beyond all

reasonable doubt. And this juror is saying, well, they didn't. And why couldn't that be this scenario?

Dave's well, yeah, it could be. Yeah, but I think it's more something like, I don't care what

the evidence says. I just feel it on my gut that she's guilty and needs to go to prison. I mean, there could be something like that. And the other juror said, no, that's not a good enough reason.

“Let's go back to the judge. I love the dramatic reenactment. I do. I think we just, we can't see”

inside the deliberation room. So this is the best we're going to get. Is that? Yeah. This is how I feel. I don't know. I get like, let's just plate out the other way, because I'm just trying to find the follow the reasoning to see if we can figure it out. If you are, if you've got 11 who want to find her not guilty by reason of mental defect. And you've got the one juror saying, I think she's guilty. Would that boil down to a debate over reasonable doubt? I think this is why I'm stuck and maybe

John has stuck with me. The, the very real possibility that the 11 are pro prosecution, because if the whole doubt is is holding out over the, refusing to listen to the law and reasonable doubt, if the law and reasonable doubt is what's controlling in there, then they haven't they moved beyond mental defect? Like the only reason you'd be, yes, don't shake your head, listen. The only reason you'd be talking about reasonable doubt, I think, is if you are going through

guilt or innocence on murder one murder two or voluntary manslaughter. If you get in there and you say, raise your hand who thinks she's not guilty by reason of mental defect, is that a reasonable doubt issue? That's a really great question. Now I've given you something to think about. Well, I, no, I think it is a reasonable doubt issue. And here's why the judge told the jury, and the lawyers kind of did, and Rattington kind of did, and his clothes, although not very well,

he told the jury that under the law and Massachusetts, once this issue of not guilty by reason is sent, once this gets into the case, the prosecutor bears the burden of disproving it beyond a reasonable doubt. In other words, they have to prove beyond a reasonable doubt that she did know rights from wrong and that she was, you know, mentally competent at the time, okay?

“So that's what, that that's why I think this whole thing about reasonable doubt is that they are”

still on the insanity part. They are not able to unanimously decide if the prosecutor has carried their burden of disproving the affirmative defense beyond a reasonable doubt. I don't, that's how I read it. I don't think they are at the, any other questions about any of the other charges yet, because I think 11 of them believe that the, the prosecution just has not proven their case beyond a reasonable doubt. How many times have we seen cases, regular cases that did not involve insanity

defenses where the jury says, you know what? I think your client did it, but the prosecutor just didn't prove their case beyond a reasonable doubt. We think that there is a doubt for which a reason can be attached. And that would explain, because the prosecution needs to prove beyond a reasonable

Yeah, I think that's where they are. I think, I think they are, I think the jury. We don't have the, one of the reasons that we need to explain this is we don't have the, the verdict form. Like that, we looked. We were not able to retrieve that from the court or otherwise. So we are not able to see the, the logic tree that would be spelled out for the jurors in making their decision, which it will be a logic tree. Like, do you find this? Yes or no? Only if you click, click,

yes to this, should you go on to the next question? So we're all still leaning, but here's what

the Boston Globe has responded as are reported on what the jury must decide to determine criminal responsibility first, whether Lindsay Clancy was suffering from a mental disease or defect at the time of the killings. If they say, yes, she was, then they must consider two additional points. Did that mental illness render her unable to appreciate the wrongfulness of her actions or on able to conform her conduct to the law, the burdens on the prosecution to convince the jurors

that neither of those scenarios applies. And then they have to, let's say, if they agree with the prosecution, that she was, that she was not suffering from a mental disease or defect to the point that she was unable to appreciate the wrongfulness of her decisions or her actions, then they're

going to have to choose her level of culpability, first degree, second degree, manslaughter,

and all of those would have to be beyond a reasonable doubt. So I guess we don't know for sure, if they have to prove her not suffering from mental disease or defect beyond a reasonable doubt, then they could be stuck right there. Then the holdout could be still right there. I don't know. I don't know. We don't know anything. That's, that's, have we determined we know nothing? Nothing. We know absolutely nothing. We have absolutely nothing. But you know, but could we also speculate

Megan when the judge came back and read the reasonable doubt instruction? Just, I don't know, how far ago, two minutes ago, whenever it was. I thought I heard him, I was listening. I thought

“I heard him emphasize, you know, the word beyond all doubt. Like, that's what you do when you're,”

when you're a prosecutor, you're trying to convince a jury that they don't have to find that it, that it's beyond all about, just has to be beyond reasonable doubt. And when, when he puts the instruction on that word, it tells me that it could be a pro prosecution. jury right now. Well, I mean, listen, listen, but listen back to that. I think it could be, and it could be for the compromise, lesser charge, that's another possibility where they've

acquitted on first-stream and second-view murder and just have to debate over the manslaughter

of charge. So that's a possibility, too. I think there's 11 of them back again. And again, though, we don't know whether the judge knows more than we do. Like, it's, it's not, I think a lot of the times people assume that the judge has been given the inside scoop on what's happening in the jury room, and he normally isn't. That's, he normally is relegated to the same notes the lawyer's on. Mm-hmm. That's good, because sometimes if the judge knows more,

they tip it off, you know, they can give it away by something they say, something to emphasize, for example, in the jury instruction. So beyond all doubt, the emphasis on the other syllable. We should, I want to hear that again. Well, do we have that country to cut anything? But Janna, if the judge puts the emphasis on that syllable, isn't it also equally plausible that you have 11 of them

“back there saying, look, I think she may very well have known right from wrong, but there's”

reasonable doubt. I'm not 100% convinced that the prosecutor has carried their burden of disapproving the affirmative defense. So, therefore, the judge said, if I have a reasonable doubt, I shall vote, not guilty by a reasonable insanity. That's also in the instructions. Isn't it also plausible that 11 of them are back there saying, look, I think she's, she's probably guilty, but we have this doubt, and it hasn't been disproved by the prosecutor. Therefore, they haven't, you know,

we can't even get to the other counts, because we believe 11 or so to one, that the affirmative defense has not been disprovened by the prosecutor. I think that's equally plausible. Well, anyway, we do believe that. Yeah, go ahead. Anything is equally plausible, and let's consider the amount of time this jury has been out and debating with zero questions, but for the second day of deliberations when they want to look at those two pieces of evidence. Other than that,

you guys, it's been radio silence. So, what are they doing back there? What are, what is the debate? Is the debate on whether she was mentally ill? Because the prosecution can see to that, we all can see that. She was mentally ill. So, where are they stuck? Are they stuck on, you know,

“the first prong or the fourth prong? That's what none of us knows.”

And they can't speak to us after this is all said and done. I mean, at some point, we'll

to the full Kevin Reddington, because we missed the top of it when we were watching this earlier.

“Here's what he said to the court. Thank you, I appreciate that. I appreciate the fact you're”

allowing us to be heard in public rather than at the side, but the court has an instruction from the four person of that jury that's been working for a week now, saying that there's one jury. Who refuses to listen to the law that you've given him or her on reasonable doubt, and I suggest, respectfully, that the soft instruction that you gave them saying at the sidebar, can you listen to the law as I instruct you? Does not focus on the issue? It is the question is not

sufficient enough. It does not allow any foundation for a motion to remove the jury. Who refuses to accept your instructions on the law on reasonable doubt? And if we come back here in a half an hour with a mistrial because of the juror that has just sprained the instructions of this court,

“it's a shame. It's a real shame. And that's why I object to the courts rolling. I request that we”

have further inquiry. I request that my motion is to remove this jury that refuses to listen to your instruction on reasonable doubt. So there you have it. His characterization of the note, which tracks what we were reporting earlier, and the soft instruction you gave to the jury does not focus on the issue enough, suggesting it doesn't create a foundation from which to appeal if this thing goes forward. And now let's take a look. Do we have the judge on the instructions?

Let's listen to the judge here. Good afternoon, everyone. I just wanted to go over a couple of things

and say after you know, first off I want to remind you that you are required to follow my instructions

on the law as I gave them to you. I also want to at this point go over the instruction that I

“gave you about reasonable doubt. All right. And so reasonable doubt. The burden is on the Commonwealth”

to prove beyond a reasonable doubt that the defendant is guilty of the charges made against her. What is proof beyond a reasonable doubt? Well, the term is often used and probably pretty well understood that it's not easily defined. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. For everything in the lives of human beings is open to some possible or imaginary doubt. The charges prove beyond a reasonable doubt. If after you've compared and considered all

of the evidence, you have in your minds an abiding conviction to a moral certainty that the charges true. When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs based solely on the evidence that has been put before you in this case. I've told you that every person is presumed to be innocent until they are proved guilty and that the burden of proof is on the prosecutor. If you evaluate all the evidence and you still

have a reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted. It's not enough for the common true status of probability, even a strong probability that the defendant is more likely to be guilty than not guilty. That is not enough. Instead, the evidence must convince you of the defendant's guilty to a reasonable and moral certainty, a certainty that convinces your understanding and satisfies your reason in judgment as jurors

who are sworn to act conscientiously on the evidence. This is what we mean by proof beyond a reasonable doubt. I'm going to ask you to resume your deliberations. All right, well, there it is. Beyond a reasonable doubt does not mean beyond all possible down. He did emphasize that. But he also emphasized the probability part that it's not enough for a prosecutor just to make it more probable. It's got to be beyond that. That gives both sides something to lean

on right there. And the business of beyond a moral certainty. That's pretty good for the defense. That's definitely what you want to hear. Now, here, lawyer online, Carole Erskine. She's reporting retired judge, I should say. She's reporting some interesting facts about the law following post. What happens when jurors say another juror is refusing to follow the law? U.S. V. Thomas,

second circuit, 1997, highly relevant. She says here, okay, Thomas draws a critical line this

but disagrees with the other 11 about what the evidence proves. The court said and extraordinarily

“high bar for removing a juror. There must be no doubt that the juror is refusing to apply the law”

rather than simply reaching a different conclusion about the evidence, it makes perfect sense of course. And she goes on to say that the Massachusetts case that addresses this issue in Thomas says the same. When a jury reports a juror is refusing to deliberate, it requires a careful judicial inquiry, but it does not automatically justify removing the juror. A judge must be extremely cautious, not to intrude into deliberations. A juror cannot be removed simply because the juror disagrees

with the others, or views the evidence differently, or maybe the loan hold out as the previous

court warned, removing a deliberating juror is a sensitive undertaking, fraught with the potential

for error in short refusing to deliberate and refusing to agree are not the same thing. So this is what the judge was dealing with today trying to figure out whether he's got somebody who's not following his instructions on the law, who won't listen to them, and come up with a verdict accordingly, or he's got somebody who is listening to his definition of the law, but just doesn't see it the same way, the conclusion as the other 11. The latter scenario is entirely

proper appropriate, and that juror should not be touched. The former would be grounds to balance the juror, and everything about this case lies in the balance of which one that juror is doing. So what would change between hey judge, we're deadlocked, number one, and then hey judge, we're deadlocked, number two, and now oh well we're not going to say we're deadlocked, we're going to say that we have maybe one juror who's not following the law, what is the difference between

we're deadlocked, and now we have one juror who's not following the law. Well you know the difference is that in between those two things you had the two-year-old regas instruction, and perhaps that instruction really did jar some people loose onto the majority side.

This so-called dynamite charge where it's basically telling the jury, no jury will ever be smarter

than you, or better informed than you, or better qualified than you, to decide this case. So it's basically begging. It's like you guys are great. You're the best. Please don't leave this for another 12 people. You can do this. I don't know. I think you know to quote Jurassic Park life finds a way. I think it's they were like this person's annoying that we could have a verdict and go home if it weren't for Bob or Jane over there, and maybe we can get rid of Bob or Jane

“by saying they won't follow the law. We're all following the law. That's how we got to this conclusion”

that the 11 of us agree on, and annoying Bob or Jane over there. Well if they would just listen to what we're telling them about reasonable down the standards, we'd be out of here. So they turned it, I think, into a complaint about that 12th juror, as opposed to just saying, we disagree, which is where they've been all week, and the judge keeps telling them that's not good enough. Yeah, I think you're right. I think that's exactly what's going on. It will be folks have all been

working for over a month now on this, and so they don't want it to be for nothing either. They would like their collective body to reach a verdict. They don't want this case to have to be retried either. I won't be them. I think you hit them on the head. I think that there are 12 or 11 people who may be have a reasonable doubt about something, and because that's what the jury's

“judge's instruction was about what's reasonable doubt. So that's what they're hung up on. I think”

there's 11 that have a reasonable doubt, and I think there's one that doesn't, and the 11 are tired of debating it in the jury room, so they're going to the judge to see if the judge can help them, because they too realize that there are six other individuals that are standing by as alternates that the judge could put on there. They think that if they could just give one more person that thinks like them, they can reach a verdict and they'll go home. That's what I think

is happening. Yeah. I mean, it is a good thing to remember that even though the judge said, it's not for me to take sides on the side of one juror versus the 11. And the note, as reiterated by Kevin Reddington said, there's one juror who refuses to listen to the law on reasonable doubt. We don't have actual confirmation that it's 11 to one, but this is as close as we're going to get to me. That's as close. And I think we're probably

because at some point, they're going to have to come back with either a, we couldn't reach a

“verdict or in this case is a mistrial or here's our verdict. And so last thing, if they declared”

a mistrial in this case of the judge does it tomorrow, is there any doubt that the prosecution can refile against her if it wants to? You know, the defense made a bunch of allegations in this case as it went on about in proprieties by the prosecution, things that she said that they thought were beyond the pale and fairly prejudicial. This, that the other, it can any of that. I'll ask you, Dave, as a former prosecutor, be used to stop the prosecution from refiling charges.

Reddington can try. I can try to get a court to prohibit the state. That's really hard to do. Then prosecutors have a lot of discretion. And if the case goes to a mistrial here on, but on all the charges, then they could refile all of them. The biggest thing that would stop the state is not Reddington's threats is the count. If the jury count is, indeed, 11 to 1, then I don't think they are going to refile this case or if they do refile, they will seek a quick resolution. They're not

going to want to try it again. If they don't, but if they don't refile it, what happens to Lindsey

“Clancy? Well, that I think what they would do when I say refile is that I think they would”

enter into an agreement with defense counsel. Because she doesn't want to go through it. So before filing, they'll say, "Here, let's cut a deal." The other option is they file and then they cut a deal efforts. But I don't see it going to another trial if it's 10 to 2 or 11 to 1 against the prosecution. They could do a stipulated bench trial. They could have a stipulated bench trial where they file charges and then they stipulate that she's not guilty by a reason of the sanity.

And off she goes to a mental institution for a very, very long time. Question for you.

Wasn't that didn't Kevin Readington argue that if they had just not charged first degree,

they could have had a bench trial. In this case, I feel like I'm remembering that. Yes, you did say this. Yes, you did say that. But I think what Phil is talking about is not a bench trial. It's a stipulate just like pleading up to the court almost. They could file the charge and they want to guarantee that she just doesn't go back out on the street. So hypothetically, if it's 11 to 1 against the prosecution. So if 11 people think that she is not guilty by a reason of insanity,

then they have a lot of incentive to cut a deal. So theoretically the way it could work is they file some charge and they stipulate to the verdict and they just do a bench trial. They stipulate it vertically stipulate that she's not guilty by a reason of insanity guaranteeing that she doesn't go free that she goes into the state mental system for people who are found not guilty by a reason of insanity. You know, I think that there's a chance, a small chance she could get out of that

place in just a few years. But I don't think she likely would. I think she likely would be seeing long-term incarceration, if you will, in a mental facility like John Hinkley, for example. So I think she would be there for a very long time. Here is what Kevin Reddington said this morning before this latest round of drama on the possibility of a mistrial. What's your message for Lindsay if it is a mistrial?

I'll give it to him when I see her. Is writing me would you differently if there was a

“second trial? No, I think I did the best thing. How did she feel about the possibility of a”

second trial? I don't talk about claims. Do you think that there is any chance of a video if there is a mistrial today? Yeah, to ask Mr. Cruz. Would you be open to that with Lindsay be open to that? I'm sure this has been an excruciating for everybody involved. How are you feeling? How are you doing? Good. I mean, you know, the support has been great. You guys have been great. I mean, look at the letters I have to deliver to her from all over the world.

It's just amazing. How did she feel about receiving all of that support?

I don't really get into it with her, she reads them all. Some people say a second trial would favor the prosecution. What do you think about that? Bring it. Excuse me. I don't think of the fact that the jury has an act. I'm sorry. What do you make of the fact that the jury has an act and any questions clarify? Because it's good question. Judge Sullivan's instructions were thorough and he gave them a copy of it. They all have the wrong copy. So they're

able to answer any questions that they had by looking at the instructions. He said yesterday that you could be willing to retry this case next week. Yeah, you talk about that. No, just bring it up. I mean, I got witnesses lined up. We're all set. You know, Dr. Reznik is ready. I'm ready.

Oh, no, they're trying to kick it off the six months or a year, but we're going to do it quick.

“These are letters from all over the world. Yeah, it's amazing. Where do they come from?”

You name the country. So interesting, John, so bring it is what he said. We could retry this case next week. But realistically, that's not what he's going to want if if this really is 11 to one in his favor. No, that's true. He's not going to want that if it's 11 to one in his favor. And if, you know, if you guys can't look at that clip and think that this man is a master on how to, you know,

mug for the cameras and how to put out a vibe for lack of a better word of confidence in his case. And his client, which is great. You want that in an attorney, but that doesn't mean that it's odd that everything is working in actuality in his favor. Be at the devil. Let's listen to him outside the courthouse. I can read by the judge. Tomorrow at 9 o'clock, I don't know what his question is going to we'll have an argument about it. I don't think it'll be at the sidebar. I think it'll be an open

court, which is my concern that we have our arguments in open, not at the sidebar. So I expect that and that's VAR, not VAH. Okay. What is this one person versus all the rest? Is this one person versus all the rest in the jury? Is it one person holding this up? Yeah. That's a, you read the

question. That's basically that there's a person who has doubt, but will not listen to the judges'

instruction. Yeah. Has everybody else agrees? Do you know where are you, are you like the only guy? I'm just allowed to. I'm from Africa. I just, by that special, I'll be quiet. Is the one per, is they tell you that all of the rest of the jurors are going one way or the other, do they tell you that? They don't tell me anything. Okay. It's just a note. Do you want to use it? Do you want to use it? Do you want to use your or do you want to mistrial? I don't want to mistrial.

“Why would I want to mistrial? If you want to put a new picture of the shit out of the arcades, I don't”

I don't want to. I'm so proud of that. I just make sure she's there and understands what's going on. What was your reaction when she found out about the old boy? Oh, gosh, okay. Somebody down. Oh, someone fell.

Oh, wow.

Oh, that was very interesting. He said, there's going to be hearing tomorrow.

He thinks it's an open court hearing. At 9 a.m. All right. Well, that was it. That was very interesting.

He said, there's going to be hearing tomorrow. He thinks it's an open court hearing at 9 a.m. And that the judge will identify the juror. I mean, obviously not to us. But it's he seemed to suggest there that the judge is going to identify the juror tomorrow morning at 9.

And they're going to have some sort of hearing. He said, I hope it's an open court versus not at sidebar. That that would be extraordinary. Wouldn't it? They're going to name the juror? No, they're going to be not in public.

The jurors right now. Remember the jurors are kept pride. But I mean, to the council. Oh, to the council. Yeah, I thought an open court and stuff. No, no, we won't know. Yeah, they could tell the name to the council. Say which juror number it is.

That will be interesting. And I, I, that's why I don't believe he is acting. He said at the end that yes, he doesn't want to mistreat. I think that overplays that I think he thinks he's winning. But also, if he thinks he's winning, that tells you why he wants that one juror bounced.

And if that jurors bounce, he thinks he'll get the acquittal that he thinks he deserves.

“But I, that's why I'd be surprised if that hold out juror was the only thing,”

preventing a conviction beyond a reasonable doubt. Glad to tell. Well, I, I, I certainly think it's very telling that, you know, he's as willing to speak to the media and give us a lot of the details. He, it was interesting that he said just now he said, you heard the note.

Well, we didn't. To my knowledge, we really didn't hear the note. He did. That's, I think that's what was discussed at that long sidebar. But we didn't actually hear the note and it would be very helpful if we had heard it.

we've heated just told us what, what the note said that would be very helpful.

I agree with Dave though on the issue of identifying the juror that that's not going to be publicly done. But it sounds to me like the judge has to bring one juror in and this could be done in camera without the public or whatever. They're going to bring one juror in and question this one juror about just what's going on in deliberations to answer the question.

“Are you refusing to deliberate or do we have a situation where you are holding on to a firmly held conviction?”

In accordance with the court's previous instruction. I think that's the issue that judge's going to need to drill down on.

To what end though, Phil, is that for the purpose of bouncing the juror or is that for the purpose of declaring a mischryer?

No, because if they're not deliberating, they can bounce them and actually had that happen in a trial. And we did exactly what I just said. The judge brought in a single juror who was identified by the others or by the four persons and said, hey, just tell us what's going on back there. And the judge was very neutral about it.

And then the judge was satisfied that this person was holding onto a sincere belief and sent them back. And then shortly thereafter the case was over.

“But I think that's what the judge has to decide is what he's dealing with.”

He's dealing with somebody who's actually following his instructions and saying, look, I just have a disagreement with y'all or is it somebody who's just being stubborn and refusing to deliberate. Even though maybe they have acknowledged that they agree with the other jurors, they might very well say, even though I agree with you, I'm not going to sign that verdict form and that would be grounds for removal. My team is saying that they heard the juror has been identified and there will be an inquiry by the judge.

I don't think it will be in a sidebar. It will be an open court. So you know, I take it all with a grain of salt because everyone's feed was glitching. No one had a better version of that than we did other than the reporters who were standing right there and actually heard him. But we're not exactly sure if something's happened in tomorrow morning at 9 a.m.

What will this judge do?

“I don't know either. I mean, like this could be, I maintain it could be 11 in favor of the prosecution and one for Kevin Readington.”

He admitted there. He doesn't know what's in the note and he doesn't know more than he said. He admitted that there. He's gleaning and Matt Murphy was saying he thinks he's gleaning based on how the trial went. You know, that you have a sense is the lawyer who was in the courtroom on where the jury is. But we don't know, and the jury didn't look at Lindsey Clancy at least according to Justice served who's been reporting on this day-to-day when they came at. So tomorrow morning we'll know more their home and we should go home to you guys.

Thank you. Thank you all so much.

You can get these amazing, brilliant, fun, funny lawyers who have their sense of humor right along their legal sense available for the taking.

At MK True Crime go ahead and wherever you get your podcasts just type in MK True Crime and you will be able to find them. John is shows on there too. It's called positively legal, but all these guys, you'll get it all. If you just subscribe to that one podcast name, thank you and we'll talk more. I'm sure probably within the next 12 hours or let's say 16. Thank you, Megan.

Thank you. Thank you. And thanks to all of you. Yeah, thanks to all of you for listening. Wow, what a day. Okay, so we are, um, we are saying goodbye for now. We'll go back up tomorrow.

Thanks for listening to the Megan Kelly Show. No BS, no agenda, and no fear.