How Lindsay Clancy’s Jury Fell Apart Over One Vote

0:00This is Hidden Tillers Live with Tony Brusky and Robin Dree. Well, we've all watched weeks of anganizing testimony and this last Friday is stunning 11 to 1 deadlock, leaving everyone without closure. It's a pure emotional whiplash for the families and the public who followed every minute of the trial and we're going to break it down. What happens next? We're going to break down the actual human mechanics of the hung jury and what dragging everyone through a second trial actually means with us to do that Bob motto hosted the podcast defense diaries and of course Robin Drake retired FBI special agent chief of the counter intelligence behavior analysis program. Well, as predicted, we had a holdout. We just watched the jury grind for seven days only to hang on the one single holdout who

1:03said, yeah, no, I think she's guilty. No matter what, according to Reddington, someone who was not following the instructions of the judge to the jury, that I think is where a lot of us kind of get lost, Bob. I mean, take us into that that jury room. They're given instructions. The instructions here, you have to determine if she is not guilty by reason of insanity. And it's a state job to prove it in this case. It's not the other way around. And the jurors basically telling the judge, we don't think this one juror is following your instructions in that specific realm. Your instructions also talk about following your convictions and what you think is right. I mean, it ends up being confusing to say the least after an hour of instructions to expect everyone to walk out of that space and go, oh, I get it. I'm going to be perfect on this.

2:04I think is a bit of a task with our long instructions. How do you think this went down in that jury room? Now that we've had a weekend to kind of soak this all in. Well, I think that to try to kind of understand it, obviously we're speculating. Yeah. Yeah. You know, but inside that room, I think that the first thing that we have to try to understand is that by day seven of the deliberations, in my estimation, nobody is arguing about evidence anymore, right? Yeah. They're arguing about each other. The 11 that have already walked the holdout through every exhibit, all of the experts, every instruction. And then when that fails, you know, the room stops being about a deliberation and becomes kind of like a siege, you know, where it's 11 versus one. And you know, the majority is cycling through, you know, persuasion and they're frustrated and they're angry, they're exhausted.

3:05I mean, 40 hours of deliberation or damn near 40 hours is exhausting. Yeah. You're coming in day after day. You know, try to imagine being in it and forget about sides in terms of which side is which side right now, just imagine being 11 people on either side trying to convince one and it's like smashing your head against a brick wall day after day after day after day. So you can imagine that we get very frustrated, right? Yeah. It would be it would be exhausting. So ultimately the four person in the case apparently sends the note telling the judge that the the the holdout in the word that the judge used the word though, the kind of the phrase is that the holdout acknowledged it out but was refusing to apply the law as to reasonable doubt. And at that point, you know, what is appropriate right there, right there?

4:06What refusing to apply the law to reach reasonable doubt? I think that's where a lot of confusion comes in and understanding because we're talking about individuals who have convictions, which is another very loose term. I mean, applying the law to determine if there's reason, what if someone just says, fuck it. I don't care. She killed the kids. Yeah. I mean, that's their conviction. They're following that is following the judge's instructions, but it's also not applying the law. Right. So it's the same point. Again, this is where I get some money with the demonstrations and and and money with what are we expecting out of 12 human beings to really come up with here? We're wanting the human aspect of a person giving what their core beliefs are on something and applying it as a juror, but we're also saying you better follow this to to a tee, even if following it goes against your own conviction.

5:08I mean, we're asking them to basically become a computer to a certain extent while still maintaining their human abilities. Why don't we just have AI do it at this point? You might get a better, you might truly get what you're asking for then because I don't think you're going to get it out of humans. I mean, let's talk about that for a second. Yeah. No. In look, we've been talking about the different types of jurors that could be on this case. Right. We have the juror who I refer to as kind of the eye for an eye, you're the person who's like, look, a mother who kills her three kids does not walk out. Period. That person goes to prison. Yeah. There could be the person that's kind of where you're at where there's a misunderstanding of the burden, treating reasonable doubt as any doubt or in reverse treating the commonwealth's in session of mental illness where remember that part. It makes it even more confusing. Right. At that point, everybody's like, okay, well, she definitely had a mental disease or defect.

6:12We're all in agreement to that point. What we're not in agreement about is whether or not that mental disease or defect caused fancy, fancy not to know right from wrong or didn't allow her to conform her conduct to the requirements of the law. Right. And that's a weird thing for people to try and understand. It is. I mean, it's like, okay, wait, you know, because basically their last two witnesses landed in the commonwealth. I'm talking about landed on the concept that they went with bipolar two. Like that is what they said that she had. And they both said like bipolar two, she still understood right from wrong and she was able to conform her conduct. Right. So you've got that kind of floating through this jurors had it potentially. And we don't know what this jurors thinking. We don't know if it's the eye for an eye juror. And the other part of it is we don't know exactly what the note says. Yeah.

7:13What we had was judge Sullivan kind of paraphrasing because it's Sullivan who says, the jury's basically saying that the jury has acknowledged doubt with the refusing to apply the law. That that was like the sentence that he said. Yeah. Doubt is slippery. Yeah. They didn't use the word reasonable doubt. He just said the word doubt. So that leaves us out in the outside world kind of speculating. Right. But appropriate for Sullivan to paraphrase it that way because I keep doing all these different scenarios in my head because I've learned so much from you, Bob, you know, on, especially on the defense side, you know, I saw them deliberating long. I was like, wow, as Bob says, they're doing the hard work. This wasn't just a call it in thing. And this is actually watching the justice system at work in the state of Massachusetts because any other or many other states, this wouldn't be going on like this. And then the interpretation of what the law is, if that person believes they were acting

8:15lawfully, then they're acting lawfully. I mean, because it's kind of a subjective thing. But at the same time, there's a few things that had they not been done or said, would we be here like if they tried another state? And also if Sullivan, Judge Sullivan, had not said that and merely said the jury came back again and said they couldn't all agree. I mean, was he was in other words, what was compulsion to share? Because that's what really flaying things up even more is like throwing a carousine on the fire that he said, well, we have one holdout than everyone's jumped into conclusion. The rightfully it looks like, including Reddington, that it's a holdout for the criminally insane. And it's like, and so it just, it seems to exasperate a situation. What do you think about that? Yeah. It, first of all, it is rare. I don't know that I've ever seen a four person of a jury sent out a note like that. Essentially, like if the four person is not the elected official of the, you know, a country, it's not an autocracy.

9:17It's, you know, there are a person that is kind of in charge of going through the instructions and trying to keep some, you know, some modicum of control in there in terms of, all right, let's, like everybody calm down. Let's try to, let's try to ease it back a little bit. You know, they're, they're trying to move the deliberations forward in a positive way if they can, you know, which is a tough gig back there. Yeah. You know, but for that, that juror that wrote the note, they didn't independently write it without talking with the other jurors, including the other juror, which was probably more like, look, I'm about to whistle blow on your ass. Like a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, a, sending this note out, I'm telling the judge what's happening in here. And, and that's it. And the other juror was probably like, go for it. I don't care. You know what I mean? I mean, we know the holdout was holding out because the other personality trait is that

10:17people harden under pressure. You know, if you're, you're going to bristle up, it's 11 versus one and you're feeling cornered. I mean, you're, you're going to, you're going to protect yourself. I mean, it's human nature. I mean, we all do that. And you're going to get defensive, you know, which is a natural instinct. So should you know the thing that, huh? Should you have filtered that out then, um, Sullivan? What I would like to have seen is just the actual note read verbatim. Like that, that's typically what you hear is one of the other read verbatim. And the difference between us and the lawyers is the lawyers heard the note verbatim. So whatever Ruddington saying, and he's really on the note, right? I spoke on the note because you have to understand in this situation, this was, this was an absolute Hail Mary touchdown catch for the Commonwealth because they were, they were on the verge of losing this trial. Right. Like they, they were thrilled. They were thrilled with the mistrial. This was, this is a weird opposite effect because in my estimation, it was a reverse

11:20jury nullification, wherein it was one particular, uh, juror that was refusing to, to do it from again, from my estimation, follow the law because I, I believe that, that juror said, look, okay, you know, whatever. There's doubt, you know, maybe didn't even say, yeah, okay, I think there's a reason. We have no idea what was going on was being said over seven days, right? But at some point, there's some acknowledgement by that person that, that, yeah, okay, there's some kind of doubt. I don't care. I don't care. You know, like she killed her kids. She's going to prison. That's, like you're never getting me to change my vote. That's that. So we can talk about this for a hundred years. And I'm never changing my mind. The problem with that is, is that that person before they were selected as a juror was asked if they could put that aside, if you put your personal biases and your feelings and your convictions. And if your answer to that is no, that's totally fair. And then you're not on the journal.

12:21Yeah. Yeah. But you have to be honest about it. Yeah. And you have to tell the judge, I'm sorry, Joe. But I feel so strongly about this, that there is no circumstance under which I am going to ever change my opinion on that. I honestly don't care what the evidence. There is no shame in that. They could also done it though, but they also could have done it. I mean, few of us, if any of us have seen and heard such horrendous things as they saw during that case. And so you could easily come in with thinking you have a very open mind until you witness on the things it did like the nine, you know, the nine one one call, which is horrific. Again, just from what we heard. And so it would make you, it would make you more, you know, convicted in there. And this isn't the first case that things like this has happened on either. So it just, again, it's, it's imperfect solutions, an imperfect system, but it's still a system. So it's, it's a tough situation. Yeah. And that's what I've said, you know, like that juror could have been asked that question at the point because every juror's asked that question.

13:22Yeah. And it indicates that they're might be some kind of bias that they have an opinion on it coming in as asked that question. Well, okay, it's, it's how you rehabilitate jurors. You know, I, I always hate it as a defense attorney. I'm like, they're, they're not changing their mind. It's like, I know, you know, and the judge is like, because then that we were talking about this last week, that's the point where I have to get rid of a juror for, you know, using one of my challenges, my paramptory challenges. I have to say, okay, well, they should have been booted for Cog because you and I both know that's bullshit. That, that person's never changing their mind because they're human. And, you know, so that question's asked, but to your point, Rob, and it's, it's very likely that that juror wasn't lying on the front end. Yeah. The juror probably said, well, yeah, I, I can, I can apply the law despite what he feels. And then like you said, as the evidence starts coming in, he realizes, he's coming in way through like, man, there's no way.

14:22Right. Like, I cannot, I'm not going to be able to do this. It's like, I, I feel the way I feel my convictions are what they are. My morality is what it is. And I'm not going to be able to change my mind on that. And then what's that juror supposed to do at that point? You know what I'm saying? Like a train has left the station. Yeah. And the other part of this, so that's really, you know, problematic is that we, we get the two eradrigas charge, all right, or the dynamite charge or the Allen charge. They call it different things and different jurisdictions. But that essentially tells, there, and there's the language in that tells the jurors in the minority to reexamine their views. But it also tells them not to surrender an honest conviction just to reach a verdict. Right. So that language exists in the two eradrigas charge, which is the last charge that went back. So when, when that jurors hearing that, like that exact language, you know, not to surrender

15:23an honest conviction just to reach a verdict, Sullivan reads it. And then the general comfort, there's your personal confirmation by you here, what you want to hear. It's a double down on what you're already thinking. Yeah. Yeah. It's, it's like a dog and pony show that we present and we think, Oh, this will all work out. Well, these people will follow these, these rules and the, this two eradrigas charge. And so this will get at the end of the day, there really are no consequences to a juror not following the instructions. It's pretty much, it's the honor system. But in their mind, they did, you know, they're mind that you're exactly right. And somebody early on here in this, you know, there's a lot of ways you can think about it. You can think about it. Well, they, they went in and they knew that they were going to do this. Maybe not. Like you were saying, maybe they went and thinking, I will be very unbiased. And maybe the evidence hit them in such a way they're like, shit, I know, bitches going down. If that's what that's how they're thinking. And, and, and that's their conviction. That's truly what they believe. And that's not them necessarily going in thinking, I'm going to convict you no matter what.

16:26That's them seeing the evidence and further being fortified into their own position at the end. I mean, then everybody goes into the world of what if, what if this juror had, you know, what if they came into what knowing they're going to hang in and they were, okay, there's that argument and that certainly can happen. I'm not saying it happened here. I don't know if it happened here, but that can certainly happen. But Bob, Arthur is does a consequence exist for someone who goes into a trial with the ill intent, not the, my opinion change or further fortified this way that way. One that went in, lied to the, the attorneys, lied to the judge going in that they could be unbiased knowing full damn well. I'm going to convict her. I don't care what the hell you present to me in the next handful of weeks. This is what I'm going to be. Is there any consequence for that if that could ever be proven like if it's like, yep, they said it going in here. They are on videos saying exactly that. I'm not saying they are not going to wear. No, it's just like, okay.

17:26Yeah. I mean, the attorneys were not catching that person that that basically got through the cracks basically, right? You know, because I mean, if you go all the way back to the, the OJ jury, you know, when it came out after the fact, long after the fact, you know, when we've seen some of the documentaries that were made and they got some of the jurors on there and like, this was a, this was an eye for an eye for us as black people because the Rodney King, yeah, they come down for the cops who had beaten the shit out of them on the side of the road and they were all acquitted. Like this, this was us literally saying, okay, how you like it? We're doing, you know what I mean? And I don't remember hearing anything happening to those jurors, you know, I don't know what you do in that situation. I mean, if I were the whole Dow juror, you know, I mean, your solution to that is to simply say, my understanding of reasonable Dow is that the commonwealth

18:33might it's burden. Like, you know, they proved it beyond a reasonable doubt to me that she didn't have psychosis. I mean, that's the easiest thing for that person to say. But then again, like we don't know what the note says verbatim. That's where the whole thing here is, you know, it's like, maybe it says exactly that. Maybe it just uses the word Dow, you know, and maybe the other 11 are misconstrued. It's a situation wherein we can't get into the providence of the, the providence of the deliberations has to be sacred, you know, which is ultimately why, why Sullivan's like, and I disagree with them. I think that there was probably a, like a very generic answer or a question rather than he could have asked that wouldn't have gotten into the providence of the jury deliberations. Because you can't have a judge inserting himself in there. You can't have a judge asking specifics about what they're deliberating about. Like, okay, well, let me, let me, what is your understanding of, of reasonable doubt?

19:37And like, let me tell you what it means. Like that can't happen. Right. That can never happen with the jury. You know, they're given the instructions. They've been agreed upon by both sides, both sides, send them back and the judge sends them back. And that's it. And there is no explaining the law. We say whatever the law that has been given to you that you are to apply is in your hands. You need to go back. You need to read it again. And you need to apply it as you see fit. But is this one of the reasons why also because, you know, I don't think I've ever followed a case this closely with so many what ifs going through my mind with deep analysis, not just on the loss of the three children and what caused it in Lindsay and whether I believe in the psychosis or not psychosis, but all these things. And to come back with the jury finding like this with one person holding out is this one of the reasons why we haven't appeals process because it isn't in perfect system or is that a wholly different thing? It's a wholly different thing. I mean, this isn't, this isn't really.

20:40I think there's going to be, there's going to be a filing in this case by the appellate council, probably the same one who did the up to 11, three petition to try to stay this. In order to try to force the judge into having that individual vordire with that one particular juror, as you saw, the SJC turned around pretty quickly and said, no, we don't, we don't see it here. And I'm assuming if the note would have been any more particular as to what was said, then they might have come back a different way. So because we read that petition on the air, like when that, that whole thing when it was happening was insane. Right. Like it was happening too fast. It was out, it was completely out of left field, even though Ali and I were screaming on our live that they need to file that thing and then, and then read all of a sudden does it.

21:41And you know, and he had, he had been talking to like after, I think it was probably right after Tui was sent back. And then I think at that point, he probably reached out the appellate lawyer said, look, you know, you need to prepare this, this petition because I have a feeling this thing is going to come back home like this jurors, just not budget. And I want the judge to question this juror in generically though. Again, it has to be generic. You know, it has to be like a question like that same question that was asked in the beginning, not getting into the details of the deliberations, but you're saying, you know, are you able to put aside your bias or your opinion and follow the law? Because the law is, if you find that the Commonwealth is not met, they're burdened beyond a reasonable doubt. And they use that moral certainty language in mass, which is a, it's, it's lofty language.

22:46You know, and I mean it's way loftier language that we have an Illinois. You know, moral certainty is, is pretty intense. So you know, and just ask that generically. And you know, if the juror at that point, if they're one of those folks that in good faith said, yeah, I'll be able to put my, my bias or my opinion or my convictions aside and follow the law on the front end. But like you said, Robin, he hears the plaintiff whales of Patrick Clancy when he discovers his kids and he's like holy shit. Yeah. I'm not going to be able to do this. Right. You know, it's a human reaction. Yeah. That's very reasonable. It's a human reaction. And it's, it's only going to bolster bolster the way that that person's feeling coming in. Anyhow, very much so your, your thoughts in the, the comment section on sub stack in YouTube as we continue our conversation about the Lindsey Clancy lack of verdict.

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