Judge in Clancy trial declares mistrial, thanks jury

0:00There's been a lot of legal back and forth and a lot of tension in the Lindsay Clancy trial all overseen by Judge William Sullivan. After declaring that mistrial, he thanked the jury for their service by referencing a quote from Winston Churchill. You do how difficult the case was going to be to listen to facts wise, but still you brace for that duty. Judge Sullivan himself also braced for that duty. So for some insight into his role and choices, we are joined by Nancy Gertner. She's a former federal judge now at Harvard Law School Judge Gertner. Thanks for joining us. Good to be here. I'm hoping as best as you can, you can get us inside the head of Judge Sullivan. If you had gotten that note from the jury this morning that they were deadlocked for the third time, what would you be thinking if you were presiding over this case? It wasn't just the deadlock. They had said multiple times that they were deadlocked. It was when the four persons said that one juror, according to the reporting, quote,

1:00refuses to listen to the law. And at that point, what the judge did, which I would have done as well, is he brought all the jurors in this, I think, was yesterday. He talked to each of them individually at Sidebar. One would hope to somehow shake off more information than just refuse to follow the listens to the law. In other words, have someone say, here's what this person said, or this person said, I don't care about judge's instructions, or something. So he had a personal conversation with each juror at Sidebar. And then he turned to the jury and read it his reasonable doubt instructions. That didn't affect anyone that didn't, no one came forward. There was nothing more information that he had than refuses to listen to the law. Today he gave another instruction in which he said, you have to follow my rules, even if you disagree with him. So the problem at that point is refusing to listen to the law could mean I'm not going

2:06to follow the law, could mean I have some doubts, but they are not reasonable. I think it is ambiguous. It's fraught when you have to knock off a deliberating juror, and he was cautious about not doing that. That's when I'm wondering, though, what is the best argument against taking that step if it was really one person and a matter of not wanting to follow the clear instructions? Why not just remove the juror and replace them? Well, because I mean, 11 to one jury is an 11 to one jury. In other words, that's a deliberating jury. Typically, 11 to one doesn't hold. Usually the jury, then the one will cave in. But if you had someone who actually had legitimate doubts about the case, you don't have a right to shake them off the jury. But I think what I'm trying to get at is trying to get to the bottom of what this one juror was saying is incredibly difficult. And he tried it through individual questioning of the jury.

3:07Then he tried to hammer home his instructions again. And he got no further information. There are surely cases in which jurors have been removed mid-trial, not happen very often. Sometimes a juror overhears a racist statement. Sometimes you have a juror who is really intransigent and not getting along with the others. But he didn't have any more information than one juror refuses to listen to the law. And that wasn't enough. Judge, we've got just about a minute left. And I'm hoping you can help us understand just how limited a judge is and what your options are at that point when you want to know more about what's going on here. It seems like there could be a serious problem. But if you do too much, you can tamper with the jury deliberation. What are you thinking in that moment? Well, the general rule is you do it as little as possible to interfere with a sitting jury and a deliberating jury. And when you go over what he did, none of what he did shook out anything further than

4:07the statement that the person was not following the law. I mean, I'm not sure that there was more that he could have done under the circumstances. We're going to find out now no question about it from the jurors. Again, there are ways in which a judge can intervene. But he had to have a threshold enough information to intervene. And the question was whether this was going to be enough. I want to get one more question in in about 15, 20 seconds we have left. But from all you could see from following this case, do you think he made the right decision to take the right path here? I think he did. I think he did. In watching the case, I certainly thought that she was going to be acquitted based on the evidence that had come in. But I sympathized with the judge at this moment that he did what he could. Judge Gardner, former Judge Nancy Gardner, now at Harvard Law School. Thank you so much for your time. You're very welcome.