Lindsay Clancy's Case Just Hit A Wall From EVERY Direction

0:00This is Hidden Tillers Live with Tony Brusky and Robin Dree. Here we are, the Lindsay Clancy trial. As of our recording here, we're still with a jury that has not come back with anything very likely going to be hung. We're going to kind of tackle the conversation from that direction, but again, anything as possible here, but reading the tea leaves, the Lindsay Clancy trial is asking the hardest question and criminal law can a mother who killed her three children be held responsible when her own brain was the weapon used against her. Six weeks of testimony, more than 80 witnesses, psychiatric experts who look at the same woman and some came to opposite conclusions. Now, after days in deliberations, 12 people have sent notes to judge Sullivan indicating they are deeply split, making a hung jury look increasingly inevitable. Joining us today, Eric Fattis, defense attorney, former prosecutor to talk about what a potential hung jury would mean for Lindsay Clancy, whether this case we get tried again, and what it tells us when the system built to deliver justice stands on the brink and delivering no answer at all along with me as always.

1:16My co-host Robin Drake, retired FBI special agent chief of the counterintelligence behavioral analysis program. Eric, the jury has 80 plus witnesses or they've heard from 80 plus witnesses, 300 exhibits, days in that room and they've already sent no saying they're struggling to reach a consensus. The judges now read them the two read Rod Regis charge is basically tells them no future jury is going to have better evidence than they do and they still appear very deadlocked. I'm not honestly shocked by this. I think a lot of people have said this is going to be probably where it goes considering the the ether and the the the the temperature in the room outside. It's a good a gauge of what a jury room is going to look like, but they didn't have access to social media. They didn't have the the conspiracies running wild. So you know in their heads every day like we have are you surprised at all what's your thoughts that we're sitting here with what looks like is going to be a hung jury.

2:20Gosh, not a huge shocker to me Tony in part because of how polarizing this case has been you know what when we talk with our family we talk with our friends colleagues about the case. The case off the earth, it's not a middle ground. It's usually people are on the extremes of one side or the other and so the jury is kind of a microcosm for for society at large and so those that polarization may be going on back there folks that probably dug in their heels at this point in this in this stage of the deliberations and I think it's reasonably unlikely that they're going to change their positions. However, I have seen it before. Eric with that you know I'm just running my own thought experiments because I mean we're all right on this one this has been most polarizing case we've ever colored covered and it's it's pretty profound about how like you said dug in people are on this. I can't imagine especially with the coverage that's going on you know the jury's supposed to sequester themselves and not pay attention hard to imagine they have.

3:21But in any event so say it goes to retrial and they try to sit another jury it's hard to imagine a scenario where it doesn't happen again so in my mind and this is my question to you is do you think they're going to press more for some sort of plea deal to to avoid what they probably see as inevitable and not just in this case but is that generally what happens in cases where it gets this kind of severe notoriety or maybe this is a landmark case for just because it's risen to this level. Robin it's not uncommon at all for the attorneys even during trial even during deliberations to be thinking about hey is there some sort of resolution that we might be able to come to because both sides have tremendous exposure if Lindsey Clancy is convicted she goes to prison probably for the rest of her life. If the prosecution loses that's a tremendous black eye when you have three dead kids and and you didn't do a great job and so could both sides sort of come to the table and be like hey is there a way that we can sort of both get out of this relatively unscathed with some plea to a lesser whatever those discussions happen frequently during trial and even during deliberations.

4:28Are you seeing any sort of leakage from either side of what you think either side would agree to again I know it's pure conjecture your your armchair quarterback sitting back in this but I'm just curious about you know what what would either side see as a compromise when do you think from that point of view. It's a little hard to say you know the defense launched what's called a lesser non included charge that they required the court or the court required the charge to be added of manslaughter perhaps you know that's less than first scrimmer it's less than second degree murder still carries significant present time but but something that would give Lindsey Clancy a lot of life on the outside after this and so that that's a possibility. Let's talk about those those possibilities and logistically what that that looks like if they come back deadlocked here and and just so we can have it on the record of understanding where their options are in this moment in time. Is there are there any roads I should say of which the jury can travel being deadlocked where this doesn't then get drug out through more hearings and a bench trial where where both sides are able to come to the table relatively quickly and and have some sort of settlement agreed to as to to the outcome of this or does a deadlock jury in this case mean okay we may get to say that we can get a

5:56bit of some other resolution but it means either a bench trial new hearings that are going to further extend this months possibly years down the road or is there something where in the container of this current trial and situation even with a deadlock jury both sides with the judge are able to to come to some sort of a resolution does that exist. So right now is deadlocked if the judge determines that there's a hung jury meaning they're not going to reach unanimous decision that's a mistrial what that means is the is the prosecution can seek to set a new trial date and we can start all over again now in the pentancy of that new trial during that hearing certainly if I'm defense I'm going to the prosecutor and I'm saying hey look you guys gave it your best shot you guys had any witnesses you had hundreds of exhibits this lasted weeks and weeks and weeks you gave your best shot you guys tried hard but you know you can't do that.

6:56You couldn't convince a jury there is no indication that you're going to get a different outcome if we do this again so how about having her plead to something and those discussions can take place while the district attorney is deciding how they might want to react next if there is a hung jury. Yeah do you see if they were to retry it you know as the prosecutors are thinking about retrying it I mean literally what difference could what could they do differently because their new testimony they could bring in I can't imagine new experts because again part of the argument of the judge is not going to be a judge. Part of the argument against the prosecution was the time removed from the interviews of Lindsay to the actual crime itself of killing her kids and they'll and if they brought in more that even more time removed from there so it's not like they're going to bring in new experts that have more depth of field necessarily because again experts seem to cancel each other out the people standing with Lindsay saying that yes this is a break from who she was I don't see that shifting majorly in any way so I guess unless I mean what other new road could they go down would be attacking the investment. But attacking the investigation as we've seen so many of the wonderful people in the tiktok verse you know saying that they did a horrendous job of I mean literally what more could they do than they've already done.

8:05That's the thing Robin is is basically speaking the facts are the facts now they could try to do some additional investigation they could try to find additional ways to attack the credibility of defense experts and things like that but by and large the evidence isn't changing evidence is what it is. So you know there's not going to be some kind of rabbit they can pull out of their hat during this second trial that I think would substantially change things I just don't I can't see that. And one more question on that and again the legal side on nearly as well as you obviously so say the prosecutors want to retry because those two seem like you know I want or no matter what can the judges side where they get to retry to like who makes that final decision on how to move forward with this case. That that shows how much power a prosecutor can have that the decision whether to seek a second trial after a hunk jury is really solely within the discretion of the prosecutor and and if the prosecutor wanted to move forward the judge would not have the legal authority to be like I don't think that's a good idea and I don't like this case and I don't think you're going to win none of those things would be in effect and the prosecutor would have the soul decision made.

9:17So I think we're going to have a little bit of a little bit of power limit about how many times it can retry a case. I don't know that there is is a specific number that that that the law talks about however there are things there are legal grounds like a speedy trial they have speedy trial right they have a due process right to not be to not have a harassing prosecution and maybe after the second one they could argue hey this is just a rass at this point this is vexatious. And so there are kind of ways to limit the number of retries. Thanks. Yeah. What sort of appetite does a does a prosecutor typically have after a case like this we saw Karen Reed got retried and we know how that went also a Massachusetts case when you have essentially the same set of facts you're going to have essentially the same pool of people that you're going to be picking in for so your odds of having a few holdouts here or there and ending with the same sort of jury extremely high.

10:22I mean the appetite is got to be considered but even even beyond that because obviously they can redo it if they so have the appetite but the the defendant herself Lindsey Clancy she could ask for a bench trial could they not and if you were reddington having gone through this once knowing the state of your client. So do you go down that road. So a few things my understanding is is that under Massachusetts law if there is a first degree murder charge that has to go to a jury. Now if it's a lesser net now for example if the jury came back not guilty on first degree murder but hung on manslaughter or something my understanding is that a manslaughter charge could go to only a judge that that's risky on the defense side because when you're talking about a jury. You got 12 people you need to convince at least one of them to vote not guilty and then you get at least a hung jury if you can install them you win but but when you have a judge you only have one person not 12 who you got a hope sides.

11:27I would side with you and so the judge part is a little bit more risky just in terms of the numbers game and how juries come down in terms of hung juries a judge is never going to be. It's never going to have on during because it's one person is would judge Sullivan be the guy that did it or the way they reassign a new judge to it. Yeah that's a good question I'm not I'm not entirely sure I think you can be on air got one. It's rare to be most appropriate to get a second judge because the first judge would would be privy to all of the evidence from the first trial but the decision is going to be made on the events of first trial it's going to be made on the events of second trial. And there'd be a concern that the judges mind Michael back to the first trial I think they did a new judge. Yeah that's why it's curious just because Sullivan seemed to really his his his objections I haven't looked up the stats on it's mine I got to do that one is you know for the objections that were made where it was more like how did he lean on his objections and what the he sustained and didn't sustain in the most just curious.

12:31Yeah it's a good thing we got we got the answer here everybody it's a fact it's a scummy government mk ultra mind control that made pro Zach for this reason and the mind control program come on people evil CIA government well I'm glad all questions have been answered we're good we're good we're good going forward. Yeah you know the brain train I've had in the last week has just been profound you know we're talking about this before the show Eric and that is you know when you do assessments of cases and my case human beans you requires a massive amount of empathy which doesn't isn't sympathy it's empathy to understand the viewpoint from someone else from their shoes which is very defense you know defense oriented as well because you have to understand your client you have to understand the pros and huge understanding which means you typically just by the nature of who you are you listen to all these really really stupid things to try to figure out where they're coming from and so it just occupies massive brain space I just got to shut this shit down it's killing me.

13:37It is I mean it's been a mental workout on this case one more in this lane before we talk about the the craze person who showed up with the camera if you're if you're a mother watching every day of this looking for an answer this means a lot to a lot of people what are you supposed to take away if the jury walks out without a verdict here I mean there's there's so much that seems to be a lot of writing on on the verdict here in terms of understanding of of mental health of women in postpartum situations I mean is this is this really in more so not necessarily an indictment of the medical system but of our society and an understanding of of this sort of world if we're able to if we're not able to come back with an answer either way. I could say for sure in my opinion is that you would see more of these types of defense especially with mother mothers who may have been going through a postpartum process and we're led to commit a crime especially if it's killing their children you are going to see this type of defense much more regularly and you're going to see experts popping up who support this this kind of a defense and so I think from from a legalistic standpoint we can sort of pin down

15:00with that effect might look like from a societal or moral standpoint. Gosh that one is that's a big question that is tough to tackle. I don't know you know if three FAMOM kills there are three kids should they be able to get off you know some sort of hospitalization I you know it's a hard but it's only in the state too because so many most of the states aren't as I mean the education on what the laws are when it comes to not going to be a lot of the same way. So if you're able to view the ability of the state or not a very good ability by reason of sanity or not criminally responsible there's a huge difference between states massive I mean this if this had happened in one of the four that don't even have this as a possibility of defense then we wouldn't even be talking about this and so that's what it's also pretty interesting about this and and where this where this occurred and it's just I feel like it's a false compare I've seen so many dam I just did a monologue about this this morning is the another Lindsay Clancy we I keep saying that I was going to say that I'm

16:00headlines when there's basically a mother and dead children, the headline becomes it's another Lindsey Clancy and I think that's so insanely disingenuous because it's not, this is such a unique case. The postpartum psychosis is statistically is a rare thing. I do wonder if it is more prevalent than we actually know statistically. But when we had, what was it, Andrea Gates? Is that the way back? That a lot of the comparisons going on here? People are like, well, Lindsey Clancy is going to make all these women run and enclaim this. We didn't see a giant uptake after Andrea Yates. No, it's not. That didn't change the landscape. Neither is this going to change the landscape. And when everyone keeps jumping on to this, oh, this is going to start the precedent of more mothers doing this. No, it's not. I mean, everybody's saying it's another Lindsey Clancy, just as they did for the last 20 years, another Andrea Yates and you look at the case details and it's like, no, these are really nothing.

17:00And here's why it won't be and hasn't been before. And that's why this one's so unique. So let's, again, we always say a lot of people say anyway that the experts cancel themselves out, even though they agree in a lot of areas with her mental health issues. Just their definitions of what the individual psychologists are saying was criminal responsible is their own context from the laws in their own states as well. So that's why it's a little bit of a movement target. They all agreed on a lot of things, not all of them on the postpartum psychotic spot of it, but all the mental health issues, yes. And so here's what's extremely unique in this case. It's removed the doctors and their opinions and their analysis and all that. The huge difference is her and her family, the support network around her that gets all the other data points for the jury to use in their deliberation. In other words, all these other cases where people is going to be a lot more Lindsey Clancy's. Really? Have you seen this many people on any other case that stood by the defendant that actually were part of the family that lost their kids and said, we stand by her.

18:04She's not, it's this wasn't in her right mind. There's something wrong here. Co-workers, family, loved ones, ex-husbands, all of them are saying the exact same thing. That's what makes this one extremely unique because ask, do your own thought experiment. If some, if you come from, if you're one of these rare people, comes from a very, very healthy family. As my wife said to me the other day, if you had done this to our kids, there's no way in living hell, I would have thought that was you, something had to be going wrong in your life, some psychotic break or something because that is not you. So, that's what makes this one unique. Yeah, I agree. Your thoughts in the comments section on Substack and YouTube as we continue to break down the Lindsey Clancy trial. And Todd, I know you're watching the background. If we have anything that breaks during this, let us know. I know that jury is still out as of right now, but if we need to jump into anything we can. Ta-da. In game show, fashion, the response. The Lindsey Clancy trial continues to be one of the most heartbreaking and emotionally

19:07exhausting cases we've ever covered. Right now, we're watching a jury struggle in real time, deadlocked after days of deliberation. By the time you're watching this, we very likely will have an answer. And that answer may be a hung jury, trying to untangle the devastating reality of postpartum psychosis versus premeditated murder. Renaissance takes inside the courtroom, if they weren't high enough, the circus outside just breached the perimeter of 56 year old woman was arrested outside the Plymouth courthouse this week, accused of secretly filming the jurors as they left. She told reporters she just wanted to see Lindsey. But police found deleted videos of the jury on her phone. Eric Fattis is with us, defense attorney, former prosecutor to help us discuss this along with Robin Drake, retired FBI special agency for the counterintelligence behavioral analysis program. It's a madhouse. I don't know another way to put it. Every time we see the coverage outside of a trial these days, it reminds me of my days

20:14working in radio outside of a concert where you'd have your tent outside. And sometimes you'd have a promotion going, come by, win a t-shirt. It feels like that. And that's weird to me when you're talking about three dead kids and this atmosphere. But it is what it is. I mean, we can criticize it all day. People are very up in arms about this. They're passionate. Passion's not a bad thing, but when it gets misdirected, when it gets crazed, when it gets dangerous, when it gets exposure to your people who are just trying to do their jobs, like jurors, showing up for their duty, being filmed, it gets a little scary. The immediate threat, the deadlock, Eric, the story was already struggling towards a potential deadlock and feeling the immense weight of this case before this one was arrested in the parking lot. The judge actually had to question them one by one about it before they could resume deliberations. Practically speaking, I mean, how does an outside disruption like that push an already fragile, exhausted jury towards a decision of some sort.

21:18And I mean, we'll get to the fallout of what that could possibly mean, depending on what that decision is. But how do you react to that as either a prosecutor or a defense attorney when something like this occurs? Sure, so there are a number of issues of play one is possible during timidation. Another is a jurist perception that someone might be intimidating them, even if that wasn't the original intent. Look, these jurors, it's such a high stakes case. We have three dead children and they've got a horribly difficult decision to make. They didn't sign up for this. And they want to keep their identities anonymous because think about the backlash that could come from their decision. Anyway, there's extremists on both sides who could lodge threats and God knows what. And so I think it's a significant intrusion into the integrity of the jury system. And I worry that these jurors might be concerned for their own safety. Who's going to out me?

22:19Who's going to post a video of me online? And then if I let this lady off, is somebody going to come to my door and not be too happy about that? These are some very real concerns and I think they also give rise to a possible pellegrant if there is a good view. Yeah, that's what I'm wondering about. I mean, the judge immediately asked them all, pulled them all, basically, you know, said did this woman's, did she affect you in any way, shape, or form? I mean, basically a line of questioning was done and swore them all back in after the event. They all have answered that are back in the jury room. No, we're good. That's lovely and all, but does that make a damn bit of difference? Should whatever verdict comes out here, I mean, let's, let's, let's place some scenarios. Let's play this scenario. They find her guilty. Let's say they find her guilty and three weeks later, two weeks later, a day later, whatever, sometime later, one of those jurors does an interview with somebody and something comes out of their mouth to the effect of, yeah, I voted for that because I was afraid for

23:23my safety. For whatever reason that that, they've thought that decision would actually keep them as safe as they could. It may not be what they fully believe, but they were pressured into it because of that action. Wasn't another juror? Wasn't Becky Hill going to another pre-sinct and weighing in? It was this event. And even though they told the judge, I'm okay. I really did feel this way. What does that do to a verdict, even though it's already rendered? And they're sworn in. I think that is likely an automatic reversal. The jurors cannot base their determination on any information or force or dynamic outside of what happened when the evidence was presented within that courtroom. And so if they felt some kind of pressure and that contributed even to a very slight degree in their final determination, and even if they said before under, you know, pressure when you're being basically interrogated by a judge in this very serious case, and they

24:26said, no, I'm fine. That doesn't necessarily alleviate the potential of pellet concerns if there is a conviction and a juror did feel pressure. And that's a very real concern in this case. Those jurors in the back, you know, think about how I criminalize it can be like a meeting, a work meeting when you have like 30 minutes and you're trying to come to a decision. You've been doing it for days and days and days. And that pressure is very high as it is. Do you think it was, I know logistically, it's challenging, especially for three to five weeks of your life? Should they have been sequestered during this? You know, sequesteration, I think there's been a trend away from that. It's so burdensome for the jurors who again, didn't sign up for this. They're just doing their civic duty. And to put them in a hotel where they can't typically can't have much contact with family friends, work, things like that. I think that that is a bit overkill. And I think that the risks and costs of that process probably outweigh the benefits in my

25:27life. What is the bar of these? Because you don't see it that often these days. A sequestration where they're in the hotel like that. And if people don't understand what that means, it means you're not going home. You're not hanging out with your friends and your family. You're not watching. You're really, really making sure you're not getting access to this. And that's what the bar that's keeping it is control. What is the bar though these days? What kind of case is what does it take to qualify for a sequester jury? You know, the judge has a ton of discretion there. So the judge is kind of the steward of the jury. The judge has to look out for the jury and also has to make sure they're not being improperly influence. So usually that threshold is just sort of the judge's subjective opinion in terms of is there a risk that outside information and influence could creep in to this jury process during this trial? Is that risk high enough to justify the burdens of sequestration? And I think judges are trending away from that.

26:30And I really haven't, I can't recall the last time I've actually seen a judge decide, hey, yes, we need to sequester for this entire trial. So that just goes to shows how difficult it is to obtain that. Unless you're in the reality show, jury duty, that's on. That's true. There you go. There's a question in that. That was a good one. I want to go back to the, you know, what if scenario here? Okay, so we talked about if a juror comes back on somebody's podcast and says I felt pressured and this is why I voted this way or that way. But more so, I mean, it would be more effectual if it was I voted guilty. What happens here though, if no jurors has anything at all, I mean, does Reddington have a card to play regardless because of this incident, if they have to go to appeal, if they were to be in that sort of a situation? That's tougher. I think that would be much more difficult for the defense.

27:34Usually what often happens in a case like this, if there is a guilty verdict, defense will ask to interview each one of those jurors. Thing is though, Tony, these jurors do not have to subject themselves to this, to an interview with defense council or anyone. In fact, they're given an instruction at the end of this trial that basically says, hey, if you don't want to talk about this man, you don't have to. And no one's going to force you unless there's like a hearing in your subpoena. But so you really need something from the jury. You can't just say, oh, there was the appearance of outside influence because that lady tried to film them. That probably isn't enough. You probably need some morsel at least from a juror saying, yeah, I noticed that. And yeah, I think it did have no sense. What if, because again, going to what Reddington has in his tool bag in case it doesn't go the way he wants it to go, and you don't have a juror saying that. But since he, they had the mistrial request, you know, when they were invoking religion and religiosity in that, can he go back and use that as a throx, even though it was

28:37sustained and the jury was given very strict instructions by Sullivan not to listen to those words. Can he still then claim it had an impact since it was heard by the jury and use that as the grounds for appeal? You can certainly argue, but at the appellate level, there is a presumption, a legal presumption that the jurors will follow the instructions of the court. So if the court said, hey, I know you all heard this can't unring that bell, but you can't consider it. There's a presumption that the jury will not consider it. So you have to, as defense counsel, try to unearth some kind of contrary evidence to that that you know, they did consider it. And you know, if they're talking on a podcast later and they're talking about how significant they thought that religiosity issue was, that those kinds of things might be enough. So are jurors then after cases, especially like this one, given really clear and good instructions by the court on about what they should or shouldn't do or what they're allowed to do or not allowed to do and is it legally binding? Do you mean before the deliberations or after the case is done?

29:41Like after the case is done, like we're talking out all these hypotheticals on what jurors could or potentially say either to news, podcast, something like that, which could actually upend and flip things around or bring attention to things in other words, just on this case, on this one with, you know, invoking, what was this statement? Not Wrath of God or moral sin, moral, moral sin, the mortal sin statement. You know, so are they instructed about how to conduct themselves after and is it legally binding if they are? It's, it's, it's in every trial I've done, not done more than 60. The judge has a very limited instruction at the end of the jurors saying, thank you so much for your service. If you want to talk about this with somebody, you can't and if you don't, you don't have to. And if someone is, is pressuring you to do something you don't want to do, like talking about the case, bring it to the judge's attention. That's pretty much it. So that's pretty broad that allows the jury kind of to, it's in their hands, they could do what they want. And some jurors want to talk about it. Others want to get it behind them.

30:43And jurors, I mean, in a high profile case like this, the reality is going to be, there is a potential payday there for any one of them. If they like it to be, I can guarantee, if you want a book deal, you'll get a book deal if you want. They're, I mean, it is what it is. And I don't know if there's anything necessarily wrong with that. I guess it probably depends on how one is, is using that, whether it's, you know, in a way of trying to, you know, spread a message of some sort of awareness for the greater good or just to cash in on the death of three children. There's two kind of lanes there that I could take. But the possibility is there. So we're, I mean, inevitably we're going to hear from some of them. And I mean, it'll be fascinating. When we do hear from, from some of them, Eric, just pure conjecture, what do you think that conversation is going to be like? What do you think we're going to hear?

31:44Really from any of them when they're describing what was going on over these, however many days, roughly 30 some hours in that jury room. I can't even imagine, like I go back to an example of like, let's say, you at work are trying to decide on what you're going to have for lunch. And there's like three different positions. And someone's like, no, I want pea sons. Like, no, that's unhealthy. That's good Japanese or whatever. You know, that, that, something that's hard to reach consensus on something as simple and trivial as that. And that could take, you know, 10 minutes or something like that. The amount of time that these jurors have been going back and forth with each other in, in what I'm sure is an emotionally charged environment with deeply held beliefs that implicate ideas of motherhood, of mental health, of women's health, that those are, people have strong positions about those things. I bet that many of them are, are vocal about just how zealously they believe one thing or the other. And so I bet it is, you know, that's not the right, I was going to say a different word,

32:50but it's, it's definitely a difficult, difficult scenario back there on tense, acrimonious at times I imagine. I can't even imagine the mental exhaustion there under right now. So the biggest energy draw in our entire bodies, believe it or not, is the brain. And when you actually keep exercising your brain that hard for that long, for that's the same period of time, I can't imagine how emotionally and mentally exhausted these people are. I know people are putting in a comment too and we've all said it. I wouldn't, I wouldn't pay anything to be on this jury. You know, at the very end, so I'd love to be part of this kind of see everything's going on. No freaking way. I really had, hats off to them on this one. This is a rough one to be part of because it's impacting them for the rest of their lives that is if we know what it is, but also just the emotional toll this is taken. No doubt. Do they offer, actually, I don't think so, but I'll just throw it out to you anywhere. Do they offer counseling to jurors after things like this? I mean, they have seen some really horrendous things. They've been through some a lot of trauma just going through deliberations on this.

33:50I'd imagine much more so than if you're on a jury for a traffic stop. You know, if there is such one, obviously, probably not. But, you know, there's a lot they're going through, a lot they're exposed to, you know, you're getting only a sense of it by looking at people are breaking down in the courtroom, but this is a lot for a human being to go through and this wasn't something they've even volunteered to go through. Anything offered to them as counseling or anything? Not a to my knowledge. It's not something the government would pay for. Is there a need for it? Is there a reason for it? Probably. But, but to my knowledge, I've never heard a court. We're kind of playing the like, what if scenario game has everyone just curious, completely kind of off topic, but has anyone ever raised a claim against a state for putting them through a trial that like scarred them emotionally and they're like mental health medical. I mean, it seems like it can be a logical one for some of the shit that a jury has to

34:52endure. Oh, sure. I mean, I've never, I've never heard of such a claim and I think the government would have significant protection and immunity. It's part because it's part, it's enshrined within the laws that the jurors have to do this. Yeah. Yeah. I mean, I said, I mean, it would, it would be, I mean, a very, very different scenario, but would it be akin to almost a law enforcement officer or someone in the armed services coming back and ensuing the police department or the army because while they were doing their, their sworn duty, they encountered things that were, were traumatizing. You don't really see that, that doesn't really exist. Is this kind of in that same vein because it is a duty as a citizen that were asked to participate in so that kind of washes the hands of whatever the government exposes you to. It's like good luck. You know, yes and no, Tony, I, I, I, what then comes to mind? Is the Vietnam War? So so there was a lawful draft.

35:53So the law said these folks had to participate. And then some of them over there were exposed to agent orange were, were exposed to other noxious chemicals that could in their position have a lasting physical impact. So the emotional piece alone, I think probably doesn't get to any sort of viable claim. But it wouldn't be unprecedented for someone who was engaging in lawful activity required by the government and who sustained an injury to then try to make a claim after that as many Vietnam vets did. And and and in fact, many of them were were not in my mind treated fairly after that in terms of what they're exposed to. So yeah, so suing the Commonwealth, no, not in any realistic way. But counseling, yes, just for your fact of pleasure. The choice has built this in in 2022. The trial court launched a first in a nation program free short term professional counseling for jurors distressed by service three hour sessions by phone or video with the dedicated

36:56counselor. If they need more, the council refers out. The judge can also offer it to people who sat in on the pool and got wrecked by a void to hire. I can pronounce that anymore. After all, the homicide trial several jurors from the same panel have used it. So Massachusetts does offer it. Hey, Markable. The more you know, but I'm bum bum. So after the witch trial, they cancel you for the witch trial. Yeah, that's great. They gave you some candy. It's putting your trick or treat bag and they fill it up. That's interesting. No, yeah, I'm glad we asked that question. Yeah, the the true crime tourist epidemic is is we've talked about it a bit. I mean, it exists. It's going to be there. Have the courts? Are they prepared? Do they need to be treating the outside security parameters and what goes on when the jury goes to their car with more security and safety than they have?

37:58Obviously, it's very different outside a courthouse and it was in 1996. And it still seems that a lot of the security measures in many cases are still about there. We've seen some that are really stacked up very well. But is that something in your opinion that that could could lead or could use a little catching up to today's culture and obsession with with true crime, Eric? Are you kidding me? Absolutely. I've seen some clips from outside of that courthouse where things appear to be basically pandemonium. That is a real concern in terms of the effect it could have on the jury. It's a real concern for the safety of the proceedings. And then what they got to do is is up the security measures. But also balance that with the folks' rights to a public trial, to free speech, to probe to to voice their opinion outside of the courthouse. And so you have a lot of competing interests that would be hard to balance for like a courthouse

39:00security team. And so kind of a herculean effort with how much things have ramped up in this new era. Yeah, that would, it's scary to think about how one individual could very dramatically up end a trial. I mean, this one may have. I mean, look at what Becky Hild did with her things. This one woman outside of the courthouse just trying to take a picture. I mean, I mean, people can do far worse than a camera. And this case has such emotional vitriol connected to it. Are you, were you surprised that a person got that close to a juror was able to take pictures of the jurors getting to and from their cars? I mean, I know it's a courthouse. It's a public building. It's not like they have secret underground tunnels and a secret passageway to load people in and out of. But I don't know, more fencing. I mean, this, they, they, we're several weeks in here. We do know the effect this case has been having on the country.

40:04The fact that somebody even got that close is that, I don't know, are you, were you surprised? Yeah, I was surprised in part because I recently attended the, I guess it was last year, but the trial in Colorado for the dentist, Daniel Craig, who was convicted of, of, of cosmic death this way. And when you're sitting in the gallery, if you even bring out your phone, if you just bring it out of your pocket, secure it. And in my heart, I'm sure you will ask you to leave. You cannot even be brandishing a phone within the vicinity of that trial. And so the fact that this person got close enough was able to have her phone and its operational, she's taken allegedly photos and videos. That seems like a bit of a breach to me. You know, I think there can be other measures taken like, if, this is a public trial, and if you want to watch it, cool man, but you can't have your phone with you and like, things like that. Those are reasonable restrictions that could be placed, but it appears hadn't. I thought we saw that though. Didn't we see, I'm that, that's, that was my question at the answer to this, you know,

41:05because I watched, I think I watched every single minute of this trial and they did a lot of panning of the gallery. I'm pretty sure I saw people with their cell phones, matter of fact, some people that come on our show. I mean, because I saw, I thought I saw like reporters, podcasts, is actually taking their notes and everything. And I was really curious because I know when I've gone to court in my own county, you've got to leave that crap in the car. And even writing to now, Grant, I know he's, you know, one of the attorneys, but he's got his cell phone up on the, on the table there with him as well. Yeah. What, you know, I guess what the hell? I mean, are, were they allowed, not allowed? I mean, because like, how do you, how do you control that if you're allowing one guy to have it or a multiple people to have it to not actually do a pan around? I mean, how am I? I'm like, it's, it's, it's almost like a tiered structure of allowances. So folks who have pressed credentials in the Daniel Craig trial, they were allowed to bring their laptops, they could have their phones with them. I don't believe they could take their phones out though. Whereas me, I did not have pressed credentials at that time. So I could not have my phone out. I could not have a laptop.

42:05I had to have an old school pen and paper to be taken stuff down. The attorneys themselves, they're allowed to usually keep all of their tech and there's just little concern that they're going to violate the rules. But it's kind of a tiered structure in that sense in my experience. Unless there's too much of an honor system at play these days. And it feels like what used to work, people just, you know, don't chase down the jury and take their pictures. Is the strong suggestion of it is no longer working. It's scary. Your thoughts in the comment section on Substack and YouTube as we continue to discuss the Lindsay Clancy case. The Lindsay Clancy trial is reaching its climax. A hung jury appears to be increasingly likely a mistrial would mean the charges remain, the evidence remains in the woman at the center of all of it is still sitting at Tukesbury Hospital waiting to find out what the Commonwealth of Massachusetts plans to do. It looks like nobody is going to get a clear verdict from this trial if that's where it goes, not the public, not the families, not Lindsay Clancy herself.

43:08Today we're joined by defense attorney and former prosecutor Eric Fattis to walk us through the potential road ahead if a mistrial is in fact declared. How quickly we'd know if there's a second trial, whether the defense has options, nobody's talking about and what a plea deal even looks like in a case where the whole argument is that the defendant wasn't responsible for what she did. Eric, if a mistrial is officially declared and the jury is sent home, what happens to Lindsay Clancy? Is it true to should just go back to Tukesbury and they figure out what happens next or until the next hearing or trial? What are the possibilities there? How quick does a DA decide we're going to try this again, go back to the hospital or you're free? Yeah, sure. So I don't think it's going to be a you're free outcome. I think what's going to happen if there is a mistrial, there are a number of steps that are going to take place. First the judge is unless the prosecution's already made the decision as to whether or not

44:09to retry, the judge is probably set a hearing like a week after the mist trial say, hey prosecutor, you got a week, think about this, are you going to seek a retrial or not? If a retrial is sought, then Lindsay Clancy throughout that week and throughout the penance of the retrial would probably remain in custody. My understanding is that she's at some mental health facility, but under like law enforcement supervision. And so she couldn't ask for a bomb. She could absolutely ask for a bomb and in reddingson could go to the judge and say, hey, look, this case, it shows how many weaknesses there are in this case. You know, they have all of this time. They couldn't bring it together. They couldn't get a conviction because of these weaknesses. You should have less concern about Lindsay Clancy. She is probably going to prevail in the second trials, what Brandon said would argue. Therefore, you should give her a bomb. You should let her be out of custody. She's already gone through this crucible. That's what defense would argue.

45:10I think a judge would be hard pressed to release Lindsay Clancy pending a new trial. Now if no new trial is sought, then there is no case pending. And in that instance, Lindsay might be free. But what about her care? I guess is the question. She's already stated before this trial, you know, I want to be essentially in state care and a mental hospital for the rest of my life. That's kind of where that sits. Let me ask you this from a strategic standpoint. If we do have a hung jury, yes, Rattington could come say, you know, and ask for bond that could get Lindsay out of Tukesbury. I don't know that Lindsay wants to be out of Tukesbury or at least out of a environment where she is getting that sort of round the clock care. And right now it's state sanctioned. It's state paid for. If you're out of that, guess what? You better have the money to pay for that care for the rest of your life.

46:12And the optics, because if this does go to another trial and she's out on bond, half of the argument has been, look, she doesn't want to leave the mental hospital. If she left the mental hospital between trials, that kind of takes that argument away that actually does play in her favor. Wouldn't she be better off remaining in the psychiatric facility, at least through some sort of determination here in legal sense versus bonding out for a time being if we were to go to a second trial? I think absolutely. It would be in her best legal interest to be there in part, because it preserves that argument that, hey, she's doing everything she could. She's seeking all the treatments. She can seek, like she's trying her darnedness to get a grasp on this. It preserves that argument for defense later on. And if she were released from the facility but wanted additional care, you can always seek

47:15to commit yourself. You can say, hey, I think I'm a danger to myself and others. State helped me. And sometimes you will be accepted into programs, sometimes not. So there are ways for her to remain in there if she wants to, but probably not forever, unless that is the result of a legal proceeding. Interesting. And I'm looking up the stats on the probability of getting bail bond after this anyway too. So Stanley comes in. There's obviously, you know, the jury is signaling deep divisions here. The judge read them. Jimmy Rodriguez charge, which essentially tells the jury that no future panel will hear better evidence than they did. Okay. I mean, neat. If I'm on the jury and I hear that, I'm like, yeah, no shit. And they're still struggling. I notice is how it's done there in Massachusetts, reading that charge out to them. Doesn't make a difference. Does it, does that?

48:15Hey, guys, ain't going to get better than this. Does it, does it ever like? Does it put weight on a jury to make a decision or is it just like another, no shit moment for the jury? That is such a concern. It is the potential course of effect from such an instruction. So let me give you an example. Let's say back there, there are 11 not guilty and one guilty. And this one guilty just firmly believes, hey, she is guilty. I did this is my determination as a juror after hearing everything. Well, if the jury then goes to the judge and says, hey, we're deadlocked and the judge says, keep trying, go back. And then they come again and they say, he's deadlocked, we tried. It's not changing. And the judge says, why don't you go back? You're going to have to finish this. The jury doesn't necessarily know that if they go back a third time of mistrile likely to be determined. Instead, maybe that want to hold out who thinks they're guilty just says, how am I getting out of here? I'm not getting out of here unless I change my position. We're going to be here. Who knows for days, weeks on end.

49:17I've already been here for weeks and weeks and weeks. I'm going to cave. I'm just going to jade. I got to go on with my life. And that is a very real concern. I think for both sides in terms of the possible course of effect of that instruction. How do you avoid that? I mean, so help me understand what this and what's the thing that he invoked the judge is that that that that to the two experienced. Yeah, yeah, that's to trade right. To trade right is yeah. Yeah, so what exactly is that? And what are the consequences to the jurists at this point, if any? Sure. So, yeah, so what that means, Robin, is that the jury goes and says we're deadlocked. The court says, hey, I get it, guys. This is tough. But no one is in a better position to decide this case. And what you should do is you should reconsider your views. You should be open-minded to other people's expression of their views. And you should not relinquish any strongly held beliefs if you firmly believe one thing or the other. So it's kind of just like, hey, keep thinking about it, bro.

50:17And you know, how helpful is that? And what effect could that have on jurists who, like I said, they're not advised that if they come back a third time deadlocked, it's likely a mistrial, they don't even know that that that that could be the outcome. And so the jurists are probably back there thinking, they're not going to let me out of here unless, unless somebody caves. And I kind of get on with my life. And that would be a perversion of the jury system in my mind. And so that couldn't be used by Reddington, but I'm learning from Eric. So that could not be used from Reddington as a reasons for appeal. Unless there's evidence that it actually did influence one. In other words, as long as they came back and they did all agree, Reddington has no appeal. Unless through a podcast interview or something, one of the jurors says, yeah, you know, when he came in the third time, I felt the pressure and I just wanted to get out of there. Is that then enough for a reason for appeal? They would probably need some kind of statement from some juror, however limited that said,

51:17hey, you know, I changed my mind in part because of these of the pressures that I felt associated with this instruction associated with this process. So I'll riff on that one one deeper, say there's a juror that is completely or a couple completely sick to death of being here at the stress, the time, the agony, the contentiousness that says, hey, I'm going to end this right now by agreeing. And then in their mind, they said, and then I'm going to go public with it so they can retry and get my way. That would be a pretty thoughtful, I'm not sure in terms of forward thinking and in terms of a plan, but yes, a juror could choose to do that and then sort of up in the whole thing, we've seen cases upended by juror statements after trials before. Has that happened? I mean, have you seen that happen intentionally? I can't say that I have, but there's gazillions of trials and I've only aware of very small

52:19presence of them. Yeah, I mean, that could, I mean, it would, I mean, it's not, it could truly be a strategy because I mean, if there was an attorney that was seen being involved with trying to get a juror, let me ask you that, a juror after the fact, not influencing the juror during the process, but after the fact, you're the, you're the attorney for the client and you happen to get, there's a juror that comes to you from the last trial and says, you know what? I think this is bullshit. I want to speak out about it. And I, I just went along with this because this was my plan all along. Does exactly what Robin just said and you're the attorney for the, what do you do with that information? Do you run with it? I mean, you're not the one who's, who had this strategy, this juror decided to go rogue and try to take the law into their own hands and control the whole trajectory of this damn thing. I mean, does that, does that just throw their credibility out, you know, immediately if they're doing that or what?

53:20I don't know. This seems like it could be a very common scenario considering the way that the, the world is viewing true crime and the fervor that people have for it. Germ is conduct is one on the most frequent grounds on which convictions are overturned. And so in juror has some rules that they have to base their decision on the evidence and not on some strategy, not on some personal payoff that I get to get out of here. Now on some, you know, thought that, oh, I'm going to get some attention or whatever after this if I do this kind of weird thing. I think it would qualify as juror misconduct and would likely result in some kind of reverse. God. Yeah. So their misconduct, their goal of it would, I mean, could there be charges for a juror that just that admits to doing something like that? I mean, are they really doing anything illegal? Other than just being a flexionaire, be a hand or a society.

54:20Right. That's not always, that's not always a crime. I've got some friends who are major hinderances. Yeah, they're free. But, um, I think, uh, I can't think of any sort of criminal action. It wouldn't be tampering. Yeah. It wouldn't be tampering with a juror because it's yourself and you're not exerting influence over somebody else. I don't, I don't see a crime in that. I don't know. I'm still looking up the last of my AIs running slow on this because I'm asking all about these, these crazy questions about the juror intentionally undermining the process so they could get, go home finally so they could actually reverse it the way they wanted. So it's actually coming in right now. So keep going Tony. One more question. Uh, are we going, if this jury does come back, huh? Do we find out the final counter? Does the judge decide if that information gets out? Um, I, I would be doubtful. That the public would find out sometimes when there is a, um, a hunt jury, both science

55:24want to know what the count was. You know, if it was 11 not guilty, one guilty, that may cause a DA to not retry the case. Whereas if it was 11 guilty, one, uh, not guilty, that'd be a good grounds to retry it. So it's, it's pretty common for the attorneys to learn the split. If the judge permits it, public, not so much. Interesting. And so here's what I found out, um, holdouts get worn down. They, they do this like we just described what happens in those cases, almost nothing because once a verdict is taken and the poll is clean, courts will not let a juror undo it by saying I caved or I planned to talk later. Um, that is no, um, that's the no impeachment rule internal pressure fatigue wanting to go home. That stays inside the room. So, um, it, it wouldn't work. It happens though. They try. They try. Yeah. Fascinating. What if it is a lot of what ifs that's the choose your own adventure version of the, uh, the case today, right? Uh, all right. All right. That'll wrap it up.

56:25Uh, your thoughts in the comments section on sub stack and YouTube links are in the description. Uh, be sure to, uh, check out, uh, Robyn's master class. It is available. Now the link is, uh, going to be in the description. Robin. Yeah. It's a masterclass.com backslash Robin. The trick is all about behavior assessment and becoming the people everyone trusts. So if you're interested, check it out. All right. Check that out. Eric Fattis defense attorney from a prosecutor is always thank you so much for being on and giving us your insight on Thursdays as always. Until next time for Eric for Todd and myself and Tony Brusky will talk again real soon.