Speaker 1: Full trial audio everything hurting court no silences to skip.
Speaker 2: Okay, yes, please you want to before in the court
today we have the manner of polo versus Lindsay Clancy.
MS Clancy is present. She is represented by Attorney Kevin Reddington.
The karam Love is represented by Assistant District Attorney Jennifer
Sprague and Assistant District Attorney Shannon Buckingham.
Speaker 1: All right, we'll good afternoon, council. Good afternoon, Ms Clancy. Council. Uh,
can I see it?
Speaker 3: Cybar all right, council.
Speaker 1: What right thought we'd do is kind of kind of
just go through kind of a list of matters that
we have to so I know we have to talk
about panelment, talk about scheduling, uh, and then some of
the pre trial matters. We're going to go or and
talk to counsel regards to if the defendant at some
point is going to request be absent from the court
at some points or of the draw. I want to
go over that. No, I know, that's I'm just the
reason I wanted to raise it so that if it
is not carbonsol, but if it comes up, that's fine.
The reason I'm saying it is I know that was great.
It may come up, that's all. And if it comes up,
it may come up because of observations I make. I'm
not saying that the defendant would be requesting that, but
I just kind of wanted to let counsel know how
I would handle that if that came. Then we want
to talk just about and then we've got the blood
spatter motion. We have to address belief.
Speaker 4: Well, I've changed course on that and I've talked to
defense counts about that.
Speaker 5: Today. I'm no longer going to well, my goal is.
Speaker 4: No longer to use a physical demonstration during prep with
the witness. We realized that a series of photographs might
better display the different types of spatter. The witness is
sending me photos that she uses during trainings when she
trains other people, and I'll send those two defense counsels
and you should be able to agree on and photos,
I think, right.
Speaker 1: And so with that, h we don't need to address
that motion today.
Speaker 5: I don't believe that it can be.
Speaker 1: Difficulty photos, all right, So we won't address that. So
just want we talk a little bit about panelment. And
the procedure that I would consider UH doing is implementing
a questionnaire and I drew up a draft of one.
I'll give it and can kind of do a final
talk through on Monday when we do that. But this
is just so you can take a look at it.
It's just eight or nine questions, and so my thought
would be, have the jury come up here as a whole,
give them an introduction to the case. Give the carwaws.
Do we have a statement of the case.
Speaker 4: I've submitted the final pre trial home and the defense
councils submitted a paragraph that he would like read that
the Komwall's objecting to.
Speaker 1: All right, well why don't we So we'll circle back
on that, and then I think go through the general
questions with the jury, then send them back downstairs to
fill out this questionnaire. My other thought is that there
is an extensive witness list, and it may make more
sense to have the jury be handed a copy of
that list, bring that down with them when they're answering
the questionnaire, because this last encountered was over two hundred days,
and I think it would be difficult for anybody to
sit there and try and remember who it is. Do
I know that person or not? So my thought would
be to give them the questionnaire, give them the witness list,
send them downstairs to fill that out. That then gives
us an opportunity to take a break line up for
the individual part of the idea, uh, and then bring
them up and bring them in one at a time
into the courtroom over here at sidebar H and just
proceed that way.
Speaker 5: I think that's a good idea, your honor.
Speaker 4: I would just ask if those witness lists be collected
from the jurors as they leave.
Speaker 1: That's a good idea. Yeah, I have no, missus Rington,
all right, so what so that's that's the way we'll
do that. Let me see, I have a here's a
draft of those questions on the We can go over
these on Monday. But this is being proposed. Don could
you thank them.
Speaker 4: You're runner the the witness list. That'd be a combined
the list with both right, and.
Speaker 1: They won't be listed as defense or uh almost witnesses.
Speaker 5: Thank you.
Speaker 1: So this is just a rough draft of the question,
isn't it uh bring them up? My thought would be
too uh in panel uh eighteen on this case, cause
it's gonna be uh a lengthy trial and then so
everybody's gonna get well, I know there's motion for additional challenges,
So why do I hear you on that at this point,
mister Reddington, H are you gonna talk about the questionnaire
eventually or yeah, I won't give you to right?
Speaker 3: Are they just could thank you?
Speaker 1: Uh? Right?
Speaker 3: I have filed a request for uh additional challenges.
Speaker 1: Uh.
Speaker 3: I understand that UH would be entitled to eighteen? Is
that correct?
Speaker 1: Correct?
Speaker 3: The side was told you might kind of eighteen yours
we're going to see eighteen. So I'm asking and I
don't know if the government agrees that we would have
additional jurors. Obviously that would be committed to us sound discretion.
But it's the type of case not only publicity wise
that usually deal with, but just the sheer emotional impact
that this case is going to have on jurors. And
I have always felt that jurors really, you know, take
to heart their obligations under a jury trial, and literally
had occasions you're run into nervous of older cases, emotionally
charged cases in public places and they would shake my
hand and they cry, and that to be like five
or ten years later in the impact of this case,
which in my decades trying cases, is probably the most
emotionally disturbing and challenging, I think is going to have
a significant impact on and jurors, more so than the
usual that we deal with. So recognizing that eighteen challenges
might sound like a lot, I just feel that perhaps
an additional number of jurors subjects of europe discretion would
be appropriate, especially with the length of time that they're
talking about, along with the emotional factors.
Speaker 1: Come on.
Speaker 4: I would join in the request for the additional countery challenges,
And I just have a question in terms of if
the Court is going to Panel eighteen about the seating
of the two additional because we want to make sure
they have adequate viewing of the monitor and the witness box.
Speaker 5: But other than that, no chection.
Speaker 1: I'm gonna I want to consider this motion with both
parties requesting it puts it a little different path that
usually have on this so but I do understand the
uniqueness of this case, the allegations, so I'm gonna take
that under advisement. We'll left the parties over the next
day or two, so that'll be under advisement. And in
regards to the seeding of the sure of my thought
would be what I've done before is to have not
to have those two side by side, but one in
front of the other. And I think we haven't had
that problem before in regards to being able to see
either the witness because it kind of lines up, and
then the screen, which I imagine is gonna be used here,
might have to turn it a little bit. But I
the cases I've done before with the eighteen, uh, the
all the jurors were able to see. And then what
we'll do is, I'll just ask them, as we're going
through this, because everybody can see this, if you can't
see it, let us know. If we have to adjust
the screen or adjust the eating at that point, we'll
do that. But I haven't had that problem, but I
don't have them side by side like that. So all right,
any other questions in regards to the panelment come up,
mister Reddington. I mean, I think we've all we've all
done cases with each other, so I would expect they'll
be kind of handled the way we've done it before.
So uh So that's that would be the impanelment. Uh
As they said. With the schedule, as I indicated over here,
I'm gonna tell the jurors what the schedule is going
to be. But let them know that it's a fluid
situation in regards to how long the trial is going
to be, how long the schedules you know, on the
day by day, So I'm not going to be very precise,
I don't think. And we'll again we'll talk a little
bit more of me be on on Monday. In regards
to how I addressed that with the voider, let me
see the other issue that I had just in regards
to and I know mister Rankton indicated that you don't
believe there's going to be a request for the defendant
to be absent from me there, and so what I
would just so the parties would know if that comes
up under Rule forty five, what would do is would
just do a colloquy, maybe do a signed waiver, and
we could deal with it that way, so it wouldn't
take up a lot of time. I think it's but
it's just better for everybody to know. That's the procedure
that I would follow. Kind of after looking at the
case law on that. In regards to the view, I
know that I had allowed the commost motion for you,
it was a proposed order with the with the Carmwealth's motion,
I don't think I got a proposed order from the homeowner,
and he I think he was invited to propose one,
but I haven't seen anything. So Commonwealth, what's your position
regards to is your order? But what are your thoughts
in regards to that?
Speaker 5: Well, I was approaching it as most of these types
of cases that I do.
Speaker 4: We usually let the homeowner know when we'll be there,
they make sure they're out of the home and it's unlocked.
Speaker 5: We go in a case like this where we have eighteen.
Speaker 4: Jurors, maybe send them in in groups of four or
something along those lines to see whatever myself in defense
comes and want them to take note of, and then
leave the premises with an instruction to the jurors they're
not to open any closets or anything like that or
touch any personal items.
Speaker 5: And I think that's pretty much what's encompassed in the order.
Speaker 1: If I recall, yeah, yeah, uh, Miss Rington, I have
no position on that.
Speaker 3: You run your runner knows that I indicated. I don't
think it's necessary to have a view plus videos plus photographs,
but I understand you've already made your decision on that.
So it's a house that is now occupied by a
man and his partner. It it doesn't look at all
like it did before when Menci and her family was
living there. So I defer to your discussion on UH
any specifics on.
Speaker 1: The view, all right, So my intention would be to UH,
as I said, have a allow the motion for the view,
issue that order in line with the proposed order that
was given by the Commonwealth UH, and then as we
go forward, we can let give the homeowner a notice
on that and we'll have UH police and security there
to address any of those concerns. You know in the
order regards to the media, will also deal with no
photography of the jury during the view.
Speaker 3: So could I just make an observation. You're right, there's
a situation where obviously we're dealing with people that are
civilians or professionals, and this is not a situation where
we're looking at a drive by murder in the middle
of an inner city, where there's danger to jurors and stuff.
Can I ask that the court at least limit the
police presence. I mean, I have had it with the
police officers on motorcycles buzzing back and forth next to
the jury bus, and police officers stopping traffic and blue
lights behind you, blue lights in front of you. There's
no need for that type of police presence in this case.
We're going to take a bus to a house in
a residential area in Duxbury and that's it. I understand
that there may be a need to I guess, I
don't know, close down a road or something, but I
would ask if we don't have such an overwhelming police
presence for obvious reasons.
Speaker 5: We could go to cibar. We do have a plan
in place for security purposes.
Speaker 1: Sure, yeah, you see cidebar. One of the motions that
was that was a file that I argued had had
to do with uh photographs. I know, and I allowed
the Comwealth to be able to introduce some photographs just
so again there's no surprises. If the car Wealth can
provide me a copy of the photographs that they intend
to introduce so I can look at them and make
sure no surprise. But would be in line with the
ruling that we talked about.
Speaker 5: You bring to the autopsy photos you runner.
Speaker 1: Whatever photos or the crime scene photos, perhaps.
Speaker 5: We could provide you with either the disc with all
the photos or.
Speaker 4: Or it's the issue or the reason I'm hesitating is
at the moment. As we're prepping, we're deciding what photos
to use, but that could change mid trial. So I
could give the disc with all of the photos for
you to review and be prepared in case there's an
argument about.
Speaker 1: One of them. I don't think there's gonna be. We've
already kind of had the argument in regards to the photographs,
and I also allowed that some photographs will be admitted
with limiting instructions. But I just kind of want to
make sure that I understand really what the jury is
going to look at, so I could make that final determination.
So kind of however you want to do. If you
want to give you all the photographs, that's fine, or
just some representative ones. I'm not going to hold you
too if there's one that's a you know, a little
different angle from some other one. But just so I
have some idea kind of what we're gonna have to
deal with.
Speaker 5: So and I can bring in copies of the autopsy photos.
Speaker 1: Is okay, that's fine, all right, thank you. The other
thing we had talked about last time was that the
three D model was I don't sure if that was
done or if that's an issue now or.
Speaker 5: It's almost complete. I'm expecting to Shawn A.
Speaker 4: Rouci from our office has been working on them, and
as soon as it's done, provide a copy to Defense
Consulate report to look at.
Speaker 5: But it's going to be a digital monitor that's on
the screen, so.
Speaker 1: It's a digital representation of the house. So if you
could just make sure mister Reddington sees that copy, sees that,
and then we can deal with that as we come
from sure close.
Speaker 3: I have no problem with the okat stuff.
Speaker 1: I may have one myself, SA okay, all right, so
we won't worry about that. The blood spatter emost. We're
gonna take that up later. What other issues do we have.
I know that there's one in regards some additional witnesses,
but besides that, any other issues we need to take.
Speaker 4: Up the comment Defense councils several purposed stipulations.
Speaker 5: It would be helpful to resolve.
Speaker 3: Those inetic people in a ministerial sense. Like somebody looked
through scanning microscope and then they handed a slide. Is
somebody else that put it in an envelope that somebody
else looked at? I have no problem with that. I'm not,
as you well know, with indicator that the mechanics, if
you will, of the homicides and the actual event itself.
We're not contesting. This is why you've already heard me
complain about the autopsy photographs and all the cruise of
stuff we're going to have to live through. Buts too,
you have stipulations. I'm more than willing to stipulate to
avoid having all.
Speaker 4: These witnesses just so the courts to where they are
witnesses as defense has described, mostly laboratory witnesses.
Speaker 5: It would save calling thirty one people.
Speaker 1: So all right, and that's kind of what I figure
it was coming. So that's so I'll anticipate that there's
going to be a fair amount of stipulations that will
be done. I'm not gonna hold anybody to it at
this point to do we get the specific language in it.
Speaker 4: My only concern is that, in light of cala versus Gordon,
I think there needs to be a call of way
would defendant about the stipulation And I haven't done one myself.
Speaker 5: So I don't have a model for the court. I'm
not sure if other judges have done it at this point.
Speaker 4: But that's something I think it would be something along
the lines of other similar waivers of a constitutional right,
but with.
Speaker 1: Someone stipulation an element right. Yeah, so so well, I'll
either borrow one or thraw one up. So I think
that's a good idea, all right. I know that there
was still a couple of remaining discovery motions that were
kind of floating around. Do we need to address any
of those? It's readygant.
Speaker 3: Are you referring to kundance motion for relevant discovery?
Speaker 1: Yes?
Speaker 3: Okay, for the record, I would not run a paragraph
when I'm looking for automatic mindatary discovery. I believe the
government has been very effective in the providing me with
uh discovery. I mean I when there's a witness, it's interview,
they send me a copy of the interview. If your notes,
they send me copies of the notes. So I don't
have any.
Speaker 1: Problem in that.
Speaker 3: I don't believe that there are any unusual issues that
have been flagged on this motion. And I would ask
if the court would entertain allowing paragraph three, which is
potentially exculpatory evidence, only because I know the case lack
not that I doubt that they would provide me with
exculpatory evidence, but I believe they have to have emotions
allowed for the record to have it in play as
far as the government's obligation that they recognize, and I
respect the fact that they do and expect that they would.
But nevertheless, I would ask if you allow one motion
for its gulmentary evidence as well as motion for statements
of the defendant. And again, I I don't anticipate that
there are extensive statements of this clancy to law enforcement.
I don't believe there are literally any, and I'm well
aware I have the discs of the government's doctors interviewing her,
so I've already got that. But I I would ask
if you allow that motion as well.
Speaker 4: Cometh So, if I'm understanding correctly from this motion, defense
is just asking for the allowance of para uh paragraph
three and then any statements of the defendant.
Speaker 5: Is that correct?
Speaker 3: That's correct.
Speaker 5: Yeah, I have no objection to statements of the defendant.
Speaker 4: We've provided those, and if any come to light, we
will of course turn those over.
Speaker 5: But I don't expect any. In terms of paragraph read.
Speaker 4: My concern with paragraph there is the last paragraph, the
last couple of sentences, where it says the new Room
fourteen also requires a call waal to acquire of each witness, officer,
and agent and agency as to whether they know of
or possess any exculpatory evidence. And then that last sentence,
the defendent request is quote order the callall to produce
each and every inquiry in each and every response.
Speaker 3: So I would narrow that if I could interrupt, but
I apologize, I would narrow that too. In the event
that there are statements that disclose exculpatory evidence, the government
would that advice and defense. They don't have to notify
me of every single person they've time.
Speaker 1: Let's I need a note of that's one of the definition.
I'm gonna make a suggestion maybe if if the two
of the three of you can kind of come to
an agreement as to that language, yes, and then not
allow that as to make the endorsement that reflects the
actual agreements of just kind of a blanket one that
the parties may later disagree with what was meant. So
I'll allow that pending the UH proposed language night.
Speaker 4: So that would just be paragraph which I don't think
is it's own paragraph them.
Speaker 3: Here is that it would be yeah, just as the
statements of the defendit in.
Speaker 5: General is in general and no further action on the
rest right as of now.
Speaker 3: All right, run a business discovery motion filed as well,
where the request of seventeen v two Yeah, uh looking
for state uh police troopers local police detailed to sit
at the defendant's hospital room. Government has provided me with
today a large number of uh booty assignments and records
and documents. I believe they're gonna provide me with the
state police. But I I would say that the motion
can be tabled un.
Speaker 1: But uh so I'll take no action on it. I
think that's uh plead number one one three rule for
motion discovery under seventeen beach o, all right, so there'll
be no action taken on that, Okay, alright, And then
I think the only other kind of issue that we
wanted that we need to take up is the defendant's
motion that was filed. Oh no, there are a couple more, No,
there are sorry.
Speaker 3: Yeah, very briefly read as consulate already indicated in the
the document titled Joint pre trial Memorandum. Oh yeah, okay,
the government said in a greed statement of facts to
be read to the jury basically allegend on January twenty fourth,
twenty three, defendant strangled their three children, naming them in
their ages was exercise bands in the basement of their home.
Yet by murdering them with the liver, premeditation and extreme
atrocity and cruelty.
Speaker 1: And that's the.
Speaker 3: Extent of the what would be referred to as the
greed statement of fact by the government. I then submitted
a request that RONO would consider adding uh paragraph that
Lindsey Clancy denies the allegations that she is guilty of quote,
murdering them with deliberate premeditation and with extreme atrocity and
cruelty end quote, and notes that she has accepted responsibility
for the acts resulting in the death of her children. However,
was lacking criminal responsibility at the time of the acts
as a result of post bottom depression psychosis and involuntary
intoxication as a result of ingestion of numerous prescribed medications.
Lindsay Glancy is there by alleging she is not guilty
due to the lack of criminal responsibility. You will present
what is referred to as the insanity defense, which I
know was one of the questions that you would put
in the question of.
Speaker 1: Couple.
Speaker 5: You Runnerstroy, you do I have a copy.
Speaker 1: That is it is it submitted to me?
Speaker 5: We exud altim copy of the Joint pre Trump.
Speaker 1: The Joint pre Trump.
Speaker 4: I'm just even a fast said the beginning the proposed
statement of Factorconwall.
Speaker 1: I look for mister Reddington's persion because I know I said,
h yeah, go ahead, and sprague I'm sorry.
Speaker 4: So the komos would object to the paragraph as a whole,
we would not object to the statement lindsay Clincy denies
the allegations and that she's alleging she's not guilty due
to lack of criminal responsibility.
Speaker 5: But the rest would have to come in either through
her testifying or other witnesses testifying.
Speaker 4: Saying that she denies the allegations, that she's guilty of
murdering them with deliberate premeditation and extreme atrocity and cruelty.
Kind of flies in the face of the statements earlier
that what happened is not in dispute. So that is
the reason for having the evidence about what happened to Cora,
Dawson and Callen and including the autopsy photos, because that
all goes to extreme atrocity and cruelty.
Speaker 5: And deliberate premeditation, and then the rest where it notes
that she's accepted responsibility.
Speaker 4: Again, that would be putting evidence before the jury or
statements before.
Speaker 5: The jury that may or may not ever be in evidence.
Speaker 4: So I think the standard she denies the allegations and
then including what the defense is, which I usually object to,
but I'm not in this case because it's it's public knowledge.
Speaker 5: So those two.
Speaker 4: Statements I think would be sufficient, and I don't think
the rest would be appropriate.
Speaker 1: What I've done in past cases like this, I think
the one we did a couple of years ago was
basically in the statement of the case after with the
Comwell's allegations, to say something about the question before you
whether or not misclaims who was criminally responsible? If she
lacked criminal responsibility, the prosecution has the burden of proof.
The prosecution must prove beyond a reasonable doubt that she
was criminally responsible at the time that she killed her
three children. Any objection to that, I do.
Speaker 4: Object to giving an instruction such as that, and that
the case laws states that we're not required to prove
that she.
Speaker 5: Had criminal responsibility until the defense.
Speaker 4: Raises it, So at that point, at the beginning of
the case, it hasn't been raised. I'm not objecting to
it that that's her defense, that she lacked criminal responsibility,
but I object to an instruction at the beginning when
that evidence hasn't come in.
Speaker 5: I expect it to come in, but things change during trial.
You never know. But it's the same as with self
defense instructions.
Speaker 4: I object to those at the beginning of the case
because it's dependent on evidence that comes in during the trial.
Speaker 1: But then, how what's the basis then for asking the
jury in the impalement questions about their position regarding the
defense of criminal responsibility.
Speaker 4: Because like self defense, we expect that will be an issue,
so we want to know if it's going to affect
our ability to be fair and impartial. But I don't
think the instruction comes until it actually becomes an issue.
Speaker 5: Yeah, I haven't say it supports discusion.
Speaker 1: Yeah, I'll take a look at him. But just so everybody,
I'm probably gonna give something similar to to what I
gave what I just kind of read out, just to
kind of tell him that this is the issue. You know,
this is the defendi's position that that she was not
criminally responsible. This is the carm wos position is that
she committed a crime, and so it'll be something along
that line, and I'll show everybody before we read it
to the jury, so everybody can kind of have some
additional feedback. There'll be something similar to that. I bet
all right, what else any other issues before we get
to the.
Speaker 3: Well you have requests for the court to consider. I
don't know if you have an emotion to see questration
or the jury. You didn't have that?
Speaker 1: No, Okay, have you seen this come up your Yeah?
Speaker 3: Like I say, I know that when we followed, we
sent them to the DA, we send them to the court.
Speaker 1: So no, I have to follow my sort of it
was sent to me.
Speaker 3: I had seen this one, so the emotions elevens.
Speaker 1: No, but I like to just so I don't and
so I don't blame somebody else. It was Citty sitting
on my desk. Well, it's right, call EU on this.
Speaker 3: You're run right, basically, can it can be very brief.
This is, as I indicated, a very unusual case emotionally.
U factually government's estimating six to eight weeks for a trial,
maybe less with the stipulation. Nevertheless, it would be a
huge imposition on jurors. There has been extensive pre tro publicity,
as you know from the emotion for a change of
venue which a round I heard and today which would
be renewed at the time of the impanelment depending on
where the jurors reacts to the questions in the sidebar
individual idea. So my can concern is that with all
of those issues, and I understand that it's unusual nowadays
we don't really do sea questration of jurors, I think
this is a very unusual case that may warrant that,
and even if it's a possibility during the course of
the trial, I think that the court should at least
flag that issue for the potential jurors for them to
factor that into their own determination of their availability. So
that's why I foiled the emotion.
Speaker 5: Come up and I come up with jets of the motion.
I think that the court will instruct well, I know
that the court will instruct the.
Speaker 4: Jurors not to go on social media, not to read
about the case, not to pay attention to any of that.
Speaker 5: In addition, the court typically ask the questions every morning.
Speaker 4: If they've been able to follow those instructions, they're presumed
to follow those instructions. So I don't think seat frustration
is necessary, and I don't think it would be necessary
to ask.
Speaker 5: Them about something that never happened in the case that
be impediment.
Speaker 1: All right, I'm gonna deny this. I will said, I'm
going to ask the jury if they've heard of anything before,
if it's affected their ability to be fear and the parts.
I'm gonna ask them every day whether or not they've
seen anything, and also go instruct them not to view
any articles or social media in regards to this during
the course of that, and I'll follow up every day
to make sure they follow those instructions. So I'm gonna
deny this motion.
Speaker 3: No objection retirement tonight. And I think there's one more.
Speaker 1: Emotion, real it? All right? All right, let's see the
last motion.
Speaker 3: Last motion you before we get into the jury questionnaire.
I think would be capture defendant's motion for jury instruction.
Speaker 1: If you have that, yeah, keep it down.
Speaker 3: I can give you this if you don't, sorry, when
you give the instructions to the jury on the law
after we've picked the jury, and I believe you do
it before openings in light of the fact that it's
obvious that lack of criminal responsibility is the defense is
the central bedrock of the defense in the case, I
would ask that the court would, in addition to instructing
the jury as you do in a generic sense about
proof beyond a reasonable doubt, that the court would also
instruct the jury that, as it relates to the burden
of proof in the unusual situation where you're dealing with
lack of criminal responsibility, that it is not the defendant's
burden to prove that she was lacking criminal responsibility, but
in fact, upon presentation of evidence, it's the government's burden
to prove beyond a reasonable doubt that she was not
acting as a result of a mental disease or defect.
So I'm just asking that you would add that to
the generic instructions you're under.
Speaker 6: Similarly to the argument that the Commonwealth was objecting to
the criminal responsibility being mentioned in the statement of facts,
we would also object to the preliminary instruction full instruction
about criminal responsibility because, as my sister said, it is
the defendant still has to raise it, and they have
to raise it not just by saying it in an
opening statement. They have to raise it by expert testimony,
laywitness testimony or the actual facts of the case, and
so that isn't done until the cases underway, and preliminary
instruction is it comes well before that. So that is
relying on Commonwealth versus Santiago forty five Mass. Four sixteen,
a twenty twenty case that reiterates the instruction isn't necessarily
need to be given in a preliminary arm or in
that case, for it was actually for a jury instruction
with the conclusion of the case if.
Speaker 5: The evidence wasn't raised.
Speaker 6: But I would suggest that the idea is even stronger
that if we haven't even presented the jury without anything,
then they shouldn't be preliminary instruct preliminarily instructed on it.
If your honor wasn't client to give it, because it
is a discretionary thing, I would ask that you stick
to the language of the model and not how counsel
phrased it, because as you're familiar, the actual instruction when
it comes to what the Commonwealth must prove with a
criminal responsibility issue is not just whether we can say
that they don't have a mental disease or defect, because
we may the evidence might show that, but that is
not the.
Speaker 5: Requirement for the jury.
Speaker 6: If there is a mental disease or defect, then the
Commonwealth has to prove the other two prongs of the
criminal responsibility statue. So the way it's phrased in the motion,
I'd ask you not adopt that language, and that you
stick to the model if you are inclined to offer it,
but we would object to the giving of it.
Speaker 1: What if I instructed the jury in a sense, almost
like hypothetically, that it's he anticipated that the defensive criminal
responsibility is going to be raised. If that's raised, this
is what the law is.
Speaker 5: Well, I would.
Speaker 6: I would suggest that we don't want to be caught
in a burden shifting situation on a preliminary instruction.
Speaker 5: So maybe that language is a little bit too close.
Speaker 6: I think it's either your honor gives it as it
is in the model in the preliminary as a preliminary instruction,
or it's not to be given and just to be
addressed at the conclusion of the case.
Speaker 1: I'll think I generally give it. I understand the calmost position,
but I generally think it's a good Well, I'll just
leave it at that. I generally give that. So I'll
take a look at it, but I generally give the
model language that's suggested, So all right, all right, And
then there's one last motion, uh that was filed yesterday
the kalmal to have an opportunity to review that.
Speaker 5: I briefly looked it over. I would suggest that we
shouldn't even.
Speaker 4: Broach this motion in that it violates Rule fourteen discovery
and that these.
Speaker 5: Individuals have been identified by.
Speaker 4: Initials only with no other information, no statements of the witnesses,
no indication.
Speaker 5: Of what these witnesses have to offer the background. And
it's one week prior to trial. So it asked that
we that it just be denied on its face.
Speaker 1: Well, I understand that, but it's been raised. So I'm
gonna hear from the calmwealth, and I'll hear from there,
from the here, from the defender versus then from the
call wealth. I'm sorry, and then I may have to
take it on the revisement myself, and it may be
the argument that there is just not enough fear for
me to make a decision, is there? But I think
I want to give the defendant new opportunity to argue this. So,
mister Reddington, this is the emotion eliminade to permit testimony
from witnesses. We have themselves been, according to the motion,
victimized by the medical system regarding the issues of postpartum
depression and postpartum psychosis.
Speaker 3: Yes, you're the think runner. As I say in the affidavit,
as you can well imagine, I have been contacted by many,
many people who have, in a very moving emotional fashion,
advised me of these horrific issues that they've been dealing with,
postpartum depression, postpartum psychosis, hearing the auditory commands having intrusive
thoughts to hurt or kill their partner or their children,
infanticide as a result of postpattum psychosis, medication issues contributing
to the postpatum depression, post partis of psychosis. And it's
so easy for us as a society to say, in
a troubling case like this, oh my god, she's guilty,
throw away the key, put her in jail, and just
be done with it, because it makes everybody feel better.
It's a feel good reaction that, Okay, somebody has been
punished because of doing a very bad thing. But because
we know when you're dealing with the issues of lack
of criminal responsibility, I don't like the term insanity, but nevertheless,
when you're dealing with somebody who is suffering from a
medical a defect or a disease, and they have actually
experienced something that is so outside that ken, if you will,
of jurors, of normal people. For us to believe that
somebody's hearing voices, the initial reaction from any one of us,
I think in this court we become you're not hearing voices.
What are you talking about? You're making this, You're trying
to avoid responsibility. But it is true, and it happens,
and it is an affliction that people experience themselves, as
to postpodum depression, psychosis, the concerns and the fear that
a woman has, and I say as a woman has
because guys don't know about this. You know, we're so
quick to go out and we're mighty and strong, we
have many beers, and we're real quick to say throw
away the key in it. But a woman who has
suffered and has put up with this affliction should be
able to testify and say, probably in an emotionally charged fashion,
very credibly, I too have heard these command voices. I
too acted on the command voices. I too have had insomnia.
I too have had hedonism where I don't even care
if I live or die. I have no motion, I
can't feel, I can't laugh, I can't love, I can't hate.
And I think that that is important now before I
disclose the identity of these people. It seems to me
that what I have to do is present the general
legal issue to you as a preliminary gatekeeper, almost where
you would say, hypothetically, I think upon sufficiency of proof,
it is admissible, and I am inclined to the judge
to allow that evidence before a jury, at which point
I would then, of course disclose the identity of the
people with their knowledge and consent the medical backgrounds, and
the government could then send their cops out to interrogate them,
or intimidate them, or talk to them, or do whatever
they want to do. But if they get on that
witness stand, they have credible evidence to give. So it's
a two part I can't really give their names and
addresses without knowing. You may say, as a matter of law,
it's not admissible. Somebody's individual experience with a narcotic, with
a drug with a disease or a defect is not
admissible in a sense of the specifics of a trial.
And if that's the case, then it shuts down the
issue and that's the end of it. But I had
to raise the issue preliminarily, Thank your honor.
Speaker 4: We'll incorporate what I've said before about the cruel fourteen
and the lack of notice in the one.
Speaker 5: Week prior to trial. But also defense counsel cites.
Speaker 4: No rule of evidence that would allow for the admission
of layperson testimony about these issues. These cites too the
abatted Woman's Statute, But in that statute itself it refers
to expert testimony, not laypersons, saying I had this experience,
so that the defendant must have as well. And then
I think what we come to is it becomes more
prejudicial than probative in that say, you allow sixteen people
to come in and testify it to that then the
kamawalth gets to rebut that with their own witnesses, women
who suffered from postpartum depression and psychosis, who did not
kill their children, who locked themselves in a room to
keep themselves from harming their children, who got in a
car and drove away so they didn't harm their children.
And so then it becomes a trial within a trial,
and it's more prejudicial than probative. There's no rule allowing
the admission, and it would delay the trial.
Speaker 5: And i'll honesty because then.
Speaker 4: We would be filing a motion for discovery on these
witnesses their medical records, having them interviewed by police, which
would take time.
Speaker 5: So I would object to this motion.
Speaker 3: I'd like to know who these people are that would
walk on themselves in rooms and getting in their cast
were killing or rooting their.
Speaker 5: Trophslet's go on Facebook, They're all over.
Speaker 1: But isn't that the whole problem? I think what the
karma is saying that this isn't just the trial within
a trial, it would be sixteen trials within this trial.
I understand the argument, especially the kind of comparison to
the Better Women's syndrome, But is that case those cases developed.
I'm sure this reading to may remember as those cases
that became more and more admissible. It really hinged a
lot upon the testimony of experts, and in this case,
I anticipate there's gonna be experts. They're going to talk
about the reality of this postpartum depression and postpartum psychosis.
So that's coming out and these are testimony, they'll come
from the experts. I think on both sides it doesn't
seem like there's a question of whether or not postpartum
depression or psychosis is real. I mean both all the
experts seem to agree that it's real. So because of
the ability to get the probative part of what those
women would bring to the court, the experts can give that,
and so I'm going to deny the motion at this time.
Anything else we need to address come up.
Speaker 4: I just think on the questionnaire, I was looking over
the questions, I don't have any objections. I only request
an addition on number two. It asks about a family member,
a close friend being diagnosed with close part of depression, depression,
or generalized anxiety disorder, and also asked to include bipolar disorder,
as most of the experts in this case have diagnosed
the defendant with bipolar disorder, so I think it'd be
important to have that information.
Speaker 3: Anything else in regards question Anya.
Speaker 4: And also Jo, there's no question on here regarding medications,
whether people have any experience with psychiatric medications and whether
that would affect their ability to be fair and impartial
either experience or views about.
Speaker 1: A right mis ready to.
Speaker 3: First of all, if I could just hack it back
to the orders that you've given on the emotions in eliminae,
and I don't mean it seems paranoid, but you, I'm
sure understand the appellate courts in Massachusetts have repeatedly stated
that on emotion and eliminae, if the Defense Council does
not object, you're waiving it. So I just want to
make sure number one for the Appeals Court if necessary,
or the SJC, I object And is it my understanding
that any further objections I don't have to keep objecting
because I respect your ruling that I.
Speaker 1: Don't have to come up. I have no problems with that.
I think it's especially it's clear that the boat the
issues were raised on the motions eliminate, I've ruled on them,
and I think it doesn't need to be a recurring
objection on those.
Speaker 4: I would agree for the record your order that if
whichever party was affected by the denial of the objection,
is there okay?
Speaker 1: All right?
Speaker 3: Addressing the questionnaire you runner, I may I do. It's
an interesting issue that we're dealing with the questions that
have been requested, have you, a family member or close
friend ever been diagnosed with postpartum depression, depression, or generalized
anxiety disorder. The next question is skipping over the NGA
number four, have you, a family member or a close
friend ever been diagnosed and or treated for mental illness
for condition? And then going down to number six, have
you a family member or a close friend had an
experience with a psychiatrist, psychologist, a mental health facility that
would make it difficult for you to be fair and
impartial in this case? And finally number nine, do you
believe that a person's mental illness should not be considered
when determining their guilt or innocence? So going backwards number nine,
this is very similar to when we ask jurors, or
we tell jurors, do you understand that a defendant does
not have to testify in this trial? Do you understand
a defendant does not have the burden of presenting evidence
on his or her own behalf and many times its
side by a jurors will say well, I think they
should tell this side of the story, and then the
judges will say, well, if you are instructed by me
that that is not to be considered, can you then
abide by my instruction and be fair and impartion, and
they always invariably say, well, yeah, I could, I guess,
and then they will be accepted. I'm concerned about raising
all of these so personal issues. There is a stigma
in this country of mental disease or illness. There is,
whether we acknowledge it or not, and it's embarrassing to
many people. And I'm just concerned that jurors would, let's say,
they answer yes to question two that you or a
family member has been diagnosed with pp D or depression
or generalized the anxiety disorder, and they say yes, and
that's going to open up the inquiry into when, where, how, who,
what medication, and will then invariably lead to kind of
an inverse challenge by repeated challenges by the government. I
think to pretty much any citizen what comes in here,
it's almost like a reverse Patsing challenge. Any citizen that
comes in here and has had mental treatment or has
had what they perceive to be a mental disease and
they have been on medication. They're going to say, hypothetically, yes,
I have, and I saw doctor so and so, and
I think that the are useless and I think they're terrible,
and I think they're horrible, and they ruin my life,
They're gone. They're going to challenge that person. If a
person says, yes, I had medical treatment by a psychiatrist
and I was on medication, that begs the question how
did that work out for you? Was there any issue
with the medication. Anyone that has any issue whatsoever with
mental disease defect or medications is going to be tossed
because of alleged.
Speaker 1: Cause.
Speaker 3: They're going to say it's for cause, because they have
a preconceived notion, and that's going to wipe out a
significant number of citizens that are being brought here to
this court to sit on a jury. Recognizing the fact
that the issue of mental disease defect treatment lack of
criminal responsibility is central to this case, I certainly have
no problem and I have confidence, as we always say,
that the court will give a very forceful instruct to
the jurors that, regardless of any preconceived notions, that they
come into this court with a clean slate and they
have to listen to the testimony, listen to the evidence.
We do it all the time, usually to the detriment
of the defense. But we do it, and we say, Okay,
can you understand what I'm telling you that you don't
have to listen to this, or that you don't have
to feel the defendant has to present their evidence and
we accept them as jurors. So I don't think it's
fair to exclude a potentially significant number of people that
would be good citizens, good jurors just because they have
had mental disease or treatment psychiatrists, psychologists, MDMA or whatever
they call it, or any of those treatments or medical
issues with medications. I just think that it's we're flirting
with disaster and that type of question.
Speaker 1: So what would you want me to just ask? I
have number three, number three.
Speaker 3: Looking at number three, I think is is fine. The
defense in this case is that ms Clancy is not
guilty due to not being criminal or lack of criminal
responsibility at the time she killed the three children. This
is commonly referred to as an insanity defense. Is there
anything about this so called insanity defense that would defend
you a cause you to not be able to fairly
decide this case? And then they come up on the
individual widea and they say to you in our presence, yes,
I don't like psychiatrists, or I don't like psychiatric medications,
or my brother did something or other. Yeah, I think
question three captures it instead of going through all of
those questions number two, four, six, nine, I think number three.
Speaker 1: I have no problem with calm.
Speaker 5: Ernor. I think the questions should remain as they are.
Defense Council's only objection to.
Speaker 4: Them seems to be his belief in knowing how we're
going to make decisions and how we're going to address
issues or answers that come up at sidebar, and he
is wrong about our approach, and he is wrong about
the way we handle things.
Speaker 5: I can speak for myself and I can say that
if a person comes up and says that they have
had mental.
Speaker 4: Health treatment, mental health medication, I have no issue with that,
as long as they can be fair and impartial to
both sides, and I mean both sides, not just me,
to the defense as well.
Speaker 5: Now, his example that he gave.
Speaker 4: That someone says I had an awful experience of the
doctor ruined my life, and I can't be fair and impartial.
I should think that neither side would want to take
that person because we want a fair and impartial trial
for both sides so I think.
Speaker 5: The questions are fair.
Speaker 4: I think the questions get to the heart of the
issues that will be in this case, and I think
a lot of them get to the issues that case
law in this area addresses we should ask about. So
i'd ask that you leave your questions as they are, all.
Speaker 1: Right, I'm going to take a look at it. I
may I don't think I'm going to go just with three,
but I may combine. There are a couple of kind
of kind of just going over the same kind of area.
So I think if I can condense those, that's probably
what I'll do, and I'll give parties the chance. We
heard again in regards to that. So it'll probably be
three and then maybe one other one addressing that kind
of issue. Are anything else you want to.
Speaker 3: Consider adding the question of do you understand that it
depends that does not have an obligation to present any
evidence or testifying questionnaire?
Speaker 1: Bring them up, bring each or over the side, and
then I'm going to ask, you know, some additional questions
including defendant not having it testified and understanding not having
to present any evidence. That's questions about police credibility, all
those those type of things that I would generally ask
I was just having the questionnaire because these are kind
of issues to me, those type of questions in the questionnaire,
it may be easier for people to go and kind
of reflect a little bit instead of just standing up
here for the first time being hit with these type
questions partments. So I will ask you know, the fendant
does not have to testify. The defendant has no obligation
to present any evidence the police credibility question because kind
of things along that those lines. I'll ask over here,
and then the party is going to have a reasonable
follow up as well. All right, thank you?
Speaker 3: Anything else you gestured to that side of the bench
with the individual?
Speaker 1: The individual? What hear? That's just by force to happen, individuals,
And that's part of why we're going to take that
break to have the jury go back fill out the
questionnaire and we'll set it up for the individual. Watch here,
we'll do that over here, okay, all right, now, anything else?
All right? Come on? All right, well, thank you very much.
We'll see everybody on Monday one o'clock and we'll begin
the impalement. You know, as you know, it'll probably take
a little while before we get the jury up here.
But if there's anything that we have to address before
we go talk before we go talk to the jury,
we could do with them, all right, all right, counsel,
thank you,