00:01:23.220Number one sports book for live betting based on available live market data.
00:01:27.440Welcome to The Megyn Kelly Show, live on Sirius XM Channel 111 every weekday at New East.
00:01:39.080Good afternoon, everyone. I'm Megyn Kelly. Well, I guess it's still morning.
00:01:42.580Welcome to our live feed. Apologies for the disheveled appearance.
00:01:47.460I actually tried to get some exercise in, which was a mistake,
00:01:50.620because, of course, the jury came back in the Lindsay Clancy case.
00:01:55.080And so now I am fresh off of the exercise.
00:01:58.840Anywho, as predicted, the jury is officially hung and the judge has declared a mistrial.
00:02:06.280However, right now, the the declaration is stayed as Kevin Reddington has asked to apply
00:02:14.100for an immediate appeal to the higher appellate court.
00:02:17.920And the judge has given him one hour to do that.
00:02:20.620And then he will come back into the court and we will see what this judge does.
00:02:24.460So they're in recess for one hour while Kevin Reddington goes up to a higher court and tries to get them to reverse this judge's decision declaring a mistrial.
00:02:33.940I want to bring in our legal panel. Dave Ehrenberg is back with us.
00:03:09.900And the reason I love it is you don't have to wait for a full scale appeal, so to speak, or do it's essentially an interlocutory, meaning a writ action.
00:03:21.260um i think in the next hour you may see something because one of the one of the things that
00:03:28.320frustrates judges about mistrials is judicial efficiency having to redo something and that's
00:03:36.360why they generally um try to break the log jam either through a dynamite instruction or anything
00:03:43.140else so i wouldn't get back on your exercise bike or your elliptical just yet because i think
00:03:49.340something in the next hour so i and by the way i was outside there's no mistrial i was outside
00:03:54.640that's the problem there's no mistrial declared what he he jumped in and said before you declare
00:03:59.380a mistrial i want to raise this you know this issue this appellate issue on a number of issues
00:04:03.720that have transpired not just on the 11 to 1 voir during the juror uh whether the two e
00:04:09.720has been read twice he wants to actually open the whole bread basket of issues but what the judge
00:04:16.440said, I'm going to declare a mistrial at this point. And Kevin Reddington asked if he could
00:04:22.440not do that while he filed this emergency appeal. Kevin asked if he could have until tomorrow
00:04:27.140to get the appeal filed. And the judge told him that you've got one hour. So he's going up. And
00:04:32.880I mean, so go ahead. So Megan, Ashley's point is important. If the and I think David's the same in
00:04:40.520florida if he had declared the mistrial excuse the jurors that's it you can't reconstitute it
00:04:47.520by delaying pressing pause right then he now will be able to go my guess is i haven't seen if
00:04:56.280he's applied i don't think he's made the application yet i think he's going to zero
00:05:00.620in on a hearing on he previewed it yesterday he's going to zero in that this judge needs to do a
00:05:06.780hearing based on the note that this juror is not complying with the law that is the little niche
00:05:12.760where the massachusetts law is that if you're not following the law and that's what the note says
00:05:20.340that this juror has a doubt but will not apply reasonable doubt then uh there has to be further
00:05:27.740questioning and if there is further questioning and they remove the juror then they restart the
00:05:33.820deliberations and so what's going to happen now go ahead yeah that answers my question because
00:05:40.200megan i was about to say what's the remedy here right you go up to the appellate court
00:05:44.040and to get what to force a judge to do what to force an acquittal no but that would be i guess
00:05:50.760the only potential remedy is to force a hearing where you really put this juror this lone holdout
00:05:57.340juror through the ringer as if the juror hasn't been through enough i i'm sort of thinking this
00:06:01.440is coercive to me i think you've got the one juror respect that juror's opinion do the mistrial and
00:06:06.300move on that's why i'd be surprised if the appellate court gave in to the defense lawyer's
00:06:10.660request so there's two imagine if this were reversed for one second if the 11 wanted to
00:06:18.100convict and the one was like no i don't want to convict and we were doing this level of coercion
00:06:23.860on the last guy the defense i mean gary goes i'd be you would be losing your mind you've read my
00:06:30.180mind, as you usually do, because it's not very expansive. But I said, 99 times out of 100,
00:06:37.420this situation presents completely the opposite. And you see this, at least I anecdotally see it
00:06:45.000all the time, where it's 11 to 1 for guilt, and I'm screaming from the rooftops that you're
00:06:50.800coercing this juror. Now, I believe, and Dave, I wish I had the Massachusetts judge here,
00:06:57.840If they've excused the alternates, then you cannot replace and you would have to then navigate whether 11 could return the verdict.
00:07:10.100You know, federally, that would be a different analysis than it is statewide.
00:07:15.560But if there are no alternates available, then you jump to the next hurdle.
00:07:21.760because a lot of times in a lot of jurisdictions, federal especially, they will excuse the alternates
00:07:27.180once the jurors go back to deliberate. No, they didn't excuse the alternates here. The alternates
00:07:33.840are still there, we're told. That's right. So I think they're still available and ready to pinch
00:07:38.260hit. Yeah, thank God. And I'm sure the jury is probably stunned right now because they finally
00:07:43.260went back and said, hopelessly deadlocked, thinking, okay, we're going to go home. And
00:07:47.380instead they see this and little does the the lone holdout know he was called a felon by kevin
00:07:55.080reddington in open court two hours ago and he was identified no no no ashley no not not just a liar
00:08:03.200he said he lied under oath which is a felony he accused him of perjuring himself in court he
00:08:10.740called him a felon he did not use the word felon but that's make no mistake about it what he was
00:08:15.460accusing that which is which is juror intimidation if he does that in front of this jury now that
00:08:20.640they're in the courthouse he's in a whole lot of trouble what i think is so important about what
00:08:24.220kevin reddington is doing right now and forgive me just for getting all kind of wonky here is that
00:08:29.200the language that was used according to kevin reddington in open court this morning was that
00:08:34.680this holdout juror has has expressed that he and it is the one of three males has doubt um to other
00:08:43.460jurors, but does not want to apply it according to the law to his decision. And so it's more than
00:08:50.600yesterday, right? This foreperson has said, this guy has said to us that he has doubt, but he's
00:08:57.920refusing to actually apply it to his decision making. So I do think that's kind of interesting.
00:09:02.620It's not just, well, we're all differing in opinion. I think there is this legal issue of
00:09:08.280whether this juror is actually operating in good faith under the law so actually if you want to get
00:09:14.360wonkier the fact that the foreperson is talking about the deliberative process i know that that
00:09:22.720is what's what the prosecution should be arguing but they're not before she was told they did ask
00:09:30.000him they asked the judge to try to correct that and kevin reddington objected to that too saying
00:09:34.860well, you can't bully the four person. And the judge overruled her and said, I will be
00:09:38.360reminding the jury not to reveal it. Because what we learned this morning was they revealed the
00:09:43.240count. They revealed the juror by identity. They all know who the juror is. We know that it's a
00:09:49.100male. And the judge did overrule Kevin Reddington when the jury came back in and said, don't reveal
00:09:54.840anything about the deliberative process or the specific counts, et cetera, to the jury. But the
00:09:59.800question now is so they're going to come back in like i mean i don't know what this appellate
00:10:06.120court is going to say dave but my money is on no get out because appellate judges don't like to
00:10:11.620make quick decisions on something this weighty they will generally defer to the trial judge
00:10:15.920unless they see something blatantly egregious right and there's nothing blatantly egregious
00:10:20.360here there's nothing blatantly egregious here the even if the juror says yeah i have doubts but i'm
00:10:25.660still a vote to convict. That's okay because it's about having reasonable doubts. You can have
00:10:30.380doubts, just not reasonable doubts. So he seems to be following the law. And remember, you give a
00:10:35.540lot of discretion to these jurors unless they're blatantly violating the law, which we haven't
00:10:39.460seen. And remember, Judge Sullivan isn't just blowing off the concerns. He questioned the
00:10:44.040jurors individually to ensure that they could follow his instructions. He confirmed that the
00:10:49.320jurors swore that that juror he was able and willing to follow the law. And then he reread
00:10:55.080the instruction on reasonable doubt and open court to the entire panel. So I can't imagine
00:10:59.460that this appellate court is going to say, nope, not good enough. Have a hearing. And let's really
00:11:03.780put this guy through the ringer. I mean, enough, right? It seems coercive to me.
00:11:09.240Right. Because what's happened here is a mistrial. So basically, we're going to have a do over. So
00:11:14.480I don't think the appellate court is going to be incredibly moved. There's enormous prejudice to
00:11:18.820the defendant you know it's not like they they found her guilty over the objections of one holdout
00:11:25.160who really wanted to find her not guilty that would be enormous prejudice that the court of
00:11:28.700appeals would be like oh shit i mean we got to take a hard look at this yeah they're looking
00:11:32.640at a possible mistrial which happens all the time i don't think we're gonna have another
00:11:36.120convenient it's expensive and so on yeah after all this well yeah not if this jury really is
00:11:40.40011 to 11 to 1 with all of this coverage and the pink ladies out front there is no way in holy
00:11:47.120hell that any prosecutor worth his or her weight in salt would decide it's a good bet to do that
00:11:52.380instead i think the only thing forgive me for talking to the some of the best lawyers in the
00:11:56.560in the planet right here i think the only shot here is that kevin redding reddington can say
00:12:02.760manslaughter maybe six years or nothing i'm not so sure that i agree but we'll find out in the
00:12:09.780next hour i think that you think the prosecutor is going to have a new head of steam like i'm
00:12:15.060I'm going to do it better the next time. I think there's two things that I disagree with. I think,
00:12:19.860number one, the appellate court may step in because they don't want to just let this be
00:12:25.660a mistrial. This has taken over Massachusetts and a another trial. I don't think that there
00:12:32.520that anybody wants to see that, number one. And number two, from all accounts, and I don't know
00:12:38.140Dave does. This prosecutor, the elected prosecutor here, is seems like a what I would affectionately call a rabid dog when it comes to things.
00:12:50.440I don't think this guy is bleeding hearts. We have to deal with here, Dave.
00:12:54.100Unbelievable. I know this this prosecutor, the Dave does.
00:12:57.720So his name is Tim Cruz. He has a big, thick Boston accent.
00:13:01.260And he was a very likable guy. He was the president of the National District Attorneys Association.
00:13:06.560So he was the leader, and he is not known for just being a crazy, rabid dog.
00:13:40.560Well, can you spend a minute thinking what's what do you think Kevin Reddington's
00:13:44.560mindset is on this? Because even if the D.A. goes to him and says, OK, let's cut a deal.
00:13:52.360Kevin Reddington has got to be the one with the head of steam right now.
00:13:55.460Kevin Reddington right now is, as all good defense lawyers thinking to himself,
00:14:00.520i'm one vote away from being done with this case i am one vote away from not reliving this case
00:14:07.900that i he'll never admit this but he is going to go to the wall like you've never seen right now
00:14:13.600in the next hour to get this thing done done and over with and by the way i was going to say dave
00:14:19.160i think that that your last comment was a little shot at our da here nathan hockman who does a
00:14:25.080press conference every time somebody trips inside of the courtroom. So I agree with you. Tim Cruz
00:14:31.060has not. But all accounts are of everybody who practices in Massachusetts that this guy is not
00:14:37.620going to let this go. But I tend to agree that the idea of retrying this at 11 to 1. Speaking of
00:14:45.140Nate Hockman, the last case I saw that was our former sheriff in L.A. County, Lee Baca. Federally
00:14:51.440was 11 to 1 for not guilty the judge refused to block it they retried him he got convicted
00:14:58.220and sentenced to federal prison wow that's the thing so actually one of the things that we've
00:15:03.780been seeing as this case goes on is a lot of criticism of the prosecutors um and in particular
00:15:10.060sprague who was the lead but she's learned she's not dumb she's paid attention and if given another
00:15:17.340chance, most prosecutors think that they can do it. You know, I mean, it's the rare lawyer who
00:15:22.700looks at a do-over and says, I'll fail again. You know, I think there's something in the lawyer
00:15:27.500mindset that's like, oh, no, no, no, no. Like, I got screwed in one way, shape, or form. Just
00:15:32.580give me another shot. But it's Massachusetts. It's not Texas. You know, like, you have a very
00:15:37.740different jury pool. Yeah. Do you ever? And I was saying over and over to anybody who would listen
00:15:42.620all week. Look, if it's six, six, even slightly one way or the other, I get it. Maybe they would
00:15:48.600take another shot and spend millions more in another year, just like Karen Reed, they'd be
00:15:51.940at it again. But I just don't see that being a smart financial bet or political bet in the state
00:15:59.720of Massachusetts after everything we've been through. If all of these things hadn't happened
00:16:04.320outside the courthouse, if this case hadn't gathered the momentum and the media steam that
00:16:09.340it did, I could see maybe, but not a chance in hell now, honest to God. And not only that,
00:16:15.620I don't even see them getting any further prison time than, like I said, I'm guessing around six
00:16:20.160years, because I just think Kevin Reddington's got the wind in his sails. I mean, right from
00:16:27.400the beginning, a lot of our brilliant lawyers have been saying she'll probably spend more time
00:16:32.660locked up if she goes to a mental institution than she will if she goes to a jail, because
00:16:37.160These institutions aren't exactly known for having a revolving door where you're you're out lickety split. But I I do have my doubts. You know, she I was saying earlier to Phil Holloway, if she looked like Phil Holloway, I'd have a higher belief that she'd be locked up for a long time.
00:16:55.480You know, like the white guy from the South is probably going away for a lot longer than the kind of attractive wheelchair bound mom who was a good mom up until, you know, the six months or four months before killing her three children.
00:17:10.020can i say just one other thing no i i also think again you can't say i also think they'd be going
00:17:15.640a lot harder on lindsey clancy if she had killed someone else's kids i think there is a weird
00:17:21.360there's a weird like desire to treat her in a softer gentler way because she killed her own
00:17:28.780kids that seems bass backwards no no that's why this this is so unbelievable when a mom kills her
00:17:35.860own babies that's why everybody thinks oh there's got to be something else going on if she kills
00:17:41.420someone else's babies it's kind of like a lot of other murder cases not exactly but but more like
00:17:46.460more other murder cases when you kill your own babies like andrea yates there is something else
00:17:51.600going on that people are willing to consider more often than not it seems now well i think you can
00:17:57.040i mean look how many cases of child abuse we have every day there's just one in the news today where
00:18:02.640This couple with their autistic daughter who took off her tracker and she drowned.
00:18:08.440It's just like parents, unfortunately, some segment of them hurt their children, whether it's abuse or child sexual abuse or murder.
00:18:18.820I just think we should be looking at the devastation of the of the victims.
00:18:21.760Like we should be looking at who died, three children, three, three babies from this woman who had ordered thinking all the way up to the moment that she killed the third and took a phone call from the husband in between.
00:18:31.860not sounding psychotic at all, sounding completely measured and like a woman who was covering up what
00:18:37.580she was doing. Go ahead, Mark. I was just going to say that you kind of hit on the point building
00:18:43.600on Ashley when you've got the grandmother and you've got the father up there basically saying,
00:18:52.000I forgive and I understand that I don't want anything bad. That puts the prosecution behind
00:18:59.400the eight ball and i think dave will tell you one of the reasons prosecutors kind of wrap themselves
00:19:05.020up in victims rights and the victimology is because they're advocating for the victims who
00:19:11.840want justice here in this case you have the unusual situation where there is no victim screaming for
00:19:20.540her head on a stick so to speak these are because they're dead yeah well they're because the kid
00:19:25.920But the kids' protectors are the grandparents and the father, and they don't want what the prosecution is.
00:19:34.300If I were the prosecutor in that courtroom, I would say I don't care what Patrick Clancy wants.
00:19:39.780Patrick Clancy is the one who left her alone with the children after she said she was thinking about hurting them.
00:20:29.600Yeah, I actually think that this case was headed towards a not guilty verdict until the closing statements.
00:20:37.020And I think the closing arguments were able to at least convince one juror here to hold out.
00:20:42.340And I think that may be the difference here.
00:20:44.720I think everything you said is right, that because it's you have not just a woman who killed her own children, not someone else's children,
00:20:52.260not just that she was in the throes of serious she had mental issues and she had a lot of
00:20:57.920medication and insomnia all that combined but she's sitting in front of the jury in a wheelchair
00:21:03.320paralyzed for life and weeping so you've got a lot of sympathy there and quite frankly i'm a little
00:21:08.640surprised that the holdout juror is a male and not a female because i thought women are tougher
00:21:13.700on other women it looks like it's a male here and yeah so i'm with you i i do think that this
00:21:19.780was someone else that this was phil holloway uh it would be a very different verdict let's speak
00:21:25.140of the devil he's here he's not he's not in any jeopardy oh he's almost here we're gonna add him
00:21:31.420one second thank goodness phil is alive and well and uh facing no legal jeopardy while we wait for
00:21:36.480him let's go back to the moment where the judge talked about declaring a mistrial and see some
00:21:40.920of the drama as it unfolded it is with a heavy heart that we report we are unable to come to a
00:21:46.480unanimous decision, and will not be able to.
00:21:55.220My, well, let me ask what is the party's position
00:22:34.120So technically, we have one report of deadlock that Your Honor gave the TUI-Rodriguez charge to,
00:22:41.660I believe under the statute, as well as the case law, this court has the ability to send the jury back.
00:22:49.480The fact that that jury foreperson wrote very unusually with a heavy heart that we are unable to come to a decision,
00:22:58.700based on the earlier questions that we have, I think that it would be a sound and a wise decision for this court to send it back under the law.
00:23:06.960Well, I would find that under Massachusetts case law and statutory law, the jury did not ask to be sent back, which would be a possibility if they had requested it to be sent back to them.
00:23:24.640But under the statute and the case law, I don't feel I have a choice but to declare this trial.
00:23:31.160yeah it's um it's it's one thing of the jury after the judge tells them you're the only ones
00:23:40.900who can do this there'll be no 12 who are more informed or more fair or more uh able please give
00:23:47.340it another shot if after that he can't send them back again and so that was reddington trying to
00:23:52.780argue that he hadn't quite taken as big a bite of the apple as he could have and might maybe there
00:23:59.080But Massachusetts law seems pretty clear.
00:24:01.300The judge is definitely playing with fire if he sends them back in there again.
00:24:04.980And again, this is typically you can understand these laws perfectly if you can think of it as the lone holdout is trying to say not guilty and the others are saying guilty.
00:24:14.300You can't in that circumstance, it seems so clear.
00:24:17.340You cannot pressure this this juror to within an inch of his life to change his verdict or else.
00:24:22.960I mean, any defendant would get an appeal granted and a verdict overturned if they came to a guilty under those circumstances.
00:24:30.120But the exact same rules apply when it would be a not guilty by reason of mental disease or defect, which is what they're looking at.
00:24:38.180Paul Callan, who's a commentator I worked with for years, was actually the litigator in this murder case in New York in which there was one holdout for not guilty.
00:24:47.460and apparently the deliberations got so pitched that he locked himself it was a sequester jury
00:24:53.260he locked himself in the hotel bathroom because he feared oh wow he feared the physical intimidation
00:24:59.120from other jurors it went back into the courtroom this issue and the judge according to paul callan
00:25:03.840the judge ordered the court to break down the bathroom door and put him back into deliberations
00:25:10.900at which point he changed to guilty and said there was nothing that could be done on appeal
00:25:17.260after that i've never heard of something so insane in my life but uh that happened and so it sort of
00:25:23.560gave me a bar for you know what happens in a jury room well this poor guy honestly can you imagine
00:25:31.640this guy was like just doing nobody wants to do jury service and then he gets sucked in for two
00:25:35.860months. Now you're finally wrapping it up. And like, you've been called a felon. You're getting
00:25:40.380potentially dragged back in there. But wait, Garrett goes, I've been talking about you with
00:25:44.800these past couple of days because you're my star of my Scott Peterson MK confidential series this
00:25:51.600week. And to wait in last night's episode, we feature you talking all about the foreperson
00:25:59.100of the Scott Peterson jury. And why don't you take it from there? As always, you read my mind.
00:26:05.860And we got into our little usual Scott Peterson tiff on episode four.
00:26:11.620I was very fair to you, though. Very fair to you.
00:26:13.700So day seven of Scott's deliberations, the judge had already removed several jurors because the jury was hung.
00:26:24.800Our four person and I specifically wanted this guy in the jury because he was both an M.D. and a J.D.
00:26:31.060And I wanted somebody with that kind of a brain watching the evidence.
00:26:35.860He came in on day seven and they had sequestered the jury during deliberations because it was so crazy.
00:26:57.980I wanted him to bring in the judge to bring in the people who were threatening him or he felt threatened by.
00:27:04.400Judge didn't do that. The judge excused Dr. Lawyer, the foreperson, and substituted a new juror. And after seven days, they have to restart deliberations. They immediately came to a guilty within hours.
00:27:19.340but but i i should correct myself that's in tonight's episode they're blending
00:27:24.420uh but but the difference there mark i think was that the juror was saying i i can't be fair and
00:27:32.740impartial anymore i feel too threatened i don't know what kind of i don't if i came to a verdict
00:27:38.080i don't know what we would be motivating it anymore the pressure from outside the pressure
00:27:42.420from inside like he was saying he can't be fair now so that gave the judge the perfect excuse to
00:27:48.280bounce him, which is why this didn't become a good appellate issue for you, I imagine.
00:27:51.780Correct. And on that note, I have to leave as the old white guy on the West. And so the
00:27:58.320Southern white guy can take my place. Who's here? Who, by the way, I could never, I could never
00:28:04.120fill your shoes, my friend. Bill, I want you to fill my shoes because Megan was convicting you
00:28:09.820already. I was going to need to seek an emergency appeal to get a bond.
00:28:17.480yes i'll say if she looked like phil holloway thank you garagos phil welcome to the party um
00:28:25.060yeah so we haven't gotten your reaction yet to what's happened here with the judge
00:28:29.280wanting to declare a mistrial and getting an hour giving an hour reprieve while reddington tries to
00:28:35.600appeal him well my first thought i was surprised that the jury didn't wait until after they got
00:28:40.040their free lunch for the day before trying to throw in the towel uh which is kind of what we
00:28:44.720normally see. But I think that, you know, Reddington's obviously zealously advocating
00:28:49.660for his client, and I understand that. However, what he wants is, I think, you know, he wants
00:28:55.880essentially to get the appeals court to tell the trial judge to do this hearing designed to
00:29:03.800potentially... The problem with that is, as you guys just were talking about, that would mean
00:29:13.640then sending this jury back a third time after they have twice told the judge they were deadlocked.
00:29:21.200And that would violate Massachusetts law.
00:29:25.820Wait, would it if the jury's different, you know, if it's not the same 12 members?
00:29:30.480I think that certainly in the spirit of the law, I obviously don't have access to all the appeals cases
00:29:38.980and the rulings in Massachusetts right at my fingertips.
00:29:41.320But I would be willing to bet my last dollar that that would would be a violation of the rule, sending them back a third time after they have twice said that they were deadlocked.
00:29:54.060The judge would be on some very shaky legal ground if he tried to do that.
00:29:58.360I think. All right. We actually had to jump.
00:30:02.060But John Spillbore is back with us before we start with you, John.
00:30:05.280And I want to play the other soundbite that we have cut, which is the judge granting Reddington one hour to file an appeal on on the judge's decision to file or to grant a mistrial.
00:31:02.760But can I ask you, I actually still don't understand. If he's just going to stay the effectiveness of the mistrial for one hour, that's what he basically said, my order declaring a mistrial won't take effect for another hour while you go up and ask for a stay of the order.
00:31:20.980If the if the appellate court grants a stay of the order declaring a mistrial, what happens with the jury that they'd be sent home until the appellate argument played out and then they'd be brought back in days from now after having been home and media coverage and all that?
00:31:40.500They'd reconstitute and try to have another go at it, Jonna.
00:31:44.560Yeah. So I think this procedure isn't going to be a protracted procedure. Most likely what's going to happen is the appellate, like we call it the appellate division here, whatever they call it in Massachusetts, is either going to rubber stamp this yes or no.
00:32:00.660I suppose if they granted the stay of the mistrial, then this particular judge is going to have to make another decision and maybe send the jury back immediately to continue deliberating or most likely replace the juror that Kevin Reddington has wanted to boot off of this jury for the last two days and they start anew.
00:32:21.340He wouldn't do that. He wouldn't do that because what the judge, what the appellate court would be doing is just staying the mistrial. Like, don't declare it yet. Limbo shall continue while Kevin Reddington files a substantive appeal of the decision.
00:32:37.680But they can't keep it. I don't know what that means for the jury. They can't let the jury linger. So either there's going to have to be some sort of resolution. I mean, if the mistrial is not declared, then we still have active jurors, right? We're not done. There has been no declaration if it's stayed.
00:32:53.300So once that happens, then this judge, the trial judge, is going to have to do something to remedy the situation absent letting these jurors just go home for a couple weeks until the appellate division decides what they're going to do.
00:33:07.940I can't imagine that being one of the options.
00:33:12.260Well, I think the procedure that he's seeking, it's not a full appeal, and it involves only one judge or justice off the Supreme Judicial Court.
00:33:21.740And it was my understanding. This is a sort of an emergency process. It's decided by one judge and it's designed to get a quick answer. Now, I wouldn't be surprised if Reddington is not asking for not only a stay when he's on the phone or doing whatever he's doing to contact this, whichever justice is on call today to hear this request.
00:33:43.360I wouldn't be surprised if he's not asking not only for a stay but an order directing the trial court to conduct the hearing, which is – that he wants, which is to bring in the juror and sort of drill down on are you deliberating or are you just being – just digging your heels in and refusing to participate in the process.
00:34:08.800And because he's refusing to participate in the process, just being stubborn, then the judge would be on more solid ground to replace him with an alternate.
00:34:18.960Right. So this appellate judge could force the trial judge Sullivan to conduct the hearing that Reddington wanted, where we cross examine this juror, whoever he is, and dig into like his deliberative process, which feels so wrong.
00:34:36.160and, like, reversible error the other way, Dave.
00:37:47.640Yeah. And so, well, you know, the judge, nevertheless, did not seem offended.
00:37:53.680In other words, if I were the judge and I felt somebody lied to me, I'd be.
00:37:57.560Because Matt Murphy said earlier that it was up to the prosecutor to get up and say, how dare he?
00:38:06.080Your Honor, Mr. Reddington has gone beyond zealous advocacy to now accusing one of our good faith jurors who is sat here for two months doing his civic duty.
00:38:17.120of a felony because he's a holdout on the issue of reasonable doubt. This is
00:38:22.840grossly inappropriate. He knows the TV cameras have taken this. He's besmirched him. He's defamed
00:38:28.260him. I would ask the court to rein in defense counsel. Yeah, they certainly could have done
00:38:32.780it that way. But the prosecutors have kind of seemed asleep at the switch through a lot of
00:38:37.820these proceedings. But right now, I think that they are just they're probably shell shocked
00:38:43.000Because, you know, when I was on last hour, I said that I thought I remembered hearing Reddington or the judge reading from the note and telling us that the note said that they were complaining that this holdout would not return a verdict of not guilty.
00:38:59.300And nobody remembered it. I went back and looked, and I found where he said it.
00:39:04.820He said, based on this note from this juror, it clearly says this person will not apply reasonable doubt to the evidence to return a not guilty verdict.
00:39:13.680So that's why Reddington is basically leaving no stone unturned, trying to get some relief to get this juror off and get another one seated because he can just feel that he's that close to winning this case.
00:40:27.660So the jury pool is going to be reflective of that.
00:40:31.020And for whatever reason, the politics politics are tracking in this trial, like in Liz, in Lindsay Clancy's favor.
00:40:41.860Yeah, they are. And look, maybe in a jurisdiction like that, the prosecution doesn't handle too many trials.
00:40:48.700I mean, look, most cases do resolve by a plea bargain. So they're not too used to doing it.
00:40:54.680One of the things I thought with this prosecutor, because she is a little lackluster and I know she could be the smartest, you know, tool in the shed, sharpest tool in the shed.
00:41:02.560That's all good. Maybe, though, the dynamic, which is so opposite of Kevin Reddington, maybe this prosecution team who has dealt with him probably now for a couple of years.
00:41:13.020Right. These trials don't just happen overnight.
00:41:15.180is so exhausted by his bombastic energy that they just you know i'm gonna do my job i'm gonna ask
00:41:22.340my direct questions i don't get the fun part of asking a lot of cross and they just sort of let
00:41:26.860him go and this man is going down swinging i gotta hand it to him for that but i will also
00:41:32.640hand it to the prosecution that at closing argument it they redeem themselves somewhat
00:42:07.440You have a Republican friend. So maybe that's why we have this case to begin with. Republicans tend to be more law and order. We don't tend to be big on, like, letting the mother who kills three children walk away scot-free because she threw herself out the window afterward. Sorry, that doesn't save you. That's not going to spare you a lifetime behind bars with most, I think, Republican DAs. I would have charged this just as he did. I don't think he overcharged it at all. And I think I would have voted to convict her, too.
00:42:34.020um so realistically though what what do you think like now if you've got an emboldened
00:42:41.880kevin reddington and if the judge does declare the mistrial as we all think he's probably going
00:42:46.060to at the in 18 minutes he has now 17 minutes on the clock until we're at one hour and i don't
00:42:51.980think this judge is going to mess around because the jury's still sitting there i don't think this
00:42:54.800is going to turn into one hour suddenly four hours they've been sitting there and they are
00:42:59.380they want to leave. And so does the judge probably. Um, what, what is reasonable? Because
00:43:05.000Dave, they can't, they cannot come up with a sentence in the mental institution, right? It's
00:43:10.640the only option is send her. Do we agree she's going to the mental institution or we don't have
00:43:16.900an agreement on that and you are going to retry her criminally. Oh, okay. If this is 11 to one,
00:43:23.420what's going to happen next? Is that what you were referring to? If the judge says, no,
00:43:27.220it's a mistrial okay it's a mistrial goodbye right get out she'll she'll be kept where she is now
00:43:32.380and then there will be a decision by the prosecutor only by the prosecutor as to what to do next
00:43:37.440and i suspect if it is indeed 11-1 that the da tim cruise will go to redington and they'll work
00:43:45.120this out where they'll find some way to avoid a second trial i i hear my co-host that maybe with
00:43:50.280a new jury but nah this is massachusetts and this is maybe the most conservative county that you'll
00:43:56.080get because it's the only one that elected a Republican district attorney. And if it's 11-1
00:44:01.040there, I don't think you're getting a better result, even if you have a better prosecutor
00:44:06.260who's trying the case. And if Tim Cruz thought he had some star prosecutor that he could just
00:44:11.340insert instead of the one, Sprague, who did it here, he would have done so already. This is a
00:44:14.860high-profile matter. I think this case, it'll be tough to pry it from her cold hands. So I think
00:44:21.100that if it is a mistrial, and it will be, that they'll reach a deal where she'll go to a mental
00:44:26.440hospital. I don't know if they'll ever include incarceration, but it'll be a guaranteed mental
00:44:30.820hospital so that there's no chance that she goes free. I don't know how you can get her, though,
00:44:36.080Dave, to a mental hospital where she's guaranteed never to get out. Oh, no, I didn't say that.
00:44:41.040If it's not guilty by reason of insanity, at some point they could release her.
00:44:45.120Yeah, no, no. There'll always be a chance she could be released. But that's currently,
00:44:49.380If there is an acquittal, it would be the same thing.
00:44:52.800I think what Tim Cruz wants to ensure is that she just doesn't get released out into the public.
00:44:57.620You go to the mental hospital, and then it's up to the doctors and the judge eventually to make the decision whether to release her.
00:45:02.800And in a high-profile case like this, there's a lot of pressure not to let her out in a year.
00:45:07.440John Hinckley was probably okay years after he attempted to assassinate President Reagan, but he was kept there nearly until he died in prison because it's a high-profile case like this one.
00:45:28.760But you know what they could do, Dave and John, they could they could they could get to have an agreement and they could say, all right, what we are going to do is we're going to take a verdict with 11 jurors.
00:45:40.680We're going to take the NGRI and move on.
00:45:44.120That's one thing they could do because that would make sure that she goes on to the mental, I guess, I don't know what the correct word is for that, but through the mental health sort of pathway rather than prison.
00:46:00.920And as Dave pointed out, I don't think they're going to let her out anytime soon, but, of course, there's no guarantees.
00:46:06.120The other thing they could do is they could decide to bring lesser charges, maybe second degree or something along those lines.
00:46:14.120judge is back in court let's listen my well let me ask what what is the party's position in regards
00:46:21.560to their question your honor um from the commonplace perspective since the two instruction
00:46:27.240has already been given and then there was like a deliberation after that i think that it would
00:46:31.960require a mistrial at this point attorney ragton uh your honor my understanding is that this court
00:46:37.960has the discretion to uh have the jury sent back for the second time the first time we've already
00:46:45.780seen um we did not treat it as a report of deadlock we did not instruct them under two
00:46:51.180we did not give them soft two we didn't give them anything we just sent them back to deliver it so
00:46:55.700all right it's fine this is court tv replaying we're just waiting until the bottom of the hour
00:47:00.360um sorry they're pooled so we you know we go with their shot because they're getting the feed inside
00:47:07.080the courtroom for all of us. In any event, soon enough, 13 minutes, we think the hour will be up
00:47:11.880and the judge will probably be calling them back in there. What is generally the protocol with
00:47:19.040jury members once they're released? My memory from back when I was practicing a lot is it
00:47:26.200differs state to state. Like in some states, you're not allowed to talk to them. And in some
00:47:30.780states you are, but isn't it generally up to them? Like if they want to come out and come to the
00:47:36.700microphone and even point to it's that guy. They they can. Can't they, John? Yeah, I believe they
00:47:43.260can. It's completely up to the individual jurors if they want to or not. And I don't think there's
00:47:48.940anything. There's no gag order. And there certainly wouldn't be stopping them from pointing
00:47:53.860out who the holdout was. And in a case like this, you guys, I can't imagine that there won't be
00:47:59.260probably half the jury who's going to want to get on camera and talk about this. This is their time
00:48:05.000to shine this will be their 15 minutes of fame this is a you know a national case that's garnered
00:48:10.440polarizing attention they're going to want to talk and maybe even the holdout might want to talk if
00:48:17.200he's not fearful of some sort of like actual repercussion because it is so polarizing that
00:48:22.720there are people on both sides he might be a little fearful of letting his identity be known
00:48:28.360there were people on x after this morning saying kevin reddington put a bounty on that guy's head
00:48:34.980he specifically said he perjured himself into the world he knows the cameras are taking this in
00:48:42.340and we will eventually know that guy's identity there's only three male jurors so we know it's
00:48:46.900one of them it's not going to take a lot to figure out which one it was even if they don't
00:48:50.960throw him under the bus because probably one or both of the others will come out and say
00:48:55.740it wasn't me yeah so we're going to find out and this crazy crowd that's been supporting
00:49:02.220Lindsay outside of the trial I don't mean everybody who supports her is crazy they're not
00:49:06.940there's a lot of good-hearted listeners to this show who support her but there's a rabid crowd
00:49:12.380that's been showing up at the courthouse every day how about that that one lunatic who was filming
00:49:16.620the jurors and put it and it was in her deleted file she's already under arrest like this that
00:49:22.100moment of Kevin Reddington do this is is going to have repercussions Phil you know the it's just
00:49:29.940It's really a shame that someone can't go to do their civic duty without worrying about being outed for some decision that they make that's not popular to the mob.
00:49:53.800Those of us who are practicing law, when we go to try cases, we try to find jurors who don't mind being there.
00:50:01.200And so if we happen to have a case that gathers any media attention or anything like that, it's going to be in the back of these jurors' minds, and it's going to make them very reluctant to even – we can force them to sit on a jury, but they're not going to necessarily be happy about it.
00:50:18.240And if they're not happy about it, they're not paying attention to the case, and we want them to pay attention to the case.
00:50:23.800So I think that this was really unfortunate, and it's going to sort of spoil the milk, so to speak, for all future juries, you know, anybody certainly who's watched this case.
00:50:36.820But I did want to point out something that I see Brian Enten, Megan, has posted.
00:50:43.660He says, Lindsey Clancy's attorney, Kevin Reddington, just told me in the hallway he does not plan to file emergency intervention with the Supreme Judicial Court.
00:50:53.800regarding this issue quote it's a waste of time he says what that's old um according to my team
00:51:03.140so i i don't i don't know that that's current we we have every reason to believe that's exactly
00:51:09.440what kevin reddington has been spending the past 42 minutes doing but maybe he'll surprise us once
00:51:15.020again um as the one of the court tv reporters uh tweeted out there kathy russon wrote a unicorn
00:51:22.360could walk into the courtroom and i would not be shocked at this point so i mean it really is crazy
00:51:28.680it's it's there's a new one from enton steve uh yeah okay enton let's see he just tweeted out
00:51:37.300standby 18 minutes ago we are all in the hallway waiting to see what is going to happen next with
00:51:41.960lindsey clancy if cutting if kevin reddington filed the stay with the supreme judicial court
00:51:47.020but does not get a response this could turn into a longer delay even though the judge gave him an
00:51:52.200hour. So that's his latest. And yeah, it could. I mean, it could turn longer, but I just can't
00:51:59.640imagine that the court, the appellate court is going to do that, Dave. I mean, they know what's
00:52:04.780going on. They know that these jurors are sitting there in limbo. They're prisoners right now.
00:52:09.280Yeah. It's unusual that there's this kind of attention to this appellate court. These
00:52:14.480justices or judges, they pretty much toil in obscurity and anonymity. And now the world is
00:52:21.040watching them and waiting for them to decide so they know the import of this moment and they're
00:52:25.860going to decide they're not going to just say oh i didn't know this was a big case you're all
00:52:29.500waiting on us to decide no they know there's a lot of pressure on them they will decide uh
00:52:34.480judge reddington excuse me judge reddington god forbid they're the judge the judge in this case
00:52:41.020is going to get his answer and then it'll be a mistrial today that's my prediction i'm sticking
00:52:45.640with it don't you do is it just me or i feel like i don't know this doesn't look like a
00:52:53.740young judge uh and so i'm just assuming he's been on the bench a while but i could be wrong i just
00:53:00.320feel like most judges would have denied that request out of hand jonna and said the answer
00:53:05.760is no mr reddington i'm declaring a mistrial deal with it you can take up whatever issues you want
00:53:10.260on appeal like the fact that he even indulged this is pretty extraordinary maybe at this point
00:53:16.780the judge doesn't want to be doxxed maybe at this point the judge doesn't want stones thrown at his
00:53:21.180front door he's letting you know he's giving giving reddington enough rope he's letting him
00:53:27.340you know have his dog and pony show he's letting him indulge as long as it doesn't take more than
00:53:32.200an hour because he knows too let's look at the practicality of this you guys it's friday on a
00:53:37.780holiday weekend with a case that has endured for what six weeks at this point with deliberations
00:53:43.200that have come back twice with with a hung jury hanging in the balance no pun intended on that
00:53:48.380we all see the forest through the trees half of the appellate division in that courthouse is
00:53:52.900probably already on the golf course they don't want to be making these kind of heavy decisions
00:53:57.720when it's not going to result in lindsey clancy going uh being put behind bars it's going to be
00:54:03.520we're back to square one so in terms of the ramifications of it if they rubber stamp and
00:54:08.800say nice try kevin reddington the answer is no get back in the trial department the judge
00:54:13.940sullivan declares a mistrial everybody gets to go to their barbecues this weekend and we decide
00:54:18.700what we're going to do on tuesday miss prosecutor and by the way just sidebar if they do try this
00:54:25.340again you guys i don't know how many female prosecutors they have in that office but this
00:57:53.980We don't talk like that down here, so I don't know.
00:57:56.120But in Massachusetts, I guess that's the thing.
00:57:58.620This judge, though, doesn't seem like one who's going to entertain this.
00:58:02.420And the reason why the judge has even allowed the one-hour appeal and has not been offended by some of the things that Rennington has said.
00:58:10.080Remember, Rennington said, you're a weak judge.
00:58:11.580that instruction was weak i think the judge and reddington know each other they both seem like
00:58:16.080they've been around a long time right and so he's going to indulge him but he's not going to indulge
00:58:20.640him on a ridiculous claim of being an ableist that's ridiculous and if he did he'd get overturned
00:58:24.960on appeal and then the judge again like the judge is kind of weak instead of being like
00:58:31.760fuck off kevin i i gave the instructions the way i give instructions he was like
00:58:37.260i'll try to do it with more pizzazz i was i'm humiliated for him like i'll dance for you
00:58:44.240kevin let me dance for you because he doesn't want to be appealed is really why he's doing it
00:58:48.200well he's going to be appealed but he doesn't want to be overturned so he's trying to create
00:58:51.700a record so that the appellate court when they eventually look at this say that judge did
00:58:55.260everything he possibly could to indulge the defendant's rights but i mean the able it like
00:59:01.380good luck with that that based on what i and you know what beyond predicting that the holdout is
00:59:07.040a Republican. I think it's clear Kevin Reddington is a lib because generally Republicans don't run
00:59:12.680around looking for ADA claims in the jurors that are against them. Phil, come on. This is
00:59:19.100ridiculous. Well, I can tell you, I'm sure that next week on the MK True Crime Show, Dave and I
00:59:24.660and Ashley will be talking all about this whole fiasco that we've been seeing that throughout
00:59:32.560the day today um and maybe that's something that that i can ask dave to thoroughly research so he
00:59:37.860can um basically go ahead i'll get right on it but speaking of which if i can take just a minute i
00:59:43.460want to ask your audience megan your youtube audience and your podcast audience too um if
00:59:49.600you haven't followed us um or subscribed to us we're everywhere you get your podcast mk true
00:59:54.500crime but we're also on youtube and we use a lot of video elements and sound elements and so it
01:00:00.580really makes sense, in my opinion, to subscribe both ways, podcast and YouTube. But I want to
01:00:05.840mention YouTube specifically, Megan, because you may not know this. We launched the channel,
01:00:12.540I think it was Labor Day or just after Labor Day last year, and we are just on the cusp of getting
01:00:18.060100,000 subscribers. So if your audience could help us get to that milestone, I promise you,
01:00:26.820We would really appreciate it, and that would be a nice thing to do to ring in our second year.
01:00:44.000They have good humor, which is, you know, that's not present in every lawyer.
01:00:48.140I don't think, I don't think ever, I'm not sure, I'm not going to give a job offer to Kevin Reddington over here at MK True Crime, although he's kind of entertaining.
01:00:56.300I will say that the bar, the Jira. I love it. In any event, this he's playing cards that are really ridiculous.
01:01:05.140Per Court TV, they're letting people back into the courtroom. It's now been an hour.
01:01:09.280While we wait for that, let's listen to that Disabilities Act claim on tape from Kevin Reddington.
01:01:15.460Further raise the issue of the American with Disabilities Act.
01:01:18.920I believe that this is a situation where there is a clear and present danger that this individual, for some reason,
01:01:24.720what it is we don't know but is is taking a position that's intractable regardless of proof
01:01:33.160beyond a reasonable doubt so i i want an opportunity to take an appeal to the single
01:01:37.480justice if the court will afford us that opportunity it's amazing so there's someone
01:01:44.620on the jury who is a bigoted ableist and felon according to kevin reddington the only criminal
01:01:54.100in that courtroom is the juror, not the woman sitting beside him who strangled her three
01:02:00.200children to death. That's Kevin Reddington's worldview. This is why I never became a criminal
01:02:05.600defense attorney. Guys, I like I couldn't do it. I couldn't make these arguments.
01:02:10.120Well, not all of us do. Yeah, I don't. Well, yes. I mean, some would stay within the bounds
01:02:16.220of decency in the law and just argue. What do you mean? Zealous advocacy. Great. I'm all for it.
01:02:21.220you know, give me the appeal, fight to the end, try to preserve this verdict if you can,
01:02:25.980because it's good for you. Great. I love it. But this is crazy, Phil.
01:02:29.100Yeah. I mean, I've never heard of the Americans with Disabilities Act being invoked in a criminal
01:02:33.760case. This may be the first time. I don't know. But I certainly can't think of any reason how
01:02:40.380it might apply in the context of jury deliberations in a criminal case, even if the defendant is
01:02:49.700paralyzed in a wheelchair uh i just you know i mean i just don't i don't have no idea how it's
01:02:55.360going to apply and you know sometimes lawyers just make stuff up and they just pull it out of their
01:03:00.700rear end just because they feel like they need something to say whether it applies or not and
01:03:05.540that's kind of what i sense going on here i don't think that reddington really believes he's got a
01:03:09.980claim under the ada he's just throwing things out to try to get the judge to bite on something
01:03:15.360what's the clear and present danger like what like is the arm like i don't understand
01:03:21.420that's right that was a great movie with harrison ford harrison ford yeah yeah clear but you know
01:03:27.980it's like he just started spitting crap out no it's like a few good men i strenuously object
01:03:35.840is that how it works the two youps anyway i don't know what he was doing there but yeah
01:03:41.220And the I don't either calling the trial judge right now saying, well, what's going on? And Judge Sullivan's probably like, yeah, don't worry about it. Just bring we'll bring him back in an hour.
01:03:51.700Is there any opportunity here for a partial verdict? Is there is this or is that a non sequitur? Because we're we're at a ruling for all for all the charges, which is we're hung.
01:04:07.800I mean, that's that's I know that's a ruling, too.
01:04:10.800Like, is there any chance he could say, go back and deliberate on just one charge or I think they're hung on any other option?
01:04:17.960They're hung on whether or not she's not guilty by reason of insanity.
01:04:21.320And they got to get past that before they can start considering any of the charges.
01:04:26.740Yeah, I get a sense that they're hung on on everything that that one juror has decided, no, she's guilty.
01:04:33.020And this is not going to be a compromise.
01:04:34.800This is not just about involuntary manslaughter and they've already acquitted on the first charge, although that's a possibility that they could have just said not guilty on murder.
01:04:42.720But this is about the lesser charge. But I suspect based on what we're hearing about this juror, that this juror doesn't want her to be found not guilty at all.
01:04:51.760Thinks there's criminal responsibility here. And so I think this is about 11-1 on all the counts.
01:04:57.180i think that's right that that has to be it because if they had if if they started to consider
01:05:05.200the individual counts like if they went after it with murder one and then the juror said i think
01:05:11.080she's not guilty by reason of mental disease or defect and the one guy said i don't think that
01:05:16.480i think she's guilty they would have gotten stuck right there well how can they i don't know i mean
01:05:23.260And I guess they if that guy felt that way on murder one, he felt that way on murder, too.
01:05:28.900He felt that way. Like, I mean, this guy doesn't think that she is.
01:05:31.120But if they if they believe that she's if they believe she was that she would be excused, if they believe that she was not insane at the time and then they moved to deliberating in the counts, how could they possibly have 11 votes for not guilty when she doesn't even contest that she did the act?
01:05:46.680so that's that's why i believe they're still stuck on the very first question which is
01:05:51.640the mental health or the not guilty by reason of insanity part because they you know the
01:05:57.360prosecutor has to disprove that claim beyond a reasonable doubt and once the jury decides that
01:06:03.880the prosecutor has done that that she did know right from wrong etc and could conform her actions
01:06:09.180to the law then they can start deliberating on the criminal counts is she guilty of murder in
01:06:14.200first degree second degree or whatever so i just don't see how they can get to any of those actual
01:06:18.960criminal charges until they get past the ngri question i got a question for you um you know
01:06:27.780how with convicted pedophiles there can be like a court-ordered chemical castration
01:06:34.120is there anything like could they strike a deal where this woman agrees to have her tubes tied
01:06:41.380or do something so that she cannot have more children you know is is that even potentially
01:06:46.860possible john i likes the idea i can tell no no i you know anything is possible behind the scenes
01:06:54.200like when we're negotiating other kinds of criminal cases we can offer the defendant to do something
01:06:58.780extraordinary and then the da will make a deal that you don't know that the extraordinary thing
01:07:03.840has happened because it's not part of the deal but it's the precursor for the deal but what's
01:07:09.340going to stop her, Megan, from killing somebody else's kids? What's going to stop the voices from
01:07:13.540happening for 18 minutes and she and she kills an adult or she kills a dog? What's going to stop
01:07:18.800that? So I don't know if that would be good enough for me if I were prosecuting the case.
01:07:23.780You can, though, maybe. Yeah. How about cutting a deal where she's guaranteed a certain number
01:07:27.440of years in the mental institution and that way she can't really get pregnant there?
01:07:32.300What if she's not mental? Like, what if she's fine right now? Like, we don't know what her last,
01:07:37.580evaluation revealed? We don't know that.
01:07:41.840What if she's perfectly... They are telling us that she's not hearing the voices anymore.
01:07:45.080Yeah, she only heard those for 18 minutes.
01:07:48.180She's confident to stand trial. What about that, though, that you can at least guarantee
01:07:53.160a certain number of years in that institution? I would think
01:07:57.180you could do that with the defense lawyer. That way she doesn't just get released in a year. Maybe that's the
01:08:01.080solution. I just don't know what the mechanism for that would be, Dave.
01:08:32.940And on the way out, we are accusing the holdout juror of possibly somehow violating the Americans with Disabilities Act because he's so intractable, in his opinion.
01:09:19.700And it's the sacrosanct job of the criminal defense attorney in America, which is one of the most important jobs, I think, Megan, that exists, right?
01:09:27.500protecting people from false accusations is is a really important thing and when you're in the
01:09:33.720process of protecting your client from what you believe is a false accusation here okay um
01:09:38.600you don't accuse other people falsely of committing crimes you know i just i think that's a step too
01:09:44.700far another thing to remember kevin reddington picked this guy kevin reddington argued to this
01:09:49.080guy and i think kevin reddington's argument his closing argument wasn't very good personally i
01:09:53.960I think he lost this guy in his argument, and part of that is because I was a big Kevin Reddington fan at the beginning of this.
01:10:00.560Tactically, I thought he was doing a great job, but he lost me over the course of the trial.
01:10:04.060I think he comes off as a bully sometimes, and if you come off as a bully to a juror, you're going to lose him.
01:16:12.940Well, no, I agree with you. I mean, you need a zealous advocate to be able to make these
01:16:16.880points. And I feel like that's, that's been one of the frustrations in watching this. Reddington's
01:16:20.160been one, but the prosecution has been so lackluster and all of us can see if you had a
01:16:25.400little bit of passion, how you could have sold this better to the jury and thought organization
01:16:30.560and talent at cross-examination and where well-placed, you raised this earlier, Matt,
01:16:35.360and you were right, some righteous indignation at the behavior of the, of the defense attorney.
01:16:40.540If for no other reason than to telegraph to the jury, he is out of line. You know, that guy's a
01:16:46.100jerk and get them, you know, drive a wedge between the jury and the defense. You don't want them
01:16:50.860buddying up to him with his Boston accent and his Boston charm. You want to show them this guy. No,
01:16:56.960he's not your friend. He's a jerk. As soon as you leave the room, he's going to call you a felon
01:17:00.780if you side against him. Yeah, the counterpunch is one of the most important things tactically
01:17:05.280in any trial. Megan, it's being able to come back on your feet and push back against that stuff.
01:17:09.900And unfortunately, we just didn't see much of that in this in this case.
01:17:14.200I think I think to his credit, he's a very effective advocate for client.
01:17:19.320I think this case was his to lose going into closing argument, given how the trial went.
01:17:24.900And he lost a juror. Now, man up and, you know, take it like you like I mean, we've all been there before.
01:17:31.960Like a trial attorney. Yeah. Every person on this panel has hung a trial 11 to 1.
01:17:37.040We all have. It's a part of the job. It happens. And then the next thing is what happened. But I guarantee you nobody here has ever accused somebody of perjury in their juror oath when that happened. That for me is a step too far. The prosecution should have been all over him on that.
01:17:53.620And remember, the prosecution gets the last word and he went after them.
01:17:57.760He went after the cops in his closing.
01:17:59.500I thought his closing argument was disorganized compared to what I was expecting from him.
01:18:03.960And and then the prosecution did a 40 minute closing argument.
01:18:07.100They barely talked about the law and they didn't counterpunch Kevin Reddington.
01:18:11.460So, yeah, this this has been this has been really interesting for you to watch.
01:18:16.620But I think I'm not alone on this panel.
01:18:19.020I say it's also very been frustrating.
01:18:20.820you gotta like i don't know if it's the fact that she's a woman or what but like
01:18:26.920i used to do battle with the male attorneys i was up against in a way that was like i couldn't
01:18:33.700stand the fact when i ran into one who would diminish me because i was a woman and there
01:18:37.300were plenty trust me because i graduated law school in 95 um it it would i'd be so excited
01:18:42.860it would be so fun i would make a record i remember at depositions going you seem upset
01:18:48.860do you do we need to step outside do you need a break and these male lawyers would go freaking
01:18:53.900nuts and they couldn't stand being needled by a young lawyer who's calling them out on their
01:18:58.520emotionality there's a way of doing it is simply my point when you're a woman up against a man
01:19:03.020who's a big personality who's like insulting who's diminishing and this woman she was just
01:19:08.620too she was nothing she was like flat and kind of checked out she didn't see she didn't telegraph
01:19:15.160to me that she had passion behind the case and i think some passion would have been in order here
01:19:20.340there are three dead children it's like somebody was mentioning a moment ago um oh you know she
01:19:26.920was in there she lindsey clancy she was crying she was crying at the autopsy shots of the children
01:19:33.800she killed like who cares that she's crying like if i were the prosecutor i think i would have said
01:19:39.000oh she cried now she cries who's she crying for she's crying for herself you know who else cried
01:19:44.700I guarantee you her eight-month-old cried as she strangled him to death.
01:19:48.140She had absolutely no mercy for them, nor should you for her.
01:19:57.820So I just kind of feel like, whatever, I don't feel sorry for her either, that she lost 11 jurors.
01:20:02.400And, you know, she's largely to blame for this pickle that she's in, too.
01:20:07.080Well, Megan, if I can add to that, you're exactly right.
01:20:09.660The prosecutor on balance did a better job than the defense when it came to closings.
01:20:13.920But the first thing they talked about was basically an admission that Lindsey Clancy, you know, had serious, severe mental health conditions at the time.
01:20:26.900Now, obviously, they didn't say it went so far as to being, you know, clinically insane, but they did lead with an acknowledgment of that.
01:20:36.800Maybe it was strategic, but then they didn't do anything really to talk about the kids.
01:20:40.640But guess who did? Kevin Reddington did because he got out there and like basically gave the jury a visual of what it must have been like for her to strangle the kids.
01:20:49.740And I thought that was very bizarre. So the closings leave much, much, much to be desired here.
01:20:56.520But I wanted to point out also that you were talking about could there be, you know, copycats or how many people are going to start using this as a mental health defense in cases moving forward.
01:21:07.560But in the United States, I don't know how many hundreds or thousands or maybe a million felony prosecutions a year, less than 1% of those employ a defense of insanity.
01:21:21.440And then when it is used, it's only successful about 25% of the time.
01:21:25.660So it's like 0.3% of all felonies wind up with an acquittal based on the insanity defense.
01:38:33.800and replace him with an alternate, one assumes, or question the juror further to determine whether
01:38:41.500he can, in fact, follow instructions. And it kind of doesn't matter right now what this judge on
01:38:50.080Massachusetts Supreme Court says, because the mistrial has been declared and the jury's been
01:38:56.520disbanded and excused. So there will be no cross-examination of the mystery juror. There
01:39:02.780There will be no excusing of the juror because all of the jurors are gone now, and I don't know what the Massachusetts Supreme Court judge is going to rule, and it could make for an interesting appellate issue if that judge says Judge Sullivan was wrong and should have done one of those two things.
01:39:24.840okay they'll litigate that on appeal like they always do when there's a trial court error but
01:39:29.700for now kevin reddington has lost his motion to keep this thing alive and to try to salvage
01:39:38.020a not guilty by reason of insanity verdict out of this jury that's where we are right now um okay
01:39:45.820i'm gonna bring in our panel we've got uh the whole gang back from earlier phil houston
01:39:50.020matt murphy jonah spilboer and dave erenberg back with me now as well so it's over for all
01:39:56.500intents and purposes for now and you heard the judge start talking about what's the next trial
01:40:01.640date what what are we gonna what are we gonna rebook the next trial and the defense is more
01:40:07.200focused on a motion to reconsider that he has to file within five days which he acknowledged he
01:40:12.320expects the judge to deny and then we'll figure out what's what but this whole drama of the past
01:40:19.660what, two plus hours was all for not Dave Ehrenberg, because whatever this Supreme Court
01:40:26.280justice does, it's over. The jury's gone. Yeah, it's over. The best chance they had was that
01:40:31.560quickie appealed interlocutory appeal where they did it on Zoom and I got to watch it.
01:40:37.620And here's I want to read you one sentence from actually the appellate brief they put out.
01:40:43.320This is going to make you crazy. It says, I know what you're about to read and I'm with you. Do it.
01:40:49.380Here, the removal of the juror is particularly important because the juror's reasoning reflects a bias against those who suffer from debilitating mental illness, a protected category under both the Fifth and Fourteenth Amendments and Article 114 of the Massachusetts.
01:41:11.620He's leaning in to the ADA stuff about being an ableist.
01:41:15.540This is like a false accusation. But because you do it in a legal brief, you get immunity. So he'll get away with it. But I'm glad the appellate court didn't buy into it. Justice was served, at least when it came to this motion. And this thing was always headed to a mistrial.
01:41:29.540The next page of the motion seems to tell us why he's doing that.
01:41:36.620It reads, in Commonwealth v. McCallop, this court outlined the judicial protocol in cases where juror racial and or ethnic bias is alleged.
01:41:49.620In such cases, the judge must determine whether the defendant has proved by a preponderance of the evidence that the offending juror was actually biased.
01:42:00.700So they seem to think that if because of the defendant's race or ethnicity, considering the content of the statement in court, the same considerations apply here in the context of mental illness.
01:42:12.620So he thinks he's going to get a better standard applied.
01:42:17.120Right. He says in cases where bias has been alleged, the just must determine whether the defendant has proved by a preponderance of the evidence that the offending juror was actually biased because of this issue.
01:42:28.140And so they're trying to up the ante on this judge saying you have no choice when we allege bias.
01:42:34.280You have to cross examine the juror to figure out whether he's biased.
01:42:38.460And I feel like, Matt Murphy, this judge treated that.
01:42:42.660Well, we haven't gotten a ruling from the Supreme Court judge, but this trial court judge treated the argument, which was raised in front of him about the American with Disabilities Act, with the respect that it deserved, which was to completely disregard it and issue his ruling telling them to get out.
01:43:01.060Like, as critical as I've been of the prosecution on this case, I think the judge has been equally, equally good.
01:43:07.060And yeah, he knocked that down. He gave it he gave it the I'm sure he considered it properly, all that.
01:43:12.560But he gave it exactly the short shrift that it deserved because it's an absurd argument.
01:43:17.760Yeah. What did you think, Jonna? So it's over for now, right?
01:43:20.680Like whatever happens at the Supreme Court, you can't resurrect a dead jury.
01:43:26.540No, you can't resurrect the dead jury.
01:43:28.700But I have to wonder, on that particular argument, can we rewind five or six weeks when they were picking this jury?
01:43:37.360Because I can't imagine a world where there wasn't a question on the on the juror questionnaire or in voir dire where they made inquiry,
01:43:45.780whether maybe anybody on the panel had a bias against people with mental illness, because that was the heart of the defense.
01:43:53.480Did anybody have somebody with mental illness in their family?
01:43:56.180Have they ever known anybody with mental illness?
01:43:58.080That had to have been vetted when they were picking this jury.
01:44:02.760So it seems a little disingenuous to now raise it as a as a Hail Mary to try to keep this case alive by making everybody sit through another lunch on a Labor Day weekend and taking it to the higher court.
01:44:15.120And that's, you know, he's like one of these, you know, that commercial like it ain't over rock, you know, like Rocky's getting beat up like and he just doesn't want to die.
01:44:23.240He just doesn't want to call it or stay down.
01:44:25.680that's Kevin Reddington in this case but ultimately I know he's he's treating this case like you know
01:44:34.480he's got something going on with Lindsay Clancy uh like Bill Hemmer used to say you can take the
01:44:39.100the L out of lover because it's over like it's over sorry Kevin like you did a great job getting
01:44:47.06011 of those jurors on your side actually will probably change your client's fate in a very
01:44:52.080favorable way but you know phil this guy's got to learn to take the l like it's oh take a w it looks
01:44:57.720like this trial judge will be his trial judge the second time around so you really don't want to
01:45:01.280alienate him completely i don't think he's taking an l and i'm not there may not be another trial
01:45:06.380with this or any other judge because see here's here's what reddington's actually doing he's not
01:45:11.200necessarily playing the game that we think he's playing uh because there's there's the short game
01:45:17.020which is now which is today and then there's the long game and so he knows that he either had to
01:45:22.680he had a let was 11 to 1 he was very very close to just winning outright and he could taste it and
01:45:28.400it's and so his his goal was either to get the juror removed uh or um in some way maybe get a
01:45:37.600an alternate on there so that he could get the 12 uh to agree to um not guilty but in the
01:45:45.220alternative. And since that's not going to happen now, mistrial has been declared.
01:45:50.000He's obviously opposed the mistrial. He's opposed it vigorously, and he's raised a lot of other
01:45:56.840issues, frivolous and otherwise, as part of it, including this effort that they're going to the
01:46:02.600appeals court. So now what's going to happen? He says he's ready for trial. He wants to go right
01:46:07.440away a week after next, but I don't think he really does want, because what you're going to see
01:46:11.580between now and next week, probably, as you're going to see something we would call it here in
01:46:17.600Georgia, a plea in bar. He's going to say that the second trial is barred on the grounds of
01:46:24.080double jeopardy. And here's why. He's going to say that because this was a mistrial,
01:46:29.780then it was done over the defense's objection that it would be a manifest necessity is what
01:46:38.400you have to have to have a retrial over the defense objection. And so he's going to say that
01:46:45.500even though this was a jury mistrial based on not reaching a verdict, he's going to say that it was
01:46:51.360still error and that in order to try her, there has to be a manifest necessity, which he's going
01:46:56.300to say there is not because he's going to allege these errors by the court that were not opposed
01:47:02.980by the prosecutor. So that's in a nutshell where he's going. He's going to try to get his cake and
01:47:07.360need it too. He's going to try to get his win now from the court of appeals.
01:47:13.380I mean, I guess if he can, if he can persuade the appellate court that this note, he's
01:47:20.620acknowledged doubt, but is refusing to apply it to the case as the law states, if he can
01:47:26.220convince the appellate court that that was an allegation of a juror who refused to follow
01:47:32.060the court's instructions on the law i guess there's some tiny percentage chance that you
01:47:39.820know the appellate court could say the judge should have done a voir dire of the juror but
01:47:44.020i don't think so matt i just feel like in general the appellate court is going to be very deferential
01:47:48.260to the trial court judge he did bring the jury back in and he did question them one by one
01:47:54.760can you follow the law can you be fair and they all said yes and the appellate court's probably
01:48:00.540not going to require more than that. They're not these appellate courts are not actually looking to
01:48:04.740to perform colonoscopies on every decision the trial court makes. No, no, they're not. And it's
01:48:13.560like they this is the law according to Kevin Reddington, right? Like where any doubt equals
01:48:19.280reasonable doubt. And that means you got to vote for my for my client. That's just not the law.
01:48:23.860And another thing, Megan, what's interesting procedurally about this is what's the remedy?
01:48:27.160You know, what do they do? Bring the jury back and force them back to deliberate? That's not going to happen. So she wasn't convicted. So the appellate options for the defense here are pretty limited. I think that like the remedy would be a new trial, basically. And that's what she's going to get if she wants it anyway.
01:48:46.920so well and there must be i haven't had a chance to research the law in massachusetts
01:48:51.740but there's a reason they switched to this is about bias so quickly clearly the person writing
01:48:58.040the brief thought they'd do better they had a higher chance of compelling action by the judge
01:49:02.800but that's not going to fly either because there's zero evidence this juror has exhibited any bias
01:49:09.100you imagine that world it's like okay my client has mental health issues and therefore any juror
01:49:13.280that votes against me is biased against my client from mental health issues. It's completely
01:49:17.160circular. It's fallacy reasoning. And the court of appeal is going to spot that. It's, you know,
01:49:23.180I mean, we'll never have another criminal conviction if that's the case, unless you're
01:49:26.780like a straight white man, you know, in America. Like, it's just it's not going anywhere.
01:49:33.420Well, most jurors are biased against criminals. So you're right. We would never have another
01:49:37.220trial. So that's not going to work. Yeah. I mean, that's what he was saying
01:49:42.880when we saw the ADA, I just assumed he meant the wheelchair. No, he was talking about the drugs,
01:49:48.360the mental illness that he was. So it's like the whole purpose of the jury was to determine whether
01:49:54.620she was so mentally ill that she was legally mentally ill. But because this one guy wouldn't
01:50:00.700say yes to that, he has to be violating the Americans with Disabilities Act. He's got to be
01:50:05.800biased against mentally ill people like this. Like that is so circular. You will find not guilty
01:50:11.960or you will be accused of bias against the mentally ill, Dave.
01:50:16.380Unless this juror actually said, you know what?
01:50:19.500I'm not going to let her off the hook because I don't like people who are mentally ill.
01:50:23.660I don't like people who take these drugs.
01:50:37.460Right. And Reddington would have held that up and proclaimed it to the world.
01:50:42.040So we know that didn't happen. So this is this is done.
01:50:45.420It's dead. It's done. And now the big question is, will the two sides reach a deal to avoid another trial?
01:50:51.540I think they will, because the prosecution sees that it's 11-1.
01:50:55.320They don't want to do this again. I think the whole I actually have a question, though.
01:50:59.020I have a question for you before we get to that.
01:51:01.820The two sides agreeing what could happen literally any moment now or any day now.
01:51:07.460is a juror pops up in front of a microphone or, you know, if history is any guide on the
01:51:13.080Today Show or Good Morning America. Like those shows are irrelevant now, but they still believe
01:51:17.860they're in the booking wars of 20 years ago where their bookers, like this is why they pay the
01:51:22.960bookers what they pay them. Get the jurors, get me two or three jurors. So my bet is we will see
01:51:28.380a couple of them, if not at the mics shortly, then on one of the morning shows tomorrow or
01:51:32.900possibly on cable tonight and um you guys all know when you are the winning side it's terrifying
01:51:40.840to see your jury speak you don't know what they're gonna say is it gonna cause a problem for you
01:51:47.560you know like and it did like i keep going back to scott peterson just got neck deep in that case
01:51:52.640but it it did cause trouble for scott peterson there was remember strawberry shortcake that one
01:52:00.360juror on the scott peterson trial do you guys remember this with the bright red hair she she
01:52:06.640wound up on the jury and she shot her mouth off after the verdict and she started writing letters
01:52:13.680to scott peterson and that unleashed a whole can of worms that upped the interest in her
01:52:21.500led somebody to go back to her juror questionnaire and that issue remains alive in the scott peterson
01:52:30.280case to this moment. Like it. So it's terrifying when the jury speaks after their service is over.
01:52:37.260And that's my question. Could the jury still somehow upend this in Kevin Reddington's favor
01:52:46.000by going out either the one guy himself or the others who are now they weren't free to say what
01:52:54.120was happening in the room before, but now they are. What if they come out and they say,
01:52:57.380he said he doesn't like mentally ill people he said he could never vote for one or he said i
01:53:04.180don't give a damn about that moral certainty thing i in my gut i just i can't possibly vote her not
01:53:10.420you know like whatever they could say so what are the remedies after the jurors speak and is anyone
01:53:15.480worried about that well if you're asking me um i i can take it i look i think that because this
01:53:22.600was a mistrial that was objected to, okay, as I mentioned before, they're going to come back now
01:53:28.700and they're going to say, look, this is a mistrial over our objection and that the mistrial was not
01:53:34.960manifestly necessary. And that's the constitutional magic words. And therefore, the next trial would
01:53:43.060be violent to have the double jeopardy clause. And therefore, you can't have a new trial. So to
01:53:47.760the extent that these jurors might come out and make statements, if Reddington and his team find
01:53:54.500that there's anything that happened back there in that jury room that can support their position
01:54:00.960that the mistrial was not manifestly necessary, they can get affidavits from those jurors. They
01:54:09.020can use that as part of their appeal. So yeah, sure, some things, depending on what's said,
01:54:13.420And of course, they're going to try to interview all of the witnesses, the jurors that they can, because they may become witnesses at any future hearings to try to support the position.
01:54:24.440It just makes your case better. Does it not? Like, Jonna, if I'm Reddington and I get a juror to say something that's damning for the holdout, something that makes it sound like, you know what?
01:54:38.420that judge should have wadiered him again and this would have come out you know if the jury's like
01:54:43.660no he was you should have seen this guy in the deliberation room he his arms were crossed he
01:54:48.980literally put his hands over his ears he told us he he'd had it and you know he was just never
01:54:54.980going to find reasonable doubt he didn't care what the judge's instructions were whatever
01:54:57.880at a minimum you put that in your brief as Reddington and on an alive appeal to the Supreme
01:55:04.460court and now you've got their attention maybe now thanks to your weird disability
01:55:08.680objections saying you know the judge had a heightened duty what's that Steve we have a presser
01:55:14.720oh the DA let's see yeah let's go to him this is Tim Cruz let's watch the jury obviously worked
01:55:23.480incredibly hard stayed with that case for six and a half days and that truly is people who
01:55:30.240understand the word of service as to what they did for our community, and I am grateful for that,
01:55:35.200as we all should be. But in the end, I understand that this has been an emotional trial for
01:55:42.400everybody. It's emotional for the Duxbury community. It's even emotional for you members
01:55:48.500of the media. But in the end, I bring it all back to the child victims in this case,
02:07:37.780And these poor women with families and children of their own on the county dime, not being paid nearly as well as Kevin Rennington, have to go home, feed their kids and then worry that one of their kids is going to get run over in the street because of a crazy mob.
02:23:20.480it opened up with him taking a shot at the DA for what he said was having to read their names,
02:23:29.020the children's names off of a list. What the, I mean, that he is, you know,
02:23:34.980maybe we'd all get to know the three children, Cora, Dawson, and Callum a little better,
02:23:41.320Kevington, if their mother had allowed them to live, you know, if they had been allowed to live
02:23:46.340and flourish and get their own lives going and flourish in this world in a way that they would
02:23:50.160have come onto our radar as stars or geniuses what have you we'll never know why because of
02:23:58.680the woman you said nothing bad was said about in the court no she's an absolute saint why are we
02:24:06.000here again this is like this is gaslighting john he just said that went too far he wants i guess
02:24:13.360he wants the public i guess he wanted the jury to to fall in love with her and to like her and
02:24:18.380She's maybe just not very likable because regardless of her mental health problems, she did brutally and horrifically kill three young children who are innocent and helpless, the victims of the case.
02:24:32.720And she did it in a terrible, horrible way.
02:24:34.760So that's why the jury, even though there was 11 of them that were voting to find her not guilty by reason of insanity, that's the reason they didn't want to look at her when they entered the room today in the courtroom.
02:24:45.100him uh she's she's not really a likable person right she um at least not from what we've seen
02:24:51.900and he wants to uh ask us as the public i guess to to like her as a person and that's just that's
02:24:59.500just too big of an ask um you know it's one thing to say that yeah she did something terrible and
02:25:05.540you know if she if she could take it back she would but she can't but she did not understand
02:25:10.860what she was doing at the time due to severe mental illness,
02:25:13.840and so therefore the law means she's not guilty of a crime.