00:13:05.620That juror told you that he would be able to apply the law to the facts as you asked
00:13:11.500And based on this note from this juror, it clearly and unequivocally indicates that it clearly 11 to 1, and this person will not apply reasonable doubt to the evidence to return a not guilty verdict.
00:20:56.880I'm going to just give that instruction,
00:20:59.860as I said, that they have to follow my instructions.
00:21:03.120I'm not going to reiterate the reasonable doubt
00:21:07.860at this point, it may come to that again
00:21:11.360as we go through it. Uh, and I'll try and give this with, with, uh, more pizzazz than I gave
00:21:16.680yesterday, I suppose. Um, but, uh, so with that, we'll bring the jury back in and, uh,
00:21:24.540I'll ask the questions. I'll give those kind of that instruction and we'll send it back out.
00:21:31.480All right. Bringing the jury in, we'll get a break.
00:21:36.060Wow. Wow. As he brings the jury back in, let's talk and then we can go back if there's action
00:21:41.000in the courtroom. But there you have it. The answer to our mystery right there. The note from
00:21:46.540the jurors from the foreperson said that there is a juror who has acknowledged doubt but refuses to
00:21:54.580apply it to the verdict. That's why Kevin Reddington was so sure that the one holdout was
00:22:01.420against him and why the prosecution is arguing that that juror should not be bounced. And overall,
00:22:08.520what we heard today is Kevin Reddington also accusing the juror of lying to the court when he,
00:22:15.880they use the pronoun he, was questioned yesterday. But Kevin Reddington lost for now. His push to
00:22:24.260have the judge bounce the juror, do additional questioning of the juror in court and so on,
00:22:28.880was rejected. And he pushed it to the point where the judge got pissed, you heard there at the end.
00:22:34.180you you didn't give the reasonable doubt instruction forcefully enough he said what
00:22:38.600what would you like me do to do call in a brass band um he didn't appreciate that and you always
00:22:44.000know as counsel when you're out on a thin reed and you've gone out too far the judge will slap
00:22:48.980you and you got to back up a little so it doesn't look like this judge is going to do jonna what
00:22:54.840what kevin reddington wants him to do he's gotten all he's going to get the judge is doing the right
00:23:01.720thing, though, Megan, because it is it is a major I don't know, it takes almost an act of God,
00:23:08.260I think, to remove a juror under this situation. And the judge doesn't think it requires that level
00:23:15.200of, you know, judicial scrutiny under the circumstances. And at the risk of being odd
00:23:21.620woman out and I'm OK with that, God knows I've done that for my entire career. I am still not
00:23:27.320convinced, you can beat me up if you want to, that the fact that a juror has expressed doubt
00:23:32.480means that that juror is wholeheartedly on Kevin Reddington's side. Maybe this juror is having
00:23:39.440doubt, but doesn't know how to define reasonable. He's not on Kevin Reddington's side. The theory
00:23:47.000is he's on the prosecution's side, that the other jurors are complaining he, and they do know,
00:23:53.360which they also revealed that the note the jury sent revealed which juror it is. They used his
00:23:59.300juror number and also revealed the split. So there was a lot that no, we did not know about.
00:24:04.360They said who it was, the juror number. It's a man. And what the split was, 11-1. But that doesn't
00:24:10.680and said he has acknowledged doubt that this juror has acknowledged doubt, but refuses to apply it
00:24:16.800to the verdict. So, Phil, it is somebody who is refusing to go along with 11 others who appear
00:24:25.500to be ready to side with Lindsey Clancy. That's what we just learned. Yeah, and if I can take
00:24:30.260just a quick minute to gloat. I said this yesterday. I said when they went to the sidebar
00:24:35.180before we had any argument in the courtroom, they all went to sidebar, and they spent several
00:24:40.880minutes there before they brought the jurors in for a little questioning at the judge's bench.
00:24:47.800And my prediction, my sense yesterday was there's a lot more in that note.
00:24:52.020There's something in that note that tells Reddington that, you know, this juror needs to go because it is, you know, it's so close to him getting the verdict that he wants, which is going to be not guilty by reason of insanity.
00:25:06.560And so it now makes perfectly good sense to that we can understand why he wanted an alternate juror.
00:25:13.220But the thing about an alternate juror, you know, we don't know how that person might go because the deliberations would have to start all over again.
00:25:20.980And you add another person in there, does that person then try to, you know, does that person want to vote guilty and bring some of the others over to his or her side?
00:25:30.020So it's, you know, it might be a situation where Reddington needs to stick with the devil you know, so to speak, versus the devil you don't know and rely on this judge's instructions.
00:25:41.660He's about to remind them again that they must acquit a defendant if they have reasonable doubt.
00:25:47.380And so I think that given these two sets of instructions now, that might just be enough to budge that juror off of his position, because now we do know it's a he.
00:34:48.080Well, my point, Judge, simply is that you're kind of glossing over the issue.
00:34:54.780The issue is this juror will not, according to that note, apply the law of reasonable doubt.
00:35:03.420And that's why I've requested, you know what I've requested, so I know my objection.
00:35:07.200But just in case the record is clear, I am specifically not glossing over this issue.
00:35:14.200I have thought about this issue long and hard.
00:35:17.120I know the defendant objects, but the characterization that I'm glossing over it, trust me, that's not the situation.
00:35:26.840He said he'd give the jury the instructions again or not.
00:35:30.500He wasn't going to reread the reasonable doubt instruction, but just remind them to follow the instructions with more pizzazz, Phil.
00:35:36.040This judge is trying to avoid reversible, committing reversible error. But the biggest danger zone for him in reversible error is to bounce the juror. The judge is not going to bounce the jury. He's made that clear this morning without more.
00:35:51.660Like if another note comes back suggesting he's he's gotten more egregious in his alleged refusal to follow the reasonable doubt standard.
00:36:01.400OK, maybe we'll have to go there. But what what it seems to me is this jury is sick and tired of this guy holding out, saying he doesn't have reasonable doubt.
00:36:12.840or maybe to John's point, maybe he's holding out saying he does have reasonable doubt,
00:36:16.960but this juror is holding on to his own version of what a reasonable doubt is,
00:36:23.100having heard the standard, and he's allowed to do that.
00:36:27.220Yeah, he's allowed to have his own personal convictions,
00:36:31.460and if he's not certain that his doubts rise to the level of reasonable doubt,
00:36:37.760pardon me then he's absolutely um you know deliberating the way we would want them to
00:36:43.240but a couple of points here to something jonna just said she's not sure that the jury is leaning
00:36:50.400towards not guilty y'all can please correct me if i'm wrong but i think i heard um whether it
00:36:56.600was reddington or the judge or maybe both you know they didn't exactly read verbatim the the note or
00:37:03.380notes, but they did read from them apparently. And I thought I heard one of them say that the
00:37:09.140juror was refusing to acquit or something along those lines. And the other point that I want to
00:37:16.240make is when the jurors were brought in yesterday to the sidebar and the judge questioned them
00:37:23.100individually, we don't know what they were asked and we certainly don't know how this one particular
00:37:29.120juror answered. So Reddington has accused him of making a false statement, but I'm going to reserve
00:37:35.960judgment on Reddington's claim because I don't know what the juror said to the judge when they
00:37:42.820were at the bench. So it's kind of hard for me to evaluate whether or not the juror made a false
00:37:46.760statement if I don't know what the statement was. So Reddington was there. He was privy to it. I
00:37:51.500wasn't. So I would have to reserve judgment on whether or not he went too far in accusing someone
00:37:57.760of lying. I do acknowledge that it's a, you know, it's a, it's a big claim and to make it an open
00:38:02.460court is not something that should be done lightly for sure. But I just don't know what was said. So
00:38:08.600I don't think we can, we can comment on whether or not it was a lie. I didn't hear the judge or
00:38:14.740Reddington say anything about acquittal. We can go back and listen to it. I'm looking at all my
00:38:20.960notes of what he said. So first, first we had the prosecutor say the instruction to the jurors to
00:38:27.460return to deliberation is what's needed we don't need further questioning of the jurors and then
00:38:31.780you had um then she said there's no inability to deliberate there's only disagreement the defense
00:38:38.420stood up and said any defendant is entitled to uh jurors who are true to their oath if one juror is
00:38:46.000refusing to follow instructions for personal reasons um which i believe is what's happening
00:38:52.100then we have a problem. I've never seen a situation like this, he said, where a juror has
00:38:59.580made statements acknowledging doubt, but will not apply it to the facts. That's when we first
00:39:05.320had the light bulb moment of, okay, the note was more specific than we knew. Then he said,
00:39:11.500this juror lied to you. He said he would be able to apply the law to the facts. He won't apply the
00:39:17.320reasonable doubt standard to these facts. There were two notes. He's acknowledged doubt, but
00:39:22.820refuses to apply it to the verdict. I believe he made a false statement under oath to you. He won't
00:39:27.700apply your instructions. The prosecutor, the note did not indicate that he was lying to the court.
00:39:32.480The foreperson said he's not following the law. The judge, special circumstances only come
00:39:38.200when, oh, you can only discharge a juror for special circumstances, only for reasons personal
00:39:47.260to this juror can he be discharged. I see no reason for additional questioning and then
00:39:54.660acknowledge that the note yesterday reflected the juror has acknowledged doubt but refuses to apply
00:39:59.900it to the verdict. The note did not indicate that he refuses to follow the law. I asked each juror,
00:40:06.560can you follow the instructions? And they all said yes. And then they had their little fight
00:40:10.800over what he should say when the jury came back in. That's where I think we are. But I wonder if
00:40:17.020you have any thoughts on, Jonna, the threat that was made by Kevin Reddington to the juror,
00:40:23.400the one holdout juror, openly accusing him of committing a crime.
00:40:28.860You know, the fact that the juror wasn't privy to the threat and that Kevin Reddington didn't
00:40:35.160go so far as to I think he actually said I'm not going to say the number somebody I could be
00:40:39.880imagining that at this point might save Kevin Reddington from some other civil liability down
00:40:46.900the road for basically outing a juror that he obviously believes is the reason why he's not
00:40:53.860getting a defense verdict or hasn't gotten one thus far when we actually do not know we do not
00:41:00.380know we do not know what is going on in that jury room and the note I don't think was indicative of
00:41:05.760it either if it were this judge would not have just made the decision that he made and that was
00:41:11.020thank you very much Mr. Reddington but I'm going to leave the jury alone I'm going to let them
00:41:14.920continue to do their job I think the judge who individually questioned all 12 would know better
00:41:20.960than any of us and anybody watching this trial whether or not this jurors conduct rises to the
00:41:27.880level of we need to do something so severe as to discharge him. So once again, I'll go back on what
00:41:34.420I was alluding to yesterday, not alluding to, I was flat out saying it. Kevin Reddington knows
00:41:38.980how to play for the camera. He knows how to put on the show. This is part of it. That's not bad
00:41:44.540lawyering. That's good lawyering, but it's not going to change what's happening in that jury room.
00:41:49.220the the truth is though matt if if the jury is split 11-1 and they come back in an hour and say
00:41:57.940we're hopelessly deadlocked and the judge declares a mistrial we will know within an hour what the
00:42:05.280split was i mean we we will have confirmation that it was 11 for lindsey clancy and one for
00:42:11.040the prosecution we think one of those jurors is probably going to talk and and when that happens
00:42:17.560If it really is 11 for Clancy and one for the prosecution, she and Kevin Reddington are in a much better position than they were before this trial started.
00:42:30.160I mean, this prosecutor who is fighting, we should know because this prosecutor has the same interpretation that Kevin Reddington does, that this juror is good for the prosecution and bad for the defense.
00:42:40.360but the prosecution is going to have a serious decision to make knowing that they fought their
00:42:46.080hardest. And at best, we think they've persuaded one juror, like one. So what, what does that tell
00:42:55.560us? What, where did we go from there? Well, hopefully they negotiate a settlement here
00:43:01.380and we don't go through another trial. And I say hopefully for everybody, for, for the defendant
00:43:05.720in this case, and also for the Commonwealth of Massachusetts. I don't know. I don't know what
00:43:10.880happens. I don't know what happened behind the scenes. That's what they should do, Megan. If
00:43:13.940it's 11 to 1, the court also has the option of exercising discretion, although they rarely do
00:43:21.440that after our jury hangs once, even if it's 11 to 1. And we all have stories over the course of
00:43:26.800our career of juries coming back 11 to 1 one way, and then they either acquit or convict the next
00:43:32.140trial around. It's just, you know, it's tough to say. I've been advocating if that happens for the
00:43:40.040elected DA to sit down with Reddington and see if they can find some middle ground and put this
00:43:45.780whole thing behind Lindsey Clancy and all the rest of us. I, for one, I won't mind not having
00:43:51.080the list. How, Phil, will the enormous media scrutiny on the case affect the DA's willingness
00:43:57.900to do that? Well, I think he's getting it on two different sides, right? He's got people who see
00:44:02.640this as the murder of three children, and there's very good reason for him to think that. And then
00:44:07.480you've got people that believe that this woman was suffering from postpartum to the point that
00:44:12.180it was actual psychosis, not just depression, and that under Massachusetts law, she shouldn't
00:44:17.460be criminally responsible. And that's one of the reasons why it's not a surprise this jury's
00:44:21.460hanging, because there's good arguments and good facts in support of both positions on this.
00:44:26.940So I think that he'll get it from both sides, no matter what he does.
00:44:30.520And that's why you get paid the big bucks as an elected DA.
00:44:33.600Yeah, now's the time for the DA to call into that courtroom or go in there and talk to his prosecutors and say, look, if it's 11 to 1 against us, we have no reason to think that it's going to be better next time if we try the case.
00:44:49.920My friend Doug Weinstein posts on Twitter.
00:44:53.440He said it would be smart for them to go ahead and tell the judge that they will accept an 11-person verdict, which would be presumably not guilty by reason of insanity, and send her on off to the mental health system.
00:45:09.980That would be something that they could do.
00:45:15.740The prosecution, look, if it's 11 to 1, there's no reason to think they're going to get a more favorable outcome next time.
00:45:23.860It's just going to cost them a lot more time and a lot more money.
00:45:27.180It might make sense for them to just go ahead and agree to take a verdict with the 11 that they've got
00:45:32.060and have the judge send her on her way to the mental health system.
00:45:36.400And there's no reason to think, I can see it in the comments now,
00:45:40.040people are going to tell me, well, she could be out next week.
00:45:42.020But there's no reason to think that she would not be held for a significant period of time.
00:45:47.820My experience with these things is that when people have committed crimes, particularly serious and high-profile crimes, and they are mentally ill and they maybe get acquitted based on that, they aren't released from the hospital anytime soon.
00:46:01.200And the people who make the decision on when to release someone from these this psychiatric system, so to speak, they they look at it more like prosecutors and they want to err on the side of safety and caution.
00:46:15.900And so she probably would be there for a long time.
00:46:19.480I keep thinking about John Hinckley, who shot President Reagan, and arguably he had recovered
00:46:27.060and he had been basically brought to a place in terms of his mental health where he could
00:53:15.700So I do think it's going to be after the noon hour.
00:53:20.700I think sometime later today we're going to get a verdict.
00:53:23.020I think that the instructions the judge gave yesterday, combined with what he said today, gives the 11 people that are, I guess, apparently voting not guilty by reason of insanity, it will give them some leverage to use to remind this other individual what reasonable doubt is and perhaps convince him to come over to their side.
00:53:46.280Now, I could very well be wrong, but one way or another, it's going to be over today.
00:53:50.360I think if they give it a few more hours and the person does not budge, they're likely to send the judge a note that says, look, now we are definitely hopelessly deadlocked.