Before I start, I must admit that I did not know much about Lindsay Clancy before her trial ended in a mistrial, and once it ended in a mistrial, I didn’t think much about the trial itself. It was a case that was tried in Massachusetts involving the defense of a lack of criminal responsibility due to postpartum psychosis, often referred to as the “insanity defense”. My only thought was that it was a shame that the trial ended in a mistrial because now, it might be necessary to retry the case. That was it.
But then, I received an email from one of my oldest and dearest friends that seemed to voice outrage at the verdict and with the defense attorney. He seemed to think that the defense counsel should be disciplined for his behavior in moving for the exclusion of the one holdout juror who prevented a finding of not guilty by reason of mental incompetence. I was vaguely aware of the defense attorney’s argument before my friend’s email, but I decided to investigate it. After a review of the defense counsel’s motion, I saw nothing inappropriate in making the motion. In fact, I thought the defense attorney, Kenin Reddington, provided the spirited defense Ms. Clancy deserved and that my friend simply misunderstood the role of defense counsel.
About a day after my friend’s email, I saw a post from a Republican Congressman from Texas calling for Clancy’s second prosecution. It was a particularly mean-spirited post. I wondered to myself why a Congressman from Texas would care so much about a murder trial in Massachusetts, but I assumed it was simply a politician attempting to appeal to conservative bona fides by commenting on something he knew nothing about.
Last Sunday, nearly a week after the trial ended, my nephew invited my wife and I over to his house for dinner. While at that dinner, my sister-in-law talked to my wife about Lindsay Clancy saying that the woman should be executed for killing her children. At the same time, my brother engaged me in a conversation about criminal responsibility, psychosis, and Linday Clancy’s obvious guilt. He then repeated—almost verbatim—the same comments my old college friends had made about defense attorney. My brother is not a lawyer and has no background in either the law or psychology, so I was surprised how stridently he believed in Ms. Clancy’s guilt.
I realized we, as a society, have a big problem.
Trials and the Rise of Populism in Trial Coverage.
At this point, I have tried between 200 and 300 criminal trials, about a third of which were as a prosecutor and the rest were as a defense counsel. I enjoy watching the high drama of television trials. Every question is important, and jurors, or at least TV viewers, sit at the edge of their seats waiting for the answer that will drastically change everything. Unfortunately, real trials are not that way. Testimony comes out at a steady, monotonous pace, and the attorneys know basically what everyone is going to say. Much of my practice now involves white-collar criminal defense, and it can be extraordinarily boring. I have seen jurors and judges fall asleep during an afternoon of testimony about documents and what they say.
Jurors listen to all this testimony, normally seven to eight hours per day. Reporters do not. At most the TV viewer sees a three-minute summary of the testimony.
Reporters can also be sensationalistic or wrong in what they report. This is not evidence of bias, but rather, a misunderstanding of what was said or not said.
I once prosecuted a murder case where the murderer was referred to in the media as an “axe murderer”, a moniker that followed the defendant through trial. The truth was that the victim heard some noise in his garage and went into the garage with a .22 caliber pistol to see what was going on. As he stepped into the garage struck he was across the top of the head from behind. The victim fell to the ground. The murderer picked up the .22 caliber pistol and shot the victim in the head, killing him. However, the piece of firewood he used to initially strike the victim left a severe laceration on the head.
When the state police arrived at the scene, one of the first things they noticed was an axe driven into a large piece of firewood on the opposite side of the room. There was blood on the axe and blood on the firewood. Both the axe and the firewood were seized as evidence. Later testing of the axe revealed that that the blood on the axe was deer’s blood. The axe had been used to clean deer and had nothing to do with the murder.
However, for the day the murder was discovered until the end of the trial itself, most people in the community referred to the murder as an axe murder. It was simply an inaccuracy in the initial reporting that took on a life of its own. The axe was never mentioned at trial, although there was a recurring problem with one of the reporters misstating testimony. Again, I don’t believe this was intentional. I think it came from the reporters need to cover eight hours of testimony in a few minutes.
The only people who really know what is happening in a trial are the judge, the jury, the courtroom staff, counsel and anyone who watches the whole trial. That is what I told my friend, and that is what I told my brother. I did not watch the whole trial, and I therefore could not comment on the trial.
Trials like the Clancy trial have become important in the talk radio universe and podcasts. A short AI search reveals that radio programs like Audacity News, the Charlie James Show, the Dom Giordano Program, the Mark Reardon Show, and the Megyn Kelly Show all covered the trial extensively. These shows, however, need material that they can sell; sensational events that drive listeners to them. With their pseudo-experts analyzing parts of the testimony producers believe will attract larger audiences, these talk shows create a narrative intended to increase their business, not necessarily tell the truth.
The result is that people listening to these programs think they know more than they do. This, in turn, causes some people to offer misdirected criticism. Ultimately, it undermines people’s respect for the judicial system. Making a profit and doing what is best for society, unfortunately, do not always align.
The Defense of Lack of Criminal Responsibility.
The lack of criminal responsibility defense or “not guilty by reason on insanity” is a rarely used defense that is successful in even fewer cases. The question a jury must answer is whether the defendant suffered from a mental disease or defect that rendered them unable to understand the nature and consequences of the defendant’s action. In many cases, defendants suffer from mental diseases or defects but nevertheless understand the nature and consequences of their actions.[1] n these cases, even mentally ill people are convicted.
[1] A second type of mental incapacity exists when a defendant is unable to understand or participate in the court proceedings that will determine their innocence or guilt.
In the American criminal justice system, the “law” is explained to the jury using standard instructions that are read to the jury at the end of the case. It may take an hour or more to read all the instructions in a case, but it is these instructions, as read to the jury by the judge, that the jury must follow to determine whether the defendant is guilty beyond a reasonable doubt. The standard jury instruction for mental illness in Massachusetts is four pages long with additional supplemental instructions available. In the Clancy case, the mental condition at issue was postpartum psychosis. Postpartum psychosis is a rare and severe mental health emergency that results in a total break from reality. Physically, it may be triggered by massive hormonal shifts that can cause hallucinations, delusions, mania, confusion, etc. This varies significantly from other postpartum conditions from which many women suffer.[2] While these other conditions may be serious, they do not cause the break from reality that a psychosis does. I am not a psychologist or psychiatrist and lack the specialized knowledge and training they have, but as a lawyer, I know that it was for the jury to listen to the expert testimony and review the circumstances as they existed at the time of the deaths of the Clancy children to review all of the evidence and render a decision.
[2] Statistics show that 80% or more of women who have had babies suffer from some postpartum abnormality.
Unfortunately, the jury in the Clancy case was unable to come to a unanimous decision.
The Politics of Postpartum Psychosis.
Although postpartum psychosis is a very serious condition, it is treatable. We could ask why Ms. Clancy was not diagnosed sooner or provided appropriate treatment before her children died. Instead, people like Megyn Kelly have responded to those who supported Ms. Clancy by asking, “Who are these soft people?” Or who stated: “I don’t look at her and feel sorry for her. I realize she had a mental crisis going on—three kids are dead.” Using her media platform, Kelly is able to turn a court case in Massachusetts into something much larger than it is. The case involves a family tragedy and maybe a crime. This ought not to be a liberal versus conservative debate. The question is whether Ms. Clancy understood her actions. If she did, she should be found guilty. If she did not, she should be found not guilty. But in either case, twelve innocent, unbiased jurors owe it to society to carefully examine all of the evidence and render a fair and impartial verdict based upon that evidence.
Conclusion.
There is one more point that should not be overlooked. The case ended in a mistrial, which means that it is up to the Commonwealth to decide whether Ms. Clancy should be retried. If she is, it will be before a new jury. The issue that jury will have to decide is whether Ms. Clancy understood the nature and consequences of her actions. It will be decided by twelve independent men and women who will hear all of the evidence and apply the judge’s instructions once more.
Hopefully, if that happens again, there will not be a hung jury.
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