Speaker 1 (03:36):
We're just waiting on Kevin Reddington right now. He did pull up. We did see his vehicle arrive and he parked, but we're just waiting for him to walk up right now.
Speaker 3 (03:43):
But actually, I'm going to go to that cafe there. Yeah, I think we're close enough.
Speaker 2 (03:43):
How was the kid's Halloween? [inaudible 00:04:23]. Preacher. "I can anything. The preacher's son." I could be so many things.
Speaker 1 (03:43):
Reddington walking up now.
Speaker 4 (06:36):
Attorney Reddington, what is your response to the DA's office saying they want to pursue justice for the three kids?
Kevin Reddington (07:10):
I haven't heard him say much yet. Watch out.
Speaker 4 (07:13):
Any idea of how today's going to go?
Kevin Reddington (07:16):
It's a beautiful day to continue the journey.
Speaker 2 (07:18):
Do you anticipate Tim Cruise saying that he's going to retry the case?
Speaker 3 (07:23):
If he does, do you have a message for him?
Speaker 6 (07:27):
Thank you, guys.
Speaker 7 (07:28):
You can't record in here.
Speaker 2 (07:28):
Sorry for whoever's toes. I was backing up onto somebody's toes.
Kevin Reddington (25:29):
... visit the office, by the way, with Mr. Gelber, who's very nice. Appreciate it.
Speaker 5 (25:31):
Her flight's at 7:00. Get there early.
Kevin Reddington (26:38):
Thank you very much, guys. Appreciate it. Dawn, when you get a chance, there's a hot mic on my table somewhere, it's being you broadcast all over Channel 25 and everything else [inaudible 00:26:48].
Speaker 5 (26:42):
Those mics are directional, so if you push them away it doesn't carry as much.
Speaker 6 (26:42):
You don't have any experts from school [inaudible 00:27:20]?
Speaker 7 (26:42):
Yeah. We could start.
Speaker 6 (26:42):
I'm fine. How are you?
Speaker 8 (27:47):
All right, good morning, ladies and gentlemen. Just want to reiterate, SJC Rule 119 states that registered media and registered media only can use electronics including cell phones in the courtroom. If you're not registered media, at this time we ask you take out your cell phone, turn it off. Not silent, but off. You'll need to comply with this and other rules of the building. All right? Thank you.
Speaker 5 (27:47):
Well, that sounds good. Nice and cracky.
Judge William Sullivan (27:47):
This court is now in session. Please be seated.
Laura McConnell (27:47):
Good morning, Your Honor. May I proceed?
Judge William Sullivan (27:47):
Yes, please.
Laura McConnell (32:48):
Your Honor, before the court today, we have the matter of Commonwealth versus Lindsay Clancy. Ms. Clancy is present. She is represented by attorney Kevin Reddington, Attorney Laura McConnell, Attorney Martin Weinberg. The Commonwealth is represented by Assistant District Attorney Jennifer Sprague. And for Juror Doe, we have Attorney Heather O'Connor.
Judge William Sullivan (33:05):
All right. Well, good morning, Counsel.
Speaker 9 (33:06):
Morning.
Martin Weinberg (33:07):
Morning, Your Honor.
Judge William Sullivan (33:08):
Good morning, Ms. Clancy. All right. So, this is on for a series of motions today. The three that I see are probably ones we have to address today are pleading number 212, which is the motion to preserve records, produce certain records, pleading 215, which is the defendant's motion to dismiss, and then there is a 222, which is the Commonwealth's motion to preclude prejudicial extrajudicial statements.
(33:46)
Is that everybody's kind of understanding of where we are at Commonwealth?
Martin Weinberg (33:49):
Yeah.
Speaker 9 (33:49):
Yes, Your Honor.
Judge William Sullivan (33:49):
All right. Defendant?
Martin Weinberg (33:49):
Yes.
Judge William Sullivan (33:49):
All right. So, why don't we first take up -
Martin Weinberg (33:49):
Apologize. Could I interrupt, Your Honor? If it's possible, could we handle them in the order of Attorney Weinberg, which would argue the motion to dismiss first, followed by Attorney McConnell on the other gag order motion, whatever it is that the government filed, followed by the juror issue?
Judge William Sullivan (33:49):
So, I've got later ... But let's take up the motion to dismiss first. And then, we will take up the motion to preserve the questionnaire and other records issues, which is 212. That involves, I think, Counsel as well as Attorney O'Connor. And then, we'll deal with the Commonwealth's motion to preclude the prejudicial statements which would be argued by the Commonwealth as well as Attorney McConnell, I believe. Is that correct?
Martin Weinberg (33:49):
Yes.
Judge William Sullivan (33:53):
All right. So, why don't we first take up, which is pleading number 215, the defendant's motion to dismiss. I'll hear from the defendant. Parties should be aware I've had the opportunity to review the motions and the oppositions. But with that, Counsel.
Martin Weinberg (35:11):
Thank you, Judge. Good morning.
Judge William Sullivan (35:13):
Good morning.
Martin Weinberg (35:22):
At its core, Judge, the motion to dismiss respectfully asks the court to reconsider decisions that were made in the heat of battle on September 3 and September 4 as the jury was deliberating, and the jury passed certain notes onto the court. And the court, without the benefit of extensive briefing, which you now have on the motion to dismiss, made certain decisions that are closely tied to the foundational decision of whether or not manifest necessity existed to justify the September 4 mistrial order.
(36:04)
Ms. Clancy, like all defendants charged with felonies, has two primary constitutional rights that are involved, inextricably intertwined with the instruction issues, the voir dire issues, the jury issues that Your Honor was confronted with and both Mr. Reddington and the prosecutor argued to you on September 3 and 4, one being her right to a jury trial, her right to 12 jurors, not just 11, who were impartial, unbiased, deliberating, following the law, whether or not they agreed with it or not.
(36:45)
Your Honor received two jury notes on September 3. QQ said, "A member of the jury is unable to follow the instructions regarding reasonable doubt. How should we proceed?" And then, the second one that came late in the day and was addressed by Your Honor on the morning of September 4 was juror X has made statements acknowledging doubt but refuses to apply it to the verdict as the law states. That is why we cannot come to a unanimous decision.
(37:19)
We contend, respectfully, Judge, that those two notes cried out on behalf of the foreperson and 11 jurors for a probing voir dire that would attempt to establish, one, whether or not the 12th juror was or was not honoring his oath, following Your Honor's instructions, particularly on a core issue that goes to the heart of what American criminal justice gives to defendants which is the burden being placed on the prosecutor to prove guilt beyond a reasonable doubt.
(37:57)
John Adams, the one 25 miles north of here as I drove down from north to south today, called the jury right this right, the right central to the federal and state constitution, the lungs of a democracy. And we respectfully contend that these notes that were written on behalf of the jury called into question whether or not the jury trial right that Ms. Clancy was entitled to of 12 jurors deliberating in good faith and following the law was or was not being complied with by the jury in the secrecy of its deliberations.
(38:36)
Inextricably intertwined with that is the second constitutional right, that being the double jeopardy right, that being that a citizen charged with a crime, particularly one carrying with it the gravity of the murder charge in this case, should not be subjected to the perils and burdens of a second trial unless there was manifest necessity that made the mistrial declaration an imperative rather than something discretionary.
(39:12)
To just summarize the contentions in the motion to dismiss, and I know Your Honor has reviewed it, and both sides have given Your Honor an enormous amount of reading because there's been lots of SJC decisions and federal circuit court decisions that have addressed the circumstances when voir dire should occur, when discharges of jurors should occur, and when instead deliberations should stop. First, we contend based on these juror notes, and again, respectfully, that they do not unambiguously support the proposition that all 12 jurors were deliberating and following Your Honor's instructions, that, at minimum, these notes required a probing voir dire, that that voir dire would have included, should have included, a determination whether or not the 12th juror was deliberating in good faith, whether they intended to follow the law, whether they could intend to follow the law beyond a reasonable doubt, and if they had any issues, whether they derived from personal reasons that that juror brought into the jury room as required by the Supreme Judicial Court in the Connors case, or whether instead they derived from disagreements among dissension among the jurors.
(40:41)
Nobody here wants to shill jury deliberations or extinguish the right of a holdout juror if they truly believe that the Commonwealth, in this case, has proven guilt beyond a reasonable doubt. More often, it's the reverse where the Commonwealth is seeking to try to voir dire a 12th juror who is holding out for an acquittal. And the cases that we've cited show a number of examples, both federal and state, where it's the Commonwealth, not the defense, that's asking for a voir dire and trying to determine whether a holdout juror is or is not discharging their oath and their responsibilities and deliberating in good faith.
(41:26)
What's important here, because these primarily state law issues about how does a court determine how to respond to jury notes and understanding the burdens and difficulties of a judge bringing a jury back and running the risk that jurors, some jurors, will say one thing, other jurors, another, empathizing with the discomfort, this is not simply making judicial decisions about credibility about witnesses. This is, Your Honor, making the potential credibility determinations about jurors and whether they are or not being candid with the court and deliberating in good faith.
Judge William Sullivan (42:10):
Excuse me, I lose this. I apologize. But didn't I do that? Didn't I do a voir dire? Didn't I bring the jurors in? Didn't I swear them in? Didn't I ask each individual one, not just that one juror, because we didn't want to ... Certainly, as you stated, that the concern for coercion is something I have to worry about. So, you're saying I should have done it a second time?
Martin Weinberg (42:38):
Not to simply echo the single question, Judge, but, respectfully, to make a probing voir dire that would have, for instance, matched Judge Tepman's voir dire that cited the New Williams case, which the Commonwealth featured in its brief, which is to try to get to the bottom of why a jury foreperson is writing notes that say a member of the jury is unable to follow the instructions and that a single question that led to the adoption, an assurance by all 12 jurors, is simply constitutionally insufficient to probe what was going on in that jury room.
(43:19)
And there's examples, and we've cited them in the case law and I think on page 28 of our motion to dismiss, where the courts say you don't have to ... The court doesn't have an obligation to believe a juror. It needs to probe in order to make credibility findings about whether the juror's affirmation of Your Honor's voir dire, in fact, is to be trusted, particularly when there's a predicate of the foreperson speaking on behalf of 11 jurors that may not adopt the reliability of what a 12th juror has said.
(43:57)
And I can see this is not easy-
Judge William Sullivan (44:01):
You don't have to keep saying that. I got thick skin. I have no problems. I understand what these motions are about. I'm fine with that. I understand the argument. I've made those before. So, I understand that.
Martin Weinberg (44:16):
Let me go on, if I can,-
Judge William Sullivan (44:18):
Yeah, please.
Martin Weinberg (44:18):
... to what the federal constitutional law requires, which was not really provided to Your Honor in the heat of battle. And what it does is it puts a heavy burden on the prosecutor who four times objected to any voir dire. It's the prosecutor that had an obligation when there was such close nexus between the issues that were being addressed about, do I voir dire the juror? And what do I instruct them on? It was going to lead to a decision whether or not there was manifest necessity for a declaration of a mistrial because, absent a probing voir dire, Your Honor had no predicate to discharge the juror. You had no knowledge as to what caused this juror to be unwilling to follow the instructions if, in fact, the foreperson's noticed to be facially accepted.
(45:18)
And there was a potential here, a viable alternative, which is a probing voir dire could have disclosed that the juror wasn't following the instructions. 11 jurors might have said that even if a 12th juror said, "No, I was following them." And then, Your Honor would have probed and asked about whether they could follow them, whether beyond a reasonable doubt was a legal instruction that caused any discomfort to a juror. Your Honor then would have had a record to make credibility findings whether the jury foreperson, other jurors, were being correct in their concerns that were represented by these two notes. But the burden was not on the defense to justify the voir dire. The burden was on the prosecutor, a heavy burden, according to both the United States Supreme Court.
(46:13)
Arizona v. Washington is the primary case, 1978. In view of the importance of the double jeopardy right and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate manifest necessity. State court is the same. Commonwealth v. Stewart 46 years ago in 1985 said that, in view of the importance of this right, the prosecutor must shoulder the burden of justifying the mistrial if he is to or she is to avoid the double jeopardy bar. The burden is a heavy one.
(47:04)
Both cases also speak to the necessity at the time of making decisions that so closely impact double jeopardy to weigh, and the courts say on the record, this is Commonwealth v. Stewart, "We shall be deferential to the trial court's exercise of discretion in ruling that a manifest necessity exists only if it is clear from the record that the judge has given careful consideration to the viable alternatives and to the defendant's interest in having the trial concluded in a single proceeding. The discretion of a trial judge where double jeopardy is concerned is more restricted than the discretion commonly granted to trial judges for more routine matters."
(47:51)
And that's because when Your Honor goes back to the origin of the double jeopardy clause, and it dates back to England, and it dates back to the 17th century and the Stewart Dynasty, and they would conduct trials, and if they didn't like the way the trials were going from the perspective of the sovereign, they'd cancel the trial, bring in a new jury. Arizona v. Washington speaks about the history of double jeopardy, and it speaks to the fact that there were two essential reasons why double jeopardy was such a cornerstone constitutional right.
(48:24)
The first one is that the state, with all its resources and power, should not be allowed to make repeated efforts to convict an individual for an alleged offense because it subjected that individual, and the subjecting couldn't be higher in this case to the ordeal in compelling the defendant to live with a continuing state of anxiety and insecurity. And in a first-degree murder allegation, what could be harder for an individual than knowing about the stakes and living through the first trial and living through the lengthy trial and then having to subject a second time?
(49:06)
But it also talks about a second value of double jeopardy which is essentially to prevent the state from having two chances to convict rather than one. And the court say, and this is US v. Jorn and Arizona v. Washington, that enhances the possibility, "That even though innocent, a defendant may be found guilty," because the reality is the prosecutor learns from the first trial more about the defense than the defense learns about the prosecution because of the way the discovery rules are written. And there's the risk that somebody innocent through two trials, not one, can suffer a conviction for this profoundly and gravely serious charge. So, the Federal Supreme Court has built up these protections, and it requires manifest necessity. So, when Your Honor receives notes like this, there's kind of three different ways to interpret them. One is the way that the defense does, which is that they are facial requests for the court to probe the foreperson, at least, if not all the jurors, as to why this note was written and what was going on with an instruction, a caution. We don't want to hear about the subjective communications of jurors during deliberations, that you're entitled to the privacy that the rules require, but to try to probe from the foreperson why twice they would write notes that indicate that a 12th juror is not following the law. And we, as the defense, contends that facially, unambiguously, that that's what the foreperson was asking the court to do. They even said, "How should we proceed?" The second is that there was some uncertainty. What did doubt mean? Was that beyond a reasonable doubt that the 12th juror believed there was guilt? Or is it some speculative doubt that would have been consistent with innocence? We don't know without probing from the foreperson what they meant in doubt RR when they said that the juror has made statements acknowledging doubt of guilt. It says doubt, but it could have been doubt of guilt. Again, there's no certainty, but the burden rests on the prosecutor. And if there was a viable alternative here, and I suggest a viable alternative, whether Your Honor felt the notes were ambiguous, or whether Your Honor felt the notes unambiguously required voir dire, and then the issue is what kind of voir dire.
(51:56)
There was a viable alternative, which is a probing voir dire that could have established that the juror was not deliberating consistent with Your Honor's instructions, which could have established further that the reasons were personal rather than simply because of the internal chemistry of jury deliberations, which could have led to a discharge of the juror, which could have led to a deliberations continuing with an alternative juror. And that's the viable alternative that we claim countered the manifest necessity that the rule requires for double jeopardy.
(52:36)
We've cited, and I'm not going to simply repeat them, in our pleadings to the many SJC decisions which make the decision to hold a hearing or to do a judicial inquiry or to do a voir dire mandatory, not discretionary. Commonwealth versus Ronchi. Commonwealth versus Ralph R.. Commonwealth versus Connor. Many of the precedents. Williams. We've cited to federal precedents, US v. Lama Marinas which says, when a colorable claim of jury taint surfaces during jury deliberation, the trial court has a duty to investigate the allegation promptly. The quote, "Painstaking investigatory process protects the defendant's constitutional right to an unbiased jury as well as his valuable right to have his trial completed by a particular tribunal."
(53:31)
More recently, the First Circuit dealing with the Boston Marathon bombing case decades later when it turned out that there might have been false statements during voir dire, the jurors were using social media. Again said a district judge does not have a discretion to refuse to conduct any inquiry at all regarding the magnitude of the taint-producing event.
(53:59)
Some inquiry is reasonably calculated to determine whether or not the juror was being truthful or not. And Your Honor has the stake cases we've given you incumbent and shall and require. Whether a single question is sufficient, we have cases, Judge, that we've given you that show that judges have the right, power, and historically have found that jurors claim that they are deliberating in good faith to be unreliable, untrustworthy, to be countered by the credibility and trustworthiness of other jurors. And I know, from Your Honor's statements on the transcript, Your Honor had this discomfort of feeling like you should be weighing juror credibility. But just like we do when Your Honor's selecting a jury in a high-profile case, before the trial starts, and jurors said, "I've read about the Clancy case," it wouldn't simply be a single question, "Well, can you forget what you read?" It would be, "What have you read?" so that Your Honor and Counsel can make a determination whether the juror, even if they were claiming to be unbiased and claiming to be able to essentially erase everything they knew before they came on the jury, really could.
Judge William Sullivan (55:25):
I mean, let's be honest. The inquiry in a voir dire is significantly different than an inquiry during juror deliberations where I have to be careful not to delve into the juror's subjective reasoning or deliberative content. I mean, it sounds good, and I understand it, but it's a different level of analysis, right?
Martin Weinberg (55:47):
I think it is a different level of analysis, but the voir dire you do pretrial demonstrates that you can't just accept as conclusive a juror saying to Your Honor when you say, "Can you follow the instructions?", " Yes, I can," that that's not conclusive in the face when it collides with what the jury foreperson is saying was really occurring during the jury deliberations.
(56:14)
Commonwealth versus Olivario we've quoted at page 28 of our brief, "A judge need not accept a juror's view of whether he or she can perform her duties."
(56:26)
The United States versus Christensen, "It makes no sense to let a juror statement, 'I can follow the law,' serve as an automatic free pass if other evidence supports the findings to the contrary."
(56:38)
So, let me briefly then address the Commonwealth's positions which they expressed in their memorandum. First, they say that the notes didn't say to Your Honor that the reasons for this 12th juror's not following the law were personal. Nowhere in the case law, and I've read a significant amount of cases, and I know Your Honor has, is there any kind of requirement that the jury foreperson put into a note, not only that someone's not following the law, but the reasons for it. And that makes perfect sense, which is that the jury foreperson is unlikely to know the reason. And many of these cases, including the Williams case, say that when the juror is not following the law, then it's the responsibility of the judge to ask the questions to try to determine whether or not it's primarily because they have a fight within the jury room, in which case discharge is not allowed under state law, or whether or not primarily it's because of whatever personal reasons and biases brought into the jury room. And sometimes these two reasons coexist. And the courts weigh judge's discretion, but the discretion is weighed only after a probing voir dire rather than before it. Second, the Commonwealth says, "Well, it would be coercive." I mean, they even use the word inquisition like Your Honor's probing voir dire would be something out of Spain in the 15th century. And case after case say that you need to be sensitive, we need not to seek disclosure of subjective deliberations, but that jurors are questioned noncoercively by experienced superior court judges without invading the privacy and without invading the confidentiality of jury deliberation. So, the idea that you can't do it is simply collides not only with their burden of proof but with all of the case law that we've given you that not only can, but other judges have, and it's led to credibility findings that is within the province of the court.
(58:56)
Three is the Commonwealth talks about the brief request for SJC intervention. That's simply not on the merits. There was almost no briefing. There was almost no argument. There was truncated argument, and the ruling was simply denied. It denied the extraordinary relief of intervening into a state court matter. That decision is not entitled to weight in terms of Your Honor's determination about double jeopardy.
(59:26)
Fourth, the Commonwealth talks quite a lot about Commonwealth versus Reed as if that's a precedent that's adverse to a finding in favor of the dismissal. Well, it's a case I know something about, where the voir dire requests came after, not before, the mistrial order, after the jury was separated, after the jury had the potential contact with the media and other jurors.
Judge William Sullivan (59:50):
Was there a question on that? I apologize. I read through it, but I didn't read this real fast regarding the polling of the jury. Was that an issue in that? It would've occurred during the trial right after.
Martin Weinberg (01:00:01):
Yes. The issue there was there was no objection to the mistrial. There was no request to poll the jury. There was no request on limited instructions after the fact, after the jury disbands, as opposed to here where Mr. Reddington objected to the mistrial, asked for the voir dire while the jurors were still intact, and made all of the proper objections in the Reed case. The objections began because the jurors, after they were disbanded, started to disclose things about their deliberations. So, the Reed case really, although it has language in it that's relevant, its holding, its overall themes, are factually inapposite to this case.
(01:00:49)
And finally, to finish, Judge, the Commonwealth makes the argument, of course, that Your Honor had discretion. And, as I've cited to the court, the discretion when it comes to double jeopardy is far more narrow than it is on the ordinary evidence and instruction issues. And on this record, respectfully, the Commonwealth didn't discharge its burden of proof. They didn't ask the court to weigh Ms. Clancy's right and all of the reasons for that right as a balance against a viable alternative that existed on September 4th, which we've set out in our pleadings. And I urgently ask Your Honor to reconsider the trial decisions and to grant the motion to dismiss on grounds of jury trial right, double jeopardy right, both in the federal and the state constitution.
(01:01:43)
Thank you, sir.
Judge William Sullivan (01:01:44):
Counsel, thank you. All right. McConnell?
Laura McConnell (01:01:45):
Good morning.
Judge William Sullivan (01:01:45):
Good morning, Counsel.
Laura McConnell (01:02:02):
A deadlocked jury has historically-
Jen Sprague (01:02:02):
A deadlock jury has historically been the traditional example of when manifest necessity requires a mistrial. And a mistrial when the jury is deadlocked is entrusted to the sound discretion of the trial judge. And sound discretion is determined by two factors, giving counsel a full opportunity to be heard and carefully exploring all viable alternatives at the time, which the court did over and over again every time a note came out, every time the issues were raised. The reason the discretion is given to the court is, as defense counsel stated, and as Your Honor acknowledged, is to prevent coercive measures from occurring, from forcing a verdict, especially in the sensitive area of a lone holdout juror. And it doesn't matter whether the juror is a lone holdout for guilty or not guilty, the same reasoning is applied. The same protection for that lone holdout juror and their opinions should be protected.
(01:03:07)
Now, the two notes written by the foreperson claiming that one juror wasn't applying the law regarding reasonable doubt is basically writing what was happening in their opinion. And it suggested a disagreement about the weight of the evidence, how to apply the law, how to compare the law to the evidence and judge the evidence that was before them, and that's clearly all part of deliberation. And who was right in the interpretation of the evidence and in deciding whether there was doubt or reasonable doubt, that's for the jury to decide, not for us to decide, not for the court to decide.
(01:03:49)
There was no indication in these notes that there was an issue personal to that one juror. There was nothing about the issue having to do with something that was only solely happening within or to that juror. It was clearly a note or multiple notes detailing that there was an issue regarding deliberation. It was clearly issues about the case and the juror's relationship to the other jurors and to how the deliberations were going. And none of that would have or should have prompted the court to isolate that one juror, that holdout juror and conduct a more extensive individual inquiry than what was done by the court. There was no allegation in the notes of a lack of impartiality, bias, extraneous influence or inability or refusal to deliberate that might otherwise call for a more probing individual or group voir dire.
(01:04:54)
Any post-trial news reports concerning the jurors are completely irrelevant. As the court is aware, whether or not there was manifest necessity has to be determined by what the court knew at the time and not anything that was said or exposed later on in the media and said by people when they were not under oath or not in a courtroom. And your decision to declare a mistrial should be assessed based on what happened here in this courtroom. Allowing post-trial accounts to affect the analysis would create endless confusion and controversy in cases where a mistrial had already been declared. It is clear from the record that this juror did not refuse to deliberate. He refused to agree.
(01:05:44)
This court took every possible tack to address the foreperson's notes while avoiding the risk of pressuring that lone dissenting juror or exposing the juror's deliberations. The limited voir dire that Your Honor conducted of each juror, and then the follow-up reinstruction on reasonable doubt to the entire jury was a proper exercise of the court's discretion. It directly addressed the foreperson's concerns expressed in the note. It avoided the risk of coercing the lone juror and it avoided intruding into the deliberative process.
(01:06:21)
Now, in their memo, defense lists different questions that could have potentially been asked, and I believe he argued that in his argument just now that the court could have delved further in questions. But I can't think of a single question the court could have asked either the foreperson or the holdout juror or anyone else that wouldn't have gotten into the deliberative process because the issue was a disagreement about reasonable doubt and how to apply it to the facts.
(01:06:50)
So how do you address that and determine who's right and who's wrong without asking, "Well, how are you applying it to the facts? What facts are you crediting? Which facts are you discrediting?" You would have to get into the deliberative process in order to determine who's applying it correctly and who's not. And again, that would be putting the court's interpretation of what's correct into the deliberative process, determining are the 11 right or is the one right? It is precisely the approach that the SJC has directed to avoid the coercion of a lone dissenting juror and the prohibited disclosure of substance of deliberations.
(01:07:27)
In this case, the single justice deferred to Your Honor's assessment of the juror's ability to follow the law and implicitly approved of the court's balanced response. And it was a balanced response because you asked each juror individually under oath, you were the one who looked them in the eye and asked them the questions and was in the best position to judge their credibility and you credited their answers. You were the one to be able to decide whether they were following your instructions and that you said that they could.
(01:08:03)
It was a balanced response that included a generalized instruction on reasonable doubt. And then I believe it was the following day, but it might have been both that day and the following day where you told them not only the instruction on reasonable doubt, but you told them they had to follow the law whether they liked it or not, whether they agreed with it or not. And there was no objection to that. There were no notes saying that the juror disagreed with the law or refused to follow the law or the court's instructions.
(01:08:35)
In fact, there's a case Commonwealth v., I'm not sure how to pronounce it, Chlve or Chlve, C-H-L-V-E, 486 Mass 847 where the SJC deemed it erroneous when the judge did an individual colloquy with the so-called holdout juror who was aware that the judge knew that holdout juror's position, and the SJC deemed it coercive to give that lone juror an instruction. And that's exactly the situation we had here where the second note basically named the juror by giving their number and saying what the issue was. And that note came out of the jury room. So the holdout juror knew that this note was sent out, knew the court was aware that they had been exposed as the holdout juror and what the issues were. And so that's exactly what the SJC, that's the scenario the SJC said would be coercive.
(01:09:29)
There's also Commonwealth v. Connor. And there's a warning in that case as well where the SJC specifically warned that the approach used in that case risked invading the province of the jury. And there was a hearing in that case and defense counsel has referenced that case as well as grounds for why a more in-depth hearing should have been held here. But when the court found inquiry needed in Connor, first of all, that wasn't a deadlock jury. And in that case, a note was sent out with very specific details that the juror was eccentric, antisocial, was having hygiene issues, refusing to deliberate. Those are all very specific issues that go to the exceptions that are detailed throughout the case law that when you should have a hearing is when there's a lack of impartiality, bias, prejudice, extraneous information being brought into the jury room or refuse to deliberate. So that's different than what we have here.
(01:10:36)
And in Connor, they do say that a hearing should occur in those scenarios, but they also say that any hearing must be specifically tailored to what is happening in that case. So even if the court determined that a hearing... Well, actually a hearing did happen. A hearing happened in this case. You heard from both sides and you made a decision to do an individual inquiry of each juror. You limited it and tailored it to the issue being posed by the foreperson and the jury and you dealt with that by the individual voir dire and the general instruction. So there was a hearing and you did carefully tailor and craft the court's response just like Connor says the court should. And most, if not all of the cases that defense cites in their memo where hearing happened was when there was very specific evidence exposed in juror notes or in details during the trial that exposed issues with bias, impartiality, extraneous info, information being brought into the jury room or a refusal to deliberate.
(01:11:44)
And so there's not one case I believe cited in defense's memorandum where there was a mistrial that occurred, and that, then there was a motion to dismiss that was allowed denying the Commonwealth's opportunity to seek justice for the victims in the case. I think all of those cases were when there was a mistrial because of information learned during the course of the case and then there was a retrial. In fact, there's a few cases cited by defense in multiple motions, one of them being Clark v. the United States where a mistrial was declared, and then a second trial occurred and the defendant was found guilty. It was retried and found guilty. I couldn't find a single case where there was a mistrial and then a motion to dismiss was allowed on the grounds of double jeopardy preventing the Commonwealth from going forward with the case. Typically, what happens is there's a verdict of guilty, there's an appeal, the case is overturned and the remedy is a new trial, which is what is happening potentially here in this case where there could be a new trial for the defendant protecting her right to a trial. The general individual voir dire that Your Honor conducted of each of the jurors avoided any questioning that could have affected the juror's judgment or conveyed any improper silent messages to the deadlock jury. And you, as the trial judge, were in the best position to assess the credibility of the jurors during the individual voir dire and to tailor the instructions and how you handled the case from that point on. Reinstructing on reasonable doubt after the individual voir dire directly addressed the foreperson's concern regarding the juror's supposed misapprehension of the instruction without isolating that long dissenting juror and potentially coercing them into changing their vote. And jurors are presumed to follow the court's instructions. And so they were given that instruction on reasonable doubt not once but twice. So they're presumed to follow that instruction.
(01:13:57)
Furthermore, that one juror may opt to dig in their heels in the face of the majority does not automatically call into question that juror's understanding of or ability to apply the law. Someone can understand the law and be able to apply it and come to a different conclusion because they credit or discredit evidence in a different way than the other jurors do. And that's a right that should be protected. And it could be that the other jurors, the 11 jurors were wrong in the way they applied the law. It's not for the trial judge to choose sides in a deadlock jury and decide.
(01:14:35)
Defense also brings up language that the court uses when the court said that you had no choice but to declare a mistrial. And that's based on the case law and the statute. Under General Laws 234A Section 68C, a jury can't be sent out again without the juror's consent. And this case law, cited in our memo, that there's no obligation to ask for consent and that you can make that assessment based on the totality of the circumstances. So what we had here was a very lengthy trial, many witnesses. We had six days of deliberation that included 26 to 27 hours of deliberation prior to being given the Tuey-Rodriguez instruction. So really no choice was another way of saying that in the circumstances of this case, there existed manifest necessity for mistrial.
(01:15:26)
Now, even if a more extensive inquiry of the juror could have somehow been accomplished without getting into the substance of deliberations, which the Commonwealth does not believe was possible, the remedy is not a dismissal of the indictments entirely, thereby foreclosing any pursuit of justice for the victims. A mistrial was properly declared due to manifest necessity of a deadlock jury. The defendant's motion to dismiss should be denied. And also I'd just like to point out to the court there was a Ninth Circuit Court of Appeals decision that just came out regarding removing a holdout juror and that was found to be error.
Judge William Sullivan (01:16:06):
Do you have that cite, is that in the UR?
Jen Sprague (01:16:10):
It's not. I don't have the cite, but I can provide it to defense and the court, I just found out about it this morning.
Judge William Sullivan (01:16:17):
Thank you. All right. All right.
Martin Weinberg (01:16:18):
May I have brief rebuttal, Your Honor?
Judge William Sullivan (01:16:18):
Briefly, please.
Martin Weinberg (01:16:26):
Very briefly. In terms of remedy, Judge, the remedy cannot be contested. If there was no manifest necessity, the remedy is that there's no second trial. The law is completely clear about that. So it goes back to whether or not there was manifest necessity, which goes back to whether there was a viable alternative to the declaration of a mistrial. And I would urge the Commonwealth versus Ronchi, which is one of the citations given to you by the prosecutor in the heat of battle when these issues arose. And a juror received a note from a foreperson saying, "We're concerned that one juror is not able to productively contribute to deliberations."
(01:17:10)
That's very similar to what a jury foreperson is saying, "The juror is not following the law. What should we do?" And the court said, and this is the SJC 2023, "Where reliable information comes to a judge suggesting a lack of impartiality, bias, extraneous influence, or an inability to deliberate on the part of one of the jurors, the judge should conduct a voir dire of the juror." And they were critical of this judge who did not conduct a sufficient voir dire.
(01:17:47)
A judge is required to hold a hearing to determine whether there is good cause to discharge a juror. Reasons of the cause of the failure to deliberate are not normally part of a jury note. The jury foreperson wouldn't have that biography of a dissenting juror, but that is what would come out of a probing voir dire, whether or not the cause was personal and satisfied Connors and therefore led to a discharge, which therefore continued deliberations or to the contrary. I'm not saying that the outcome of a more probing voir dire necessarily would've led to discharge. The law is uniform that a probing voir dire is required even though the decisions that we've given to Your Honor come out in multiple ways as to whether discharges of jurors were or not upheld.
(01:18:41)
Ordinarily, a discharge follows from the probing voir dire because ordinarily the majority jurors convince a judge that the loan holdout is not deliberating in good faith. And then the courts determine whether or not the discharge order was or was not upheld. And that's the reason that the law is not filled with double jeopardy because the SJC ordinarily stops at discharge because the discharge occurs, deliberations continue, there's either a conviction or an acquittal.
(01:19:14)
So finally, I would respectfully say, Judge, that there was a viable alternative here. That viable alternative was a probing voir dire. One of the potential outcomes was a discharge and the continuation of deliberations. And we simply can't superimpose on these notes what the Commonwealth asked you to superimpose, that these notes were some euphemism, that's their word, for mere disagreement on the jury. Those juror notes said a juror is not following the law. I respectfully request that Your Honor not only consider, but grant the motion to dismiss.
Judge William Sullivan (01:19:55):
All right.
Martin Weinberg (01:20:01):
Thank you, sir.
Judge William Sullivan (01:20:02):
Thank you.
Jen Sprague (01:20:02):
Just briefly. This is it.
Judge William Sullivan (01:20:02):
This is the last deck of one thing, counsel.
Jen Sprague (01:20:02):
Well, he started. Just addressing what counsel brought up about Ronchi. There the note said we are concerned that one juror is not able to productively contribute to deliberations. And that's exactly what the courts have repeatedly said is that's one of the exceptions is not being able to deliberate. And earlier defense counsel mentioned the Williams case, same scenario where that juror himself said, "I can't deliberate." So that's completely different than what we have here where you have a member of the jury is unable to follow the instructions. You do the individual voir dire, you do the general instruction, and then we get the question about refuses to apply, acknowledging doubt by refusing to apply it. And we all know that the instruction is there's not an absence of doubt, it's a reasonable doubt. So what the court did was appropriate.
Judge William Sullivan (01:20:47):
All right. Thank you. I'm going to take this matter under advisement. I just want to note so everybody can maybe relax a little bit. I appreciate citing to John Adams, but as someone who lived and worked in Quincy for many, many years, drove by President Adams' house every day for 35 years, who actually has a bobblehead of John Adams, I try to remember all of President Adams' lessons in writing. So I will also try and remember those lessons when I'm making this. So I appreciate everyone's arguments. The writings were excellent and very helpful, but I'm going to take this under advisement and I'll get this out as soon as I can. So now why don't we move on to the second motion, which would be pleading number 212, which is the defendant's motion to preserve records and for limited inquiry into Juror Doe. I would imagine first we'll hear from the defendant, then I think Attorney O'Connor has entered her appearance and then hear from the Commonwealth as well.
Jen Sprague (01:22:10):
Yes, Your Honor. I agree with all the plan. I just would like to object to, well, not object. I'm asking for the motion to be denied on this face without argument for two reasons. One is that the filing the Commonwealth received was missing three exhibits, A, C, and H, and the other is that no valid legal purpose. There is no valid legal purpose for the requested actions. As Your Honor stated in your findings on the motion for an evidentiary hearing, none of this material can be used in the motion to dismiss. So there's really no purpose and no stated purpose for any of this information to be sought and provided. So I'm asking that it be denied on this case.
Judge William Sullivan (01:22:51):
All right. I understand the argument. I just want to make sure everybody feels that they were able to present their position. I'll hear it and then I'll make my decision in regards to that. So the defendant wants to argue this and then we'll hear from Attorney O'Connor. All right.
Kevin Reddington (01:23:15):
Well, here we are. Round two. We all like to think that in this country when someone is charged with a crime, they're entitled to a fair trial. We like to think that you're entitled to a fair jury. We like to think that you're entitled to fair application of the law. We don't want to pretend that a judge is the guy hiding behind the curtain like in The Wizard of Oz. We want to have fairness is what we want. And this young lady came into this courtroom back in July and we picked a jury, and the jury sat for about seven weeks, and they deliberated for about a week. And when you have jurors, you expect that the jurors are going to be honest in their disclosure to the court of their background. You expect that the jurors are going to disclose any issues that may compromise their ability, if you will, to be fair and impartial to a young woman like this, who presented evidence to this court and jury that she was a person that was suffering from significant mental disease, significant defect consistent with the instructions that the court gave as it relates to lack of criminal responsibility. And this young woman put herself on her country, which country as we say they are and expect that that jury is going to pass between the Commonwealth and the defendant and they're going to be fair in their evaluation of the evidence. You don't bring your background into a jury room and suppress it as was done in this case. This gentleman, Mr. Desronvil-
Judge William Sullivan (01:25:14):
I'm going to stop you right there.
Kevin Reddington (01:25:15):
No, you're not going to stop me.
Judge William Sullivan (01:25:16):
Well, no, I am.
Kevin Reddington (01:25:17):
No, you're not.
Judge William Sullivan (01:25:18):
All right, then this hearing's, no, because there's no need to bring out that juror's name.
Kevin Reddington (01:25:23):
It's all over the internet.
Judge William Sullivan (01:25:25):
You know what? That's through the internet. That's through other people. There's no need here in this courtroom to use that. Everyone else has referred to him either as Juror Doe, and if you want to refer to him, that's the way he's to be referred. That's all.
Kevin Reddington (01:25:41):
He's got more face time than I do.
Judge William Sullivan (01:25:42):
Well, that's, but that's not through any rulings I've made. All right?
Kevin Reddington (01:25:47):
And his attorney from Houston is sitting in the back room podcasting.
Judge William Sullivan (01:25:53):
Well, that's great too, but just, let's, we don't need this, just use-
Kevin Reddington (01:25:53):
Okay, fine.
Judge William Sullivan (01:25:53):
All right.
Kevin Reddington (01:25:57):
Then let me continue with what was not given to you at the time the jury form was submitted, because I know in your rulings, you say that anything that came subsequent that was discovered subsequent, such as the juror who indicated that this individual was on his cell phone, he was scrolling through his cell phone. I know that you are very familiar with the superior court rule that requires a Superior Court judge to instruct the jury that they are not to have cell phones or electronic devices in the jury room or during the trial. They are not to use cell phone devices to research either the law or the facts of the case. You have evidence that this individual was researching filicide. He was researching altruistic filicide.
(01:26:57)
His podcast representative indicated on his podcast after he had pandered to him and requested, "Please call me. Please call me and I'll put you on my podcast." He indicates that he told him that he had to look up these terms.
(01:27:16)
Now, I'm not aware of jurors being allowed to have cell phones in their jury room. How that happened in this case, I don't know. It was discovered because the other juror made the statement, and perhaps you were as shocked as I was to determine that this jury on this case after seven weeks of trial had cell phones and were looking on it. Whether it's him, whether it's all of them, it's a concern and a significant one granted, discovered after the mistrial. But doesn't that give you pause? Doesn't that raise the bar as to whether or not this young woman was granted due process in this case? So in addition to which you have, this individual, that's how I refer to him, as basically not complying with the orders of the court. So when this individual comes into court, and he files his jury form, which I would suggest would be exhibit number one, if you will, on this argument, and I do believe you have a copy of it, his jury form, right?
Judge William Sullivan (01:28:27):
I do.
Kevin Reddington (01:28:28):
Do you have that?
Judge William Sullivan (01:28:29):
Yes. We all had it during the time.
Kevin Reddington (01:28:32):
Okay, so we have it. Do I have to offer it again into evidence or can I reference it as far as being-
Judge William Sullivan (01:28:39):
You reference it.
Kevin Reddington (01:28:39):
Thank you. So one of the questions that you're asked is whether or not you have been arrested. And Your Honor may recall that he indicates that he was arrested.
Jen Sprague (01:28:50):
Objection. Getting into protected court information, so I'd ask that any argument about whether or not this person has arrest or a record be done at sidebar or in a closed courtroom.
Kevin Reddington (01:29:01):
No.
Judge William Sullivan (01:29:02):
Well, hold on. I think I make the decision on that objection. All right? So the objection the Commonwealth has made. The argument that you're making now, is that made in the pleadings that were impounded?
Kevin Reddington (01:29:17):
As far as the disclosure and non-disclosure of, and his representation to you and counsel during the voir dire, that's not protected. That's not Corey.
Judge William Sullivan (01:29:30):
That wasn't what I asked. The question was, is the issue relating to what you were just about to go into regarding arrest, was that referred to in your memo that was impounded? That's all.
Kevin Reddington (01:29:44):
It was referred to that the individual, we've been hogtied by orders not to disclose anything. And this is the first opportunity that I have to indicate to you what the evidence and the facts are as it relates to this individual's jury form. I referenced it in the motion. I referenced it in the request that we had to have a hearing. I referenced it when I indicated that I wanted to have an inquiry of this individual, not to harass him, not to berate him, but to find out what the truth is of what went on. I wanted to summons the podcast lawyer to have him testify because he doesn't understand what attorney-client privilege is, and he was shooting his mouth off in his podcast talking about what the juror was telling him. Incredible. Disclosing confidential communications that were undercutting the legitimacy of this juror's good faith. So I wanted to have-
Judge William Sullivan (01:30:44):
The questionnaire is confidential by statute.
Kevin Reddington (01:30:48):
What is confidential?
Judge William Sullivan (01:30:49):
The questionnaire.
Kevin Reddington (01:30:51):
What's your point?
Judge William Sullivan (01:30:55):
My point is that you're talking about disclosure of confidentiality with somebody else. And this is the Commonwealth's argument, at least the objection, is that the actual questionnaire is confidential by statute.
Kevin Reddington (01:31:09):
Okay. So if you take the confidential, all in the interest of justice, of course, to make sure that this young lady get a fair trial, let's put that aside. We'll call that confidential.
Judge William Sullivan (01:31:21):
No, I'm not putting that aside.
Kevin Reddington (01:31:21):
Well, how am I supposed to argue it? I mean, I have evidence that this man was not honest on his form. And how is it that I am not able to argue that or present that to you as evidence? Nobody knows anything other than he's the holdout juror. No, he's not a holdout juror. And I think the evidence is important for you to know, understand what was going on in this man's mind.
Judge William Sullivan (01:31:49):
It was submitted as an exhibit by you. It was mentioned in impounded memo by you. I've read it. I don't forget, I was there.
Kevin Reddington (01:32:00):
You were aware of the trial?
Judge William Sullivan (01:32:01):
I as there during the impalement. And so it's been raised by you and you provided that. And I'm just addressing the Commonwealth's objection that you're about to, in open court, raise a document that is by statute confidential.
Jen Sprague (01:32:21):
And your Honor-
Kevin Reddington (01:32:22):
Go ahead.
Jen Sprague (01:32:23):
Well, thank you.
Speaker 10 (01:32:23):
Right.
Jen Sprague (01:32:28):
Not only is the juror questionnaire confidential by statute, but a person's criminal record, whether there is one or isn't one, is confidential by statute. And I'm not suggesting that defense counsel can't argue it, I'm asking that we go to sidebar or in a closed room, discuss these issues. Commonwealth does have information that I can give to the court about these allegations or this material that I believe defense is going to ask about that could affect the rulings and whether or not this should be public material.
Kevin Reddington (01:33:01):
It is public material because you have-
Heather O’Connor (01:33:00):
... Material.
Kevin Reddington (01:33:00):
It is public material, because you have information that has been provided. He told this court... See, now I'm confused as to what I can say and what I can't say.
Judge William Sullivan (01:33:12):
Explain.
Kevin Reddington (01:33:13):
If there is a form-
Judge William Sullivan (01:33:13):
I was confused what you were going to say. That's why I was just trying to give you some guidance in regards to this.
Kevin Reddington (01:33:17):
I appreciate that, I think. If there's a form that this man filled out and he did not honestly answer the questions, that does not come after the mistrial. That is a fatal infection of the independence, the honesty, and the integrity of this juror. And that's where we should start.
(01:33:44)
Question is whether or not a person, for example, has had a criminal arrest. Am I allowed to talk about what he said in open court? You don't impound the voir dire, right? That's part of the record now, right?
Judge William Sullivan (01:34:03):
Yeah.
Kevin Reddington (01:34:04):
Okay. So Your Honor recalls that we stood over there and the gentleman was then questioned. And Your Honor had information that his form checked off regarding criminal record. Jen Sprague asked him pointedly while he was under oath, does this affect-
Judge William Sullivan (01:34:27):
Attorney Sprague, just that I know-
Kevin Reddington (01:34:28):
Attorney Sprague.
Judge William Sullivan (01:34:28):
I know we've known each other for a long time.
Kevin Reddington (01:34:30):
I have known her for a longtime.
Judge William Sullivan (01:34:31):
I just think there should be some level of respect.
Kevin Reddington (01:34:34):
I don't mean any disrespect by that, certainly. I know her as Jen Sprague, not Attorney Sprague, but I'll call her Attorney Sprague. So, you have a form that clearly inquires whether or not a person has an abuse prevention order. He didn't disclose that. Not only did he not disclose that, but he told you and Attorney Sprague on the voir dire that the issue of the arrest was in February of '26. He did not disclose to anyone his arrest from 2021 with the wife. He didn't disclose the beating of the nephew in 2025.
Judge William Sullivan (01:35:20):
Sustained. Okay, move on.
Kevin Reddington (01:35:23):