Holdout Clancy Juror & SCOTUS Blocks Missouri GOP Maps a Third Time

0:00So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM. This is Robert Smith from Business History. If you're listening to this, there's a good chance you're a small business owner.

0:35And like every small business owner, you started with a dream to do what you love and watch it grow. What you probably didn't dream about? Keeping up with cyber threats. That's where MasterCard can help with access to tools that help identify cyber threats to better protect your business. Building your dream business? Priceless. For cybersecurity in a changing world, there's MasterCard. Learn more at MasterCard.com slash smallbusiness. If you listen to financial news, you know a lot of time is spent thinking about what's next. The next opportunity. The next investment. The next move. But sometimes what matters most is being ready for what you never saw coming.

1:14For more than 75 years, Cincinnati Insurance has worked with independent agents to help protect businesses, homes, valuables, and more. Because planning for the future isn't only about knowing what's next. It's about making sure you're ready for what you can't predict. Let Cincinnati insurance make your bad day better. Find an independent agent at CINFIN.com. This is Bloomberg Law with June Grosso from Bloomberg Radio. We're anticipating the 29th. I'm hoping that Judge Sullivan allows the termination of the case. I mean, it's just a case that needs to be done. It needs to be done. Lindsay Clancy's defense attorney, Kevin Reddington, is asking the trial judge to dismiss the murder case against her, saying there wasn't enough evidence to prove her criminally responsible for murdering her three children and that trying her again would amount to double jeopardy.

2:16Three weeks ago, the trial judge declared a mistrial. after the jury was unable to reach the unanimous verdict after seven days of deliberations. The jury was hung 11 to 1 in favor of acquittal, and Reddington took an unusual posture for an attorney after the mistrial, attacking the lone holdout juror repeatedly in media interviews. They know that they were robbed by one man for whatever his agenda was, who stole seven weeks of the life of these other jurors. Reddington is now asking the judge to conduct an investigation into the holdout juror. My guest is former federal prosecutor Robert Mintz, a partner at Carter and English.

3:04Bob, I've never seen an attorney attack a holdout juror or any juror, so it's very unusual. and now the defense attorney is asking the judge to investigate this holdout juror. What's he looking for? The defense lawyer has taken a rather aggressive tactic here, going after the lone holdout juror who has now been identified by name and has in fact gone out and hired his own lawyer to represent him in this matter. And the defense lawyer in the Clancy case is really trying to focus all of the attention now on this lone holdout juror. Remember, the jurors apparently were 11 to 1 with 11 jurors in favor of returning a verdict of not guilty by reason of insanity based on the defense argument that she lacked the requisite criminal intent.

3:58and the lone holdout juror refused to agree, which resulted in a mistrial. Now, Ms. Clancy's defense lawyer is essentially going after this lone holdout juror, asking for all kinds of records about this juror, asking for information about the juror's cell phone. According to other jurors, this lone holdout juror was seen scrolling through his cell phone during deliberation. So the defense lawyer is asking the court to turn over cell phone records, the calls, text messages that may have been going on during deliberations, going after the juror's confidential questionnaire, wants to know whether that juror who was the lone holdout was truthful in the questionnaire and whether he was truthful during voir dire, which is the point at which jurors are questioned during the jury selection process.

4:52So he is really trying to turn this into an attack on this lone holdout juror trying to argue that there was something improper in this juror's decision to not go along with the other jurors and to refuse to reach a unanimous verdict of not guilty. Bottom line, so what? Suppose he finds that out. There's already been a mistrial declared. What can he hope to gain from that? Well, that's a good question. I think we've seen here a blurry of motions being filed by the defense lawyers here. One of them is asking the judge to yet again declare essentially a directed verdict. What that really means is that under Massachusetts law, a defendant can ask the court to find them not guilty on the basis that the evidence is insufficient as a matter of law for a conviction.

5:45That can be filed when the evidence is completed, which is exactly what Ms. Clancy's defense lawyer did in this case. The judge denied it then. It can also be renewed after the conclusion of the case, which is what's happened here. So the defense lawyer is asking again for the judge to make a finding as a matter of law that the evidence was insufficient in order to convict his client and that the case should simply be thrown out, basically saying that there was not enough evidence presented by the prosecutors during the trial that any reasonable juror could conclude that she could appreciate the wrongfulness of her conduct or to conform her conduct to the law, which is the standard for finding somebody guilty.

6:31The defense lawyer has also made an interesting argument, essentially arguing that another trial would amount to double jeopardy. Now, the prosecutors in this case have not yet made a decision about retrying the case, but assuming they go forward, which is likely, the defense is arguing that the judge here failed to question the juror, that lone holdout juror, when other jurors told the court that that juror had expressed doubts about Ms. Clancy's guilt, but nonetheless refused to find her not guilty by lack of criminal responsibility. The way Reddington, the defense attorney, is attacking this juror, I mean, has he crossed the line?

7:13I know that the juror's attorney has said that he intends to file a complaint against him because his conduct isn't consistent with the standards of professionalism that we expect from members of the bar. Has he crossed the line in the way he's treated this holdout juror? Well, on the one hand, during the deliberations, it's understandable that the defense lawyer would have aggressively asked the judge to question jurors and to try to see whether at the end of the day there could be a unanimous verdict here. The defense obviously thought that the jury was leaning towards acquittal. He knew that there was an 11 to 1 voter and knew at least that there was an overwhelming vote in favor of acquittal.

7:58And he was trying to get that lone holdout juror to go along with the other jurors. But that's not what happened here. And what the judge did in the face of the request by the defense lawyer to question that juror was to bring each juror in one by one on the sixth day of deliberations and asked each of them under oath if they could apply the law as instructed. That was the appropriate thing to do because the allegation from the other jurors, or at least from the defense lawyer, was that this lone holdout juror was refusing to apply the law. And if that's the case, then there could be a basis to remove that juror.

8:37But each juror, one by one, told the judge that they could apply the law as instructed, including the lone holdout juror. And what the defense lawyer is asking and what the defense lawyer is criticizing the court here in not doing is probing the specific complaint. In other words, specifically asking the lone holdout juror what was his basis for failing to agree with the other jurors that there should be a not guilty verdict, or what was his basis for believing that the prosecution had proved his case beyond a reasonable doubt. That's something that the judge refused to go into. And I think that was the appropriate approach, because at that point, once you begin to try to peel back the understanding of why the juror was voting the way they were, it really becomes a situation where it could be looked at as pressuring that juror to change their mind as opposed to simply asking whether they could follow the law, which is exactly what the judge did here.

9:38So the defense lawyer at that point, I think, was reasonable in questioning that juror and asking the judge to question the jurors, but to attack the juror now after a mistrial has been declared really doesn't serve any purpose because there's not a high probability that any of these motions are going to be granted, in my opinion. And going after that lone holdout juror really will have potentially a chilling effect on jurors. You really want a situation where jurors will make up their own minds, will use their own understanding of the law as it's been explained to them by the court, the facts as they have understood them at the end of a trial, and come to their own conclusion about whether or not the prosecution has proven its case beyond a reasonable doubt.

10:26And you could certainly see a reverse situation, which I think most people would find abhorrent where there was one lone holdout juror for acquittal and all the other jurors were voting for a conviction. And if that single juror who was voting for acquittal ended up in a hung trial was being pressured in order to gain a conviction, I think most people would find that to be a heavy-handed tactic. And so this really does raise the question about whether the defense lawyer is just going too far in attacking this juror who has repeatedly said that he looked at the evidence, he looked at the law, and simply came to a different conclusion than his fellow jurors.

11:11He's entitled to do that. And to attack him simply because he refused to go along with the other 11 jurors is something that most lawyers, I think, would find to be crossing the line. The possibility of a plea deal. We don't know if there have been plea deal negotiations, but the defense attorney has said he would not accept a plea deal that included jail time for his client. So that doesn't leave much room for a plea deal. You're exactly right. I think a compromise plea is unlikely in this case, just because the two competing narratives here are so far apart. On the one hand, the defense story is that this is a case of a woman who herself was a victim despite having admitted to this horrific crime of murdering her three young children.

12:01The defense was arguing that she took all of these steps to try to obtain help for her mental health issues and that really she was, in a sense, a victim of a system that overlooks maternal mental health. That was something that the defense has raised over and over again, and it's completely at odds with the prosecution's case. The prosecution is looking at the victims here, the three young children, and is doing what prosecutors believe is justice, justice for those three young children who were brutally murdered. And it's hard to find any common ground between those two competing narratives.

12:39And that's why it's unlikely that a plea deal will be worked out here. It's much more likely that this case will be retried. Prosecutors might change the charges that they bring. They may not decide to bring first-degree murder charges again, but I think it's very likely that we'll see another trial here. Coming up next, is the judge likely to set a trial date tomorrow, or might there be more proceedings? I'm June Grosso, and this is Bloomberg. So there's a lot of noise about AI, But time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need.

13:20Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM. A business gift is never just a gift. It's a thank you, a milestone, a moment of appreciation. It's a message about how much someone matters and what your brand stands for. At 4imprint, you'll find thousands of customizable options, like premium apparel, branded drinkware, tech, totes, and more, each chosen not just for function, but for meaning.

13:59You can tailor every detail, your logo, your message, your presentation, so your gift feels personal and on-brand. And with expert support, dependable service, and thousands without a setup fee, creating something thoughtful doesn't mean making it complicated. Every order is backed by 4imprint's 360-degree guarantee, so you can be 4imprint certain it'll arrive exactly as expected, on time, and with the care your brand deserves. Because when the moment matters, the right gift speaks volumes, and the right partner makes it easy. Explore gifting with purpose and certainty at 4imprint.com. 4imprint.

14:354certain. Let's talk about healthcare for a second. It doesn't always work the way people expect it to. If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling. The system should just work better for everyone. That's exactly what the people at Optum are trying to do every day. They're a healthcare company linking patient care and pharmacy services and using data and technology to drive the whole system so care is connected, not complicated, for patients and providers. Things like making it easier to get care that looks at the whole person, from primary care doctors to mental health support and even in-home care, and then using technology to make sure they all work together.

15:14Technology designed to help doctors spend less time on busy work and more time with their patients. And those prescriptions? Optum is working to bring costs down, save patients money, and make it easier to get refills. Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how. Tomorrow, Lindsay Clancy will appear in court for the first time since a judge declared a mistrial in her murder trial. The jury was hung 11 to 1 in the trial accusing her of murdering her three children. I've been talking to former federal prosecutor Robert Mintz of McCarter & English.

15:57Bob, what are the things that prosecutors consider when deciding whether to retry someone after a mistrial? Well, the prosecution is going to go back and they're certainly going to dissect the case. They're going to look at the way the case was tried. They're going to look at the way the evidence went in. They are not oblivious to the fact that at least these jurors were overwhelmingly in favor of acquittal. So they may try to retool this case in a different way in terms of how they present the case. They may try to change the charges. They may drop the first-degree murder and leave manslaughter in and other charges.

16:35They also consider the victims. In this case, you have the husband, the grieving husband who lost his three children, who has to endure the difficulties of sitting through another trial. But at the end of the day, the prosecutor is going to do what he believes is the just thing to do. And if he looks at this case and believes in his heart that this case was one where the defendant knew what she was doing, despite the fact that she clearly had some mental health issues, he's going to retry the case. And that's, I think, what's going to happen here. In light of the attack on the lone holdout juror, is it going to be hard to find a jury, you know, jurors that want to sit on this case?

17:22Well, that's certainly what the lone holdout jurors attorney is arguing, that this will have a chilling effect, that this really is something that people should sit up and pay attention to, because this really is an attack on our constitutional system in which a jury of our peers are the people who judge us at trial. And it's important that we have people willing to serve. And if a juror believes that if they don't agree with their fellow jurors, whether that's for conviction or acquittal, that they're going to be singled out, that they're going to be named publicly, and they're going to be attacked for their beliefs, that could make it more difficult to sit jurors who represent a reasonable cross section of our society.

18:06And that's exactly what defense lawyers and prosecutors are looking for when they select jurors. They want jurors who will ultimately make up their minds independently of the other jurors based on the evidence and based on the law as it is explained to them by the court so they can exercise their own independent judgment as to whether or not the defendant is guilty or innocent. Let's talk about some of the motions that the defense attorney is making. He claims that the judge should have questioned that holdout juror about why he was holding out basically, and also that the judge should have allowed the jury to deliberate longer.

18:47The standard that the court has to follow when deciding when jurors can no longer continue to deliberate and the judge has to declare a mistrial is when the judge decides that manifest necessity requires a mistrial. In other words, when all other options to reach a verdict have been exhausted and there is simply no point in continuing to deliberate. Here, the defense is arguing that the judge rushed to judgment, declared a mistrial prematurely rather than continuing to question the lone holdout juror or the jury foreperson who had said that the lone holdout juror was not following the law and that the judge here acted too quickly.

19:28Again, I don't think this is one that is likely to succeed on appeal. I think this is one where the appellate courts will give deference to the judge. The judge did question jurors one by one about whether or not they could follow the law. I think that was the appropriate thing to do. Really here, what the defense is trying to argue is that the judge should have gone further and asked that lone holdout juror what was their basis for failing to agree with the other jurors that there should be a not guilty by reason of insanity. and the judge was not going to go there. The judge was not going to get into the reasoning as to why jurors reach certain decisions.

20:09And that's something that under the law is generally protected. In other words, courts do not like to peel back the curtain and look at jurors and ask questions about how they reach their decisions. It's done in private. It's in the jury room. There is no transcript that's created of deliberations intentionally. Jurors are allowed to go back and forth, conduct those deliberations without fear that anything they say during those deliberations will be made public. And so to ask a juror about why they're reaching or leaning towards a particular decision is just not something the court was going to do.

20:48And it's not something I think that the appellate court will find that the judge erred in refusing to go there. Bob, what does it take for a judge to dismiss a juror in the middle of deliberations, especially when they've learned that there is one holdout? Well, it's highly difficult to dismiss a juror during deliberations, particularly, as you said, once it's known that the defense is asking the lone holdout to a not guilty verdict to be removed because that looks like it is a results-oriented decision then in order to try to get a not guilty verdict. But during the course of a trial, there are circumstances where jurors are removed, and that's why in every case, in addition to the men and women who are seated as part of the jury, there are also what's called alternate jurors, which are men and women who are picked to be on the jury but don't actually sit in the jury box and hear the case.

21:46But they are there in the courtroom hearing all the evidence so that if a juror is removed, one of the alternates then steps in and takes their place and the whole case doesn't have to be tried again. And when that happens, it's generally a circumstance either where a juror becomes ill and is unable to complete the trial and to sit and render a verdict at the end of the case. Or in rare instances, there's cases where it's proven that a juror has disregarded the court's instructions with regard to not discussing the case and with regard to not reading any news accounts or getting any outside information about the trial.

22:27because it's very important that at the end of the day, jurors make their decisions based solely on the evidence that's presented during the trial, that's admitted during the trial over objections and rulings by the court, and that they're not influenced in any way by any information that they may have heard about the case or may hear about the case during the course of the trial. So there have been instances where jurors have acknowledged to reading newspapers or to have looked on their phone and gathered information about a trial during the course of the trial. Once that happens, they have essentially infected the deliberation process with information that was not presented during the trial, and a juror can be removed for that purpose.

23:10But you're not going to have a situation where a juror tells the judge that they are making a decision based solely on the evidence and that they have agreed that they will follow the law as it has been explained to them by the judge and be removed because another juror is arguing that they're not following the law. That's simply a disagreement between or among jurors as to what the proper verdict can be. There's nothing improper about it, and a judge is not going to remove a juror on that basis. His double jeopardy motion seems like it's more than a long shot. There's a mistrial. You know, your options are much more limited.

23:50And, you know, you can file those motions that he is filing, but they're just unlikely to succeed here. You know, there's certainly not going to be a finding of double jeopardy because the court failed to question the jurors the way he would have liked. It's probably not going to happen. So you think that what happens tomorrow is the defense's motions are denied and maybe the judge sets a trial date? Well, if the motions tomorrow are denied, I think we will expect to see an appeal, and that will delay a retrial. If the defense motion concerning the judge's alleged failure to adequately question jurors based upon the allegation that one juror was not following the law, if it goes against the defense, which is what I expect, I think we'll see that taken up on appeal.

24:36So I think the next phase of this process is going to be an appeal, which will have to be resolved before the next trial can take place. Clancy's defense attorney did make an emergency appeal to the Massachusetts Supreme Judicial Court to block the trial judge from declaring a mistrial, and they ruled against that. So does it seem unlikely that they would reverse based on that same issue? No, I think it's unlikely. Trial judges are given a lot of deference to make decisions during the course of trials. And in this case, there's nothing that the judge did that was unreasonable. The judge did question jurors about whether that juror could follow the law.

25:18I don't think the judge is going to allow this inquiry into the lone holdout juror. And so I don't think any of these motions that the defense are making are likely to succeed. And I think we'll see an appeal first, which will likely ultimately be denied. And then this case will be set for another trial. I guess tomorrow we'll at least learn whether or not there have been any plea negotiations. And perhaps the judge will announce his decision on the motions as well. Thanks so much, Bob. That's Robert Mintz of McCarter in English. Coming up next on the Bloomberg Law Show, for the third time, the Supreme Court rules that Missouri must use its map from 2022 in the midterms, not a Republican-drawn map.

26:05I'm June Grosso, and you're listening to Bloomberg. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise, proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business, IBM. A business gift is never just a gift. It's a thank you, a milestone, a moment of appreciation.

26:44It's a message about how much someone matters and what your brand stands for. At 4imprint, you'll find thousands of customizable options, like premium apparel, branded drinkware, tech, totes, and more, each chosen not just for function, but for meaning. You can tailor every detail, your logo, your message, your presentation, so your gift feels personal and on-brand. And with expert support, dependable service, and thousands without a setup fee, creating something thoughtful doesn't mean making it complicated. Every order is backed by 4imprint's 360-degree guarantee, so you can be 4imprint certain it'll arrive exactly as expected, on time and with the care your brand deserves.

27:23Because when the moment matters, the right gift speaks volumes, and the right partner makes it easy. Explore gifting with purpose and certainty at 4imprint.com. 4imprint. 4certain. Let's talk about healthcare for a second. It doesn't always work the way people expect it to. If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling. The system should just work better for everyone. That's exactly what the people at Optum are trying to do every day. They're a healthcare company linking patient care and pharmacy services and using data and technology to drive the whole system so care is connected, not complicated, for patients and providers.

28:03Things like making it easier to get care that looks at the whole person, from primary care doctors to mental health support and even in-home care, and then using technology to make sure they all work together. Technology designed to help doctors spend less time on busy work and more time with their patients. And those prescriptions? Optum is working to bring costs down, save patients money, and make it easier to get refills. Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how. This is Bloomberg Law with June Grosso from Bloomberg Radio.

28:45On Friday, the Supreme Court handed down two decisions in election-related cases. For the third time, the court said Missouri can't use a Republican-drawn congressional map in the November midterm elections. That was unanimous for the third time. And over the dissents of the court's three liberals, the court reinstated President Trump's expansion of a federal database to help verify voter eligibility for the midterms. Joining me is elections law expert Richard Brafalt, a professor at Columbia Law School. The Supreme Court rejected Missouri Republicans map twice in one week. After that, why did the Eighth Circuit come back and say that the Constitution required that the state use that Republican map?