Weekend Law: Clancy Mistrial, Trump Ballroom & Pride Flags

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2:19Judge William Sullivan declared a mistrial on Friday in the case of Lindsay Clancy, who strangled her three young children in January of 2023. three. The trial was punctuated by dramatic moments, including the revelation on Thursday that the jurors were deadlocked 11 to 1 in favor of acquitting Clancy, who claimed she wasn't criminally responsible for killing her children because she was suffering from postpartum psychosis. The defense attorney tried to get Judge Sullivan to remove that holdout juror, but the judge refused. I don't feel that it is proper for me to side with one side or the other of the deliberations.

3:05I don't feel it's appropriate for me to say I agree with one juror or 11. Outside the courthouse, Clancy's lawyer, Kevin Reddington, criticized the district attorney and the holdout juror. 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. The Plymouth County District Attorney, Tim Cruz, said they haven't decided whether they'll retry Clancy, but their priority has always been to seek justice for the three children. I bring it all back to the child victims in this case, Cora, Dawson, and Callen. This was and has always been about getting justice for those three little babies.

4:01My guest is former federal prosecutor Robert Mintz, a partner at McCarter and English. Bob, the last few days of this trial were really unusual. Have you ever seen a defense attorney basically refusing to accept a deadlocked jury, even going to a higher court to try to get a stay to prevent the judge from declaring a mistrial? It is very unusual in this circumstance because the judge had already questioned the juror and concluded that the juror was not unwilling to follow the law. And at that point, there's really not much more that the judge can do. So to try to seek a stay by the defense here seemed to be rather puzzling because it's hard to imagine exactly what he was trying to accomplish.

4:48And the jury had already said they were deadlocked three times. So under Massachusetts law, he couldn't have sent them back to deliberate anymore. No, that's exactly right. And that is what the judge was concerned about, because under Massachusetts law, you can give what's called a dynamite charge or a Rodriguez-Tui charge, which is basically telling jurors to go back to try to reach a verdict that they have as much information as any other jury might have. And that a lot of time and effort has been invested into the trial and they should go back and try to see if they can reach a unanimous verdict.

5:25But at the same time, the judge will always say that you should not surrender your beliefs, your convictions. And at the end of the day, if there is a disagreement among jurors so that there cannot be a unanimous verdict, then there is a mistrial. And the concern that the judge here had in this case, no doubt, is that if you continue to put pressure on a jury where one juror has already taken a position that they can't reach a unanimous verdict and the other jurors agree, and you begin to apply excessive pressure to that juror, that creates an issue unappealed because it looks like you're trying to steamroll that one lone juror and try to get them to change their position by applying added pressure to them.

6:09And that's why the judge can push, but only push so far. And then at some point, the judge has no choice but to declare a mistrial. And that's exactly what happens here. The defense attorney tried to get the judge to remove that one holdout juror after the other jurors said that he wasn't following the law on reasonable doubt. But reasonable doubt is a difficult concept, and obviously people can disagree about it. That's what a trial is about. How do you knock off a juror in that circumstance? Well, you can't knock a juror off simply because they don't agree with the other jurors and have come to a different conclusion based upon the evidence.

6:50What the defense lawyer is trying to argue is that the juror who is the apparent holdout is simply refusing to follow the law as it's been explained by the judge. Now, we don't know whether that's the case or not, but I suspect that what the judge was doing by questioning the individual jurors was trying to make that determination. And if the holdout is simply a juror who has a strong conviction and is unwilling to be moved by the views of the other jurors, that's not something that will result in that juror being removed from the jury. It would have to be a circumstance where a juror was more or less telling the judge that they were refusing to follow the instructions of the court.

7:38And in that instance, it's possible the judge would remove them on that basis. Describe the competing narratives presented by the prosecution and the defense at trial. The question of what would ever drive someone to harm their own children is something that most people really have never had to grapple with and have a difficult time, I think, assimilating as to exactly what would drive somebody to commit that kind of act. And what we see in this case are two very different narratives, both compelling in their own right, where you've got the evidence of a woman, according to prosecution, committing this premeditated act where she had told her husband to go out to dinner, to go out to the CBS to pick something up.

8:25And according to evidence produced by prosecutors during the trial, she had looked at how long it would take for him to come back. She had been with her children during the day, taking them to doctor's appointments. And basically the prosecution has said that although she may have a mental illness, she certainly knew what was going on and that this was an act of premeditation. And she knew the wrongfulness of her conduct when she committed this crime. The defense, on the other hand, painting a very different picture. And really, I think, trying to put the medical system on trial in a certain sense by saying that their client visited a psychiatrist 14 times, tried 13 different medications.

9:05She called a suicide hotline. She went to the emergency room. She tried to enroll in an inpatient program. She confided in her husband that she had these thoughts of harming their children. And basically, they are trying to suggest that she did everything she could to try to prevent this from happening. But ultimately, this illness, this rare condition called postpartum psychosis, caused her to have these hallucinations where she allegedly heard this male voice telling her to kill her children. And jurors faced the very daunting task here. It's very difficult to try to sift through these two competing narratives of what's happened here, to try to listen to the testimony, the medical testimony, the pharmaceutical testimony and the data, the heartbreaking reality of what actually happened here.

9:57a mother killing her own three young children, and figure out whether or not this was a premeditated act and that justice is served by sending this woman to prison for the rest of her life, or whether she really is suffering from a severe mental illness and she really committed a crime without knowing right from wrong, and that the right result is to send her to a psychiatric institute rather than a prison. In Massachusetts, things are sort of flipped around in their version of an insanity defense. Explain how it differs from other states and puts the burden on the prosecution. Massachusetts actually has one of the less restrictive definitions of insanity.

10:41The defense here is claiming postpartum psychosis, which in every state is treated like any other insanity defense. And in most cases, defendants must prove that they did not understand what they were doing or they did not know what they were doing was wrong. That's the most stringent standard. Other states have slightly less stringent standards. For example, certain states allow that defendants may have known what they were doing was wrong but couldn't resist the impulse to do it. Another standard allows juries to consider but for the defendant's mental defect, the crime would not have occurred.

11:19The interesting thing about the law in Massachusetts Massachusetts is that it never shifts the burden onto the defense. All the other standards in most states shift the burden onto the defense to prove they didn't know what they were doing or that they did not know what they were doing was wrong. But in Massachusetts, the burden remains with the prosecution at all times, which makes it more difficult for prosecutors to overcome this defense. And in Massachusetts, it requires prosecutors, not the defense, to prove that a mentally ill defendant retain the substantial capacity to appreciate the wrongfulness or criminality of their conduct and to conform their conduct to the requirements of the law.

11:59So in this case, once that defense is raised by the defense, the burden shifts back to the prosecution to overcome that defense. And in this case, the prosecution tried to do it again by proving that the conduct was premeditated and that Ms. Clancy knew what she was doing. She may have been mentally ill, that's conceded by prosecutors, but the standard here is whether or not she knew the wrongfulness and the criminality of her conduct and was unable to conform her conduct to the requirements of the law. The prosecution now knows that they only convinced one holdout juror, but this is such a high-profile case.

12:39Do you think they'll retry her? Well, it's highly unlikely prosecution is simply going to drop the case. That is not going to happen. But what they are going to do is go back and scrutinize the trial, look at the testimony, see how their evidence went in, and see how they can improve on that if there is going to be a second trial. And there will no doubt be some conversation with the defense to see if some plea deal can be reached in order to avoid a second trial since both sides have a lot to risk if they go to trial again. We may learn more at the next court hearing, which is scheduled for September 29th.

13:16Always a pleasure to have you on, Bob. Thanks so much. That's Robert Mintz of McCarter in English. Coming up next on the Bloomberg Law Show, how the Supreme Court's decision to allow Trump's ballroom to go forward imperils other cases over his construction projects. I'm June Grosso, and you're listening to Bloomberg. Some people treat ChatGPT like some kind of smart search engine, and some use it to get work done. ChatGPT Work is a new way of working in ChatGPT that can take action across your apps and files, stay with a project for hours if needed, and turn a goal into finished work. It's designed to help you move from a chaotic starting point to a reviewable first version.

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16:32And this is what you'd have as opposed to the asphalt. President Trump has spent much of his second term trying to leave his mark on the White House and throughout D.C. And the White House ballroom has been the centerpiece of that campaign. But it's going to be incredible. It's going to be, aside from being secure, I think it's going to be the most beautiful ballroom ever built. And on Monday, five conservatives on the Supreme Court cleared the way for Trump to continue building the ballroom over the dissents of the chief justice and the three liberals, and brushing aside conclusions by two lower courts that he's probably violating the law.

17:12The majority found that the historic preservation nonprofit that sued to stop the ballroom doesn't have legal grounds or standing to contest the project. The decision presents a new high hurdle for those challenging Trump's other construction projects. In fact, on Thursday, the administration filed a motion to have the lawsuit challenging Trump's 250-foot arch dismissed for standing reasons, citing the Supreme Court's decision on the ballroom. My guest is Tracy Fight Love, founder and executive director of Lawyers for Good Government. Tracy, so the majority on the Supreme Court found that the historic preservation group that sued did not have standing.

18:01Tell us more about that. So basically, the court did not rule that President Trump has the authority to build the ballroom. What they did rule is that the particular plaintiffs that initiated this lawsuit are not allowed to challenge it. You say someone doesn't have the standing. It means they don't have the legal right to challenge a particular action. It does not mean the action that they're challenging was legal. Do you think that the Supreme Court often uses standing as sort of an off ramp that allows it to avoid making a decision on the merits until it's too late? Yes. Yes, I do think that.

18:42And the reason I think that is because there have been too many instances over the years when the court seems to find that someone does have standing if it relates to an issue that they want to see decided in a particular way and someone else doesn't have standing because they don't want to get to the merits of a particular issue. That distinction really, really matters. I mean, when you look at the decision, the only four justices who addressed the legality of the actual ballroom project all concluded that it was likely unlawful. That includes Chief Justice Roberts, who emphasized that Congress has not expressly authorized this construction.

19:18So it does seem in this instance that possibly standing was an easy out for them. It's not a typical case where someone is injured and obviously has standing. Do you think it's a harder case to make out standing here than usual? Yeah, this was not clear cut in terms of the standing question. The real issue is when you look at the overarching pattern of decisions about standing. For example, in this case, when they concluded that the National Trust lacked standing, They said it was because the aesthetic or historical injuries that the plaintiffs were asserting were not sufficiently concrete or particularized.

19:58But there is other precedent, Supreme Court precedent, that has, in some instances, recognized aesthetic injuries as being sufficient for a standing. For instance, in environmental and conservation cases, when plaintiffs actually use or observe the place or resource that's being affected. So it was a close question. And I think because it could be perceived as close, it gave them the room to maneuver that they wanted in order to not stop the ballroom construction. And we don't often see the chief justice in dissent with the three liberals. How surprising is that? Yeah, I mean, it's I'll admit I'm not often surprised anymore at all about what these Supreme Court justices do.

20:43But I think it does speak to the fact that this is not a partisan question. The issue of standing was not decided along the basis of who appointed which justice. That means that this issue may have even been closer than the court wants to admit. So I think it's interesting that Justice Roberts actually agreed that the substantive question, the actual question of whether that ballroom was legally being constructed, was probably going to be answered in the negative. The chief justice did write a strong dissent. He wrote that Congress has explicitly prohibited the construction of any building or structure on grounds of the federal government in D.C.

21:30without congressional authorization. He also said that the majority's order is no victory for the separation of powers. Now, the court's conservatives have been consistently expanding presidential power. Do you think the chief is suddenly coming to the realization that there is a separation of powers problem? I hope he's realizing it. I don't know if it's sudden or if this is something that he's been willing to accept up until a certain point. But this is fundamentally a story about separation of powers and the rule of law. We can't allow the rule of law to be act first, ask permission later. Standing matters, obviously.

22:10But if these procedural barriers are repeatedly preventing anyone from challenging potentially unlawful executive action, then the question is, who can actually hold the president accountable? And are the checks and balances that the Constitution meant to set out really in existence now in a meaningful way? The administration has been doing this over and over again in different areas, you know, deporting people before things can get into court, cutting off funding before things can get into court, firing people before things can get into court, on and on. And, you know, the Supreme Court, except in a couple of instances, tariffs and birthright citizenship, has allowed the president to do this.

22:56That's correct. This court has shown a remarkable unwillingness to hold the executive branch accountable to the constitutional limits that it is meant to operate within. I'm running out of words to describe how dangerous it is to be in a situation where the actions of the executive branch are not being effectively checked or challenged by either of the other two branches. But that is the situation we have found ourselves in. Obviously, the administration is making the argument that the president has the authority to build this ballroom. But is there any convincing legal authority or precedent that contradicts what the lower courts have ruled, which is that a project like this needs congressional approval?

23:45In other words, do the plaintiffs have a really strong argument about Congress's role here? Yes. I mean, the circuit court that ruled on this issue expressly said that Congress has constitutional authority over federal property and that it was a problem that Congress had not authorized this project. And the Supreme Court did not find otherwise. All the Supreme Court really said was that this particular plaintiff couldn't challenge it. What I also find a little puzzling is that usually you have an injunction that will preserve the status quo as the lawsuit goes on. But this is an injunction that is allowing the ballroom to go forward.

24:27It's already 65 percent built. And by the time this gets back, if it ever does, to the Supreme Court, it'll likely be done. So it's not preserving the status quo. No, it is not. And I personally, although I cannot read the justices' minds, I can't obviously speak for them, but it doesn't seem to me that the court as a whole is really trying to manage or maintain the status quo here. It's pretty clear to me that they're very willing to allow the construction to proceed, understanding that that means it will be nearly impossible to undo and that effectively the president has just been granted the authority to do what he should not have the authority to do.

25:10This administration mentions national security. It seems to me in almost every argument there's a national security reason for what they're doing. I mean, did the majority here actually buy that there's a national security reason for this ballroom? That was something that wasn't mentioned until well after the construction started. In fact, President Trump wanted to build a ballroom at the White House during Barack Obama's administration. So building the ballroom came first and then claims of national security reasons. National security is one of those phrases that the administration likes to throw out there because they believe that it grants them almost unlimited powers.

25:55It's an easy way for them to make the argument that they should be allowed to do whatever they want to do. And because they're unilaterally making these declarations of when there is or isn't a national emergency, it's very hard to put any checks on that. And that's exactly why they use that phrase so often. There is nothing inherently national security related to a ballroom. I understand that there is meant to be something constructed underneath the new ballroom that may be relevant to national security. But that's a separate question. Trump is trying to remake D.C. in different ways. He keeps trying to put his name up on the Kennedy Center.

26:30I mean, we have the reflecting pool. He wants to build this arch. Will this decision by the Supreme Court lead him to start building the arch? Is the arch next? It could be. Like I said about the justices, I can't understand or predict what happens inside the mind of this president or his colleagues. But it does seem that the precedent here has been set in a way that establishes for practical purposes. If the president is willing to move quickly enough, he will be allowed to get away with it. And that means we need Congress to step up and be willing to do its job. If the Supreme Court is unwilling to put any meaningful checks on the authority of this president, the only branch of government left that is capable of doing that is Congress.

27:20Do you think that other groups can try to sue over the ballroom or it's too late for that? I mean, it's theoretically possible that another group could try. My hunch is that the litigators, the lawyers who brought this suit, did their best to find the plaintiff that they thought would be most likely to have standing. But is it possible that there's another group out there that might be deemed to have standing? It's possible. I think it's unlikely that that will happen. It seems like this decision will open up challenges from the administration to a lot of these lawsuits to try to stop Trump's construction projects.

28:01For example, it's two preservationist organizations that have challenged plans to paint the granite exterior of the 19th century Eisenhower Executive Office Building. And the National Trust and other preservationist and heritage organizations have also challenged the plan renovations to the Kennedy Center. So this Supreme Court decision on the ballroom may have wide-ranging implications. Thanks so much for joining me, Tracy. That's Tracy Feitlove, founder and executive director of Lawyers for Good Government. Coming up next on the Bloomberg Law Show. The Second Circuit rules that high school teachers in a Long Island, New York public school don't have free speech rights to hang pride flags in their classrooms.