BREAKING: Lindsay Clancy Jury Still Deadlocked - Is There ONE Holdout Left?

22:09So I think it is pretty interesting. And actually, to your point, Phil, you're right. If they come back with a deadlock twice, that's it. Massachusetts law says it's over. But I don't think that's what the note said. I don't think they didn't. I don't think the juror who's the foreperson said we're deadlocked. The note actually just said one juror refuses to listen to the law on reasonable doubt, which is different from we can't agree. Well, I've had this in court.

22:32Dave Aronberg:So, yes, this Christina Rex is reporting she's with WBZ. She is reporting what you said. Reddington arguing in open court the Clancy case says to the judge, the court has instruction from the foreperson saying there's one juror who refuses to listen to the law that you've given him or her unreasonable doubt. Prosecutor agrees with judge's approach, which is to read the general instruction on reasonable doubt to the jury. The judge says he doesn't feel it's proper to decide with one side or the other. I think she means side with one side or the other on deliberations. Quote, it's not appropriate for me to say I agree with one juror or 11, judge says, insinuating there is an 11 to one holdout issue here.

23:12Dave Aronberg:So it's 11 to one inside there. But I don't why do we think we think that that that Kevin Reddington believes he's got 11 of the jurors on his side because he wanted the one juror bounce. Are we possibly looking at a debate about whether whether she might be found the real not guilty? Forget not guilty because of because that is an option on the jury form that that is a choice they have available to them. But we're not gleaning that from these notes. No, not at all. I'm looking for what I said before was that I think Kevin Reddington is seeing with this note saying one juror cannot follow the law according to reasonable doubt.

23:51it may say to Kevin Reddington, aha, following the law and reasonable doubt would get me to a not guilty by reason of insanity or not responsible in Massachusetts. And Matt Murphy knows this. What do you make of it? Matt knows.

24:04Dave Aronberg:I was just going to ask him to weigh in. Go ahead, Matt. Yeah, go ahead, Matt. No, look, he's been able to see them, right, Megan? That's one thing that we haven't. And when you stand up to do a closing argument, especially in murder cases like this, you really do get a vibe from the jury. And even when they're stone faced, you'll, some of them are like, they're with you and you can tell. So he's got to, he must feel that. Otherwise, it's like, I'm watching this. He wants, originally wanted the court to declare a mistrial. He could talk himself out of a really good verdict by doing that, potentially.

24:41If the court declares it and it's 11 to 1 and 11 were on his side, then a mistrial has been declared and he's got to theoretically go through this whole thing again. You know, they'll enter into negotiations, Megan, if this thing hangs. But I don't know. Then again, Phil, Dave, we all have had crazy experiences with juries where you think they're with you or against you and you think the holdout is this person. and we're so often wrong. It's, you know, I told a story with Ashley last night about a case one of my colleagues did where there was an ex-con who had his constitutional rights restored and it was hanging 11 to one.

25:22And my buddy was like, I got to get rid of this guy. I don't know how, I don't know how. And I think he got, he was later, he was sick or something and he basically bagged out. He was the one holdout for guilty. And it was a former prisoner who's like, these guys are all full of crap. You never know. And Kevin Reddington must have a vibe, but he doesn't know either until, you know, until none of us do. You don't think they told the lawyers which which juror?

25:46Dave Aronberg:You don't think they told the lawyers which juror? No. No. Yeah. No way. This is such a pickle. This is such a pickle. What do you what would you guess, Matt, the judge is asking each juror or telling? Can you can you follow the law? Can you follow the law as the court has instructed you? can you continue to deliberate with your fellow jurors and listen to what everybody says and keep an open mind? That's the generic question. Some version of that will be asked of each juror, and most of them will nod. And he might be going as far as saying, is there somebody that's refusing to deliberate or participate in the process?

26:22But that basically requires them to sit in a corner with their arms crossed. If they're talking and they continue to engage, that's usually considered deliberation under the law. And the court's comments on that, the court has to be very careful before they remove a juror, because if it goes against the defense, that's just virtual guaranteed reversal on appeal if the court is not very careful. So they don't like to do that. Jury deliberations, Megan, are the wild west. And the stuff that goes back, the law takes a view that we almost don't want to know. Who knows what's going on back there? We won't know.

27:06If it's 11 to 1, that bodes, I think, well for the defense in this one, but they could be hung between a murder and a voluntary manslaughter. Remember that instruction. Or they could be hung between a vol and this not criminally responsible language in the state of Massachusetts for insanity. We just don't know.

27:26Dave Aronberg:I mean, what, how would you, let me ask you this, Matt, how would you be playing it if you were in that court? First of all, okay, I got to take a cheap shot here, Megan. I would have, first thing I would have done is I would have combined with Reddington and demanded to this court that we needed more time to argue the case. Megan, I had never done a murder closing where I haven't spent at least an hour explaining the law. The prosecutor was up there. She did a much better job in closing than at any other point, in my opinion, in the entire trial. But then to spend 40 minutes on a case with this complexity, with this many witnesses, with 13 different prescribed medications and everything else we saw, 40 frigging minutes, I was pulling my hair out watching this, Megan.

28:04So the first thing I would have done is I would have taken proper time explaining the law to the jury. If I was parachuted in, I would have objected to the court giving the reasonable doubt instruction, but we don't know the language of the note. The reasonable doubt language that we just listened to is very pro-defense in the state of Massachusetts. That moral certainty thing.

28:25Dave Aronberg:Yeah, it is. Part of the problem with Massachusetts, and Mark Yergos and I were talking about this, their law on insanity, Megan, they use what's called the McCool Rule. Under the McNaughton Rule, which is almost every other state, if a person is suffering from mental illness, they can still be held criminally responsible as long as they understand the nature and quality of their actions. Massachusetts has a third prong that even if they're mentally ill, even if they know what they're doing but are unable to control their conduct, they can be found criminally not responsible. That basically, the language is so amorphous in the state of Massachusetts that the jury gets to do pretty much what they want.

29:03That was Mark's whole take on it. It's the best explanation that I've heard.

29:07Dave Aronberg:That is a good one. It's a big fad. Who knows? This case has been crazy. If I can pivot really quick, Megan, the one thing I feel very strongly about in this case is that woman who's taking pictures of the jurors. She should be in custody right now. That is an outrageous thing. But maybe that's a conversation for a different show like that. Yeah, that whole thing was nuts. And she allegedly said, oh, no, it wasn't. I just wanted a picture of Lindsey Clancy, which, by the way, you can get any day on your screen. and then they allegedly found a picture of the juries of the jurors in her deleted photos so this woman's she's in for a world of hurt i hope the court system does its job i hope she is against her i mean she's potentially looking at 20 years i doubt she's going to get that but my god some sort of message needs to be sent because you cannot intimidate jurors and that's that's what that does they they understand their pictures being taken by some nut who's out there and has been told by the judge never to do that for what purpose for intimidation especially in a case like this, this high profile, as much interest in it from the outside world.

30:08Dave Aronberg:Okay, so go ahead, Ashley. I know you wanted to weigh in. I could see. I'm always fascinated by what's reasonable. And again, most of the cases that I've covered, I often see the first question comes out from the jury, judge, can you please define reasonable doubt? And of course, there is no definition for it. Everybody has a different level of reasonable. I think it's okay for my kids to drink at 18, because that's the law where I'm from. And it's not reasonable to other people that my kids could have a beer at 18. We all have a different level of reasonable and every person didn't check the front of us, right?

30:41When they walked into the jury room, they brought all of those experiences in there with them. And so my feeling is that the reason the judge had to describe reasonable doubt again, or at least give them the instruction is because the 11 feel like the one is being unreasonable.

30:57Dave Aronberg:You can't get the juror bounced, though, for that reason, Phil, right? Like if that's by the way, I just want to tell the listening audience we are 10 minutes before four. They have never gone past for this jury. And this is we're going into Labor Day weekend now. Jurors are also known as humans. And the odds of this jury wanting to stick around this courthouse on the Friday of Labor Day weekend, as opposed to put this thing to bed, if it's at all possible in the next 10 minutes are very coming back. So we continue to watch. Yeah. Yeah. Yeah. Go ahead, Phil, your thoughts. Well, we don't, you know, reasonable doubt.

31:31I like to tell jurors that it's a doubt for which a reason can be attached and it's really can be just that simple. And in this case, you know, the burden is on the prosecutors to disprove the insanity defense beyond a reasonable doubt. And you're right, Megan, you can't just toss a juror because they have a difference of opinion. You could toss a juror if the court is satisfied that a juror is refusing to participate in deliberations. If they just sit back and cross their arms and say, I'm not participating in this anymore. I told you all what I wanted to do, and I'm not going to participate.

32:04That would be enough probably to get a juror tossed from the case. But if they all say that they are willing to continue to listen to the judge's instructions, follow the instructions, a difference of opinion. See, the foreperson may be wrong about this. It may just be that one person has a genuinely held conviction on what they believe the outcome of the case should be. And that's not a failure to deliberate. That's just a hung jury. That's what that is. And so I really think that even though we aren't technically there yet, it looks like we are definitely sort of going down that path. I think we'll know something here shortly, whether or not this jury is going to continue to want to keep working.

32:44I think Reddington believes that the juror was probably not going his way. That's why he wanted the juror to be bounced. I think that he believes that he's got this 11 to 1. He would not otherwise be wanting that juror off. And to Matt's point, this is what I was going to say earlier, that we know, those of us who have tried these cases, we know from the time the jury is seated which ones we think we might be able to persuade and which ones are going to be a little harder. And then as you go through the trial, in this case it lasted a month, Reddington has had a long time to spend in that courtroom with this particular juror, whoever he or she may be, and has a very good sense of whether or not that juror might be sort of leaning his way or not.

33:25So I think that that explains his frustration. He believes that he's got this 11 to 1. He believes that there is one juror that needs to be substituted with an alternate. And then he thinks he can get out of here with a clean not guilty or not guilty, It will be not guilty by reason of insanity. I don't think there's any chance that it's going to be a straight not guilty.

33:46Dave Aronberg:The prosecutor has some interesting choices to make right now, Matt, because if the jury does come back hung, if they can't turn this one juror around, and it really was 11 to 1 in favor of not guilty by reason of mental defect, um does this prosecutor want to try this case again they do not with these charges no they don't and look the ashley and i again we were talking about this last night what needs to happen is there needs to be the elected da who's a friend of our friend dave erenberg dave says he's a great guy i don't know him he needs to sit down with these prosecutors probably in the room with reddington and see if they can reach a some sort of a compromise that everybody he can live it.

34:32The problem is if they're 11 to one for insanity, you know, to use the California term here, Reddington's not going to be super motivated to to make a deal if he thinks that he can get her get her that, you know, that that after a second trial. Each side should be motivated to to resolve it. We also don't know what happened behind the scenes leading up to this. I don't know if these if these two prosecutors dug their heels in and refused to talk better, if there was any discussions about, you know, there's a lot of ways you could sort of bake this pie, so to speak, that you could find a middle ground like a voluntary manslaughter, or maybe you do, you run the three deaths concurrent to one another.

35:15There's ways that you could structure it so that, you know, nobody would be happy, but there would be some middle ground. So, but they're going to be motivated to do that. But if it's the other way, if it's 11 to 1 the other way, the prosecution probably is going to say, screw it, we're just going to retry it. Right.

35:33Dave Aronberg:Because even though we're all right now assuming Kevin Reddington has has gleaned that there's one juror that's for the prosecution and 11 that are for him, we don't know that we should make clear to the audience. We don't know anything. They didn't actually read the note to us. We just know that Kevin complained in court saying, I want the juror removed and was so angry about we think about the judge's refusal to do that, that he was throwing papers and kind of getting in the judge's face. And then the judge was raising his voice. And we believe, because Kevin announced to the court, that that's what he was angry about.

36:08Dave Aronberg:That, in fact, that's what he was angry about. So that's just, and we don't know what the note said. Maybe the note said, juror Matt Murphy is a prick who won't follow reasonable doubt. We have the exact wording? I think we do. I don't have the exact wording, but this is the reporting from the courtroom. The court has an instruction from the four persons saying there is one juror that refuses to listen to the law on reasonable doubt. I think that's fair. Well, how do we, why do we go from that to that juror is definitely good for the prosecution? It's a leap. It's a leap. I think Matt's suggestion there that Kevin Reddington might be thinking, hey, ho, I'll go another round if it looks this good.

36:54But I really, I'm not sure that that would happen. That is an enormous... But like, I just don't, I don't get,

37:01Dave Aronberg:if I hear that the juror is saying, wait a minute, is that happening right now, Debbie? Wait a minute. Oh, okay. They're lining up to go back into the courtroom, but this could just be the dismissal for the day. It doesn't necessarily mean the jury's doing anything, but dismissal for the day would be interesting too. I mean, it would mean they're not close and they're not like, give us 10 more minutes. We're on the verge. But if the note is a juror's, can you read it again, Ashley? Sorry, I don't have it in front of me. Yeah, let me jump back to it. Okay, the court has an instruction from the foreperson saying there is one juror, and this is not verbatim of the note.

37:42This is a description of the happenings. Court has an instruction from the foreperson saying there is one juror that refuses to listen to the law on reasonable doubt. And then, of course, that was followed by the judge reading an instruction on reasonable doubt. And the judge said, so why why why couldn't it be?

38:03Dave Aronberg:I'm on the holdout and I don't want to find her guilty of anything. I want to find her not guilty by reason of mental defect. And all the other jurors are saying to me, no, you shouldn't do that because she's guilty beyond a reasonable doubt. And I say, no, she isn't. I have a reasonable doubt. Like, I don't I don't see why we're leaping, starting with Kevin Reddington, to it's 11 to one in the defense's favor. I'm trying to listen. Am I just too dense to get it? I don't get it. I think we're doing that because we all watch the trial and we watch these these prosecutors who are not ready for primetime, Megan.

38:43And then you get into Massachusetts law and it's so amorphous. It's so big, and I'm so glad that I never had to prosecute cases there reading this stuff. And I think that's why people are jumping to that, because they were outclassed by the defense attorney from the opening statement on. And I think that's why everybody is jumping to that. But you're right. We never know in a situation like this. And it could be, again, it could be between the vol and something else. But, yeah, I wasn't impressed with anybody's closing argument in this, if that's not clear enough. So I think this jury is kind of on their own.

39:18You and I spoke about this. We keep saying we spoke last night on my podcast. Let's be clear. Yes. Right. Well, it's fine to talk socially, too. I know. Just in case there's people out there that want to go conspiracy theory. But I think what's critical is that, and listen, I'm not a litigator, but I think you do get a pretty solid vibe after five, six weeks in a courtroom of what jurors are more sensitive to your position. Many of them will make eye contact with you, not make eye contact with your defendant or, yes, make eye contact with your defendant. And so perhaps that's the vibe that Kevin Reddington and the metric.

39:52Dave Aronberg:Today, there's at least one report. I think it was from from was it Lauren Conlon? Somebody reported that not not one juror. No, it was justice served jury and not one looked at Lindsay Clancy for today. Whatever that means. Keep going. No, that's significant. But for whatever his reason, Kevin Reddington is no dummy. Right. Whatever his reason is to want that juror bounced. He's got a solid vibe, which he has amassed over the last five, six weeks of who's who. And I think he probably feels like he's got multiple people on that jury in his pocket. And if there's only one, that person ain't. Mm hmm.

40:26Dave Aronberg:I know that you have to run, Ashley, as do you, Matt. Coincidence? I'm just kidding. This is how rumors get started, Megan. the jury is also leaving and i'm in canada on an island it could be so she claims allegedly reportedly um but you're in good company because the jury is also leaving uh that so we will have no verdict nor any declaration of a mistrial today all the action is now over inside that courtroom for today thursday september 3rd it will resume tomorrow The court is in session, even though we're going into Labor Day weekend. So Matt, goodbye, Ashley. You as well. We're going to be joined by Jonna Spilboer and Dave Ehrenberg, who had dropped his back with us, too, in a second, I think.

41:15Dave Aronberg:Jonna, your reaction to the drama going on in this court today? Well, at the risk of getting continually clobbered by your audience, Megan, because they don't like my position on this case. They love you. They don't like Mark Eiglard, but they love you. I don't. I have an opposite approach. Here's my theory why Kevin Reddington was acting all pissed off. He is putting on a dog and pony show. He wants the world to think this lone holdout is in his favor. So he slams his papers on the table. We have no idea whether this one holdout is prosecution. We have no clue. But if we go by his face and his reaction, we're all going to think that it's in his favor.

41:59Yet we do not know. So this is part of his dog and pony show. And I'm going to wait and see. This could easily be pro prosecution. And the fact that the jurors, according to Ashley, who just left, didn't look at Lindsey Clancy today. Or I'm sorry, you reported that.

42:15Dave Aronberg:According to me, not me, but somebody called Justice Served, who's been covering the court. That is very important. Having having done this a million times before, when the jury does not look at your client, you're in trouble. So there you have it. That's I like I'm trying not to be obtuse, but if the if the note from the foreman read to the effect of we haven't heard the exact one juror refuses to listen to the law on reasonable doubt. That does not tell us in which way it could be somebody sitting there saying, I have a reasonable doubt. That's all I'm going to I'm not voting to convict. I have a reasonable doubt.

42:54And all the 11 are saying, how could you possibly have a reasonable doubt, which would be acting by Kevin Reddington if that's what's actually happening?

43:02Dave Aronberg:And he knows that he doesn't know any more than we know. The judge wouldn't have told him. The jury hasn't told the judge or the courtroom more than what's in that note, because all communications from the jury, we get to know Dave Ehrenberg. I mean, I guess in that Q &A, that would have been on the record. But the judge right now doesn't know which juror does he or or which way the jurors pushing? No, no. The judge and the parties would not. But why would Kevin Reddington lie about it? Like, why would he put on an act? Because eventually we will know the count. I know the judge is not allowed to ask, but jurors will talk.

43:38Well, wait, but let me just let me just quickly say, because he doesn't know he does.

43:44Dave Aronberg:So you shouldn't walk away from his behavior saying he knows he doesn't know he hasn't been told. So he's gleaning. So he had to make a decision in the moment. What to do? Do I what do I actually think? And it might be he actually thinks this that the eleven are for him and the holdout is for the prosecution. and he wants that juror gone. Or it could be that's just the way he's going to play it. I don't know. I guess I don't think it's acting. I guess I don't know if it's acting because he argued that the juror should be bounced. So if he thought the juror was for him. Well, but that's it. He is taking a position.

44:24But wow, what if he, since he doesn't know, demanded that juror be bounced and the juror got bounced. He got his wish. And then it's a guilty verdict. I mean, that's a... I got a thought. You know, we may not, we don't know what Reddington knows. And let's not forget, there was a very long sidebar before the jury came back in and before the judge started speaking in a way that we could all hear it. They talked at the bench for several minutes before they brought the jurors up one by one. We don't know what was said. And so we don't, we're making an assumption that that's all the notes said. We don't really know what the note said.

45:05It may have said more. Reddington might know a lot more about what's going on in that jury room than we do right here. We're just kind of reading the tea leaves based on what we've seen discussed in open court. But we weren't privy to what happened at that sidebar. So if you put that together with Reddington, and John, I don't think he's acting. I think he really did want that juror gone because there's now a report. Let's call it posturing. There's reporting from the courtroom that the prosecutors are very emotional, almost in tears, and looking very defeated as well. So there's more to this than we know.

45:43There's something that was said at that sidebar, I think, that caused Reddington to be so firm and secure in his position. He really thinks that it's going his way. That's just me reading the tea leaves, remembering that there was a extended sidebar discussion and we just don't know what was said. Well, then why didn't why didn't the prosecution say, you know what, judge, don't do anything with this juror, declare a sidebar. They're telling you that they can't come to a I mean, declare a mistrial. I can't tell you why the prosecutors did anything they did in this case, because they they didn't do a very good job, at least in throughout the trial.

46:16And how do we know it's 11-1? Couldn't it just be one obstreperous juror and still they can't come to an agreement? It doesn't have to be 11-1, does it?

46:26Dave Aronberg:Could be. We don't know. No, we don't know. But it was from what that judge said that I was just reading. The judge mentioned siding with 11 or siding with 1. So that comes from the judge. He could be speaking hypothetically, right? Lots of posts on X right now from people in the courtroom saying that it's 11 to 1 again, but they haven't seen the note either, I guess. I'm just trying to get to go back to the exact quote from the judge, which my team is going to have to send me. I can't find it now. But yeah, I object to the court's ruling, said Kevin Reddington, after the judge ruled that the current members of the jury should continue deliberations.

47:16Dave Aronberg:and then he claimed one juror refuses to listen to the law. Hold on a second. Here is what the judge said. It's not appropriate for me to say, I agree with one juror, comma, or 11, says the judge, insinuating that there's an 11-1 holdout issue here. So you're right. He didn't say in those words, there's only one holdout, but he said, it's not appropriate for me to say, I agree with one juror or 11. So it certainly appears that there is a split on an issue between 11 versus one. And we glean from the fact that the judge read the reasonable doubt instructions that it was over that issue. And indeed, there was also this reporting from, again, this Christina Rex Reddington argued in open court that, quote, the court has an instruction from the foreperson saying there's one juror who refuses to listen to the law that you've given him or her on reasonable doubt, on reasonable doubt.

48:22So that's so, it's pretty good, pretty good

48:26Dave Aronberg:math that it's 11 to 1 right now and that that's the issue they're arguing over. Yeah, I agree. And that seems to be, that's consistent with all the other posts and tweets that are coming out of the courtroom. And Reddington, let's just remember, He knows this case inside and out. He's lived this case for years. He's lived this case for the month long of this trial, but for years he has lived this case. And so he knows it in his bones. And so his instincts are telling him that that juror, that one juror, is not following the law on reasonable doubt. I suspect that what we're seeing is Reddington is aware that he believes he has 11 people who have said, you know, there's reasonable doubt.

49:11And by the way, the law is skewed in the defense favor on this in the state of Massachusetts on the issue of insanity. So he thinks that the wind is at his back. He thinks that he's got those 11 jurors and that there's one back there who's just saying, look, I'm not going to vote under any circumstances to acquit her. I don't care what the judge says or something like that. That's what I envision going on back in the jury room, Megan. I think that we'll see more progress maybe tomorrow. If it truly is 11 to 1, they might be able to pull that juror on their side. But if they don't do it quickly and that juror is as stubborn as Reddington has said that they are, they may they may tell the judge tomorrow morning or very soon that they are, in fact, stuck 11 to 1.

49:55Dave Aronberg:All right. Stand by. Let's take a look inside the courtroom. We're told that the jury was being dismissed, but there is action inside the courtroom. I think it could just be the goodbye. Let's let's watch. Your Honor, present before the court, we have 12 deliberating jurors and six alternates in the matter of Commonwealth versus Lindsey Clancy. All of the parties are present. All right. Well, good afternoon, everybody. What I'm going to do is excuse you until tomorrow morning at nine o 'clock. All right. And then I'll speak to you at that point tomorrow morning. So remember the instructions that I've given you over and over again.

50:30Stay away from any coverage about this. They'll talk about this case. And I will see everybody tomorrow morning. OK.

50:42Dave Aronberg:They're adjourned. Couldn't glean anything from their faces. Lindsey Clancy's face always looks grim, as it should be. Kevin Reddington, stone face there. Nothing from the prosecution. So they're gone. They're being dismissed until tomorrow morning, showing back up at 9. I mean, my own guess is by 10, we're going to have something. They're either going to say, because they already went back in there after the judge interviewed each juror one by one. So it's possible. It's possible they could come back in first thing or by 10 and say that person is still obstreperous and will not listen to the law.

51:18Dave Aronberg:And the person gets bounced. They go back in there. But I'm just going to guess that instead they come back out and say hopelessly deadlacked by, you know, before noon tomorrow. I don't know. They could bend the juror to their will. But whoever it is, is very strong because we are, what, 36 hours into deliberations now and they haven't bent. And they've had multiple charges by the judge. You know, Jonna, this this person doesn't seem like they're going to bend whatever their verdict is. This is true. And we've had a couple of opportunities to call it quits without a verdict. And that didn't happen.

51:51So the tone and the tenor and the temperature in that entire courtroom, I know everybody is on edge. Nobody wants to let this trial go without coming to a verdict either way. But I can't help but go back to and look, I'm not trying to be hypercritical of Kevin Reddington. I think he did a fine job in this case. But throwing your papers on on the table and getting angry is for the cameras. And he will have preserved this issue on appeal if, in fact, he loses this case. And there will be an appeal if he does, for sure. So I just I'm not convinced that the one holdout is a pro defense holdout. I mean, I or the other way.

52:31I'm not convinced that this is going to go Kevin Reddington's way on this. And I think that's why I'm saying I'm not calling him a liar. I'm calling him a esteemed posturer in this case because he doesn't know. We don't know. And when the jury doesn't look at your client, you guys, you both know if the jurors aren't looking at Lindsey Clancy, what does that tell you? What do you think, Dave? I think it's amazing. I didn't know that there were six alternate jurors hanging around the courtroom. What do they do all day? They're not allowed to be in there.

53:01Dave Aronberg:They're waiting for the Scott Peterson situation. They are, but it's different than in Florida where if you dismiss one, those alternate jurors are home and they're done. In Massachusetts, they go to a separate room and do what? I don't know. They wait until— That's what they do in California, too. Interesting. Interesting. They're in the courtroom. They are. I'm sure they're in a separate room, but they have to come into the courtroom for everything that happens. So that's why they're brought in. Yeah. I wanted to point out— And then just FYI, if a juror gets replaced by an alternate, the jury has to start all over again.

53:35Dave Aronberg:They will be instructed to start at square one because all 12 of the jurors need to be on board with the verdict and the process. And this alternate, if they get subbed in, will not have heard one word of deliberations. The alternates are at the courthouse, but they're not in the jury room. That's only for the 12 jurors. And you don't you have to start all over again if that were to happen. They sit in a separate room all day, every day, as long as they've been deliberating apart from the regular jurors. And I guess I don't know, they're allowed to watch TV, I guess, all day. It's crazy, but not the news.

54:11So I don't I just don't know if and I love John. She's she's so smart. I just don't know if it was I think Rennington is being sincere. I think really he believes that that juror is against him and he's got it. Eleven one. Let's get this juror off. And the judge refused to do so. So I don't think it's an act or playing to the cameras. I think that's who this Dave.

54:34Dave Aronberg:Dave, why did they have Lindsay Clancy come up to the bench? Her lawyer was there. Her lawyer was representing her. Why did she have to come? This is a guess. Obviously, we don't know the answer. Because the judge was making some substantive decisions up there. Hold on, Phil. You already answered this one. There is a reason I asked this of Dave. You go, Dave. You have a thought. Isn't that it? It's a substantive thing. These are substantive decisions that he's making. and that she probably wants to be up there. I would think so. Am I missing something here? You were right, Phil. Dave had nothing useful to say.

55:12Well, that's not true. That's not true. I want to point out our colleague, our MK True Crime colleague, Ashley Merchant, posted on Twitter, what if the Clancy jury holdout is the guilty vote? That would explain why the defense, Reddington, wants a verdict from the other jurors and doesn't want this jury forced back into deliberations again. And I think it's just that simple.

55:31Dave Aronberg:Well, yeah. I think it's just that simple. But I mean, yeah, I mean, we've been debating that. That seems to be what at least Kevin wants us to believe and what Kevin believes. I think Kevin does believe that because it would be really reckless to argue, bounce the juror, bounce the juror, if you thought secretly it was a jury for you, a juror for you. I mean, that would be incredibly stupid after all that effort. He would like to win this case. So yeah, it could be. It definitely could be. But what we need the audience to understand is we don't think Kevin knows. We think Kevin is gleaning, just like we're gleaning from Kevin's behavior.

56:06Dave Aronberg:But there's what we're gleaning and there's what we know. And all we know for sure is the judge called them in there. He instructed them, began with, you are required to follow my instructions on the law. I want to go over my instructions on reasonable doubt. and then did that and that we understand the note from the foreman read to the effect of one juror refuses to listen to the law on reasonable doubt. Does Kevin know more? Did the judge expand? Does even the judge know more? These are things we have no idea about. So, yeah, go ahead. No, I was going to say the note likely did not say, hey, judge, 11 of us want to acquit and only one of us want to convict.

56:53What should we do? Right. I don't think the note said that it was much more nebulous than that, which is why to assume that we know the division is just something that we really can't hang our hats on because the instruction that he came back and gave them the reasonable doubt instruction could go either way, depending on what the content of this note is. And I think if the content of the note was, you know, vague, that's probably smart on the foreman's part. Right. But and it sounds like the note was vague.

57:26Dave Aronberg:Why can't the juror be saying, Jonna, I have a reasonable doubt. I have a reasonable doubt. I don't believe she should be held responsible. I have a reasonable doubt and I'm not voting for any of those charges. Murder one, murder two or manslaughter. I'm not doing it. And what and why can't it be the other 11 are saying you have a doubt, but it's not reasonable. Exactly. The prosecution didn't have to prove this prove this case beyond all doubt, just beyond all reasonable doubt. And this juror is saying, well, they didn't. And why couldn't that be the scenario? Dave's shaking his head. It could be.

58:01It could be. Yeah. But but I think it's more something like I don't care what the evidence says. I just feel it in my gut that she's guilty and needs to go to prison. I mean, there could be something like that. And the other jurors said, no, that's not a good enough reason. Let's go back to the judge.

58:17Dave Aronberg:I love the dramatic reenactment. I do. We can't see inside the deliberation room. So this is the best we're going to get is that this is how I feel. I don't know. I get like let's just play it out the other way, because I'm just trying to find the follow the reasoning to see if we can figure it out. Now, if you've got 11 who want to find her not guilty by reason of mental defect, and you've got the one juror saying, I think she's guilty. Would that boil down to a debate over reasonable doubt? Like, I think this is why I'm stuck and maybe Jonna's stuck with me on the very real possibility that the 11 are pro-prosecution.

59:05Dave Aronberg:Because if the holdout is holding out over the law, refusing to listen to the law on reasonable doubt, if the law on reasonable doubt is what's controlling in there, then they haven't they moved beyond mental defect like it the only reason you'd be yes don't shake your head listen the only reason you'd be talking about reasonable doubt i think is if you are going through guilt or innocence on murder one murder two or voluntary manslaughter. If you get in there and you say, raise your hand who thinks she's not guilty by reason of mental defect, is that a reasonable doubt issue? That's a really great question.

59:59Dave Aronberg:Aha! Aha! Now I've given you something to think about that. No, I think it is a reasonable doubt issue, and here's why. The judge told the jury, and the lawyers kind of did and Reddington kind of did in his clothes, although not very well. He told the jury that under the law in Massachusetts, once this issue of not guilty by reason, once this gets into the case, the prosecutor bears the burden of disproving it beyond a reasonable doubt. In other words, they have to prove beyond a reasonable doubt that she did know right from wrong and that she was, you know, mentally competent at the time. Okay.

1:00:37So that's why I think this whole thing about reasonable doubt is that they are still on the insanity part. They are not able to unanimously decide if the prosecutor has carried their burden of disproving the affirmative defense beyond a reasonable doubt. That's how I read it. I don't think they are at any other questions about any of the other charges yet because I think 11 of them believe that the prosecutor has not proven their case beyond a reasonable doubt. How many times have we seen cases, regular cases, that did not involve insanity defenses where the jury says, you know what, I think your client did it, but the prosecutor just didn't prove their case beyond a reasonable doubt?

1:01:19We think that there is a doubt for which a reason can be attached. And that would explain—

1:01:24Dave Aronberg:Because the prosecution needs to prove beyond a reasonable doubt that she's not suffering from a mental disease or defect that would have excused the conduct. Yeah, I think that's where they are. I think they are—I think the jury— We don't have the—one of the reasons that we need to explain this is we don't have the verdict form. Like that—we looked. We were not able to retrieve that from the court or otherwise. So we are not able to see the logic tree that would be spelled out for the jurors in making their decision, which it will be a logic tree. Like, do you find this? Yes or no? Only if you click yes to this should you go on to the next question.

1:02:02Dave Aronberg:So we're all still gleaning. But here's what the Boston Globe has responded or reported on what the jury must decide to determine criminal responsibility. First, whether Lindsay Clancy was suffering from a mental disease or defect at the time of the killings. If they say, yes, she was, then they must consider two additional points. Did that mental illness render her unable to appreciate the wrongfulness of her actions or unable to conform her conduct to the law? The burdens on the prosecution to convince the jurors that neither of those scenarios applies. and then they have to, let's say if they agree with the prosecution that she was not suffering from a mental disease or defect to the point that she was unable to appreciate the wrongfulness of her decisions, her actions, then they're gonna have to choose her level of culpability, first degree, second degree, manslaughter, and all of those would have to be beyond a reasonable doubt.

1:03:07So I guess we don't know for sure if they have to prove her not suffering from mental disease or defect beyond a reasonable doubt, then they could be stuck right there.

1:03:19Dave Aronberg:Then the holdout could be still right there. I don't know. I don't know. We don't know anything. Have we determined we know nothing? Nothing. We know absolutely nothing. But we're good at speculating. You know, but can we also speculate, Megan, when the judge came back and read the reasonable doubt instruction just, I don't know, half hour ago, 20 minutes ago, whenever it was, I thought I heard him. I was listening. I thought I heard him emphasize, you know, the word beyond all doubt. Like, that's what you do when you're when you're a prosecutor, you're trying to convince a jury that they don't have to find that it that it's beyond all doubt just has to be beyond reasonable doubt.

1:03:51And when when he puts the inflection on that word, it tells me that it could be a pro prosecution jury right now. But I don't know if we can listen back to that. I think you're wrong. And it could be for the compromise lesser charge. That's another possibility where they've acquitted on first degree and second degree murder and just have to debate over the manslaughter charge. So that's a possibility, too.

1:04:18Dave Aronberg:I think there's 11 of them back there. And again, though, we don't know whether the judge knows more than we do. Like, it's not. I think a lot of the times people assume that the judge has been given the inside scoop on what's happening in the jury room. And he normally isn't. That's he normally is relegated to the same notes the lawyers are. That's good, because sometimes if the judge knows more, they tip it off. You know, they can give it away by something they say, some something to emphasize, for example, in the jury instruction. So beyond all doubt, the emphasis on the other syllable. We should I want to hear that again.

1:04:53Well, do we have that cut to cut anything? But, Jonna, if the judge puts the emphasis on that syllable, isn't it also equally plausible that you have 11 of them back there saying, look, I think she may very well have known right from wrong, but there's reasonable doubt. I'm not 100 percent convinced that the prosecutor has carried their burden of disproving the affirmative defense. So, therefore, the judge said, if I have a reasonable doubt, I shall vote not guilty by reason of insanity. That's also in the instructions. isn't it also plausible that 11 of them are back there saying look i think she's she's probably guilty but we have this doubt and it hasn't been disproved by the prosecutor therefore they haven't you know we can't even get to the other accounts because we're we believe 11 or so to one that the affirmative defense has not been disproven by the prosecutor i think that's equally plausible Well, but we do believe that.

1:05:49Yeah, go ahead. Anything is equally plausible. And let's consider the amount of time this jury has been out and debating with zero questions. But for the second day of deliberations, when they want to look at those two pieces of evidence. Other than that, you guys, it's been radio silence. So what are they doing back there? What are what are what is the debate is the debate on whether she was mentally ill because the prosecution conceded that we all concede that she was mentally ill. So where are they stuck? Are they stuck on, you know, the first prong or the fourth prong? That's, that's what we, none of us knows.

1:06:26Dave Aronberg:And, and they can speak to us after this is all said and done. I mean, at some point we'll, we'll likely know it's up to them. I do want to play. Here's what we have. The first, let's listening to the full Kevin Reddington, because we missed the top of it when we were watching this earlier. Here's what he said to the court. Thank you, I appreciate that. I appreciate the fact, Your Honor, that you're allowing us to be heard in public rather than at the sidebar. The court has an instruction from the foreperson of that juror that's been working for a week now saying that there's one juror who refuses to listen to the law that you've given him or her on reasonable doubt.

1:07:08And I suggest respectfully that the soft instruction that you gave them saying at the sidebar, can you listen to the law as I instruct you, does not focus on the issue. The question is not sufficient enough. It does not allow any foundation for a motion to remove the juror who refuses to accept your instructions on the law, on reasonable doubt. And if we come back here in a half an hour with a mistrial because of a juror that has just spurned the instructions of this court, it's a shame. It's a real shame. And that's why I object to the court's ruling. I request that we have further inquiry. I request that my motion is to remove this juror that refuses to listen to your instruction on reasonable doubt.

1:08:02Dave Aronberg:So there you have it, his characterization of the note, which tracks what we were reporting earlier. And the soft instruction you gave to the jury does not focus on the issue enough, suggesting it doesn't create a foundation from which to appeal if this thing goes forward. And now let's take a look. Do we have the judge on the instructions? Let's listen to the judge here. Good afternoon, everyone. I just wanted to go over a couple of things this afternoon. First off, I want to remind you that you are required to follow my instructions on the law as I gave them to you. I also want to at this point go over the instruction that I gave you about reasonable doubt.

1:08:49So, reasonable doubt, the burden is on the commonwealth to prove beyond a reasonable doubt that the defendant is guilty of the charges made against her. what is proof beyond a reasonable doubt well the term is often used and probably pretty well understood though it's not easily defined proof beyond a reasonable doubt does not mean proof beyond all possible doubt for everything in the lives of human beings is open to some possible or imaginary doubt the charge is proved beyond a reasonable doubt if after you've compared and considered all of the evidence you have in your minds an abiding conviction to a moral certainty that the charge is true.

1:09:29When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs, based solely on the evidence that has been put before you in this case. I've told you that every person is presumed to be innocent until they are proved guilty, and that the burden of proof is on the prosecutor. If you evaluate all the evidence and you still have a reasonable doubt remaining, the defendant is entitled to the benefit of that doubt and must be acquitted. It's not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty.

1:10:11That is not enough. Instead, the evidence must convince you of the defendant's guilt to a reasonable and moral certainty, a certainty that convinces your understanding and satisfies your reason and judgment as jurors who are sworn to act conscientiously on the evidence. This is what we mean by proof beyond a reasonable doubt. All right. And with that, I'm going to ask you to resume your deliberations. All right.

1:10:44Dave Aronberg:Well, there it is. He says, does it beyond a reasonable doubt does not mean beyond all possible doubt. He did emphasize that. But he also emphasized the probability part, that it's not enough for a prosecutor just to make it more probable. It's got to be beyond that. So that gives both sides something to lean on right there. And the business of beyond a moral certainty. I mean, that's pretty good for the defense. That's definitely what you want to hear. Now here, lawyer online, Carol Erskine, she's reporting, retired judge, I should say. She's reporting some interesting facts about the law. Uh, following post, what happens when jurors say another juror is refusing to follow the law?

1:11:27Dave Aronberg:U.S. v. Thomas, Second Circuit, 1997, highly relevant. She says here, um, okay, Thomas draws a critical eye in this case. A juror who refuses to follow the law is very different from a juror who follows the law, but disagrees with the other 11 about what the evidence proves. The court set an extraordinarily high bar for removing a juror. There must be no doubt that the juror is refusing to apply the law rather than simply reaching a different conclusion about the evidence. It makes perfect sense, of course. And she goes on to say that the Massachusetts case that addresses this issue in Thomas says the same, that when a jury reports a juror is refusing to deliberate, it requires a careful judicial inquiry, but it does not automatically justify removing the juror.

1:12:22Dave Aronberg:A judge must be extremely cautious not to intrude into deliberations. A juror cannot be removed simply because the juror disagrees with the others or views the evidence differently or may be the lone holdout. As the previous court warned, removing a deliberating juror is a sensitive undertaking fraught with the potential for error. in short, refusing to deliberate and refusing to agree are not the same thing. So this is what the judge was dealing with today, trying to figure out whether he's got somebody who's not following his instructions on the law, who won't listen to them and come up with a verdict accordingly, or he's got somebody who is listening to his definition of the law, but just doesn't see it the same way, the conclusion, as the other 11.

1:13:13Dave Aronberg:The latter scenario is entirely proper, appropriate, and that juror should not be touched. The former would be grounds to bounce the juror. And everything about this case lies in the balance of which one that juror is doing. so what what changed between hey judge we're deadlocked number one and then hey judge we're deadlocked number two and now oh well we're not going to say we're deadlocked we're going to say that we have uh maybe one juror who's not following the law like what what is the difference between we're deadlocked and now we have one juror who's not following the law well you know the difference is that in between those two things, you had the Tui Rodriguez instruction.

1:13:58And perhaps that instruction really did jar some people loose onto the majority side.

1:14:04Dave Aronberg:The so-called dynamite charge, where it's basically telling the jury, no jury will ever be smarter than you or better informed than you or better qualified than you to decide this case. So it's basically begging. It's like, you guys are great. You're the best. Please don't leave this for another 12 people. You can do this. I don't know. I think, you know, to quote Jurassic Park, life finds a way. I think it's they they were like, this person is annoying that we could have a verdict and go home if it weren't for Bob or Jane over there. And maybe we can get rid of Bob or Jane by saying they won't follow the law.

1:14:47Dave Aronberg:We're all following the law. That's how we got to this conclusion that the 11 of us agree on and annoying Bob or Jane over there. Well, if they would just listen to what we're telling them about reasonable doubt in the standards, we'd be out of here. So they turned it, I think, into a complaint about that 12th juror as opposed to just saying we disagree, which is where they've been all week. And the judge keeps telling them that's not good enough. Yeah, I think you're right. I think that's exactly what's going on. Look, these folks have all been working for over a month now on this, and so they don't want it to be for nothing either.

1:15:19They would like their collective body to reach a verdict. They don't want this case to have to be retried either, although it won't be them. I think you hit the nail on the head. I think that there are 11 people who maybe have a reasonable doubt about something, and that's what the judge's instruction was about, was reasonable doubt. So that's what they're hung up on. I think there's 11 that have a reasonable doubt, and I think there's one that doesn't, And the 11 are tired of debating it in the jury room. So they're going to the judge to see if the judge can help them because they too realize that there are six other individuals that are standing by as alternates that the judge could put on there.

1:16:02They think that if they could just get one more person that thinks like them, they could reach a verdict and all go home. That's what I think is happening. Yeah.

1:16:10Dave Aronberg:I mean, it is a good thing to remember that even though the judge said it's not for me to take sides on the side of one juror versus the 11. And the note, as reiterated by Kevin Reddington, said there's one juror who refuses to listen to the law on reasonable doubt. we don't have actual confirmation that it's 11 to 1, but this is as close as we're going to get. To me, that's as close. And I think we're probably safe saying there's one holdout. Anyway, we'll see eventually how strong that person is because at some point they're going to have to come back with either a, we couldn't reach a verdict or, and this case is a mistrial, or here's our verdict.

1:16:56Dave Aronberg:And so last thing, if they declared a mistrial in this case, if the judge does it tomorrow, is there any doubt that the prosecution can refile against her if it wants to? You know, the defense made a bunch of allegations in this case as it went on about improprieties by the prosecution, things that she said that they thought were beyond the pale and fairly prejudicial, this, that, the other. Can any of that, I'll ask you, Dave, as a former prosecutor be used to stop the prosecution from refiling charges? Reddington can try and try to get a court to prohibit the state. That's really hard to do.

1:17:35The prosecutors have a lot of discretion. And if the case goes to a mistrial here on on all the charges, then they could refile all of them. The biggest thing that would stop the state is not Reddington's threats. It's the count. If the jury count is indeed 11 to 1, then I don't think they are going to refile this case. Or if they do refile, they will seek a quick resolution. They're not going to want to try the case again.

1:18:02Dave Aronberg:If they don't, but if they don't refile it, what happens to Lindsay Clancy? Well, I think what they would do when I say refile is that I think they would enter into an agreement with defense counsel because she doesn't want to go through this. So before filing, they'll say, here, let's cut a deal. The other option is they file and then they cut a deal afterwards. But I don't see it going to another trial if it's 10 to 2 or 11 to 1 against the prosecution. They could do a stipulated bench trial. They could have a stipulated bench trial where they file charges and then they stipulate that she's not guilty by reason of insanity.

1:18:37And off she goes to a mental institution for a very, very long time.

1:18:41Dave Aronberg:Question for you. Wasn't that, didn't Kevin Reddington argue that if they had just not charged first degree, they could have had a bench trial in this case? Yes. I feel like I'm remembering that. Yes, you guys remember this? Yes, he did say that. But I think what Phil is talking about is not a bench trial. It's a stupid, just like pleading up to the court almost, right? Yeah, they can file the charge and they want to guarantee that she just doesn't go back out on the street. So hypothetically, if it's 11 to 1 against the prosecution, so if 11 people think that she is not guilty by reason of insanity, then they have a lot of incentive to cut a deal.

1:19:18So theoretically, the way it could work is they file some charge and they stipulate to the verdict and they do a bench trial with a stipulated verdict. They stipulate that she's not guilty by reason of insanity, guaranteeing that she doesn't go free, that she goes into the state mental system for people who are found not guilty by reason of insanity. I think that there's a chance, a small chance she could get out of that place in just a few years, but I don't think she likely would. But I think she likely would be seeing long term incarceration, if you will, in a mental facility like John Hinckley, for example.

1:19:56So I think she would be there for a very long time.

1:19:59Dave Aronberg:Here is what Kevin Reddington said this morning before this latest round of drama on the possibility of a mistrial. Good morning, Mr. Jonathan. How do you feel about the possibility of a mistrial? Try it again. What's your message for Lindsay if it is a mistrial? I'll give it to her when I see her. Is there anything you would do differently if there was a second trial? I think I did the best I could. How does she feel about the possibility of a second trial? I don't talk about claims. Do you think that there is any chance of a plea deal if there is a mistrial today? You have to ask Mr. Cruz. Would you be open to that?

1:20:34Would Lindsay be open to that? We'll see what Mr. Cruz wants to do, and then we'll talk about our options.

1:20:39Dave Aronberg:I'm sure this has been excruciating for everybody involved. How are you feeling? How are you doing? Good. Fine. I mean, you know, the support has been great. You guys have been great. I mean, look at the letters I have to deliver to her from all over the world. It's just amazing. How does she feel about receiving all of that support? I don't really get into it with her. It's private. She reads them all. Some people say a second trial would favor the prosecution. What do you think about that? Bring it. Excuse me. Thank you. I'm going to motion 25. I think of the fact that the jury hasn't asked.

1:21:13Dave Aronberg:a question you took for any clarification on the law. I'm sorry? What do you make of the fact that the jury hasn't asked any questions clarifying the law? Because, it's a good question. Judge Sullivan's instructions were thorough, and he gave them a copy of it. They all have their own copy, so they're able to answer any questions that they have by looking at the instructions. You said yesterday that you could be willing to retry this case next week. Can you talk about that? No, just bring it. I've got witnesses lined up. We're all set. You know, Dr. Resnick is ready. I'm ready. We've got all our evidence.

1:21:48Witnesses are available. So let's go. Is that the timeline you would expect? Oh, no. They try to kick it off for six months or a year, but we're going to do it quick. These are letters from all over the world in the report of her? Yeah, it's amazing. Where do they come from? You name the country.

1:22:05Dave Aronberg:So interesting, John. So bring it is what he said. We could retry this case next week. But realistically, that's not what he's going to want if if this really is 11 to one in his favor. No, that's true. He's not going to want that if it's 11 to one in his favor. And if you know, if you guys can't look at that clip and think that this man is a master on how to, you know, mug for the cameras and how to put out a vibe, for lack of a better word, of confidence in his case and his client, which is great. You want that in an attorney, but that doesn't mean that it's odd that everything is working in actuality in his favor.

1:22:46Dave Aronberg:Beak of the devil. Let's listen to him outside the courthouse right now. By the judge tomorrow at nine o 'clock. I don't know what his question is going to be. We'll have an argument about it. I don't think it'll be at the sidebar. I think it'll be an open court, which is my concern that we have our arguments in open at the sidebar. So I expect that, and that's B-A-R, not B-A-H, okay? Is this one person versus all the rest? Is this one person versus all the rest in the jury? Is it one person holding this up? Yeah, you've heard the question. It's basically that there's a person who has doubt but will not listen to the judge's instruction.

1:23:24Has everybody else agreed? Are you like the only guy? No, I'm just a loud note. I'm from Brockton. My last question, and I'll be quiet. Is the one per, did they tell you that all the rest of the jurors are going one way or the other? Did they tell you that? They don't tell me anything. It's just a note. Do you want a new juror or do you want a mistrial? I don't want a mistrial. Why would I want a mistrial? So do you want them to put a new juror in? Kick the shit out of their case. I don't want a mistrial. Back up. Back up. We're being told we have to back up. We're trying. Kevin. We're trying.

1:23:59We're trying. We're trying. We're trying. Why did you see us on the break as being found not here? Hold on. Everyone, let them back up. Because she... Kevin, do you know which juror it is? ...by the juror and the judge will identify the juror tomorrow. Are the 11 in favor of not guilty by reason and insanity? Does it seem to you that she is on the break of being found not guilty? I haven't talked to them. Does Lindsay understand what's going on when she's listening to all that? I just make sure she's there and understands what's going on. What was her reaction when she found out about the whole law?

1:24:31Oh, God. Okay, somebody down.

1:24:35Dave Aronberg:Oh, someone fell down. Wow. We should have a unanimous file. Switching. This is the full feed. Because I just want an open court. I want the public to know what's going on. So I want to do it by the side.

1:25:01All right.

1:25:03Dave Aronberg:Well, that was it. That was very interesting. He said there's going to be hearing tomorrow. He thinks it's an open court hearing at 9 a.m. and that the judge will identify the juror. I mean, obviously not to us, but he seemed to suggest there that the judge is going to identify the juror tomorrow morning at 9 and they're going to have some sort of hearing. He said, I hope it's an open court versus not at sidebar. That would be extraordinary, wouldn't it? They're going to name the juror? No, they're going to they're not in public. They don't need jurors right now. Remember, the jurors are kept private.

1:25:38Dave Aronberg:But I mean, to the to the council. Oh, to the to the council. Yeah, I thought in open court and stuff. No, no, we won't know. Yeah, they could tell tell the name to the council and say which juror number it is. That will be interesting. And I that's why I don't believe he is acting. He said at the end that, yes, he doesn't want to mistrial. I think that overplays it. I think he thinks he's winning. But also, if he thinks he's winning, that tells you why he wants that one juror bounced. And if that juror is bounced, he thinks he'll get the acquittal that he thinks he deserves. But that's why I'd be surprised if that holdout juror was the only thing preventing a conviction beyond a reasonable doubt.

1:26:23Go ahead, Phil. Well, I certainly think it's very telling that he's as willing to speak to the media and give us a lot of the details. It was interesting that he said just now, he said, you heard the note. Well, we didn't. To my knowledge, we really didn't hear the note. He did. I think that's what was discussed at that long sidebar. But we didn't actually hear the note, and it would be very helpful if we had heard it. Or in that media scram right there we've heated, just told us what the note said. That would be very helpful. I agree with Dave, though, on the issue of identifying the juror. That's not going to be publicly done.

1:27:02But it sounds to me like the judge has to bring one juror in, and this could be done in camera without the public or whatever. They're going to need to bring one juror in and question this one juror about just what's going on in deliberations to answer the question. Are you refusing to deliberate or do we have a situation where you are holding on to a firmly held conviction in accordance with the court's previous instruction? I think that's the issue the judge is going to need to drill down on. To what end, though, Phil? Is that for the purpose of bouncing the juror or is that for the purpose of declaring a mistrial?

1:27:38No, because if they're not deliberating, they can bounce them. And I actually had that happen in a trial and we did exactly what I just said. the judge brought in the single juror who was identified by the others or by the foreperson and said, hey, just tell us what's going on back there. And the judge was very neutral about it. And then the judge was satisfied that this person was holding on to a sincere belief and sent them back. And then shortly thereafter, the case was over. But I think that's what the judge has to decide is what is he dealing with? Is he dealing with somebody who's actually following his instructions and saying, look, I just have a disagreement with y 'all, or is it somebody who's just being stubborn and refusing to deliberate?

1:28:18Even though maybe they have acknowledged that they agree with the other jurors, they might very well say, even though I agree with you, I'm not going to sign that verdict form. And that would be grounds for removal.

1:28:32Dave Aronberg:My team is saying that they heard the juror has been identified and there will be an inquiry by the judge. I don't think it will be in a sidebar. It will be in open court. So, you know, take it all with a grain of salt because everyone's feed was glitching. No one had a better version of that than we did other than the reporters who were standing right there and actually heard him. But we're not exactly sure. Something's happening tomorrow morning at 9 a.m. What will this judge do? I don't know either. I mean, like this could be, I maintain it could be 11 in favor of the prosecution and one for Kevin Reddington.

1:29:16Dave Aronberg:He admitted there he doesn't know what's in the note and and he doesn't know more than he said. He admitted that there he's gleaning. And Matt Murphy was saying he thinks he's gleaning based on how the trial went. You know, that you have a sense is the lawyer who was in the courtroom on where the jury is. But we don't know. And the jury didn't look at Lindsey Clancy, at least according to Justice Served, who's been reporting on this day to day when they came in. So tomorrow morning, we'll know more. They're home and we should go home too. You guys, thank you. Thank you all so much. You can get these amazing, brilliant, fun, funny lawyers who have their sense of humor right along their legal sense.

1:29:54Dave Aronberg:Available for the taking at MKTrueCrime. Go ahead and wherever you get your podcast, just type in MKTrueCrime and you will be able to find them. Jonna's show is on there too. It's called Positively Legal, but all these guys, you'll get it all if you just subscribe to that one podcast name. Thank you. And we'll talk more, I'm sure, probably within the next 12 hours or let's say 16. Thank you, Megan. Thank you. Always happy to be here. And thanks to all of you. Yeah, thanks to all of you for listening. Wow, what a day. Okay, so we are saying goodbye for now. We'll pay back off tomorrow. Thanks for listening to The Megan Kelly Show.

1:30:30Dave Aronberg:No BS, no agenda, and no fear.

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