Lindsay Clancy Defense Wants Juror Notes Released—What Are They Looking For?

Tony Brueski (0:02)

This is live courtroom coverage of the trial of Lindsay Clancy from the Hidden Killers podcast in True Crime Today. Now, back to the courtroom.

Martin Weinberg (0:13)

Judge, this motion involves the constitutional right to a public trial. We've cited to the SJC's decision in Commonwealth v. Cohen, but the Cohen case relies on a series of US. Supreme Court decisions that talk about the centrality of a public trial, particularly in criminal cases.

And they make clear that part of the right to a public trial of a criminal trial is for judicial documents, documents that would provide the predicate for the court's decision making to be public. It's not an absolute right. There are exceptions, but the exceptions need to be as narrow as possible. They need to be supported by particularized need. They need to be the least restrictive. And they need to be accompanied by traditional findings.

In this case, we've particularly asked for two categories of documents to be provided to us so that we can rely on them publicly in support of the motion for DoubleJeopardy, the motion to dismiss. One being the jury notes. One of the two notes that are central to the determination whether there was manifest necessity for a mistrial, which converts to whether or not there would have been a predicate for a discharge of the juror and for the continuation of jury deliberations rather than a mistrial, was cited in public on September 4 when the arguments were made out here in public. But the first of the two critical notes from the juror that was essentially providing notice, which we contend required of Wardere, remains under seal because it was discussed at sidebar. With counsel. With counsel. But with counsel objecting to the sidebar debate about the implications of that note and about what remedies the court might apply.

The fact that there were sidebars, of course, are not illegal. Many lawyers sent to it. Mr. Reddington did not, at least as the transcripts of September 3 and September 4 reflect. So I'm making the argument to your honor that we have filed a redacted motion to dismiss. It has blanked out and redacted for the public and for the media the content of JurorNote 2, which was the note on September 3, the first of the two notes.

And we've redacted the transcript to the extent it was at the sidebar. But there is no particularized need for it.

We believe that redaction still remained possible, that if the Commonwealth or the court believes that a redaction of the transcript is required to protect some important value that outweighs the public right to a public trial and to review any documents that might be the predicate for important decisions that the court made, the decisions being to deny the defendant's motion to voir dire the juror, to deny the motion to voir dire the foreperson, and to deny the defendant's objection to the mistrial, there needs to be some weight that outweighs the public right to access. When I read it, there simply is no particularized need that I can identify, Judge, other than the need to redact the name of the juror consistent with Your Honor's impoundment orders. Likewise for the juror notes, they've been discussed in general in open court. One of them has been quoted in open court. There is no particularized need to preclude the other note, the note that was discussed alone at Sidebar earlier on September 3 from becoming part of the public record. And so we've made this motion essentially to facilitate Your Honor's consideration of what is the real cornerstone motion in this case that remains to be resolved following the Rule 25 motion, that being whether or not the Commonwealth gets to re-prosecute Ms. Clancy, whether or not the declaration of a mistrial was supported by manifest necessity, whether or not the alternative of ordeering a juror or jurors that could potentially have supported the court's assumption that the juror remained as a juror following the law, but not necessarily, whether or not a voir dire could have led to answers that would have been consistent with that juror's statement in answer to the one question the court asked. And so I ask you really to, in order to facilitate important litigation about a federal and state constitutional issue, whether or not through the end of deliberations, Ms. Clancy had a jury composed of 12 impartial jurors, all of whom were following your honor's instructions, all of whom were obeying both their oath and their duty of jurors. That's a Sixth Amendment right, a declaration under the 12th Amendment, the 12th Clause of the State Constitution. And then the corollary of that, whether or not the Double Jeopardy Clause would be put, would be violated by subjecting Ms. Clancy to the anxiety, the burdens, the perils of reprosecution. And so for those reasons, we've asked the court to make this limited ruling to unseal the bench conferences from September 2, 3 and 4, and to provide the jury question, the jury notes with a redaction of the name of the juror.