Lindsay Clancy: Black Juror Backlash Is Racist

0:00The Holdout juror who did not want to find Lindsey Clancy not guilty by reason of insanity was a black man. That doesn't mean because he's black that he is trying to exact some kind of revenge on a white defendant. Yet that's what people that some people are doing. Mark, there are some races shit going on in the Lindsey Clancy trial. The Holdout juror is black. And there are a lot of people who are raising eyebrows and saying that means something because the one person who did not want to find Lindsey Clancy not guilty by reason of insanity was a black man. And I don't know what that has to do with anything. Why him being black has any relevance here. But it seems to for some people. Can we first talk about how this came about? It was gale.

1:06Well, we're going to, you know what? Let's play it because we actually have gale. Gale King was on her show CBS this morning on Friday. And she was interviewing one of the jurors and this happened. I'm curious about the jurors themselves because we know it was nine women, three men. What was the age range? What was the racial makeup? I haven't heard any of that. What was it? 70 in 70 ish to 22. And one person of color and then everybody else was white. A lot of the jurors had children. One person of color was a person of color, a woman or a man. A man. A man. Is a holdout juror a person, a black man? Yes. A black man is a holdout juror? Yes. Well, I have to sit with that for just a second. Well, first of all, let me just say out of the

2:06gate here, I was not saying gale king was racist. It just came out there. But a lot of people are picking that up saying, Oh, well, the jurors black. And it's what does that mean? So what? But gale's reaction, Mark was really interesting. Why did she have to take a minute to take that in? It's a because I've long argued race permeates everything in the criminal justice system. Here you have gale king who in real time finds that out and it did not compute. I mean, she said, let me take a minute because I the immediate with the my immediate reaction is she was trying to process that because anybody I don't know that she's got the information that I'm speaking to. But any I talk to people who are in the courtroom during this entire trial. There is no one that I have talked to that thought this particular juror was going to be a holdout. In fact, everybody thought he was enthralled by

3:08Kevin Reddleton. Thought he was engaged with the defense experts. So you also know there's it's impossible to reach yours. But I don't know that it's impossible. I mean, I don't know that it's impossible. I will tell you it's you'll go crazy trying to. But I've said I've argued for years. I know during closings if somebody's with me or against me. I mean, I that's pretty much the only time I can really tell with any great degree of accuracy. But to answer your question, the immediate reaction is is a race based reaction based on what? Because normally I will tell you first of all, the idea of 11 to 1 for not guilty is an outlier to begin with. Almost always. In fact, I saw another interview with Reddleton where the questioner was kind of basically doing a soft cross examination that he's argued forcefully in his career against against removing the holdout

4:09juror because 99 times it's guilt. It's guilt. It's exactly the holdout is for not guilty. Okay, so get back to race. What why is why is it because inevitably it is inevitably the holdouts are predominantly of a either a race that is similar to the defendant or the accused, or it is somebody who has had the collective experience of generally in distrust of law enforcement. Now, you don't have that. You don't have that. That's certainly. But that's why I'm saying why this is so doesn't make sense. I mean, what some people are saying is, well, and this became a real issue during the case. There were people saying that if Lindsey Clancy were black, then you would not see that wave of support outside the courthouse and that it wouldn't have resonated with the jury the

5:12way it did. And a lot of people are saying there was a racial element in that sense. I'm glad you went there. But that's a hypothetical. And that doesn't mean because he's black that he is trying to exact some kind of revenge on a white defendant. I mean, there's just no basis for saying that or for reasoning that yet that's what people that some people are doing. You made me a banish. I'm old enough to remember. So I'll just say this year, do you remember all the people who were screaming and yelling and protesting about another case because there was no person of color on the jury? I'm going to test your short-term memory. Well, does Wells ring a bell? Yeah, why? Because that was where there was no person of color on the jury. And there were all

6:17kinds of protests because the prosecution eliminated three people of color. Okay, well, that's a good thing. I'm not saying that I'm going to play with your thought experiment. Just do this thought experiment. Do you think there would have been this critical mass, this outpouring of support, if this was a young black African-American or fill in the blank woman who had killed her three African-American babies? You think this would be covered like it has been? Probably not. Okay, and in my experience, let me just tell you, I used to joke that when CNN was in its heyday in the 90s and the early 2000s. Oh, I love it. You have to be on the big period that you used to be on CNN. That's hysterical. Well, that's a hysterical. That's funny. To be on speed dialed if there was a pretty white woman who was missing. Oh, I believe I'm totally

7:19it was Chandra Levy. I totally get it. John Van A Ramsey. I get the point and and it's true. I mean, if that's that's a trueism, but I'm look, I get it and I agreed with you and I don't think it would get that kind of coverage. I know. We know it. I mean, that doesn't mean that all of a sudden you look at scans at the hold out juror because he's black. Well, then how do you explain Gail King saying basically give me a second. I got a process. I think she was trying to decide are there implications here and she was processing that or or or and I don't know this, but what if Gail King's personal feeling was that Lindsey Clancy should have been found not guilty by reason of insanity and all of a sudden it's like, oh my god, a black guy is the one who said,

8:23no, and she's just thinking more personally because you know, I look, I will confess that I remember there was a time when I was young and we would be watching TV at home and some guy was convicted of some white collar thing or whatever and it was a Jewish guy and my parents would say, oh, why does he have to be Jewish? So, you know, it's kind of the same thing and I don't know, it could be that or it just could be she really is trying to figure out is it relevant or not, but my argument is it's not relevant. It's not relevant. Well, you can make the argument. The fact is we want, we have the anecdote which we just watched. By the way, have you been on the internet to see the memes? The memes are one of the the upsides of the internet and I for those in the comments who are going to be saying we shouldn't be joking or we shouldn't be smiling, we're talking about after the fact we're talking about something else, the issue remains. Would somebody have been,

9:30you know, this kind of highlights when I used to argue the opposite and one and most defense lawyers would argue the opposite don't don't savage the whole doubt juror don't go after the whole doubt juror that's a which is which is happening now. Well, yes, this clearly people are they're picking sides. Well, this is what I want to get into because I got to tell you up until Friday when this juror was on with Gail King, I really thought Kevin Reddington had a good chance of arguing manifest necessity at the court of appeal level where he would say that there was no manifest necessity of declaring a mistrial because the judge should have spent more time talking to jurors hearing them say this other juror would not use the reasonable doubt standard was defying the orders and that judge could have put an alternate in and they could have reached a decision and therefore

10:34the appellate court could have attached jeopardy which meant that there could be no retrial of Lindsey Clancy. I really thought that that would have been a really solid argument until I heard this from this juror. Did the jury struggle with that that how she was able to seemingly be so coherent but at the same time be having a psychotic breakdown. Yes, you all discuss that. Yes, and I think that was one of the things that the whole doubt juror really that was one of his main points. Was what? He couldn't wrap his head around that. Yeah, that she could do this one at a time and then you know do all the steps that she did to go commit suicide. We watched the video of Lindsey's interview and after that he said he had realized that it wasn't murder in the first degree that's where we saw his doubt. Well, that's a huge deal that he he shifted his position

11:39so he wasn't this intransigent guy who was determined to find her guilty of murder. He shifted his position that he was going to go for something less than murder but not not guilty by reason of insanity. That does not sound like a guy who's not considering the instructions. So legally and I gave you credit off the earlier day or yesterday so I will I often don't give you credit but I'll give you credit. You were ahead of the curve before they filed the motion on the manifest necessity and that's the legal term when the defense does not want a mistrial. This is everything is upside down world here. When the defense does not want it and the judge grants it you have to show manifest necessity but in this case you're so spot on because the what she just described

12:39the she being the juror was first of all I'm not sure any of this stuff comes in to evidence in the court because there are prohibitions against talking about what happens in the deliberation room in the deliberation process. So putting that aside the fact that she says they watched the interview of Lindsay Clancy while she was in big question about it and that changed a lot of people's mind and then what she didn't say in this particular clip but I think is also important if you're going to start engaging on that then when people are saying it was grotesque that he was taking an exercise band and wrapping it around a water bottle and in the jury room. There is a compelling argument that what he was doing was demonstrating and trying to illustrate his point and engaging in deliberating and to your point that undercuts the manifest necessity argument because that is

13:43predicated on the idea that he was not deliberating. Well okay let's be clear that the foreman made it sound like this holdout was just ignoring the reasonable doubt standard. The holdout made it seem like in fact one of the jurors said that the holdout felt that neither the prosecution nor the defense proved its case. Well if it's that clear the defense wins because the prosecution has the burden to prove. So when you hear those things you think yeah well this holdout really was just defying the judge's orders. When you hear them say that it's this juror that really changes everything for me in the sense that it's not just somebody who is ignoring what reasonable doubt means it's not somebody just ignoring what burden of proof means it's somebody who is open

14:46enough to change his position in the middle of deliberations. That's not somebody who's just dug in. If he's willing to change his position that means he's considering the evidence. Now he may not agree with the other eleven but that's the whole point of unanimity. And by the way the jury instructions and the law is it's not beyond all doubt. It's beyond reasonable doubt. You can have a doubt but if the doubt does not rise to the level of reasonable doubt that's precisely what every defense lawyer who tries cases argues both coming and going when it's coming at you and coming at it. I agreed that the jury interviews if I was the defense what I wanted to see if it panned out was somebody to say he just the holdout discussed mortal sin or invoked a religious

15:49connotation. Then you would have a way of emotion. But we're not hearing that. No at all. Can I get back to what you said about this water bottle where he took the exercise band and put it around the water bottle. Actually this juror talked about it and I think this is really really relevant. So watch this. He took the exercise band out of the bag grabbed an empty water bottle and tied the band around the water bottle and pulled it. Did he explain why he did that? No. He might have I'm not entirely I think I was just so shocked that he did that. Is that a mimic of how she killed the children? Yeah I assume so yeah. What do you think when he did that? I was shocked. It didn't make any sense to me. We're not in here to play detective or it's not a game of clue like this is serious. I asked him why why was why why are you doing that? That's a band that was used

16:50to strangle a child it's disgusting. I think they both missed the point that it is a game of playing detective in a way that that's what jurors are doing. They're trying to piece it together and what he was doing was making a point and the idea of saying well he's mocking it and that's not necessarily mocking. If anything this is the guy who believed she was doing it in a premeditated way or a callous way and he was just trying to emphasize what it looks like but I don't think that you can you know again I didn't see his body movements in the jury deliberation room of course but just the fact of him doing it could be to emphasize the callousness of the act. So once again like I it's going to be maybe a drinking game for upside down world. You argue to a jury you're not here to be an advocate. You are however jurors are the judges of the facts.

17:51The judges the one who gives them the law. The jurors first have to find the facts. Here that when this juror says once again this is another thing that undercuts the defense to some degree when he says I was disgusted by it. Well you could just as easily if you're the prosecutor make the argument but of course you were disgusted by it. That's precisely the act itself is so reprehensible that how are you going to get past that to say that it was a psychotic break or anything else. He could be demonstrating that. There's nothing if you there are rules against demonstrations. However if what he's trying to do is find facts and to show somebody I mean I hesitate to always be arguing in this episode the prosecutors standpoint but if the prosecutors going to send it over yourself. Yeah I will get past myself. If you're if you're demonstrating just the sheer kind of depravity of having to strangle babies with an exercise band

19:01and doing it methodically in the time that elapsed which by the way is what the prosecutors were arguing then that means the juror is engaging. The juror hasn't disengaged. The juror hasn't stopped deliberating. You want and the judge wants and anybody in the system wants is a juror to deliberate. How do you feel about the way everybody is because look I'm just give my opinion. I think that Reddington did a great job in this case and that I think that when you just listen to the evidence at least as much as I heard that he made a very compelling case for not guilty by reason of insanity. I think he did. That doesn't mean that somebody who disagrees is this kind of appalling renegade awful person, heartless person but boy this juror is being raked over the coals.

20:01Well I've seen it on both sides. I think that's concerning. I think it's concerning on both sides. This has become kind of a tribal contest after the fact. I mean if you are on one side of the ideological spectrum you're denigrating the people who are in the 11 if you're on the other side of the ideological spectrum. It's easier to denigrate one than it is 11. Well they're already out there. I mean wasn't I think Reddington's PR person unless it was AI and a spoof was challenging Cruz to a debate. Yeah with Cruz right right because Cruz said that she should get the death penalty. Correct. And once again we're living in a time where even this case which is really kind of a shows a spotlight or shines a spotlight and the defense I think Abily did on the failings of the mental health system has now become kind of are you with us with law in order or

21:02you against law in order? It's been there is a caricature and an aspect to this which is not tethered to what actually the issues were. You know what one of the things that really struck me listening to the jurors was how they glommed on to this concept of altruistic philocyte that it seemed to me when I heard it initially that I thought this is not going to land with them the idea of altruistic philocyte but it did and a lot of that at least several of them were saying that was something that really had an impact on them. In other words that somebody can be so out of their head that they think they're doing a good thing by killing their own child and that that concept which is rooted in psychology and psychiatry that it would land with a jury

22:02most of whom had kids of their own. And the part of the reason for that is from a just a intuitive or lay person perspective eight weeks ago when people were uniformly saying that jurors were going to be appalled and hate Lindsey Clancy you literally goes against all kinds of understandings of human nature. You've got a woman who not a not a single witness and jurors said this not a single witness said anything bad about her and she made a perkylian effort to try to get help and she was on a cocktail of pharmaceuticals and I've said this a million times everybody who wants to denigrate people who are in the throes of either addiction or medication or or pharmaceutical induced psychosis doesn't understand that it so permeates American society that it's usually just one degree of separation. And some of these jurors said something that that

23:07resonated with me when they said not a single person had a bad thing to say about her. Well one of the jurors said the prosecution didn't introduce anything bad and the reason that's important is not because this is character evidence per se but it goes to motive if you don't have a motive to explain this from just from a basic behavioral standpoint if there's no financial motive if there's no paramor if there's no reason to do this that is not altruistic then you don't you understand that somebody did it in the sense that it had to be psychotic that's where the brain goes it has it you have to sort this out otherwise we don't live in a civilized society in terms of how you pigeonhole the information yet there are so many cases where somebody commits a crime so heinous they are out of their heads. I mean I'll give you an example where a lot of people aren't are having trouble with it

24:10it's Nick Reiner where you know the argument with Nick Reiner is going to be he had a psychotic break but people are looking at him much and I'm not saying they should or shouldn't but they are looking at him much less sympathetically than they are Lindsey Clancy. I'll give you the other one that's been invoked the one remember on the I believe it was on the subway where the guy was clearly in a psychotic break and slit that beautiful woman's neck on the subway how about the I'll give you another example the woman in Times Square recently with the knives who's running around she ended up killing the yeah no or 32 year old Bank of America so much of it are optics of who the victims are do you know the who the victims are are the victims good looking um is there video of it happening you know so much of it is situational but it makes a difference on whether people are going to buy the argument if number what I think I think we both agree I

25:16haven't even talked you about it but I'm assuming you agree that there's a lot of pressure I think the DA is going to retry or assuming the appellate court allows that I think that there will be a retrial right so I was going to ask you this and we haven't talked about this when Kevin Reddington was interviewed I believe by George Stephanopoulos he ended with a plea to President Trump to give that was a part that was a brain fart yeah I thought I said absent at TIA yeah and he's cleaned it up afterwards in fact I gave him the benefit of the doubt I went down the rabbit hole of trying to figure out if there was a there's no where there's no where there's no where there's no no whatever but that did lead me to the motion he did file which is the rule 25 motion which you had kind of we talked we did talk about this week and the rule 25 motion and I I may have mentioned this before in California you've got 1385 which is a code section that in the interests of

26:22justice the judge can prevent them from retrying it rule 25 in Massachusetts the way I read it is slightly different from that it's not really in the interest of justice as much as rule 25 is more of a 13th juror the judge acting and and basically having the inherent authority to say I witnessed this and I'm have you ever seen that happen twice twice in 33 years yeah twice in 43 years so vice versa yeah I mean and it's this case it's not going to happen here yeah this case it would be that's why I keep coming back to the once in jeopardy and the prosecution yeah assuming that doesn't happen assuming there's no jeopardy assuming the appellicor doesn't buy the argument if the prosecution can retry or they're gonna retry right well unless unless there's a plea and all of this I mean part of what you do people say there's no chance

27:25you can win the the reading thinking win this motion no chance you can win that motion you have to do a full court press as a lawyer number one as your duty but number two it also puts it it puts pressure on the prosecutor to come to the table and it's a negotiating process do you think but what are they plead to manslaughter what are they plead to you because because Kevin Readington said one thing very clearly he will no lead to nothing with prison nothing with her behind bars so a mental institution yes but not prison and he made that clear so right so you could craft something and I crafted things for instance you get a you get a an agreement that you will not seek it to be released for x number of years if you do that the in a mental facility in a mental facility you could do something like you get a commitment for x number of years

28:27and enter into that the problem you've got frankly is her competency to enter into one of those or the subject you know if you're a problem I don't think there's a competency issue with her no I don't think so either but what if what if and this is I've had this with prosecutors as well where they say well yeah your clients gonna enter into this today but how do I know that five years from now I'm not gonna come back and your client's gonna say I was out of my mind at the time and I didn't have a know he wasn't knowing involuntary and now I want to rescind so there are issues when it comes to that and she's got she's being held in a psychiatric facility now so do you think they'll be a retrial or not you think they'll be a bad or not I do not I do not I go against the grain I don't think that they retry this case I think that somebody's going to somebody's gonna blink at some point who's gonna blink you know I don't know that there isn't you know the judge

29:28I don't I always wax positive I I could see a world where the judge says NGI I could see where he doesn't say once in jeopardy because once in jeopardy is a problem but I could see where he's some plants that says NGI and I'm committing her I don't know why he necessarily don't I don't well I mean I suppose it's possible it's just almost never done but I agree it's a I wouldn't discount the I I wouldn't discount your opinion at all I mean that's the conventional wisdom I think most people would say there's no way the mother of the judge hasn't been born who's going to do that in this type of a high profile case but you never know I've seen judges fly in the face of the DA before I mean look at look at last year and we just got a expedited hearing for the Menendez brothers there was an enormous amount of pressure with the DA himself coming to court and arguing

30:30the the elected DA in the court of arguing and judge Jessica stood up and did the right thing in the face of that kind of pressure could the judge try and broker a deal sure the judge could the judge could say before I he could set it for an evidentiary hearing that puts that pressure on him I'm talking about something he could say I'm setting it for an evidentiary hearing and I suggest that the two parties meet and confer before that hearing to see if there's a legitimate way to resolve this absolutely the judge can do that okay I cannot end this without calling you out oh my god that you actually said CNN when it was in its heyday in the late 90s and you pick the time you were on CNN every night well I love that you did that is that is an objective demonstrable fact you remember okay well I was on that too okay I was on Larry showed as well yes but do you remember

31:37Harvey when back when they did ratings what the CNN ratings were in the 90s for presidential so I want everybody to understand this mark garragos is saying that he was responsible for the rise I know that now now you're the now I want everybody to throw in shade at the holdout jerk and throw shade at you okay I'll see you next week see you next week bye