Lindsay Clancy defense questions investigation at hearing, attorneys discuss possible retrial date

Prosecutors did not officially declare that they will retry Lindsay Clancy or on what charges, but there were discussions about setting a new trial date.

Judge William Sullivan wanted to set a tentative new trial date, but both prosecutors and the defense agreed that they would rather wait for rulings on a variety of motions.

"That's my goal in this thing is to get this thing tried as soon as possible," Sullivan said.

Defense attorney Kevin Reddington said he cannot do a new trial before June.

The sides will discuss a potential trial date during a Nov. 2 hearing.

The hearing ended just after 11 a.m. after about an hour. 

Martin Weinberg argued for the defense on a motion to order juror notes and sidebar discussions not be subject to impoundment.

Weinberg wants to be able to use some of the documents in their motion to dismiss on double jeopardy grounds.

Prosecutor Shanan Buckingham opposed the motion, citing the need to protect jurors.

"What has been happening in this case outside of this courtroom has had a chilling effect on whether a juror would even want to serve on a trial in this Commonwealth," Buckingham said.

Judge William Sullivan did not rule and took the motion under advisement. 

Prosecutor Shanan Buckingham noted that mental disease or defect is a complicated topic. She said the prosecution does not dispute that Lindsay Clancy was having mental health issues before her children were killed.

She said the next prong of the law is the argument about whether Clancy had the capacity to appreciate the wrongfulness of her conduct.

"The case law is clear that not every defendant with a mental illness lacks criminal responsibility," Buckingham said.

Judge William Sullivan took the motion for a required finding of not guilty under advisement. 

During the first trial, defense attorney Kevin Reddington did not deny that Lindsay Clancy killed her children. Instead, he attempted to show that she was suffering from postpartum psychosis and should not be found criminally responsible.

On Tuesday, Reddington argued that police "just immediately assumed that this woman is guilty," and did not properly investigate.

"There's no evidence that she admitted she did this," Reddington said, later adding, "Why would she kill those three children?"

Reddington said Clancy has no memory of killing her children, but was told by police that she strangled them.

In her rebuttal, prosecutor Shanan Buckingham said that this is the first time the court is hearing that Reddington is questioning the evidence. Buckingham argued that there is "voluminous" evidence.

Buckingham said the argument that there is not enough evidence to show that Clancy killed her children is "laughable."

Lindsay Clancy's attorney Kevin Reddington argued that Judge William Sullivan should issue a required finding of not guilty.

Reddington claimed that Clancy should be found not guilty because of "the total and complete lack of evidence to indicate to a rational juror" that she was guilty.

The defense attorney there is a "conundrum" when admitting a defendant is guilty in order to raise lack of criminal responsibility.

Reddington said that there is a judgement from the greater public that Clancy admitted to killing her children, so she must be guilty. He said that opinion has been expressed widely from politicians, "from President Trump all the way down."

In addition, Reddington tried to show the judge that police did not properly investigate the crime scene.

"There wasn't even a horrendous investigation, there was no investigation," Reddington said. 

The prosecution filed Monday for a gag order in the case.

Judge William Sullivan said he reviewed the motion Tuesday morning.

No decision will be made on Tuesday, and the sides will discuss a potential gag order during a Nov. 2 hearing.

Prosecutors said they wanted to delay arguments for the motion to dismiss, because they had limited time to prepare.

Judge William Sullivan added arguments on that motion for Nov. 2, the same day as the hearing on the investigation into the holdout juror.

Prosecutors will file a motion in opposition before that hearing. 

Attorney Heather O'Connor was in Plymouth Superior Court for Lindsay Clancy's hearing to represent the lone holdout juror, identified to the court as Juror Doe. He has spoken publicly through a different attorney and identified himself as Michael Desronvil.

Defense attorney Kevin Reddington has filed a motion to investigate the juror.

Judge William Sullivan set Nov. 2 as a date for a hearing on that motion.

"That motion addresses a lot of issues that we need to resolve sooner rather than later," Judge William Sullivan said.

"I'm trying to move this as fast as we can," Sullivan added a short time later when discussing a separate issue.

You can watch the Lindsay Clancy court hearing live as it happens.

It is being streamed live from Plymouth Superior Court on CBS News Boston and on YouTube.

At 9:55 a.m., the Lindsay Clancy hearing got underway in Plymouth Superior Court in Plymouth, Massachusetts.

WBZ-TV's Kristina Rex, who is in the courtroom, said there is as much or more media as there was during the week of deliberations. 

Clancy is in the courtroom along with her attorney Kevin Reddington and Martin Weinberg, who filed a double jeopardy motion to dismiss on Clancy's behalf. Clancy's civil attorneys Andrew Meyer and Rosemary Scapicchio are also in the room for the hearing, along with Clancy's parents. 

Both prosecutors, Shanan Buckingham and Jennifer Sprague, are present as well. 

Tuesday's hearing was scheduled to get underway around 9 a.m. 

The hearing, which is taking place in Plymouth Superior Court in Plymouth, Massachusetts, has not yet begun as of 9:30 a.m.

The holdout juror, who has been identified by his attorney as Michael Desronvil, has not spoken out publicly since the conclusion of Lindsay Clancy's first trial. On Monday, his attorney, Edward Paltzik, gave an exclusive interview to Fox News.

Paltzik said that Desronvil's decision "was based 100% on the evidence and the law he was required to follow."

"The reality is that it was 11 to 1 because one courageous, heroic man stood up and said, 'This is wrong,'" Paltzik added. "It was an intense experience and the pressure was unimaginable. And no person of ordinary firmness could have resisted. Most people would have folded. They would have caved and buckled. Michael did not because he's an uncommon man, an extraordinary man."

It could become clear on Tuesday if Plymouth District Attorney Tim Cruz will choose to retry Lindsay Clancy. 

WBZ-TV legal analyst Jennifer Roman said Cruz will also likely make a decision on what charges Clancy would face. A charge of second-degree murder or manslaughter would mean Clancy would have the choice of a jury trial or a "bench" trial, which means only a judge would decide the case, not a jury.

"I think [prosecutors] probably learned from the first trial that first-degree [murder] may not be their winning argument," Roman said. "I think the DA's office would be best served reducing the charge to a second-degree murder or even manslaughter."

Plymouth Superior Judge William Sullivan will be overseeing Tuesday's hearing in the Lindsay Clancy case.

It was Judge Sullivan who was on the bench during the trial.

Sullivan has ruled on several issues following the mistrial, including an order keeping the names of jurors and the jury pool hidden from the public indefinitely for juror safety.

Following the trial in Lindsay Clancy's case, defense attorney Kevin Reddington filed a motion for required finding of not guilty. 

The prosecution filed a response to that motion, which was published on the docket Tuesday. 

In its response, the Commonwealth says the evidence presented at trial was sufficient.

"Despite claims by defense, this Court should be evaluating the sufficiency of the evidence based only on the evidence presented at trial and not to consider any alleged information regarding jury deliberations nor the potential collateral issues regarding the outcome of what would happen to the defendant should the Court consider a required finding of not guilty by lack of criminal responsibility," the filing reads. "Defendant has cited no authority that could permit the court to consider such information."

The prosecution in Lindsay Clancy's case has filed a motion to preclude prejudicial extrajudicial statements to the media, also known as a gag order. 

If approved, the order would prevent lawyers "from making extrajudicial statements to the media that would have a substantial likelihood of materially prejudicing the criminal proceedings in this matter."

The motion argues that defense attorney Kevin Reddington regularly gave updates outside of court, spoke about witnesses, described Clancy in a positive light and "most disturbing, defense counsel spoke to the media about the deliberating jurors in the case." The prosecution specifically says that Reddington referred to the holdout juror as "he" during a news conference, making it easy to determine the juror was one of three men on the jury.

WBZ-TV and Boston Globe Media Partners filed a motion opposing the gag order. 

Though the list of juror names was impounded after the mistrial, several have chosen to speak out.

One woman who asked to remain anonymous told WBZ-TV there was "so much doubt" and that's why she found Lindsay Clancy not guilty by reason of insanity.

Juror Paula Devlin confirmed to "CBS Mornings" that the jury was split 11 to 1 in favor of finding Clancy not criminally responsible.

After facing scrutiny on social media, the holdout juror eventually released a statement saying, "I didn't have any doubt."

During a recent interview, Lindsay Clancy's defense attorney Kevin Reddington was asked if he would be open to working out a plea deal with Plymouth District Attorney Tim Cruz.

No plea deal was possible during the first trial because Clancy was charged with first-degree murder.

"It's up to Tim," Reddington said. "He could reduce the charge to second-degree [murder]. … I know enough to know it doesn't matter what I'd like. All I know is that I'm not ever going to agree to let this young lady do a day in jail."

Postpartum depression and mental health issues have been at the center of Lindsay Clancy's trial. 

If you or someone you know is in emotional distress or a suicidal crisis, you can reach the 988 Suicide & Crisis Lifeline by calling or texting 988. You can also chat with the 988 Suicide & Crisis Lifeline here.

For more information about mental healthcare resources and support, the National Alliance on Mental Illness HelpLine can be reached Monday through Friday, 10 a.m. to 10 p.m. ET, at 1-800-950-NAMI (6264) or email info@nami.org.