Judge William Sullivan (00:00):
... to continue, filed by new counsel... Yes, counsel.
Heather O'Connor (00:06):
Good morning, Your Honor. Heather O'Connor on behalf of Juror Doe.
Judge William Sullivan (00:08):
Yes, counsel. Good morning. All right. And so what... I thought, "I might as well take care of that right now." So this is an incentive to motion?
Heather O'Connor (00:16):
Yes, Your Honor.
Judge William Sullivan (00:19):
How far out, or why don't we talk about picking a date at this point in regards to that? And I'd like to keep it short rather than put it out too far. October 23rd?
Heather O'Connor (00:44):
Your Honor, could I have something after the 27th?
Kevin Reddington (00:46):
29th?
Heather O'Connor (00:55):
29th would work for me.
Jennifer Sprague (00:57):
Works for the Commonwealth. All right.
Judge William Sullivan (00:59):
Let's see how it works for the court.
Madam Clerk (00:59):
[inaudible 00:01:05].
Judge William Sullivan (01:15):
No, actually, you know what? I'm not available then.
Madam Clerk (01:19):
You're not available on the 29th?
Judge William Sullivan (01:19):
No.
Madam Clerk (01:19):
[inaudible 00:01:27].
Judge William Sullivan (01:30):
So you can't do it before the 27th?
Heather O'Connor (01:32):
No, Your Honor. Sorry.
Madam Clerk (01:41):
Maybe November 2nd?
Heather O'Connor (01:49):
November 2nd would work for me.
Jennifer Sprague (01:49):
Works for the Commonwealth.
Judge William Sullivan (01:49):
All right. Defendant?
Kevin Reddington (01:57):
I'm still close to the start of trial here actually, but I do believe that it's in the process of trying to be continued. So let's say the 2nd of November.
Judge William Sullivan (02:05):
All right. Why don't we put that on? That motion addresses a lot of issues that I think we need to resolve sooner rather than later. So why don't we put that on for, let me see, November 2nd? All right. All right. The next, I also have-
Heather O'Connor (02:32):
Thank you, Your Honor.
Judge William Sullivan (02:33):
Well, counsel don't go anywhere because I have another one I saw that you had filed. A motion for limited relief from impounded records.
Heather O'Connor (02:41):
Yes.
Judge William Sullivan (02:42):
I know that was filed just yesterday, right?
Heather O'Connor (02:44):
It was, Your Honor.
Judge William Sullivan (02:47):
The problem is I didn't get the memorandum and it wasn't clear what exactly the relief was, what it was that you wanted access to. So I don't know if you want to supplement that and I can take a look at it. If we have to, we can deal with it on the second?
Heather O'Connor (03:05):
I can supplement. I think part of the issue is there's a number of documents that have been impounded in the case that I can't even see to actually request what they are. So we're essentially looking for anything that has been impounded that would address that issue so that we can prepare fully.
Judge William Sullivan (03:20):
Well, it said there's a memorandum. Was there a memorandum filed?
Heather O'Connor (03:23):
There was a motion filed and an affidavit.
Judge William Sullivan (03:26):
All right. But I think the motion actually referred to a memorandum. That's what I was looking for.
Heather O'Connor (03:29):
Oh, I apologize.
Judge William Sullivan (03:31):
Well, so is it your intention to file a memorandum?
Heather O'Connor (03:34):
We can file supplemental, Your Honor.
Judge William Sullivan (03:37):
Because I kind of need to know what it is that you're looking for.
Heather O'Connor (03:39):
Sure.
Judge William Sullivan (03:39):
So why don't you file that? If I can... I'll take a look at it. If we can't resolve it on the papers, then we can deal with it on the 2nd.
Heather O'Connor (03:49):
I believe that is also assented to, Your Honor.
Judge William Sullivan (03:50):
Yeah, I know, but it's something I have to look at.
Heather O'Connor (03:53):
Sure.
Judge William Sullivan (03:53):
All right? Because I impounded it for certain reasons, not just counsels [inaudible 00:03:59]. There's a bigger picture and a lot of these issues that I need to address. So I understand that it's assented to, but I need to know exactly what it is that you want so I can evaluate it and make a decision. Attorney Sprague?
Jennifer Sprague (04:12):
My only concern, and I'm suggesting maybe an interim date because I believe that in order for counsel to argue her motion on the second, she may need some of those materials.
Judge William Sullivan (04:22):
Okay. I gave an interim. That's the earliest day we have. I've been trying to get an interim date.
Jennifer Sprague (04:29):
I understand. I'm just-
Judge William Sullivan (04:31):
I'm not jumping on you. I understand that.
Jennifer Sprague (04:32):
I'm just trying to prevent a continuance of the motion.
Judge William Sullivan (04:35):
Right. I'm trying to move this as fast as we can.
Heather O'Connor (04:39):
Your Honor, if I'm able to supplement the memorandum, are you able to decide on the papers?
Judge William Sullivan (04:43):
I'll take a look at it if I can. Depends on what's in the papers.
Heather O'Connor (04:47):
Sure.
Judge William Sullivan (04:47):
All right? So why don't we keep that date. If after looking at it, I feel that we need an interim date, I could reach out. Maybe we could, even if it's done... Let's worry about that if we have to worry about that. All right. So I'll take no action on Juror Doe's motion for limited relief from impounded records, waiting on the memorandum. And if I can resolve it in the papers, I will. And then that may answer the problem we have. If not, we'll deal with that. But we'll keep the motion, as I said, regarding juror records and request for limited inquiry on for November 2nd. Okay?
Heather O'Connor (05:32):
Thank you, Your Honor.
Judge William Sullivan (05:32):
All right. Thank you, counsel. All right. Then I have motion to order juror notes and sidebar discussions, not subject to impoundment. Parties ready to argue that? I think that's the defendant's.
Kevin Reddington (05:53):
Yes, Your Honor.
Judge William Sullivan (05:54):
Okay. All right. Commonwealth?
Jennifer Sprague (05:54):
Yes, Your Honor.
Judge William Sullivan (05:54):
Okay. So we'll argue that. Then there's the motion to dismiss, defendant's motion to dismiss. Defendant, ready to argue that?
Martin Weinberg (06:05):
Yes, Your Honor.
Judge William Sullivan (06:05):
Okay. All right. Commonwealth ready?
Jennifer Sprague (06:08):
Your Honor, the Commonwealth is. I know I relayed it to Madam Clerk, but we are objecting to proceeding on that motion today. The reason for that is that we received the motion last Monday. It was our understanding that today was scheduled for possible trial assignment and the Rule 25 motion. We learned on Friday when defense counsel or someone working with him sent an email to the clerk that they would like to argue the motion today. We were not aware that that was going to happen. And so we've really had a very limited time in which to delve into this 34-page memorandum that was submitted by defense counsel and prepare for this motion today. So we are asking for more time on that than what we've had up to this point.
Judge William Sullivan (06:54):
All right. Counsel?
Martin Weinberg (06:55):
It's a matter of Your Honor's discretion. I'm prepared to argue it today. The Commonwealth has had eight days. It's a significant motion raising important issues that if Your Honor was to decide in favor of the defendant, it would move out a lot of the other issues that require an end to this litigation. I'm prepared to argue it today, Judge.
Judge William Sullivan (07:19):
Well, I appreciate that. But to be fair to both sides, this was a significant motion filed within the time span. There's certainly nothing, not criticizing defense for filing it and the timing of it, but I do understand the Commonwealth may need some additional time. So can we put that also on for that November 2nd date?
Jennifer Sprague (07:42):
Yes, Your Honor.
Judge William Sullivan (07:43):
Counsel?
Martin Weinberg (07:44):
I'm available that day. Thank you, Judge.
Judge William Sullivan (07:47):
All right. So why don't we... We will hear that motion to dismiss on November 2nd. Do Commonwealth intend to file a memorandum in opposition?
Jennifer Sprague (08:02):
Yes, Your Honor.
Judge William Sullivan (08:03):
All right. So if you could file that maybe at least a week before that hearing date, that would be helpful.
Jennifer Sprague (08:07):
Yes, Your Honor.
Judge William Sullivan (08:10):
Then there's also... It was filed, I think yesterday or this morning, Commonwealth's motion to bar prejudicial extra judicial statements. Commonwealth, are you ready to argue that motion?
Speaker 1 (08:28):
Yes.
Judge William Sullivan (08:28):
All right. Defendant?
Kevin Reddington (08:31):
Sure.
Judge William Sullivan (08:32):
Well, the other question is whether I am. All right. This is a motion that was filed late yesterday. I didn't see it until about five o'clock this morning. So I was also reviewing a number of the other motions. This raises some significant constitutional questions as well as under the Massachusetts law. I'm going to suggest that we set a date on that so that the court can be ready as well as the counsel. You can put that on November 2nd as well?
Kevin Reddington (09:17):
Sure.
Judge William Sullivan (09:24):
All right.
(09:24)
All right. And then I know there's a related motion filed by The Globe regarding access to arguments and sidebar conferences. I just received that last night as well, so I'm not ready to address that. We'll mark that up for hearing. We'll reach out to counsel who filed that and we can set that up for a hearing.
(09:51)
All right. So why don't we go forward first on the motion for required finding and then we can deal with the other motions and then talk about schedule. Okay? All right, Mr. Reddington? I don't know which... Are you going to argue the Rule 25?
Kevin Reddington (10:11):
Sure.
Judge William Sullivan (10:11):
Okay.
Kevin Reddington (10:12):
Thank you. Your Honor, the posture at this point obviously is that the government rested. I filed the motion under Rule 25 for required finding. The court denied the motion. We then proceeded with the defense. When the defense rested, I renewed the motion for required finding procedurally. The court denied the motion. The government then commenced their rebuttal case. When the government rested the rebuttal case and the case concluded, I renewed the motion for required finding. And this is a request for the court at this point to enter an order allowing a motion for required finding of not guilty. The issue is really two. You've got, as it goes back to the motion for bifurcation, you may recall, I know you do, that I had filed the motion requesting that the court bifurcate the trial itself, arguing the Massachusetts Constitution, the difference in the language between the Mass Constitution and the federal constitution as it relates to presenting evidence against oneself, whether or not it's an impingement on a defendant's rights for due process as well as their fifth amendment and 14th amendment due process rights to require a person who is asserting a defense of lack of criminal responsibility to have to have both issues tried. In other words, whether the person committed the offense and whether or not the person at the time of the commission of the offense lacked criminal responsibility. Two separate issues, but the way our present statute and law is set up, and as Your Honor denied that motion in your memorandum, you indicated obviously that we have to go forward on one trial.
(12:15)
Whether or not it's because of money, that it would cost a lot of money to try two cases for anybody asserting a defense of lack of criminal responsibility or whether or not it's logistics, I don't know, but I suggest to the court that it's readily apparent that you are put in a conundrum where you have to, in effect, admit culpability, if you will, to raise the issue of lack of criminal responsibility. Now, many, many laypeople have difficulty understanding the concept of the bifurcation and say, "Well, she admitted that she did it, so she's guilty and therefore she's just guilty." And then they go off on a tangent about all of these horrific allegations, that she's a demon and she's possessed and she should be executed. And this is coming from politicians, from President Trump all the way down.
(13:11)
So we end up trying the case. I tried to raise the issue as best I could on the issue of probable cause. The jury was instructed by you that they did have the obligation to make a determination as to whether or not the government has presented evidence to prove beyond a reasonable doubt that this young woman was actually guilty of this offense. Your Honor then proceeded to indicate appropriately that in the event that the jury determined that there was evidence that in fact she had indeed committed the offense, they would then proceed to the issue of whether or not the government sustained its burden of proof beyond a reasonable doubt that in fact she was not suffering from a mental disease or defect such as which would have an effect on her being either unable to appreciate the criminality of the conduct alleged or in the disjunctive conform the conduct to the requirements of the law, which is our black letter law definition of lack of criminal responsibility.
(14:21)
So I'd like to kind of bifurcate this argument this morning in the same way. And what I would do is address first the issue of the government's burden of proof beyond a reasonable doubt. And it's not riding the horse two ends against the middle and trying to play games with the system or gamesmanship or anything. This is a constitutional due process obligation that the government, when the government charges a person with a criminal offense, they have that burden of proof on each and every element beyond a reasonable doubt.
(14:58)
Your Honor knows from your review and recollection of the evidence that was presented, I submit to the court that a motion for required finding of not guilty should have been entered on the total and complete lack of evidence to indicate to a rational juror, which is consistent with the Latimore standard, consistent with Jackson versus Virginia 443 US 307, where the courts note that to sustain the denial of a directed verdict, they call it directed verdict, we call it required finding, it is not enough for the court to find that there was some record evidence, which is always what the government always argues.
(15:46)
There's some record evidence here. There was an evidence on this, evidence on that element. Dr. Saathoff testified to something and there's enough for a jury. It's a question of fact. No, that's not the standard. The standard is whether or not that there is evidence that a court is able to determine that there's record evidence to support each essential element of the offense. It must find that there is enough evidence that could have satisfied a rational trier of fact of these elements beyond a reasonable doubt. We consider the directed verdict standard required by Jackson versus Virginia to be comparable to that heretofore applied in Commonwealth versus Cooper and that's in Latimore.
(16:29)
Jackson case further indicates that the evidence must not just be some record evidence, it has to be reliable and it has to be sufficient that would allow a rational juror to make a determination beyond a reasonable doubt, not just that there's some record evidence that touches on each element of the offense. So I ask the court to harken back to the evidence that was presented and ask yourself...
Kevin Reddington (17:00):
... the evidence that was presented and ask yourself, where's the evidence that she did this? Where is the evidence that she did this?
(17:10)
You have a situation where Patrick comes home. Your Honor recalls the evidence that he indicates that when he came home, that he enters the house, he puts the food down on the table, comes back from the restaurant. It's quiet, eerily quiet, as the government indicates in their motion. That he then indicates that he goes upstairs into the bedroom. After yelling downstairs to the basement, there's no response. He goes upstairs. And when he goes upstairs, he goes into the bedroom. And Your Honor will recall that the evidence is that he's able to make an observation that the window is open, it's cold in the room. He sees blood. My memory is that it appeared as though it was sprayed on the walls. In fact, Your Honor will recall it was not sprayed on the walls, it was a lot of, I would say copious blood drops on the floor and on the mirror.
(18:02)
When you consider the evidence that the government has, you have the exercise bands, you have the woefully deficient DNA, you have the woefully deficient fingerprinting, you have the horrific, ridiculous investigation, using the term loosely, by the police. There was no investigation. It was not even a horrendous investigation. There was no investigation. And then you ask yourself some questions that we always do as defense attorneys, prosecutors, investigators. So when he goes into the bedroom, there's a lock on the knob. There's blood. He's able to use some type of a little key in spite of the lock, jaw lock that was on the doorknob. Opens the door, goes into the room, goes into the room.
(18:53)
Now the evidence is that she cut her wrists, cut her throat, standing in front of the mirror, blood drops, then went over to the window and propelled herself out of the window. Your Honor heard evidence that she indicated that the screen was cut. Your Honor also heard evidence that in fact the screen was not cut. Your Honor can infer, obviously as a rational jury could infer that in fact this is a false memory that she had, because she believes that the screen was cut and it wasn't. But in any event, she propels herself out the window and sustains the injuries that Your Honor is well aware that she sustained. She then is on the ground. She has no shoes on. Why does she not have shoes on? It's 30 something degrees outside. There's snow. It's the winter. She has no shoes. She's wearing black socks. Where's the blood on the black socks? Where's the blood on the shoes? When did the shoes get taken off and why? Your Honor recalls looking at the blood spatter evidence and the drops on the floor. Where are the smears from a person who has just cut their wrists, cut their throat, is in a state of psychosis that throws themself out a window, where are the smears from that person walking across the blood up to the window and then propelling themself out the window?
(20:19)
Where is the evidence that the cup that was on the nightstand contained crushed up, not just medication, crushed up medication? Where's the evidence of that? Where does that come from? Did the police even seize that cup? No. Did they examine the residue, the white residue? No. Patrick said that in fact it was medication. Patrick said that in fact it was crushed up medication. Where is the crusher? Where's the pill crusher? Where are the two spoons to use to crush it? Where's the residue? Why is it not on the table? Why is it not on the floor? Why is it not on the bed? Why is there no blood in the bed with the copious bleeding? They don't seize that. They don't test the substance. She ends up in the hospital.
(21:10)
Your Honor recalls the evidence of the removal of the bands from the children's necks, the horrific experience and testimony that was presented as far as removal of the bands. The government's demonstration with Dr. Laposata that in fact the bands exploded wide open. They were not tied. Your Honor heard the testimony that in fact they were tied.
(21:29)
This entire case is based on speculation. Where is the admission? Where does she say that she did this? And what's most chilling is the fact that when she comes out of this obvious coma that she is in, that when she comes out of it, Your Honor heard the testimony from the psychiatrist and from the doctors at Brigham and Women's Hospital, she was told what happened. She had no memory of what happened. Why does she recall cutting the screen? Why does she recall killing the children where she's told what happened and had no memory? There's no evidence that she admitted that she did this. So you have no evidence from the defendant. In Massachusetts, an uncorroborated statement of a defendant obviously is not evidence. You have to have corroboration. I submit to the court there is no evidence that she made any statements as far as the actual killing of the children, which forms the basis of the indictments.
(22:37)
The timeframe does not match. Even the government in their own closing indicated to the jury that she did not have enough time to do this. The timeline is ridiculous as far as him leaving the house, sending off the 5:24 email, whether it was from his laptop, whether it was from his cell phone, driving to CVS, driving down to the restaurant to pick up the food. You got videos from both of those places. He's coming back. He's got shoes. He takes his boots off is what he says. Your Honor can see in the photographs as far as the sneakers are concerned, whatever he takes off, he takes it off. The timeframe does not match.
(23:18)
The core body temperature, if you talk to a perfusionist, a perfusionist would indicate that it would take at least two hours for a human being to get down at core body temperature of 82 degrees. They would have to warm the blood, which they did in the hospital to bring that person to the level where they're not ready to expire. And in fact, Your Honor knows that she did obviously expire. She died in the hospital, massive transfusions, and it just goes on and on and on.
(23:59)
There is, there was, and there cannot be evidence under the Latimore standard that this woman killed those children. As lawyers, as judges, we look to the evidence. And when the government charges somebody with a criminal offense, they have the burden of proof, not the defendant. And I submit to the court that when you consider all of the standards, all of the... I mean, I argued under Bowden for you to give a Bowden instruction. I've had many, many cases obviously in this courtroom, many courtrooms all over the state. If ever a case called out for a Bowden instruction, it was this one. And Bowden, as you know, Judge, and I'm sure you argued it before you were a judge, a jury can draw an inference or can determine that there is reasonable doubt based upon the lack of an adequate investigation. In this case, there was no investigation. They just immediately assumed that this woman was guilty.
(25:06)
After you get over that hurdle, assuming you get over that hurdle, the government then has the obligation to prove beyond a reasonable doubt that in fact she was not suffering from a disease or defect as I indicated under the McCool standard. Your Honor would harken back to the evidence. And this is where we have the law and the situation as Your Honor instructed the jury, that any statements made by a defendant pursuant to the government's motion or defendant's motions to have the person evaluated by a physician or psychiatrist is not an admission that carries independent weight. So what are we left with as far as the disease or defect? We have the government's rebuttal witnesses, Dr. Mack, Dr. Halpern, Dr. Saathoff. I suggest first of all, goes to credibility. Not one of those rebuttal doctors were qualified to get on that witness stand and tell that jury their opinion of her mental state as a result of a psychosis because of postpartum depression, postpartum psychosis. I'll leave it at that because I know your memory is strong as to cross-examination of each one of these individuals.
(26:48)
Defendant presented testimony from, I suggest to the court, qualified experts that indicated... I mean, Dr. Phillip Resnick, you can't get any more qualified than that doctor who had a significant impact on the jury and was sitting there listening to this evidence. And Dr. Resnick clearly and unequivocally indicated in his extensive involvement dealing with filicide, dealing with evidence that we presented to the jury that shows that at the time of this incident, in the event the jury determined that she did it, she was suffering from postpartum, she was suffering from psychosis. He indicated that was his opinion based on his evaluation of the evidence, based on his evaluation of her statements and based on his continued evaluation of her. Dr. Zeizel, same thing, indicated, as I indicated in the memorandum, clearly and unequivocally that when a person is in a psychosis, they are capable and able to perform normal everyday activities and be in a full blown of psychosis.
(27:58)
The government spent a lot of time minimizing the whole concept. Originally, the government comes into this courtroom and says that the reason that she killed these kids is because she was sick of being a mother. She wanted to move on with her life apparently. Well, they backed off on that like a poodle on a linoleum floor. Once the case got to the jury on a closing argument, now all of a sudden, oh yeah, well, she did try to kill herself. We spent a week trying to show that in fact it was a legitimate suicide. They said it was not a suicide, it was just a fake attempt. Then they agree that it was a real suicide.
(28:33)
Then they go on with their argument, "Well, maybe she was sick. Maybe she did suffer from a disease or defect, but she knew what she was doing." And then you can harken back to the government evidence and the government doctors and the guy looking up at the ceiling and talking about taking five minutes to answer a question. You even had to tell him, "Look, just answer the question."
(28:56)
The government's theory that she was not in the psychosis they would sprinkle throughout their argument. Is there any evidence that she's seeing a purple unicorn in the corner of the room? Was she able to talk to her friends? Was she able to walk and breathe at the same time? Was she able to take care of the kids and build a snowman? Was she able to send a message on a text? Was she able to talk to her husband? Was she able to talk to her friends and her family? Yes. Argument being, she was fine. Why? Why? Forget about the law. Forget about the motions. Forget about everything. Talk like human beings. Why would this woman who the evidence shows clearly and unequivocally was a nurse, a mother, a friend, did nothing wrong in her life, why would she kill those three children?
(30:06)
All five of the doctors, six of the doctors, indicate that she was suffering from a mental disease or defect, not just a mental disease or defect, she was suffering from a serious mental disease or defect. Maybe a little difference under the DSM as to what the cookbook would say. Well, she's suffering from this, but she's suffering from that. Basically, it's a severe mental disease and defect. The evidence shows clearly and unequivocally that she was in a state of psychosis.
(30:41)
The government did not present evidence under Jackson and Virginia, under Latimore, if you get out from underneath the usual argument that, well, there's enough evidence because we hit on all the elements. No, that's not the standard. The standard is whether or not it is reliable, whether or not it is evidence that a rational jury of fact finder would be able to apply to the facts that they find and determine that the government has proven its case beyond a reasonable doubt. And as this woman sits in front of you today, I suggest to the court they did not prove probable cause and they certainly did not prove that she was not acting at the time of a psychosis and should be found not guilty.
Speaker 3 (31:33):
Thank you, counsel. Commonwealth.
Speaker 2 (31:49):
Your Honor, the Commonwealth did file a written opposition and I'd mostly rely on the written opposition for a summary of the facts of the case based on the best memory. Obviously, we don't have full transcripts to cite to for the particular pieces of evidence, but I think the Commonwealth did present a fair representation of the pertinent facts, although this was a lengthy trial and I certainly don't proclaim that it's an exhaustive list of all of the relevant facts. But as we're here addressing a motion for required finding under 25(b)(2) which counsel has cited to, the job of the court, of Your Honor, is to decide based on the evidence presented at trial, whether the evidence was sufficient for the Commonwealth for any rational trier of fact to find that the Commonwealth has met its burden as it applies to each and every element.
(32:44)
We're hearing now for the first time in this argument that counsel is challenging, first, the sufficiency of the evidence as it applies to the three counts of murder. What we heard throughout the course of trial over and over from counsel was that there was objections to the presentation of Commonwealth's evidence on the underlying murders because the defendant admits, the defendant stipulates whether the Commonwealth agreed to the stipulation or not. And now for the first time, the defendant is arguing that there's no evidence that she did this.
(33:16)
I suggest to you that the entire record is voluminous as to the information supporting the fact that she did this. We have she's the only one in the home with three young children. We have that her husband testified under oath that he left the house, that she sent him out on those errands, that he went to the exact places where she directed him to go. Not only did she direct him to go based on his testimony, but we confirmed that with her own cell phone data that says that she made the call to the restaurant, that she made the call to CVS, that he then went there. He's on video surveillance at those locations during the time period in which these murders occurred. He comes home and he finds the children in the manner that they were in and he finds the defendant where she was. We have all that information. We have there was DNA on those exercise bands that was attributed-
Speaker 2 (34:00):
... information. We have there was DNA on those exercise bands that was attributable to this defendant, and it was on the ends of those bands, the ends of those bands that she had to pull in order to strangle each and every one of those children. We have that she woke up in the hospital and spoke to a chaplain within days of regaining consciousness where she talks about the fact that she had these hallucinations telling her what she had to do, that she had to kill the kids, and that she was glad that the kids were safer now. So there is plenty of information to support the essential elements of the charges of murder. There's information or facts that support deliberate premeditation. There's facts that support extreme atrocity or cruelty, much of them which I would more focus on and discuss with criminal responsibility, but I ask Your Honor to consider a lot of these facts in both contexts.
(34:46)
So the first point that there isn't enough evidence to prove that she did it, I would suggest is a laughable argument. And based on what Your Honor sat through several weeks of the trial, that the Commonwealth met its burden as it applies to that. As far as the motion for required finding as to the lack of criminal responsibility, I did try to outline in the Commonwealth's response the law as it pertains to this issue because it is a little different, I would suggest, than what we traditionally see with required motions for required findings. When it comes to a defense of lack of criminal responsibility, Your Honor is aware that that's something that comes into effect only when raised by the defense. And when it's adequately raised, then the burden switches to the Commonwealth to prove beyond a reasonable doubt that the defendant did not lack criminal responsibility, that they were criminally responsible.
(35:40)
And the case law is specific when it comes to required findings that when that is the case, again, for required finding, the evidence is to be viewed in the light most favorable to the Commonwealth and that the court, unless they find defense case proves that the Commonwealth's case is conclusively incorrect, that the court doesn't necessarily rely on the defendant's case in order to address whether the Commonwealth has presented sufficient evidence. So I bring that up just as a kind of procedural issue with arguments that counsel made about defendant's experts and defendant's evidence.
(36:19)
But what I would point to, Your Honor, when determining the sufficiency of the evidence as opposed to criminal responsibility is we've talked a lot about the fact that there are two prongs to criminal responsibility and that the Commonwealth can prove the defendant criminally responsible by either proving, one, that the defendant did not have a mental disease or defect or by the second prong where we're talking about, substantial capacity. As it applies to the defendant's arguments that we haven't proved that she did not suffer from a mental disease or defect, I'd remind the court that mental disease or defect is in fact a legal term, that there is no clear definition. That is a complicated topic. And there was sufficient evidence presented in the Commonwealth's case in chief, or substantial evidence I should say, that the defendant was having signs and symptoms of mental illness in the months prior to the murder. There was no dispute about that.
(37:07)
Again, confining Your Honor's rulings to what you heard as far as trial evidence in this courtroom, not what was said in pretrial arguments, not what was said in press conferences or what was said in arguments at other points of time. What the jury heard, what Your Honor heard as trial evidence in this case is that she was displaying signs and symptoms of mental illness. She was seeing several medical providers, she was getting treatment, she was on medication, she went to the hospitals, she went to the inpatient at McLean. That is all clear in evidence, but the Commonwealth doesn't have to rely on that in order to say that she is in fact criminally responsible.
(37:43)
The next part of the analysis comes into play and I suggest that that's where the focus of the evidence is. It's on the defendant's substantial capacity to appreciate the wrongfulness of her conduct and to control her conduct or confine her conduct to the requirements of the law. And the case law is clear that not every defendant with a mental illness lacks criminal responsibility. That's Commonwealth versus Fujita, that's Commonwealth versus Rezac. A defendant who has mental illness can commit crimes and can be criminally responsible. That's why the court, SJC, has repeatedly addressed this issue and identified various ways in which the Commonwealth can prove that a person does have criminal responsibility despite suffering from a mental disease or defect or mental illness. I caution that those terms should not be used interchangeably, although I understand that we tend to do so.
(38:38)
But in the context of what the court might look at or what a jury might look at in order to find a person was criminally responsible, the SGC has given us clear guidance on the types of facts or the types of evidence. "The Commonwealth may prove criminal responsibility through inferences arising from circumstances of the offense or admissible evidence of defendant's words, conduct before, during, and after the offense." That's Commonwealth versus Cullen from 1985. Again, reiterating Commonwealth versus Lawson in 2016, I believe, "The Commonwealth may prove criminal responsibility by showing intention, goal directed conduct, evidence of rational motive." "A fact finder may infer sanity from evidence and inferences the defendant was oriented to time, place, and person," that's Commonwealth versus Cole.
(39:25)
The fact that counsel wants to argue, defense counsel wants to argue that she was psychotic is an argument and he can make it, but that doesn't mean that the Commonwealth hasn't proved otherwise with evidence of the defendant's conduct, with evidence of people's observations of her, with evidence of how she interacted with medical professionals even on the day before this incident occurred, that she was not displaying any signs of psychosis. The court considered that. A fact finder can consider that and you should consider it in determining that the Commonwealth has met its burden in this case. Defense counsel refers to why she would do this in motive. Your Honor is well aware that motive is not an essential element of either the underlying offenses of murder or of criminal responsibility. But I would suggest to Your Honor, and I argue in the motion that the Commonwealth did in fact present and argue to the jury that there was a motive here. Whether the court finds it to be rational, whether a fact finder finds it to be rational, it's a question of fact.
(40:29)
But the Commonwealth presented evidence not that the defendant was a bad mother or unhappy with being a mother and trying to start a new life. It was the fact that she was in a point in her life where she felt that she was never going to be the same. She was never going to be the person that she was before. She was frustrated with the system that she had been dealing with. She was frustrated with the results that she was getting. And she had succumbed to the idea that she didn't want to be here anymore and that she was going to commit suicide and that she was going to take those kids with her because no one could care for them like she could. She didn't want them to suffer. Those are all based on statements that she has made, not in the context of a forensic interview, but at various points to different people, including people at the Brigham and Women's Hospital after this incident occurred.
(41:19)
So the idea that this was altruistic filicide as the Commonwealth's expert talked about is in fact motive and it is in fact rational based on everything that we know about the situation with the defendant during that time period. So to say that we haven't shown why, it's just a misrepresentation of the evidence I'd suggest. So based on these arguments here and as well as resting on whatever arguments that I haven't addressed that are contained within my motion, the Commonwealth would ask that you deny the related motion.
Judge William Sullivan (41:52):
Thank you. All right. Well, I'm going to take that motion under advisement. All right. So the other motions that we ... Well, there's a motion to order juror notes and sidebar discussions not subject to impoundment. The parties ready to argue that?
Speaker 4 (42:21):
Your Honor, we are.
Judge William Sullivan (42:21):
All right-
Speaker 4 (42:21):
[inaudible 00:42:24]
Speaker 2 (42:21):
Yes.
Judge William Sullivan (42:21):
Yes. Go ahead counsel.
Speaker 4 (42:30):
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 judicial findings.
(43:25)
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 double jeopardy, 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 a juror and for the continuation of jury deliberations rather than a mistrial was cited in public on September four 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 a voir-dire, remains under seal because it was discussed at sidebar.
Judge William Sullivan (44:24):
With counsel.
Speaker 4 (44:25):
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 assent to it. Mr. Reddington did not, at least as the transcripts of September three and September four reflect.
(44:54)
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 Juror Note Two, which was the note on September three, 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 redactions 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 of access.
(46:13)
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 three from becoming part of the public record.
(46:48)
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 voir-diring 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 inconsistent with that juror's statement and answer to the one question the court asked.
(47:40)
And so I ask you really 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 clause of the state constitution. And then the corollary of that, whether or not the double jeopardy clause 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 two, three, and four and to provide the jury notes with a redaction of the name of the juror.
Judge William Sullivan (48:46):
So your position would still be as put out in the motion that the defendant would have sent to the redaction of any juror names or other identifying information reflected in the notes?
Speaker 4 (48:58):
Absolutely, Judge. There is a particularized need. We don't contest that there is none, but that would be the limits of the redaction that I think would be consistent with the constitutional public trial right.
Judge William Sullivan (49:10):
All right. Thank you, counsel. Commonwealth.
Jennifer Sprague (49:10):
Sir.
Speaker 4 (49:11):
Oh, thank you very much.
Jennifer Sprague (49:17):
You're welcome.
(49:20)
Your Honor, we would object to this motion. In defense counsel's motion, they cite that the courts recognize a strong presumption in favor of a public trial overcome only by overriding interest based on findings that closure is essential to preserve higher values. And I suggest that what the higher value here in this case is, is the sanctity of our system, our judicial system, and more specifically our jury system. What has been happening with this case outside of this courtroom in press conferences has had a chilling effect on whether a juror would even want to serve on a case in this Commonwealth. And then if we go further to make public notes sent by the jury regarding specific individuals, that would have an even further chilling effect on whether if we get a jury, will that jury feel comfortable in sending a note to the court knowing it might become public?
(50:19)
And then further those conversations that the parties have about that note and the opinions that they have, it just all would pile on to have this repeated chilling effect that would harm irreparably our judicial system. And I think that if you look at it from a different perspective, where here we have a lone holdout juror allegedly looking for a guilty verdict versus those looking for a not guilty verdict by lack of criminal responsibility. If you flip that into a defendant facing a jury where 11 people are voting guilty and one is the holdout looking for not guilty and the chilling effect it would have on that person to know the-
Jennifer Sprague (51:00):
The chilling effect it would have on that person to know that the public will know their position, the public will be able to see notes about them, will hear discussions about them, will know that they were the one who didn't hold that person responsible. That would be a travesty. And so, it shouldn't be allowed because this juror might have favored the defendant, if that's how it worked out. So I would sketch to you that there is an extremely high value here to protect our system, protect our jury system. And the court has found previously in the Globe versus the Commonwealth 407 Mass 879 that the public has no presumptive right of access to lobby conferences or sidebar discussions. And so, I think here we need to protect our system and deny this motion.
Judge William Sullivan (51:48):
I'll take that matter under advisement. Counsel, did you want to add anything?
Speaker 4 (51:56):
Yes, Judge.
Judge William Sullivan (51:57):
You don't have to, if you want to.
Speaker 4 (51:59):
Well, I would add it because this has been the predicate of last night's motion by the Commonwealth. We're not responsible because the juror has gone on TV, because the jurors hired a lawyer that condemns Mr. Reddington's good faith ethical representation of Ms. Clancy.
Judge William Sullivan (52:21):
That's not what I heard. I didn't mean to interrupt you, Counsel, but I am going to interrupt you. That's not the argument I heard. We will discuss the motion that we put over to November 2nd regarding extra judicial statements on November 2nd. I understand the argument that the defense has made. I understand the Commonwealth's argument. I think that the other arguments are going to go to the extra judicial statements that are best saved until November 2nd.
Speaker 4 (52:53):
Agreed. So I would say just one other thing, which is that everything the prosecutor has said has been in public except the detail of the note. There's nothing in this case that would surprise anyone, but we would have an accurate judicial record, and that's why I pressed the motion to disclose the notes and the sidebar conferences, Judge.
Judge William Sullivan (53:15):
All right, Counsel. Thank you.
Speaker 4 (53:16):
Thank you.
Judge William Sullivan (53:18):
All right. So I'm going to take that motion under advisement. I think those are the only motions that we are going to address today. I do know there is, I mentioned, Globe had filed a motion to access Counsel's argument, sidebar conferences, which seems to kind of fold in a little bit some of the discussions we just had here. I don't know if the counsel for the Globe is here. Commonwealth, have you seen this motion?
Jennifer Sprague (53:54):
Yes, Your Honor.
Judge William Sullivan (53:56):
All right. Are you ready to respond to this?
Jennifer Sprague (53:59):
I think my arguments would be identical.
Judge William Sullivan (54:02):
I kind of thought so, but I didn't want to force it. Defendant, have you had an opportunity to review this motion?
Speaker 4 (54:10):
We did, Your Honor.
Judge William Sullivan (54:11):
Okay. You ready to respond to that?
Speaker 4 (54:13):
I think we're aligned in terms of, at least to the extent to which the Globe is seeking the same relief that we've been seeking, which is the sidebars and the jury notes.
Judge William Sullivan (54:25):
That sounds like a yes. You ready to address this? All right, Counsel, because I think it's probably something, it's probably a good idea to hear this as opposed to putting it off to November 2nd, because that's going to be kind of folded along with the arguments I just heard. So yeah, Counsel.
John Albano (54:44):
Thank you, Your Honor. John Albano here on behalf of the Globe and WBZ.
Judge William Sullivan (54:54):
Counsel, good morning.
John Albano (54:55):
Good morning, Your Honor. The motion we filed on... Well, to a certain extent, the relief we were requesting was granted today because there were substantive motions argued from counsel table rather than at sidebar. I do want to say the motion isn't asking for a ban on all sidebars. It's not saying, "Oh God, if you have one, you need to let people follow lawyers up to the sidebar." That's not the point at all. And I agree with the Commonwealth when they said there is that line in the Globe Drumgold case about no right of access to sidebars or to go into chambers with the court and counsel. The line to be drawn there though, I believe there's two. One, we cited some cases that say, "Yes, you can do those sidebars if the defendant doesn't object." So that's one principle. But the other is the line between when does holding a substantive argument at sidebar essentially undo the rule of public trials?
(56:26)
The extreme would be, it's sort of you're watching a silent movie, but there's no captions. That's not consistent with the rules governing a public access to the trials. And the last thing I'd say is I do, I think everyone does, understand the important and sensitive issues that arise in this case. But I guess I would like to say this, that helping the public better understand what has happened in this case and what will happen in the future in this case and to promote the legitimacy of an acceptance of the criminal judicial system, all of that is served by people being able to, those willing to, to educate themselves by hearing the arguments of counsel and the questions of the court. So that's the gist of the motion. I won't belabor the point beyond that.
Judge William Sullivan (57:34):
All right. Counsel, thank you. Commonwealth, do you wish to be heard?
Jennifer Sprague (57:38):
The only thing I would add to my argument earlier is that any motion regarding the individual juror information about that person should be held at sidebar and should be protected because the Commonwealth believes that a juror's right to privacy, a jury's right to come to a verdict without any type of fanfare or unwanted attention or persecution, it should be sacrosanct. And so, we would object to any type of public hearing where information, private information about that juror would be discussed.
Kevin Reddington (58:16):
Can I be heard?
Judge William Sullivan (58:17):
Sure.
Kevin Reddington (58:18):
Thank you very much. I am so tired of hearing persecution, attacking. I am doing all these terrible things to this juror. I filed one motion and said nothing. Every comment I have made has been in reaction to people from Donald Trump on down to Nancy Mace down to Cruz, not the DA, but the politician calling for her execution. I have responded to these outlandish comments, including the guy from Houston. I just wanted to say that, Judge.
Judge William Sullivan (58:50):
We're talking about this motion for access to arguments regarding sidebar conferences. Anything else you want to add to that on edge?
Kevin Reddington (59:01):
On what?
Judge William Sullivan (59:02):
On the issue that we've just been talking about, the Globes motion.
Kevin Reddington (59:05):
No, I'm just tired of hearing about me persecuting people.
Judge William Sullivan (59:08):
All right.
Jennifer Sprague (59:09):
I never said anyone's name.
Judge William Sullivan (59:10):
No, listen, talk about this motion. All right? I'm going to take it under advisement. I think I understand everybody's position. So that matter will be under advisement. Thank you, Counsel. All right. I think those are the motions that we had. [inaudible 00:59:31] take a number under advisement. Now just in regards to scheduling now, I know we have a November 2nd date for hearing regarding some other motions that will be heard. I'm going to suggest at this point, and please, I think Counsel knows this, but anybody who's sitting out there, don't read into the fact that we're going to get another date. This is not indicating that how I'm going to rule on any of the other motions, but I think it's important that this case move forward if it has to move forward.
(01:00:07)
If the motion to dismiss is allowed, well then that's fine. It's a different thing. But rather than wait 30 days or 60 days to pick the next trial date, my thought is to pick that now, and then we can work towards that and backfill the dates in regards to that. So really, I guess that brings us back to the original reason we're going to be here, status. So Commonwealth, what's the status in regards to the trial or trial dates at this point?
Jennifer Sprague (01:00:41):
Your Honor, I think we need to obviously argue these motions, have rulings. There are appellate rights to those rulings. And so, once all of that's complete, I think we could select a trial date once we know what those rulings are. And appellate rights could take some time.
Judge William Sullivan (01:01:00):
Right.
Jennifer Sprague (01:01:00):
So I think if we select a trial date now, that might not actually be a real trial date depending on how this case proceeds and what happens with any appellate rights from either side.
Judge William Sullivan (01:01:11):
Well, let me hear from defense.
Kevin Reddington (01:01:14):
Believe it or not, I agree with her. So we'll stand together and say we'd rather defer until you make your rulings, and then any appellate arguments are presented rather than pick a trial date.
Judge William Sullivan (01:01:30):
Why don't we just pick a trial date, and that will get this case moving. The discussion three weeks ago was let's try this thing in a week, right? And now, nobody wants to pick a trial date.
Jennifer Sprague (01:01:42):
That was not the Commonwealth's position. So I think that when you factor in that this could take some real time to go through these issues and then exercise any rights, I'm just concerned that any trial date we pick might not be realistic.
Kevin Reddington (01:02:02):
I agree.
Judge William Sullivan (01:02:02):
Then the parties can move to continuing. Why don't we do this? November 2nd, be prepared to talk about picking a trial date.
Jennifer Sprague (01:02:09):
Yes, Your Honor.
Judge William Sullivan (01:02:15):
All right? And why don't we just do that? I'll leave it at that. All right? This is a matter I want to... All I'm hearing about how important this is to get this resolved, to deal with this for all the parties. That's what I'm trying to do. All right? And I'm not saying, I'm not blaming counsel for that, but that's my goal in this thing is to get this thing tried as soon as proper without sacrificing anyone's rights, anyone's position. But I don't want this thing to then just start to kind of get kicked down the road and punted and go forward.
Kevin Reddington (01:02:46):
It's not going to get punted, but I'll tell you right now, I can't do a trial before June. I'll just let you know that right now.
Judge William Sullivan (01:02:52):
[inaudible 01:02:53]-
Kevin Reddington (01:02:53):
It's not a matter of [inaudible 01:02:54] kicking or anything.
Judge William Sullivan (01:02:55):
Let's talk about that on November 2nd. Everybody can take a look at their schedules. All right. So anything else? So we've got November 2nd, they'll be here, nine o'clock. So we will be in recess at this time.
Jennifer Sprague (01:03:11):
Thank you, Your Honor.
Speaker 5 (01:03:11):
[inaudible 01:03:12] this matter is continued to November 2nd, 2026 at 9:00 AM for the motion hearing and for trial assignment.
Speaker 6 (01:03:11):
Court.
Judge William Sullivan (01:03:11):
Court's in a recess.
Speaker 7 (01:03:11):
Okay folks, let's go.
Crowd (01:03:11):
[inaudible 01:04:10].
Jennifer Sprague (01:04:49):
Thank you so much. Appreciate it. Oh, okay. There's no markings on it, just stickies?
Kevin Reddington (01:04:49):
Yeah. [inaudible 01:04:57].
Jennifer Sprague (01:04:49):
Okay. I'm just saying you didn't write in your notes, Judge, allow this because of this.
Kevin Reddington (01:04:49):
[inaudible 01:05:06].
Jennifer Sprague (01:04:49):
I wouldn't expect that.
Crowd (01:04:49):
[Inaudible 01:05:09].