Lindsay Clancy's Defense Wants the Holdout Juror Investigated. His Lawyer Says the Only Thing That Changed Was His Vote.

Cora was five. Dawson was three. Callan was eight months old. Their mother, Lindsay Clancy, is charged with three counts of first-degree murder in their deaths in Duxbury in January 2023, and from the first day of trial her defense never told the jury she didn't do it. It conceded the acts. It fought one question: whether she was criminally responsible, or whether a severe mental illness, the postpartum psychosis her lawyers built their case around, took that responsibility away. Killer, or a mother the system failed. Seven weeks of testimony went to that question.

Twelve people were asked to answer it. Eleven, by every account in the courtroom, were in one place. One was not. On September 4 Judge William F. Sullivan declared a mistrial, and the Duxbury Mom trial ended without a verdict.

On Monday, November 2, everybody came back to Plymouth County Superior Court and fought about that one person. That is the whole of Day 31, if you strip it to the bone. Three motions were argued. All three were about the juror who stood apart, or about what was said in public about him afterwards. Nobody testified. No jury sat. Lindsay Clancy sat at the defense table in a room that was spending its morning on a man who no longer had any job in her case, and whose lawyer said he never asked for one.

I want to walk you through the day, because there is a real fight underneath it about what jurors owe the court and what the court owes jurors. And I want to tell you where I come down on each piece, because the judge ruled on none of it, and somebody in this process ought to say what they think out loud.

What a mistrial is, and why the defense wants this one to be the last word

Start with the basics, because the first motion lives or dies on them. A mistrial is a trial that ended before a jury could decide it. There is no verdict, no win for the prosecution and no acquittal, and the usual result is that the prosecution can try the case again. Lindsay Clancy is presumed innocent on all three counts now, exactly as she was the morning jury selection began.

The Constitution says nobody can be put in jeopardy twice for the same offense. That is the double jeopardy rule. When a jury acquits you, it is over. When a jury convicts you and the conviction stands, it is over. A mistrial sits in between, and the law handles it with a phrase you will hear over and over in this article: manifest necessity. If ending the trial was truly necessary, the prosecution gets another try. If the judge ended it when there was a real alternative that would have let the jury keep going, the defense can argue that the second trial is barred, and the case is finished for good.

A hung jury, a jury that genuinely cannot agree, is the oldest and most common example of manifest necessity there is. So the defense needed something more than a deadlock. What it argued on Day 31 is that this was not an honest deadlock. It was, in its reading, a jury of eleven following the law and one juror who would not, and the judge had a tool he did not use.

WATCH: CASE STORY PT 79 (PUBLIC) Lindsay Clancy's Defense Argues Double Jeopardy Bars a Second Duxbury Mom Trial

Two notes, and the question the judge did and did not ask

Martin Weinberg argued the motion to dismiss for the defense. He is the appellate lawyer brought onto the team after the mistrial, and he opened by asking Judge Sullivan to reconsider calls made, in his words, "in the heat of battle" on September 3 and 4, while the jury was still deliberating and without the briefing the court now had in front of it.

The heat of battle was two notes from the jury's foreperson. Weinberg read them into the record. The first, on September 3: "A member of the jury is unable to follow the instructions regarding reasonable doubt. How should we proceed?" The second, late that day and taken up the next morning: "Juror X has made statements acknowledging doubt, but refuses to apply it to the verdict as the law states. That is why we cannot come to a unanimous decision."

Read those two notes cold and you can see why the defense jumped on them. "Unable to follow the instructions." "Refuses to apply it ... as the law states." Those words read like eleven people telling the judge that one person is breaking the rules, and a defense lawyer is going to hear them that way.

Weinberg's argument was that notes like that required what lawyers call a voir dire (pronounced vwar deer), meaning questioning under oath, of the foreperson and of the twelfth juror. A real one. A "probing" one, he kept saying. Not one question. He wanted the judge to find out whether that juror was deliberating in good faith, whether he could follow the reasonable doubt instruction, and if he couldn't, whether the reason was something personal he carried into the jury room. If it was personal, the law allows the judge to discharge that juror and seat an alternate, and deliberations go on. That is the "viable alternative" Weinberg said was available on September 4, and without it, he argued, there was no manifest necessity and there can be no second trial.

Then Judge Sullivan interrupted him, and it is the moment of the morning I'd point you to first.

He did. In September the judge brought each deliberating juror out alone, put each one under oath and asked whether they could follow his instructions. Every one of them said yes, the twelfth juror included. Then he instructed the whole jury on reasonable doubt again. Weinberg's answer was that this was a single question that every juror was always going to answer yes to, and that a judge doesn't have to take a juror's word for it when the foreperson, speaking for eleven, is saying the opposite. He compared it to jury selection in a high-profile case. If a potential juror says they've read about the Clancy case, the judge doesn't just ask whether they can forget it. The judge asks what they read.

The judge pushed back on that too, and he had a point. Questioning a stranger in jury selection about what they read in the paper is one thing. Questioning a deliberating juror about why he votes the way he votes is another. "I have to be careful, right? Not to delve into the jurors' subjective reasoning or deliberative content," Judge Sullivan said. "It's a different level of analysis."

Weinberg's last move was to put the weight on the prosecution, and this is the best ground the defense has. Under double jeopardy law the burden is on the prosecution to show the mistrial was necessary, and he called it "a heavy one." He told the judge the prosecution objected four times in September to any deeper questioning of the jury. If the prosecution is the side that has to justify the mistrial, he argued, it can't also be the side that blocked the inquiry that might have avoided it. He went back to the history of the rule, to English kings who would stop a trial they didn't like and start over with a new jury, and he gave the reason the rule exists in plain terms: the state should not get two chances to convict instead of one, because the prosecution learns more about the defense from the first trial than the defense learns about the prosecution.

He also took on one word the prosecution had used in its written papers. The prosecution had described the kind of questioning the defense wanted as an inquisition. "Like your Honor's probing voir dire would be something out of Spain in the 15th century," Weinberg said. Experienced judges question jurors all the time without coercing them, he argued.

"He refused to agree"

The prosecution's answer was short and it was organized around one line I think you'll be hearing about for a long time in this case.

The prosecution's reading of the notes was that they described exactly what a hung jury looks like: a disagreement about how much the evidence weighs and whether it adds up to reasonable doubt. Nothing in the notes said the juror was biased, had outside information, wouldn't talk, or had some personal problem. And who was right about reasonable doubt, the prosecution said, is for the jury to decide, "not for the court to decide."

Then came the argument I find hardest to get around. The prosecution told the judge it could not think of a single question he could have asked the foreperson or the holdout that "wouldn't have gotten into the deliberative process." If the dispute is about how a juror applies reasonable doubt to the evidence, the only way to test who is right is to ask which facts he believes, which ones he doesn't, and why. That is the inside of the jury room. A judge who asks those questions of the one juror everybody knows is the holdout is putting the full weight of the court on that one person.

The prosecution pointed to a decision from the state's highest court finding it coercive to give a known holdout an individual instruction once the juror knew the judge knew where he stood. Here the second note had identified the juror by number and spelled out the issue, and it came out of the jury room. The holdout knew he was exposed. The prosecution's point was that the judge did the most he safely could: he questioned all twelve, not one, and he reinstructed all twelve, not one.

One more line from the prosecution deserves to be on the record of this article, because it's true no matter which side you're rooting for:

The prosecution also said it could not find a single case where a hung-jury mistrial ended in a dismissal on double jeopardy grounds. And it said that even if a deeper inquiry had been possible, the remedy wouldn't be throwing out the indictments, "thereby foreclosing any pursuit of justice for the victims." Weinberg came back up for one minute on that point alone: "If there was no manifest necessity, the remedy is that there's no second trial. The law is completely clear about that." On the remedy, he's right. And the prosecution's search for a matching case misses the test the law actually sets, which is whether the judge had a real alternative on September 4.

WATCH: THE CLIP (PUBLIC) Lindsay Clancy's Prosecutor Says the Duxbury Mom Holdout Juror Just Refused to Agree

Where I come down on the motion to dismiss

I think the motion should be denied, and I think it will be. Here's why, said as my opinion, from what was in that room.

The notes are strong words, and I understand why a defense lawyer reads "refuses to apply it ... as the law states" as an accusation. But look at what the second note actually describes. The juror "made statements acknowledging doubt." He was talking. He was explaining himself. The other eleven thought his doubt wasn't the reasonable kind. That is a fight about the weight of the evidence, and that is the one fight the law keeps judges out of. The only questions that would have answered the defense's concern were questions about how he was weighing the case, and the judge was right that he couldn't ask those without leaning on the one person in the room who was already standing alone.

Now the part I won't skip, because the defense earned it. The defense told the judge in September that asking each juror "can you follow my instructions?" was useless, because nobody is going to come out and say no. On that, he's not wrong. A question every juror will answer yes to is a safe question. It is not much of an inquiry. The judge chose safe over thorough, and the prosecution objected every time the defense asked for more. If you think the twelfth juror really was ignoring the law, that choice cost Lindsay Clancy a verdict from the jury she picked. I don't think the record shows that he was. I think it shows a juror who saw doubt where eleven people didn't. But the defense preserved every objection, it objected to the mistrial before it was declared, and if this case ever goes up on appeal, that record is going with it.

The judge took the motion under advisement and closed it with a bit of humanity I'll pass along. Weinberg had quoted John Adams on the jury right. Judge Sullivan told the room he'd lived and worked in Quincy for years, drove past President Adams' house every day for 35 years, and owns a John Adams bobblehead. "I try to remember all of President Adams' lessons in writing," he said. "So I will also try and remember those lessons when I'm making this." Then: "I'll get this out as soon as I can."

Round two: the juror himself

The second motion is where the morning stopped being a law school seminar.

The defense wanted two things. It wanted the court to preserve records about the holdout, known in court only as Juror Doe, and it wanted permission for a limited inquiry into him: questioning, his jury questionnaire, his record, his phone. The prosecution asked the judge to deny it without even hearing argument, for two reasons: the copy it received was missing three exhibits, and none of it had a legal purpose, because the judge had already ruled that what came out after the mistrial can't be used on the motion to dismiss. That ruling, from October 21, came up again later in the morning. The judge heard the argument anyway, because, he said, he wanted everybody to feel they'd been able to present their position.

Kevin Reddington, Lindsay Clancy's lead trial lawyer, stood up. "Well, here we are, huh? Round two."

He talked about what a defendant expects of a jury. He talked about his client, who presented evidence that she was suffering from a significant mental disease or defect, and who "put herself on her country," the old phrase for choosing a jury trial. "You don't bring your background into a jury room and suppress it as was done in this case," he said. And then he started to say the juror's name.

The judge cut him off. Reddington said the judge wasn't going to stop him. The judge said he was. The name was out there on the internet, Judge Sullivan said, but there was no need to use it in that courtroom, where everyone had been calling him Juror Doe. "He's got more FaceTime than I do," Reddington answered. We don't name him either, and we won't.

WATCH: DAY 31 TOP MOMENTS (PUBLIC) Lindsay Clancy Post-Mistrial Top Moments / Double Jeopardy, Juror Doe, Retrial (Duxbury Mom)

What Reddington laid out, as his allegations, came in layers. First, the phone. He said another juror told the press after the mistrial that this juror was scrolling through his phone in deliberations, and that a lawyer who hosts a podcast later said on air that the juror told him he'd had to look up certain terms. Reddington called it researching "altruistic philosophy." Reddington told the court he understood a Superior Court rule requires judges to tell juries not to have phones or devices in the jury room. "Whether it's him, whether it's all of them, it's a concern and a significant one," he said. "Granted, discovered after the mistrial, but doesn't that give you pause?"

Second, the questionnaire. Every juror fills one out, and Massachusetts law keeps those forms confidential. Reddington wanted to argue from it in open court. The prosecution objected that both the questionnaire and any person's criminal record are confidential by statute, and asked for a sidebar. Reddington's frustration came right out: "Well, how am I supposed to argue it? I mean, I have evidence that this man was not honest on his form."

And then the heart of it. Reddington said a juror's dishonest questionnaire doesn't "come after the mistrial," it was there from the first day, and he called it "a fatal infection of the independence, the honesty, and the integrity of this juror." He said the form asks whether a person has an abuse prevention order, and that the juror didn't disclose one. He said that when the juror was questioned in jury selection about the arrest he did list, he never mentioned an earlier arrest from 2021. He started to offer a 2021 criminal complaint and a police report as exhibits. The prosecution objected. The judge said, "Why don't we all dial us back a little bit," and called the lawyers to the bench.

WATCH: THE HOT CLIP (PUBLIC) Lindsay Clancy's Lawyer Says a Juror in the Duxbury Mom Mistrial Hid a Protective Order

When they came back, the records discussed at sidebar were admitted and sealed. Reddington put the rest of his exhibits on the record: TV interviews, a YouTube video in which the juror "breaks his silence," jury selection excerpts, the two notes, transcripts from September 3 and 4. He went back to September, too. He reminded the judge that he'd objected at the time that the court was "almost chilling" the foreperson, being "pretty forceful" that she shouldn't tell the court what was going on inside. He reminded the judge that he'd asked him to find out whether the jury wanted to keep going. "I think that most of them would go back for another eight to ten days to deliberate this case if they had to," he said he told the court then. The judge declined to ask.

He finished by asking to question "these individuals, including the guy in the back of the courtroom."

WATCH: CASE STORY PT 80 (PUBLIC) Holdout Juror's Lawyer Says Lindsay Clancy's Defense Wants One Phone Searched Over One Vote

The juror gets a lawyer, and the lawyer turns the record around

This is the part of Day 31 I want you to watch in full if you watch nothing else. Juror Doe had his own lawyer in the courtroom, Heather O'Connor, there for him and for neither side. Her argument was the most disciplined twenty minutes of the morning, and she built it out of the defense's own words.

She started in July. The defense had the juror's questionnaire then. It heard the prosecution ask him about what he'd disclosed on it. It could have asked anything it wanted. "The defense asked only two questions," she said: whether he had reservations about the insanity defense, and whether he could accept the burden on criminal responsibility. He said yes. "There was no challenge for cause, no peremptory. The defense declared itself content, and Juror Doe sat." And she said the juror checked the box disclosing a prior arrest, which she said the defense itself admits.

Then the line that sums up her whole case:

She went through the notes the same way Weinberg had, and read them the other way. They did not complain of outside information. They did not mention a phone. They did not say anyone refused to deliberate. The second note said the juror acknowledged doubt. "Not reasonable doubt, just doubt," she said. "Take that note as true, and it describes a juror who was talking, explaining a view, and engaging with others."

Then she walked the judge through how the defense's description of her client grew, step by step, as the deadlock went on. First the juror "refuses to listen to the law." The next morning, she said, defense counsel told the court that Juror Doe "looked you in the eye and lied." Later that morning, as the mistrial came, defense counsel called him "a clear and present danger." And when asked why, she quoted the defense's own answer back to the court: "What is it? We don't know."

"So why are we here?" she asked. Not because of the questionnaire, which the defense read and accepted. Not because of a phone: "Every juror was allowed to keep one." Not because of anything any juror reported before the mistrial.

She said Juror Doe does not concede any of Reddington's allegations. She said serious allegations still have to come through "a lawful door," and she took apart the cases the defense relied on, which were cases about overturning convictions, where the remedy was a new trial. Lindsay Clancy, she pointed out, is already getting a new trial. She doesn't need to prove anything about Juror Doe to get one. What the defense is asking for is to stop the new trial, and nothing in those cases reaches that far.

On the records, she said the rule that lets a party subpoena records requires a specific showing of relevance and good faith first, not a fishing expedition, and that the defense's own words in September were "we don't know." "That is not a factual showing," she said. "It's just casting a line to see what bites."

And she ended on the line the defense will have to answer if it ever wants a judge to grant this:

"The law protects that juror," she said. "It does not investigate that juror." The judge took the records motion under advisement too.

WATCH: THE CLIP (PUBLIC) Holdout Juror's Lawyer Says Lindsay Clancy's Defense Called the Juror a Liar Before the Mistrial

Where I come down on the juror, and the part nobody asked about

I side with the juror's lawyer on the motion in front of the judge. I think the defense wants one man investigated because of how he voted, and I think a court that grants that sends exactly the message O'Connor described. Every future juror in Massachusetts would learn that standing alone costs you your phone, your record and your privacy. That is a terrible thing to teach people we drag into court on a summons.

The questionnaire allegation is the one that gives me pause, and I want to be straight about it. If a juror hid an abuse prevention order on a form that asks about one, that matters. Honesty on that form is the price of the seat. But the defense had the form in July, saw what he did disclose, heard him questioned about it, and asked him two questions that had nothing to do with it. If there was a hole in that questionnaire, the time to find it was before he sat, and the defense declared itself content. And what Reddington described in open court were his allegations, which the juror's lawyer said the juror does not concede. The judge sealed the papers behind them. Until a court looks at them, they are claims, and nobody should treat them as more.

Now here's the part of Day 31 that I think deserves more attention than it got, and it came from the prosecution, not the defense.

When the prosecution argued that the records motion should be denied, it gave a reason: grant this, and you open the door to examining all twelve jurors, because, in the prosecution's own words, there had been "multiple statements after the declaration of the mistrial by many of the jurors, detailing some questionable activity." Then it listed them: "use of phones, considering whether treatment's an option at a prison when determining their verdict, talking about joint press conferences before evidence closed."

Read that again. The prosecution said it, in open court, describing what jurors themselves said happened in deliberations. Whether treatment in prison was available is not a question this jury was asked to answer. What happens to Lindsay Clancy after a verdict is not supposed to be a factor in deciding whether she was criminally responsible. If jurors weighed it, that is a real problem with how this jury did its job. And jurors talking about joint press conferences before the evidence even closed is not something you'd want from people who are supposed to keep an open mind until the last word.

By the prosecution's own description, all of that came from many jurors, and it points at the whole room. It sits right next to the phone question. Reddington told the judge he understood a Superior Court rule requires juries to be told no phones in the jury room. The juror's own lawyer told the judge that every juror was allowed to keep one. I haven't seen the rule Reddington was describing, so I'm not going to tell you what it says. But if it says what he said it says, and every juror had a phone anyway, then what one juror was scrolling matters a lot less than how the court ran the jury room. That one is a question about the process.

The defense pointed its whole motion at the one person who voted against it. The prosecution pointed at problems across the rest of the jury and used them as a reason to look at nobody. I don't think either is a good enough answer. Before Lindsay Clancy is tried a second time, I'd want to know how a new jury will be handled on phones and on outside talk, and I'd want the court to say it plainly. The court can do that without investigating anybody, by making sure the next twelve aren't doing what some of the last twelve apparently said they did.

Motion three: the prosecution wants the defense lawyer to stop talking

After a short recess the court took up the last motion, the prosecution's request to limit what defense counsel can say in public before a retrial. People call this a gag order.

The prosecution's case was a list of things it says Kevin Reddington said publicly. It told the judge he said the other jurors were "robbed" by the holdout and that he hopes "that person can sleep well at night." That he said Lindsay Clancy is "like a daughter" to him. That he asked for a presidential pardon, which isn't possible in a state case. That he asked for the president to call the District Attorney and pressure him not to retry the case, and, when asked if that was inappropriate, said "I don't care." And that, asked about the judge's mandatory retirement coming up, he said he'd try to hire the judge to come work for him.

The prosecution said statements like these are aimed at the next jury pool, and that the usual fixes won't work. "A change of venue, where do we go?" it asked. "What county, what state, what country do we go that hasn't seen this trial, hasn't heard about this trial?" If it stops now, the prosecution argued, it can fade, and a fair jury can still be found. And it offered to live under the same limits itself, telling the court it had said "nothing but no comment" in this case. "I am not looking for fifteen minutes of fame," the prosecution said.

WATCH: CASE STORY PT 81 (PUBLIC) Lindsay Clancy's Lawyer Faces a Gag Order Bid as He Demands a Spring Retrial

Laura McConnell answered for the defense, and her argument was the First Amendment. An order stopping a lawyer from speaking before he speaks is called a prior restraint, and it's the most disfavored kind of limit on speech there is. She said courts allow one only when the harm from the speech is grave and all but certain, and only on specific findings of fact. The prosecution, she argued, had nothing to give the judge for findings. There is no trial date. There is no jury pool to protect yet. Nobody has shown that a single future juror heard a word of it. Reddington, she said, gave interviews only after the mistrial. Lawyers are already bound by the ethics rules on trial publicity, and the remedy for a lawyer who crosses that line is discipline after the fact, "because as a free society, we prefer to punish those few that actually abuse this, as opposed to just silencing people to begin with." And the order the prosecution wanted would run through trial and through appeal. "So it's essentially forever," she said.

Her strongest line was about the client. Lindsay Clancy hasn't given interviews or press conferences. "He is not only her attorney, but he's her voice too," McConnell said. Gag him, and you gag her.

The judge took that motion under advisement as well. Three motions, three under advisement, no rulings.

Where I come down on the gag order

I think a blanket order against the defense lawyer, with no trial date and running "essentially forever," would be wrong, and I'd be surprised if this judge signs one. McConnell is right that the timing cuts against the prosecution. You can't show harm to a jury pool that doesn't exist yet, and the court has real tools for a tainted pool: questioning prospective jurors, moving the trial, waiting. And she's right about the voice. When the state is deciding whether to try a woman again for three murders, the person speaking for her in public should not be silenced on a prediction.

But I'm not going to pretend the list the prosecution read was harmless, because one part of it bothers me a lot. If the prosecution's account is accurate, the defense lawyer went public saying the other jurors were robbed by the holdout and that he hopes that person can sleep at night. That is a lawyer for one side going after a juror in public for the way he voted. Put that next to everything Heather O'Connor said about what the next juror learns, and it's the same lesson taught a different way. A narrow order protecting jurors from being targeted by the lawyers, binding both sides, would be fair. The prosecution itself said it would accept limits on both sides. That's the order I'd want: a line drawn around the people who served, with the defense still free to argue its case in public.

The decision nobody would make, and the woman waiting on it

Then the judge turned to what comes next, and this is where the human stakes came back into the room.

Judge Sullivan laid out two choices: set a trial date now, knowing the motions might change everything, or set a shorter "trial assignment" date first, to report on the motions and pick a trial date after. The prosecution preferred the second. Either side could appeal the rulings, it said, and that could take time, so set a realistic trial date once it's all resolved. Then the judge asked the question that mattered: had the Commonwealth decided how it would proceed? Would the retrial be first-degree murder again, or something less?

"It would be a retrial," the prosecution said. What that retrial looks like would depend. "We're not at that point yet."

Reddington didn't accept that. The idea that the prosecution needs to wait on these motions and possible appeals before deciding what charge to bring was, he said, "specious." He needs to know whether he's preparing for a triple first-degree murder trial or something else. Then he named what he called "the elephant in the room": the judge's mandatory retirement. He told Judge Sullivan he wanted him to be the trial judge, because he sat through the seven weeks, knows the witnesses and their demeanor and the evidence. He feared a long assignment date would push the trial past the judge's time on the bench.

And then he made a promise that changes the calendar. After conferring with his client, he said, whatever the judge decides on double jeopardy, "there will be no appeal that would delay a trial." The defense thinks the issue is very strong, he said, and will still pursue it, but it doesn't need a stay to go to trial. "So the ball is in Mr. Cruz's court," he said, meaning Plymouth County District Attorney Timothy J. Cruz, who sat in the courtroom that morning.

WATCH: THE CLIP (PUBLIC) Lindsay Clancy's Lawyer Tells the Judge No Appeal Will Delay a Duxbury Mom Retrial

The judge split the difference. A short status date, so he can report on at least some of the motions, and a target for trial "sometime in March," earlier if possible. He was careful about the label. He'd call it a status date, or a trial assignment, but "I don't want anybody reading the tea leaves into my scheduling language," he said. Don't read anything into it about how he'll rule on dismissal. After some back and forth over the lawyers' other trials (one has a murder trial starting in a week elsewhere, another a matter in Pittsfield), they landed on the morning of Monday, November 16. The judge offered to do it by video. Reddington said they'd rather be there in person, because Lindsay Clancy wants to be part of every decision.

Here is my position on the calendar, and it's the one thing on Day 31 I think the prosecution has no good answer for. The mistrial was declared September 4. By November 2, two months later, the Commonwealth still would not say what crime it intends to retry. It doesn't need the judge's ruling on double jeopardy to make that call. If the motion is granted, there's no trial at all; if it's denied, the question of what to charge is exactly the same question it is now. Meanwhile Lindsay Clancy remains in custody, the defense has said it won't hold up a trial with an appeal, and the judge who knows this case best has a retirement date coming. Every week the charging decision waits is a week she waits. The state has the right to try her again. It also has an obligation to decide what it's trying her for, and to say so. By November 16, it should.

WATCH: THE FULL HEARING, NO BREAKS EDITION (PUBLIC) Lindsay Clancy Post-Mistrial Hearing, No Breaks Edition: Double Jeopardy, Juror Doe

What Day 31 was really about

Strip away the case citations and the procedure, and every argument on Day 31 was about the same thing: what happens to the person who disagrees.

The defense says that person broke the rules and cost Lindsay Clancy her verdict. The juror's lawyer says that person did exactly what the law asks, listened, explained, and held his ground, and is being hunted for it. The prosecution defended the juror's right to stand alone when it served the prosecution's motion, and pointed at the other jurors' conduct when that served it too. The prosecution's gag motion was, in part, about a defense lawyer's public attacks on that same juror. Every lawyer in that room had a reason to talk about him. Only one of them was there for him.

And the judge stood in the middle of it, the way he did in September, choosing caution. I think caution was right on the mistrial. I think it's right on the juror. I don't think caution is an answer to the question of what the prosecution plans to retry, and I don't think it answers what the court will do differently with the next jury's phones and the next jury's talk. The holdout can't answer either of those questions. The process has to, and the process is the thing we're here to watch.

Underneath all of it is the case itself, which hasn't changed. Three children are dead. Their mother is presumed innocent, and the question a jury has to answer is still whether she was criminally responsible when it happened, or whether the illness her defense described took that from her. Killer, or a mother the system failed. One jury couldn't answer it. On Day 31 the argument in that courtroom was over who gets to sit on the next jury that tries, and what those twelve will be afraid of when they get there.

The judge holds three motions. The defense says it won't appeal its way into a delay. The ball, in Reddington's words, is in the District Attorney's court. Next court is the morning of Monday, November 16, in Plymouth. We'll be there.

WATCH: THE DAY 31 LIVE BROADCAST (PUBLIC) LIVE: Lindsay Clancy Hearing - Motion to Dismiss and Retrial Date - The Duxbury Mom Case

Here's what I want from you. You heard the juror's lawyer say the lesson for every future juror is to agree with the majority or be investigated. You heard the prosecution say some of the jurors talked about prison treatment and press conferences. If you were sitting on the next Clancy jury, which of those would worry you more? Tell me in the comments below.