1.Motion to Add Emily Thorndike as a Witness — Decision Reserved
75 linesBAILIFF: This court is now in session. You may be seated.
COURT CLERK: Good morning, Your Honor. May I proceed?
THE COURT: Yes, please.
COURT CLERK: Your Honor, before the court today we have the matter of Commonwealth versus Lindsay Clancy. Ms. Clancy is present. She is represented by attorney Kevin Reddington, and the Commonwealth is represented by Assistant District Attorney Jennifer Sprague and Assistant District Attorney Shanan Buckingham.
THE COURT: All right. Well, good morning, everyone. Good morning, counsel.
MR. REDDINGTON: Good morning.
THE COURT: Good morning, Ms. Clancy.
MS. CLANCY: Good morning, Your Honor.
THE COURT: All right. What I wanna do first, let me just talk to counsel just for a second.
THE COURT: Before we get going, I just kinda wanted to remind everybody that there is a media order that has been issued on this case, and for some of the media and the individuals who've been here for the last couple weeks, I'm sure are familiar with it, but I know there's a constant people coming in and out. So I just wanna remind everyone that there is a specific media order that's been issued on this case, and everybody is presumed to have reviewed it and agreed to it. So if there are any violations or problems with that, we'll have to deal with it, but I just kinda wanted to remind everybody, especially people who may have just come into the courtroom recently. So, and if you have any questions about what that order is, you could speak to any of the court officers. They have a copy of it. We can get a copy of it to everybody who needs to see it and review it. All right. And with that, what we'll do is we're going to go—the defendant, excuse me, had filed a motion for addition to the witness list, to add to the witness list, regarding a Ms. Thorndike. So what I'm gonna do first, I'll hear from the defendant, then I'll hear from the Commonwealth.
MR. REDDINGTON: Thank you, Your Honor.
THE COURT: Mr. Reddington.
MR. REDDINGTON: Thank you. Your Honor, basically, as the motion speaks for itself, there is a woman, her name is Emily Thorndike, who's a LACSW here in Massachusetts. She owns and is an independent operator of her own clinical social work establishment called Wise Mind Therapy. Your Honor has her resume. She graduated from Dover-Sherborn High School, received a Bachelor of Arts in Sociology from Hartwick College, Master's degree from BC 2019, is licensed in Massachusetts, and interestingly enough, she did work at the McLean Hospital in the very short-term unit that the doctor was testifying that Lindsay was in for five days in January of '22 into '23. She worked for five years as a mental health specialist from May of 2014 to May of 2019. She was a clinical social work or manager of that unit from 2019, 2021.
MR. REDDINGTON: So she's basically got about seven years and seven months of experience working in that unit, for a majority of that period of time full-time employee, and then for one year as a supervisor. She left, as the court is aware from the motion. I vetted her out. I obviously would be concerned if there's any so-called axe to grind, if you will, any lawsuits pending. Were you fired? Did you have any difficulties? Any claims for harassment, hostile workplace? Absolutely nothing. She has friends that are still employees that still work at McLean. And I do not know this woman. I have literally never met her. Her involvement in this case came about after one of the prosecutors, I don't recall which, made it out on direct examination that McLean is some kind of a five-star institution where the doctors, the psychiatrists, the psychotherapists, the counselors were all banging into each other in the hallway trying to interview Ms.
Clancy, who was just blithely refusing care and treatment, which is not the case. Patrick testified as to his observations. The court is aware that Patrick's testimony clearly, in all fours, landed on the fact that it was clear to him that there was no staff that was available other than kids behind plexiglass on their cell phones. She colored. She took walks. There was no therapy. She didn't speak to any therapists or counselors. So now the jury is left with that image that McLean is purportedly some kind of a five-star hospital because they're "affiliated" with Harvard, which you from your practice, I'm sure, as I know from my practice, is far from the truth as can be possible, in my opinion. But it doesn't matter what my opinion is. I could cross-examine somebody till the cows come home. It doesn't matter. This woman posted a video on TikTok, which, much like yourself, I'm sure. I hardly know what TikTok is, but I was...
I received an email from one of the very, very active people in the community of TikTok saying, "Look, you gotta check this video out." So I did. This was about a week ago, maybe longer now. When I saw her video saying that she could not stand for, and I quote, "The lies and the misrepresentations from that witness stand about McLean Hospital," I then said to my private investigator, Bob Jones, I said, "Bob, I can't find this woman," 'cause she had a pseudonym name or whatever. He went, we wrote. He called her, left messages. She never got back to us for, like, three days. He went to her house. He sat out in front of her driveway. She came home from work. They interacted. He waved, didn't wanna scare her. And she said, "I thought," and oh, by the way, I believe that my...
MR. REDDINGTON: Actually, my wife had written her a letter as well, because she's a nurse and was trying to reach out to her to have her get in touch with me, to no response. She then tells Bob, "I thought you guys were all AI. I didn't know that you were real. I thought it was spam." He then gave me her number. I spoke to her. She told me exactly what I put in the affidavit or in the motion. And she is available, ready, willing, and able to testify to an employee's observations over seven years, including as a supervisor, as to what woeful environment McLean Hospital offers, especially on holidays such as major holidays like New Year's, which is fine. We all enjoy New Year's. But nevertheless, New Year's, the day after, that weekend, Monday, nobody was there, and I think it's important to rebut the inference that was created through the examination by the DA.
THE COURT: All right, Mr. Reddington, let me ask you this, and I'm gonna ask the Commonwealth kinda the same thing. What's the relevance? What's the argument for the relevance of what McLean's was, at least the... 'Cause she wasn't there for about a year if I looked at the motion.
MR. REDDINGTON: Well, that's a—
THE COURT: Is that correct?
MR. REDDINGTON: ... That's in the—
THE COURT: No, that's all right.
MR. REDDINGTON: Yep. Yeah, that's true. She left. She has her own business now.
THE COURT: Yeah.
MR. REDDINGTON: And she left, but it was just a year.
THE COURT: Yeah.
MR. REDDINGTON: There's no change in the circumstances from Lindsay going into that hospital on New Year's of 2022 to '23 and this woman's work experience where she left a year before. And I agree with you. This would've been a non-issue were it not for the flavor of the government's repeated argument that she was a person who was spurning healthcare, didn't want healthcare, had the opportunity, and she walked away from the opportunity, which, as I say, is as far from the truth as possible. So I think it is now, because of their questioning, squarely before the jury. To leave that impression, and the woman that was the doctor from McLean was just a pleasure. She was just a lovely, lovely woman and testified as best she could on the case, but they're left with the impression that McLean is this wonderful place, that she just did not have any interest in utilizing what was available to her, that was not available to her, and she's testifying to custom, practice, and her observations over seven and a half years.
THE COURT: Is there another alternative to get there, someone who actually works there or worked there during this time period? That it's the time period that—
MR. REDDINGTON: A year?
THE COURT: ... It's one of the things that... Well, yeah, but things can change in a year, you know?
MR. REDDINGTON: I don't think so at McLean. I mean—
THE COURT: Well, I don't know, so. I guess that's the question. I don't know, so. That would be—
MR. REDDINGTON: That is—
THE COURT: That's one of the things I'm gonna— I may have to wrestle with, but that's kinda what I was asking, whether or not there is, or... I understand the argument.
MR. REDDINGTON: Okay.
THE COURT: And I understand the argument regarding relevance. But if we're talking about staffing or the availability of programs and how that worked, this witness—
MR. REDDINGTON: Okay.
THE COURT: ... There's a gap there. I guess that's all. I'm wondering if there's another way to get there.
MR. REDDINGTON: So, you know, the realities of trial practice, if you're the government, you send summonses. You have people come to your office. You're interviewing witnesses. If you're the defense, they run for the hills. For example, one motion I'm bringing with you is merely looking for pediatric records that I have had to have Bob Jones go and try to get them HIPAA forms, everything, and they're avoiding us horribly, and I'm gonna have a contempt hearing request very shortly. But the point I'm getting at is if they wanna reach out to McLean, I'm sure that McLean administration would bend over backwards to give them every record that they would need as to how many employees they had, what their work records were, their doctors, their counselors, all available. I know I can't get it. So I'm suggesting to Your Honor that this is an opportunity for a person who worked there for all those years, who does not have any dog in the fight, to testify to what her observations were, clearly within her timeframe. She left a year before Lindsay went in there on New Year's. So I certainly agree with that, cross-examination. They could get records if they wish, but I think it is relevant. I think it's material, and I think it has to be used to rebut the inference that was raised.
THE COURT: All right. Thank you.
MR. REDDINGTON: Thank you, Judge.
THE COURT: Yeah, Commonwealth?
MS. BUCKINGHAM: Your Honor, the Commonwealth would object to the witness, the late disclosed witness. In addition to the obvious Rule 14 issues, the fact that we didn't have notice of this individual, there's been no discovery other than what's contained in the affidavit, and what we could identify from this woman's TikTok video, there's no report from the investigator who admittedly, by counsel, has spoken to this witness, this individual. Aside from that, we have a number of other wish- issues with this witness. One is this isn't somebody that's proposed to be an expert, so they're not relieved, they wouldn't be relieved of a sequestration order. But this woman's TikTok, admittedly, she's been following the trial. She goes on for several minutes in a very long TikTok video where she identifies what she thinks are lies based on her observations of Patrick Clancy's testimony.
We have no idea what her thoughts are or what her comments are on the rest of the trial that we assume she's watched based on her comments in this particular video. That she outlines in this video her experiences at McLean, and her observations and how they are different from what was portrayed in that particular witness's testimony. But in the course of this trial, we not only have that particular witness's testimony, we have records from McLean, and the records speak from themselves about what she was offered, what she did, what she declined, what the contact was with each and every person who wrote a note in that record. But sh- this witness admittedly had, wasn't there, had no contact, has no knowledge of the case in and of itself. And in this case, Your Honor, we deal with facts. We're presenting facts to the jury. We're not presenting somebody's opinion about what kind of care the defendant got during her stay at McLean. That's not what this trial is about.
That's not what it should be about. And if it wants to play out in the court of public opinion, that's fine, but not inside the walls of this courtroom. So this person who said that she cares about Lindsay in this video, whether other people do or don't, this person who said that the prosecution of this case is an abomination, this person who said that the health profession needs to be held responsible for their care of the defendant, that's not a witness that presents facts to this jury. And I would also agree that there is a problem with what relevant testimony that she could give. There is no indication that what her experiences were in those seven years up until December of twenty twenty-one are exactly the same as it would've been when the defendant was at that short-term unit at McLean. And the defense had the opportunity to ask that of Dr. Goodheart, and he didn't. So there is-
THE COURT: Hey, wait a minute. I think she said, "I don't know what the staffing was." Didn't she say, "I don't know how many people were on. I don't know if it was a skeleton crew"?
MS. BUCKINGHAM: She said on that particular weekend, she didn't know what the staffing was.
THE COURT: Well, that's the only week-
MS. BUCKINGHAM: But she wasn't asked any-
THE COURT: That's the only weekend we're talking about.
MS. BUCKINGHAM: Right. But now he wants to make this an issue about the practices and the common practice of the hospital, but that was not a question that was asked of her, nor would Your Honor necessarily have permitted it, where he was trying to tailor the testimony to the exchanges with the defendant. So to then have the witness available to answer those questions that was at the facility during that time period, and then not take that opportunity and then offer this subsequent witness and call it a rebuttal witness, it's not a fair line of examination. It's not a fair line of rebuttal, where she wasn't there during the time period. So I, we would object for all of those reasons.
THE COURT: I mean, just so everybody knows where we're going, I can't imagine that that witness would be allowed to give her, in a sense, review of McLean's. If it's five star and she may say it's two star, you know, this is not TripAdvisor. I wouldn't allow that.
MS. BUCKINGHAM: And no one in the-
THE COURT: But the question seems to be, for me, a closer call about what the standard staffing and programs may be available on a holiday weekend. Because the Commonwealth's witness said, "I don't know that." And that seems to be something that maybe the parties could come to an agreement about establishing either, you know... There's gotta be somebody who's still working there that says, "The weekend two weeks, the weekend after this wasn't a holiday, we have X amount of people there. We have X amount of programs that are available. On the holiday weekend, we do or we don't." That's, to me, that's where the battle on this motion is. I have, I do understand the Commonwealth's objections regarding allowing people who watch the trial to then say, "I disagree with it, and I wanna testify about what I disagree with." That's troubling. But I'm talking about the facts on this thing, and that's—if it was anything other than those kind of facts and this witness was not, had not worked there, I'm not sure we'd even be having this hearing. So-
MS. BUCKINGHAM: Well, and I would suggest that counsel indicated that in trial practice that people are reluctant to give information to the defense. But there are avenues, procedural avenues that he could pursue to get that information involving the court or involving subpoenas, in which there's been no indication that he's actually tried to do. And again, I would suggest to the court that we have the McLean records from that time period in evidence, and they are the best evidence of the contact that people there, staff that were there that day, had, or there that, those four days, had with the defendant on that day. So from the perspective of if there's missing information, there are avenues he could pursue if he wants to rebut it. I would suggest that this person's testimony is not relevant because they weren't there. And I would agree that the better option from, if defense wants to present this as a rebuttal, would be from somebody that was there, but he has, doesn't have that. And so for those reasons, this motion should be denied.
THE COURT: W- is— And you don't have to commit to this at all, but it seems to me that it would be a very simple solution to get the staffing records or somebody at McLean's who can testify to this. What was the program availability on mid-December weekend if you went in there as opposed to the weekend of New Year's? And it may be no different whatsoever, and that kinda eliminates the argument. So I think probably the best way to deal with this is to maybe have a voir dire of this witness as to what— So then the record's clear, too. But it also allows the parties to consider while this is— while we're setting this up, maybe there's another way to do it, a lesser alternative, so to speak, that would reduce the prejudice to both parties. You know, so-
MS. BUCKINGHAM: Again, I don't— I would— I don't know how a voir dire of this particular witness, who clearly wasn't there and didn't have contact with the facility during that time period, would answer Your Honor's questions.
MS. BUCKINGHAM: But I do agree-
THE COURT: Well, maybe we can find out. I can ask the questions and she could— we could see. I'm— I understand. The problem that I kinda had as the case was going, the individual that was probably, you would anticipate, could talk about the staffing, the difference of a holiday weekend and a non-holiday weekend, said she wasn't aware of that. So, um-
MS. BUCKINGHAM: Well, I don't know that she said she wasn't aware of the difference. She said she wasn't aware of who was there on that weekend because she wasn't working that weekend. So I think there's a slight distinction in that. But again, the witness was available. Counsel could have crossed her on that, subject to any sort of objection, and we could have addressed it at that time when the witness was on the stand. But again, that witness is under summons, and if counsel wants to recall her, he can. There are avenues that he could pursue if he wants to pursue this line of rebuttal that's short of calling this particular witness that's been proposed, is the point that the Commonwealth—
THE COURT: All right. All right.
MS. BUCKINGHAM: … chose to express.
THE COURT: All right. So I'm gonna—I need to take this under advisement. I wanna review it. But I'm inclined, just so everybody can kinda maybe make some idea where we may go with this, I'm inclined to have a voir dire with this witness or some other witness. So maybe the defendant can get somebody who hasn't watched the trial, 'cause I do understand there's an issue regarding sequestration and—but that may be a function of a trial like this that's being broadcast. You know, how do we guard against that? But that's not gonna affect really the relevance, the prejudice, the determinations I have to make, you know, under, you know, really under all the rules. You know, four oh one, four oh three, all of those considerations that I have to make. So I'm inclined to do that unless the parties can think of a—I won't say better alternative, that's not fair to this witness—a different alternative that might address everybody's—
MR. REDDINGTON: I don't think we're gonna be able to agree on anything, Judge, so it would really be up to you—
THE COURT: Oh, I know. But—
MR. REDDINGTON: … the referee to make a decision.
THE COURT: Right. What I'm trying to do is put that out there. If the parties can agree, I think the three of you know me. If it—I don't have a problem making a decision. I really don't. But I just kinda wanted to give everybody that opportunity to maybe craft a solution. And if I have to do it, that's kinda what I'm saying by saying I'll take it under advisement. So I'll let the parties know.
MS. BUCKINGHAM: If I may just ask—
THE COURT: Sure.
MS. BUCKINGHAM: … Your Honor, do you—if you're reviewing this, taking it under advisement, that you do look in more detail at those records, the McLean Hospital records—
THE COURT: Sure, yeah.
MS. BUCKINGHAM: ... and the current evidence so that Your Honor can see the extent of the contact, the extent of the notes of people who actually dealt with her. Because again, that is the issue. That is the factual issue here, is the contact that they—that she actually had.
THE COURT: Yeah.
MS. BUCKINGHAM: Not what maybe she wasn't offered at other points, but what she had while she was there.
THE COURT: All right.
MS. BUCKINGHAM: So I ask that you just review that.
THE COURT: All right. I'll review that. I'll review my notes regarding the doctor who testified from McLean's, and then we can deal with this. This would be a witness that would be called later in the trial anyway. So it'll give me a chance to do that, review that, get a decision to the three of you, and then we can, depending on what happens, either schedule a voir dire or go from there. All right?
THE COURT: But all right. Thanks. Thank you for everybody for kinda agreeing to argue this a little bit earlier so it gives me a chance to review the records and the arguments. All right. With that now, are we ready for the jury?
MR. REDDINGTON: Yes.