2.Preliminary Charge Conference
48 linesBAILIFF: This court is back in session. You may be seated.
COURT CLERK: Your Honor, for the purpose of the record, we return back to the trial of Commonwealth versus Lindsay Marie Clancy. All parties are present and proceeding to the eighth and final jury instructions.
THE COURT: All right. All right, Counsel, what I kinda wanted to do is at least have a preliminary discussion regarding instructions. And what I would generally do is after we have the discussion is then kind of distribute a draft to counsel so everybody— we could have a more focused charge conference next day or so. But I just kinda wanted to get everybody's thoughts or kinda suggestions that they would be seeking the court to instruct the jury on. So kinda what I'll be using will be the model jury instructions. Generally, the model jury instructions from the March 2026, the latest suggestions from the SJC. And so, Commonwealth, let me kinda hear what your thoughts are, and then I'll hear from the defendant.
MS. SPRAGUE: So for individual instructions, we have listed opinion testimony, prior inconsistent and prior consistent statements, redactions. I don't think there are too many, but there were some on the death certificates. Stipulations and consciousness of guilt instruction. In terms of what we're looking for in, for the charges, we'd be looking for an instruction on first and second, with the theories of first being both deliberate premeditation and extreme atrocity and cruelty. In terms of the criminal responsibility instruction, we're asking that the instruction regarding intoxication not be given because, from our perspective, there's been no evidence of intoxication by drugs and/or alcohol during the killings. There's testimony, and I think there'll be more testimony about the defendant taking pills after killing the children. And before killing the children, she was on low-dose prescription, ten milligrams of amitriptyline that was recently increased to twenty milligrams, but there's no real evidence of whether or not she actually increased that dose. And then it was a low dose of trazodone and a low dose of, I believe, Valium. So those were prescribed medications that she had reported no side effects from. And I believe in the text with her mother, she said that she was still waiting to actually feel effects from those. So there's no evidence of intoxication from those drugs. And then the only intoxication potentially could be when she took pills after killing the children. And even those amounts from the toxicology are low-level amounts. So we're asking that the instruction on intoxication not be given.
THE COURT: Let me ask you this. I'm gonna ask the defendant as well, 'cause I did read through those and I was trying to find the definition of intoxication as it applies in the homicide instructions. Most of the cases that I was able to find so far is the dealing with the OUI statute, Chapter 90. And trying to find the real definition in regards to that. Is it the Commonwealth, Commonwealth's position that the intoxication is beyond what was the considered effect of the drugs? 'Cause if... Do you know what I'm saying? So if she takes it, if a defendant—I don't mean to personalize it. If a defendant takes prescription drugs, and it does create some effect, would that be considered intoxicated for the instruction?
MS. SPRAGUE: I don't believe so. I think in the instructions, it talks about having an ef—being intoxicated to the point where it affects your state of mind or ability to control yourself. I think intoxication, especially where there's not a specific definition given in the homicide instructions, I think you go to the general definition of intoxication, which would not just be taking medication as prescribed, but it would be over-taking medication or combining with alcohol or other drugs. It's similar to the instructions in OUIs, operating under the influence of alcohol or drugs. I think you would have to go to that definition or to the general definition of intoxication if it's not specifically defined in the instructions. And I think the general definition of intoxication is taking some type of substance, either alcohol, drugs, medication, in excess and to the point where it's affecting your ability to think and to act and to control your behavior.
THE COURT: All right. All right. Anything—so I've got opinion, prior consistent, prior inconsistent, a redaction, stipulations, consciousness of guilt, first, second, extreme atrocity, deliberate premeditation, and the criminal responsibilities without the subparagraph or the paragraph regarding intoxication.
MS. SPRAGUE: Correct.
THE COURT: Okay. All right. Mr. Reddington.
MR. REDDINGTON: I don't, I don't know if the government has been listening to the same evidence in this case. This is clearly an involuntary intoxication defense, at least as far as the judge's charge to the jury, based upon the evidence that's been presented, whether or not it's what we would argue is the over-prescription of the medications, whether or not it's the side effects of the medications, whether or not it's the titration or the termination or the immediate cessation of the medications against what normal medical advice would be. All of those factors contribute to the state of mind of Ms. Clancy that was expressed to a lot of people, family members, people that knew her. She had indicated—I think Your Honor knows the evidence—repeatedly indicated that she was affected by the benzos. She was affected—felt that she was being addicted to the benzos, trying to get off the benzos.
She indicated that the sertraline was obviously killing her as far as going from 25 to 50 milligrams, and then subsequent to that, when there's additional SSRIs prescribed. To suggest that there's no basis to give the jury the instruction, they may determine based on the evidence that is as a result of the involuntary intoxication from narcotics, not, not alcohol, obviously, from the prescribed narcotics, not illegal drugs. So from the prescription drugs, that's on all fours with a valid defense that they should be instructed as it relates to involuntary intoxication. I think it's the model jury instructions on criminal responsibility. Obviously, if there's any nuances that I would pick up, I would bring that to the court's attention. But I have tried—read a case recently with the model jury instructions, and I- my memory is that I was pretty satisfied. It was Judge O'Shea, I think, in, yeah, actually in this courtroom a year ago.
And I was satisfied with the intox- with the instructions on lack of criminal responsibility. I would at some point ask the court to charge on involuntary manslaughter. I'd ask the court to charge on wanton conduct, with a component of the impact of the intoxication. So you can't try this case in a vacuum. You can't present the case to the jury. I know the government would like to present the case only on cruelty and atrocity. They probably don't like the statute that allows a jury to determine the degree of murder, which would be first and second. But I think that the evidence is such that a jury should have the option of considering whether or not we're talking about involuntary manslaughter based upon the evidence that's permitted. So I would defer to the court on the instructions on cruelty and atrocity, premeditated malice aforethought, second-degree malice.
MR. REDDINGTON: I would ask the court to consider instructing on involuntary intoxication, to consider on the involuntary manslaughter as a lesser offense, and anything else that I can think of. But right now, that's what I can think of.
THE COURT: All right. Yeah, counsel.
MS. SPRAGUE: Thank you. Commonwealth did request first and second-degree instructions. It's our position that involuntary manslaughter wouldn't apply here. The evidence is that there was a specific intent to cause the death. So there's nothing that I can think of in the involuntary instruction that would apply here. Going back to the intoxication just for a moment.
THE COURT: Sure.
MS. SPRAGUE: All of the medications, most of the medications that defense counsel talked about that the defendant was having reactions to and side effects from were before her hospitalization at McLean Hospital, and she was weaned off of that last one, the Seroquel, that while she was in McLean Hospital, and then she was without those medications, and they're out of her system for three weeks, and she's just on those other three medications. So the intoxication that matters is not what happened in the fall and before McLean, it's what happened on the day of the incident. It— Similar, if it's an OUI, it doesn't matter if you were drunk in November, it matters if you're drunk on the date of the incident. So what matters here is that January 24th, 2023, and those other drugs and the effects that they caused to her aren't relevant to what happened on that day, as they've been out of her system for at least three weeks at that point.
THE COURT: All right. So Commonwealth's position would be that the relevant analysis is what she was taking on or about, on or around that January twenty-fourth?
MS. SPRAGUE: Yes.
THE COURT: Okay. All right. All right. Any other—
MR. REDDINGTON: Yes.
THE COURT: Yeah. Good. Sure.
MR. REDDINGTON: It's occurred to me, again, as I said, it's only fresh in my mind from a case I had here last year. I know the model jury instructions indicate— And I'm trying to find it in here— that there's supposed to be consideration of a chalk for the court to write out the elements of the offense of first-degree murder, cruelty and atrocity, premeditated malice aforethought, et cetera. And I would ask that you not do that. I don't think that it's appropriate. I think it highlights, if you will, in simplistic terms, premeditated malice aforethought. I think you and I, we just had a murder case last year on another matter, and I mean, I heard your instructions. You're very forceful with the elements of the offense, and I just don't think we need to have this appendix or whatever you wanna call it. And again, I did object to that with the Judge O'Shea.
MR. REDDINGTON: We did not submit the instruction list cookbook, or whatever you wanna call it, to the jury. So I think that the court's instructions would be sufficient. I would not wanna have that chalk that is referenced in the model instructions. That's discretionary. It's not obligated. They just say that it might be helpful for the court to give the jury some type of a checklist. But I don't think we should reduce instructions on a murder case to a checklist. And I'm just afraid that what happens is that jurors then take the checklist, as it were, and they kinda look at it or consider it, and they just do exactly that. It's a checklist. So I would ask that you not do that.
THE COURT: All right. Just so, counsel, my general practice is not to have that kind of list.
MR. REDDINGTON: I saw. Yeah, I realized that. Yeah.
THE COURT: I generally don't, but I also generally will provide a copy of the instructions—
MR. REDDINGTON: Right.
THE COURT: ...to each juror. So they'll have their own full copy, and they can follow along, 'cause as the three of you know, they're lengthy and kind of dry. So they'll have those with them. But, like I said, I generally don't do that, that chart. All right, so anything else in regards to the instructions?
MR. REDDINGTON: Nope.
MS. SPRAGUE: No, Your Honor.
THE COURT: All right. So my plan would be to have at least a rough draft available for counsel tomorrow. So you'll at least have that. And, you know, depending on the timing and where we go in regards to the actual closings, we'll have the opportunity for you to review those, go over the draft, and then any kind of objections or suggestions you wanna make, we'll have a chance to do that. But, so you'll have—again, it's a rough draft. That's all I can tell you. And nothing's in stone. But at least give you an idea kinda where I'm coming from.
MR. REDDINGTON: Do you think, logistically, Your Honor, that with the presentation of Dr. Resnick and then the government having their three doctors, hopefully we finish the evidence tomorrow, we would be closing Monday?
THE COURT: I would expect either Monday or Tuesday. I mean, if the parties may need—is, does... You know, I'll leave... We could talk about that. But, you know, my old experience, there's been a lot of evidence, and there's a lot of witnesses. And so if the parties feel that they need, like, a day to kinda marshal their thoughts, we could talk about that. So either probably Monday or Tuesday. We could talk about that tomorrow.
MR. REDDINGTON: Okay.
THE COURT: All right? All right, anything else we need to address, you think?
MR. REDDINGTON: Thank you.
MS. SPRAGUE: No, Your Honor.
THE COURT: All right. And so tomorrow we'll be in recess until tomorrow at 9:00. Hopefully we'll start with Dr. Resnick, and then... Correct?
MR. REDDINGTON: Yes.
THE COURT: All right, yeah. All right. You just kinda looked at it, thought, "Uh-oh." The—yeah. So that'll be the thought, and then we'll just kinda go from there. If the defendant rests, the Commonwealth can then present their witnesses. And if it's not done by Friday, may- we go into Monday and that may mean closings and charge on Tuesday.
MR. REDDINGTON: Okay.
THE COURT: All right.
MR. REDDINGTON: And Mr. Verano will be here, yes? To set up the Zoom like before.
THE COURT: So you're not gonna trust me to set that up this time? I think that's a good move.
MR. REDDINGTON: Or me.
THE COURT: All right. All right, so thank you everyone, and so we'll be in recess until tomorrow.
MR. REDDINGTON: Thank you.
THE COURT: Great. Thank you.
BAILIFF: Court, all rise.