Accused Killer Mom Case: Attorneys Argue Over What Jury Will See & Hear

[00:00:17]Good afternoon, your honor. May I proceed?

[00:00:18]>> Yes, please. Your >> honor, before the court, we have the matter of Commonwealth versus Lindseay Clansancy. Miss Clansancy is present.

[00:00:23]She is represented by attorney Kevin Readdington. in the Commonwealth is represented by Assistant District Attorney Jennifer Sprag and Assistant District Attorney Shannon Buckingham.

[00:00:33]>> All right.

[00:00:35]All right. Well, good afternoon, council. Good afternoon.

[00:00:38]>> Good afternoon, honor.

[00:00:38]>> Good afternoon, Miss Clancy.

[00:00:39]>> Good afternoon.

[00:00:40]>> All right. So, this is on for our final uh trial conference. I know there's a significant amount of motions and lemonade. So, my thought would be to kind of go through those at this point.

[00:00:53]Then after we do that, talk about any logistical issues. Talk then a little bit about uh impalement and how we're going to do that. Um and then if there's anything else that the parties uh feel we need to address uh prior to uh the next date. And the next date, my understanding is kind of for a final final trial conference on July 13th uh with planning to begin impanelment on uh July 20th. That's my recollection of the the calendar. Um so why why don't we kind of just go through the the motions and eliminate as I have them. Um and the first one which is number 94 uh is the comm's request for individual voadier.

[00:01:45]Um, so my my I haven't quite finalized the way I think we should uh uh handle the impalement because I I'm going to ask basically the general questions. Um, and the issue that I think we I wanted to talk to everybody about, we can do it now because that motion brings it up.

[00:02:09]Um, is a question of a question the issue of a questionnaire um or not? Um, and so why don't we jump jump right into that at this point. Um, Trish Sprag, what are your thoughts in regards to utilizing a questionnaire? I generally don't do it. Um, but I know in in other cases and other judges and will do it. I've done it occasionally, but uh, Attorney Sprag.

[00:02:35]>> Thank you, your honor. Um, I I have done it in other cases. I don't like to use them. I like to see the juror's response um, physically to the questions. Um and um and I think we can ask followup as needed um during the individual wire. So I prefer not to use one.

[00:02:51]>> Mr. Re, [clears throat] >> I agree in the sense that I like to see the jurors respond, see how they react, what their body language is. You know, we try to look at books that they may carry everything and get some information on the person or the individual.

[00:03:08]uh on the other hand I have had cases where we have used the questionnaire and I personally endorse it uh and the reason is that the questionnaire generally goes much deeper than what the individual via sidebar or whatever would be so many times as you know in your cases I'm sure you you've you've done them yourself where you have the jurist fill out a questionnaire we get a copy of it we can scan it we can look at the answers then we go through the actual questions for the statuto questions and then any sidebar questions. This is a very complex case obviously with significant issues of of extreme emotion um as well as very very sophisticated scientific uh psychiatric issues. So I think this is one of those cases where subject to your discretion um a questionnaire might be helpful. I know I did submit as well a motion for individual vadilla with suggested questions and I think pretty sure a questionnaire. I'm not sure actually.

[00:04:10]It's been a while since I submitted those motions about a month or two.

[00:04:14]Yeah. Well, my my thought is I've looked at the questions that were submitted uh very similar both sides. I think we we all kind of know what the issues are going to be, what we have to uh talk to the jurors about. Um I I'm going to take a run at drafting. It'd be a one-page questionnaire, my thought, if if we do it. Um, it may be just concentrating on the kind of unique issues that we have in this case. Um, as we said, psychiatric issues, pharm pharmacological issues, things like that. Um, and that might allow us to kind of streamline a little bit on that.

[00:04:52]Um, but if we don't use that, I think I've tried cases with every all of you.

[00:04:58]So, what we generally would do is we'll um bring the jury out. I'll ask them as a group the group questions and then we'll just bring them in one at a time.

[00:05:08]And my thought would be to uh just have one juror come into the courtroom at a time. Um make uh I'd ask some of the questions and I'd allow reasonable followup to both sides. Uh and then to exercise challenges at that point. Um, so that's, you know, there's no nothing new about that procedure, but I am going to take a look at drafting a questionnaire that might just focus us a little bit. It might help kind of speed up because it it's going to be asking some kind of more uh in regards to medical questions and things like that.

[00:05:44]It might the jurors might find it easier to to answer that in writing rather than uh orally. So, um so we can address that. My thought would be to hold that one off until September third uh July 13th, I'm sorry. Uh the final trial conference at that point. Um Comwalth, >> that make sense?

[00:06:03]>> Yeah, it makes sense, your honor. Thank you, >> Mr. Bington.

[00:06:05]>> Yes.

[00:06:07]>> Agreed. All right. All right. The next motion is see number 95 which is the Commonwealth's uh motion for [clears throat] a sequestration order. I did see that there was a defendant's motion for certain exclusion from that um sequestration order. um comm any objection to those names that were listed for the exception?

[00:06:41]>> Yes, your honor. Um I would ask that they um be sequestered until after they testify. Uh I we've tried to meet with these witnesses, uh the defendant's parents and her sister. Um they have refused to meet with us for trial prep.

[00:06:56]So I can't tell you when or if I'm definitely going to call them. Um I I kind of have to see how things go as the trial progresses. Um, but the information that they would testify to, whether called by myself or defense council, would go to the heart of the defense. Um, they would be talking about her behavior leading up to the, uh, murder of her children and, um, the things she said and and did. Um, and I wouldn't want them even unintentionally influenced by each other or, um, you know, other people. So, I'd ask that they be sequestered until after they testify.

[00:07:31]>> All right, Mr. Reington. Well, here we go again. Starting right out of the gate, that is absolutely improper to represent that they refuse to meet with the district attorney. First of all, we have been extremely cooperative with allowing witnesses or not so much allowing, but indicating that we, when I say we, I mean myself representing Lindsay um and of course her supporting family have indicated that we don't have any problem. I I I couldn't have bent over backwards more on this case to allow them to talk to doctors, get reports, get every document, get every medical record, everything they need, everything they want. Then they get a call, I get a call from Allison, her sister, saying, um, you know, DA wants to talk to me. I'm like, fine, talk to the DA. They talked to Pat. They Pat called me before he Yeah, he talked to [clears throat] Pat. They talked to Pat.

[00:08:28]her mother and father. They they want to talk to the mother and father, they can talk to the mother and father.

[00:08:34][clears throat and cough] I I'm not aware of anyone saying no, we will not allow you to interview us. And when you think about it, what is the extent of the interview? It's her mother and father and her sister who lived this torture along with Pat.

[00:08:54]October, November, December, January, lived with her and her family to try to help out. They know every movement they made. They know every statement they made. This isn't a murder case with a driveby and an identification issue that were worried about people perjuring themselves. This is a case where you've got a woman who's got a mother and a father who are very supportive who have something to offer, but it's limited what they observed, what they did to try to help during that period of time that Lindsay and Patrick were consulting with doctors when she went to MLAN hospital and they were taking care of the kids and helping out.

[00:09:39]That's it. So to suggest in a case like this that the government wants to exclude her mother and father and sister I think is extremely objectionable.

[00:09:52]>> You're I spoke to um her sister myself and she told me herself that she refused to answer any questions to us until she was sworn in by a judge. So that is that is what happened. She would not speak to us. No, I I understand actually I understand both these my my inclination the motion uh is for permission to allow um the defendant's father, defendant's mother and defendant's sister um to be uh excluded from the sequestration order. Um my understanding is that they have been uh interviewed by some of the medical professionals I believe. Um so and I would imagine that everybody's looked at those. Um, so there's some some I guess uh indication of what they would be testifying to. Um, and so they I'm going to uh allow the KML's motion for sequestration order, which is 95. And I'm also going to uh allow uh the following individuals to be excluded from that sequestration order be Michael Musgroveve, the defendant's father. Paula Musgroveve, the defendant's mother, and Allison Ozga, the defendant's sister.

[00:11:06]>> Please note the comb objection.

[00:11:08]>> Sure. And and if the parties, if they testify, and the comm wants me to give kind of a it's probably probably the opposite of a limiting instruction, but some kind of explanation that they were present during the course of other individuals. I' I'd consider doing something like that. Okay. All right.

[00:11:26]Next motion is number 96.

[00:11:31]Uh, it would be the Commonwealth's motion eliminate to preclude improper lay opinion testimony. Um, council Buckingham.

[00:11:42]>> Thank you, your honor. Um, your honor, the Commonwealth has filed this motion um, similarly to the argument just made by ADA Sprag. We do expect many of the witnesses in this case have very close personal relationships with the defendant and therefore um have some observations obviously that they would be called upon to explain. However, the danger in this circumstance is that there is a significant amount of mental health issues that we expect to be raised in various ways. And so the Commonwealth motion is just requesting that the lay witnesses naming her um ex-husband, her family members, her friends um who were close to her, that they not give opinions of overall having to do with diagnosis, having to do with medication. That's information that will be presented during the course of this trial through the course of medical records as well as um particular various um doctors and experts that will be testifying to those topics. So the Commonwealth is just asking that um this motion be allowed.

[00:12:46]>> So you are seeking to to keep out things like oh I think she was depressed or I think but you're not seeking I imagine to keep out things like well she seemed better or things like that. Well, I think the um case law allows for witnesses to testify to their specific observations of um the person's behavior, but anything that having to do with um the types of medications, even if it's types of medications that they were advised by the defendant, that's hearsay that wouldn't be admissible in that form. Um anyway, so it's it's those types of statements. Any opinions about um what her mental condition was, I think are not relevant. And um the the most relevant information comes from the experts and the doctors themselves.

[00:13:34]>> What about if someone's testifying um you know a friend or family member um that they've seen her and um after a certain date she seemed worse. What would your position be on that?

[00:13:48]>> I think they would have to be able to articulate specifically what the behaviors were and that would fall into that category of their direct observations of the defendant's behavior.

[00:13:57]>> Okay. All right. Uh, Mr. Rington, >> your honor, I one of my u pet peeves, if you will, is trying cases by in lemonade. And this is a thing that we're all involved with now is that we try cases by filing boatloads of motions to exclude this, to exclude that, stipulate to this, agree to that. Whatever happened to a trial where you put a witness on the witness stand, they elicit their direct, we can cross.

[00:14:26]objection, you make rulings. That's what I think the way it should go. But understanding that they have a right to file a motion. In the interest of justice, I guess they want to exclude any witness that would testify that I thought Lindsay was depressed. I've known her for x number of years. I've seen her as a mother. My opinion is that she was an incredible person, wonderful person, great mother. That's objectionable. That's hearsay. This is he say I object to being hamstrung on having evidence presented as to observations made by people whether it's friends or family or even guys at a bus stop that the government would interview. That is evidence that would be I suggest admissible. I certainly don't expect that I would elicit on direct orcross a witness's opinion, a lay witness's opinion as to her psychiatric mental state. Obviously, that is totally outside the can of a person, a citizen to be able to give that an opinion. Um, so my position on this motion is I would agree that I'm certainly not going to elicit an opinion as to her medical condition or psychiatric condition, but I think that I am entitled to elicit, as I'm sure the government perhaps could try, you use as an example, uh, whether or not somebody wants to say, "She seemed to have a good day. She seemed to be better." And, you know, they're going to try to elicit that. So, if that's the case, I think it's admissible what someone's opinion is as to what she looked like, sounded like, how she was acting with the kids, what she was doing with the children, taking them to the doctors, taking them playing with them in the backyard, a playground, that's admissible. So >> well I think uh in regards to the motion eliminates we've done enough cases all of us that you know way I look at them is it just gives some guidance to the the council as to what uh what the lane is you're in if and this goes to this motion or any of these motions. If during the trial is the the evidence changes a little bit or makes it something admissible, by all means, you know, these aren't in concrete. You can certainly bring that up. Um, but I I'm going to allow the motion lemonade to preclude uh and [clears throat] it says improper lay opinion. Um, I'm not sure.

[00:17:06]It doesn't sound like anybody's really disagreeing too much with this. um the the lay people not to say well because of this medication she's better or because of that medication she's worse.

[00:17:19]Um but I think without seeing the whole foundation generally a lay person could say well she seemed happier. She didn't seem as happy. Um, so I would allow that generally, but we'll get to it. And then the evidence as it comes up in regards to the foundation may open the door or close the door. But um, but in regards to improper kind of lay opinions as to expert issues, yeah, that's that that motion would be allowed. And that's number 96.

[00:17:52]>> And I don't think the motion is necessary. I think it's readily apparent to any of us that that would not be admissible.

[00:17:57]>> Yeah. There's no reason for objection.

[00:18:00]>> Yeah, we'll see where we go. Um, all right. Number uh, next motion is number 97. Com's motion eliminate to preclude defendant from mentioning to the jury or eliciting statements of the defendant any doctor. Um, so Comwalth, I'll hear you on that.

[00:18:17]>> So, your honor, um, again, as your honor said, we and our motions are just attempted to flag issues before, um, we have to litigate them in front of the jury. So, this is just a pretty standard motion in cases involving uh criminal responsibility defense where there's no concessions about um that particular defense. So in this case um and we're just raising for the court and identifying that um you know procedurally how these cases play out being the fact that the um issue of criminal responsibility is really raised in defendants's case and then rebutted by the commonwealth following the defendant's case that according to the law in Commonwealth versus Padosi and Chisum the more recent case that reiterates this that there isn't a mechanism M that sub circumvents the rules regarding the fact that the defendant can't elicit in their case and chief um statements of the defendant.

[00:19:16]And so we're just flagging this for the court. At this time, the Commonwealth hasn't um made any determinations as to whether we would intend to get into those topics on cross-examination, but as this line of cases uh outlines for the court and reiterates time and time again under the case law that that can only come out when the door is in fact opened by the Commonwealth, by the opposing party u as to the specifics of the statement. Certainly experts are free to give testimony based on their um overall analysis of the case and that they can rely on particular information that's not in evidence, but they can't testify directly about the statements themselves.

[00:19:56]>> All right. Mr. Bington in regards to this motion.

[00:19:59]>> Yet again, in the interest of justice on this case, I guess we don't want any juror to hear why Patrick Clancy and his wife Lindsay [clears throat] would go to consult with doctors because of depression, because of the life that she was living, which was one of horrific misery because of medications. and they can't they don't want that to come out as to why they're consulting with the doctors which begs the question where we have medical records that are going to be certainly introduced as central to the defense that a juryy's going to have access to. So the question then becomes what do we how would how would I handle that? I call Dr. Gelada and I say to Dr. Gelada, um who are you? I'm a doctor.

[00:20:44]And did you know Lindsay Clancy and was she one of your patients? Yes. And then what? I can't ask her why she was there.

[00:20:51]I can't ask her what her complaints [clears throat] were.

[00:20:53]>> That's a different different scenario.

[00:20:55]If the I think what the Commonwealth was looking for, if they put on an expert who's going to provide their opinion as to criminal responsibility.

[00:21:08]um that that doesn't open the door at that point until cross-examination to comment on statements that were made by the defendant to that doctor. Statements that are made to other people that may be admissible in other um for other grounds. I I I don't think that wouldn't be covered by that motion eliminated.

[00:21:31]>> That's correct, J. And what the Commonwealth is is specifically referring to is the scenario in which we get to the the Commonwealth does intend and we have on our witness list several of the treating physic treating mental health providers for the defendant. And we do intend to to offer um testimony and therefore we're offering the statements and he's free to cross-examine them on that. That's not the issue that this motion raises. The issue this motion raises is at the conclusion of the Commonwealth's case when we rest our case and chief and defendant puts on his experts if he chooses to do so regarding the topic of criminal responsibility. It's at that point where this motion comes into play.

[00:22:05]It's at that point where the Pantosi case, the Chappelle case, um the Chisum case all are instructive as to how that expert then gives testimony. And we raise this so that the expert doesn't testify and unintentionally offer inadmissible evidence. And that's what the line of the cases talk about why this is important and why procedurally this is this is the way in which um to properly address it. So it's not about those treating physicians. It's more about the experts that are going to be talking about criminal responsibility and it's more about the defendant's own statements regarding the events of what happened or you know what she testifi or what she told those doctors in these interviews that they used to then rely upon their opinions. So that's the the issue that this motion raises in the Commonwealth is raising to the court.

[00:22:51]>> It would go both ways.

[00:22:52]>> Correct.

[00:22:52]>> Each each side's expert would have that um kind of chappelle or the the other cases. Well, not no because when the Commonwealth gets to their rebuttal and we call our experts, if we choose to elicit the statements of the defendant, we can do so as a statement of a party opponent as long as the statement goes to the mental condition as opposed to evidence of the crime in and of itself.

[00:23:17]>> All right.

[00:23:19]Sorry, I guess I misread the motion when it says government is seeking to and I quote preclude defendant from mentioning to the jury nor eliciting statements of the defendant to any doctor.

[00:23:31]>> It doesn't say experts hired by the defendant. I would not foreclose your cross-examining their expert um because you are allowed to cross-examine their expert on the basis of uh what what whatever they're relying upon at that point.

[00:23:51]>> I understand that's the expert. Let's put the experts over here. I'm talking about the treating physicians. I'm talking about when when Patrick would take his wife in a condition that she was in as a vegetable practically and see these doctors and they would prescribe this medication. This motion says any doctor. Now I understand it's limited to retained experts. That's fine. I have no problem.

[00:24:13]>> And that just to be clear that is the first line of the actual language of the motion that refers to >> No, we're going to go to se we're going to go to neutral corners. we've kind of arrived at um the position that um this motion which I'm allowing deals with the retained experts. All right. Any other statements that were made by Miss Clancy to a doctor, if there's an argument that it's admissible under some other theory, um either side just has to come up and argue with me what their theory is. So th that would not those type of statements would not be covered under uh that motion. All right. So I'm going to allow it as written as to the retained experts.

[00:24:59]Okay.

[00:25:04]>> All right. Next motion is the Commonwealth's motion for a view.

[00:25:14]>> Yes, your honor. Uh the Commonwealth is requesting uh that we do a view specifically of 40 summer 47 Summer Street uh where the Clansies lived in Ducksbury, CVS at 189 Summer Street in Kingston, and 3B Restaurant in Cities Park, Plymouth. Um I believe the homeowner uh attorney Michael Fippen is represented by attorney Peter Magcguire, who I believe may be um on the Zoom. Not sure.

[00:25:41]>> Just so you know, your honor, we have no position.

[00:25:45]It said he just indicated that it would not let him unmute according to.

[00:26:11]All right, Jerry Maguire. Yep. Good afternoon, your honor. Attorney McGuire on behalf of the homeowner.

[00:26:16]>> All right. Good afternoon. Um, thank you for joining us. Um, and what is your client's position in regards to the uh KMO's motion for a view on uh this address?

[00:26:31]>> Thank you, honor. The the homeowner the current homeowner is opposed to the motion. The current homeowner did give the Commonwealth access to the property.

[00:26:39]They had unlimited time to photograph, measure, examine the property. Um, the homeowner has felt like he has gone sort of out of his way to be accommodating to this point in the hopes that it wouldn't involve uh folks sort of arriving at the home. It is would be massively disruptive to the homeowner. Your honor certainly well knows and I know from my prior employment that a view is an event. I don't want to call it a circus.

[00:27:02]It's not a fairware, but it's an event.

[00:27:04]A bus shows up. There's there's probably state police given the nature of this case. He has neighbors. He's in a neighborhood. He has a living domestic partner who works from home. They have pets. I'd also note, your honor, that, you know, given the complexity of the matter that all the parties face in this case, the exact date and time of that view are probably unsure and probably subject to change at this point. I don't know how long my client would have to have his home available to to the court.

[00:27:28]So for those reasons and given his cooperation and sort of leading up to today's date where he has been very accommodating I think to the government he would ask the court not to further disrupt his life and further allow this disruption. I don't have any opinion as to the merits as to whether the government needs or does not need a view here. But we do feel like he has accommodated in every way a full videotaping of the of the premises a measuring of the premises photographing of the premises. So I I I don't think he feels the need for further examination of the property. Your honor, he'd ask the court to deny the motion to compel him to to allow the examination.

[00:28:04]>> Well, what the homeowner feels the need for the view or not. It's really the court's decision um to to measure balance.

[00:28:14]>> Yeah. Well, that's what I'm saying to balance out uh the interest of this this case. uh also considering uh under comm versus Mattis and other cases uh the the homeowner's privacy interest and the logistical concerns of the homeowner um which I'm certainly willing to do. Um but yeah, Comm.

[00:28:35]>> Thank you, honor. Uh we did go in with the homeowner's permission to take photographs, to take measurements.

[00:28:40]However, seeing something in person, seeing how things relate to each other, how long it takes to get from the basement where these children were executed one by one up to the bedroom uh where the defendant went after doing so.

[00:28:51]Um seeing the height um from the window that she dropped down to, seeing um how low that window is from the perspective from the ground is something that the juryy's entitled to see in person. And I find it very disingenuous of the homeowner who's an attorney. And not only is he an attorney, he was a prosecutor in our office. So he knows how we handle cases, he knows how we do trials. And now he's a defense attorney in this county who works with our office. So he knows how things work. And he bought this house after the horrific murder of three children occurred in that house knowing that there would be a view someday. So I find it very disingenuous that at this point he's concerned about his privacy. So I would ask that the motion be allowed.

[00:29:37]>> Well, I'm not going to make any comments in regards to that. What I'm going to do is just uh look at this under the case law which requires me to balance out uh the interests of uh the parties in this trial uh as well as the public uh as it opposed to the privacy interests uh and like I said the logist leg logistical concerns of the homeowner. Uh council uh has made a good argument for him. Uh but what I'm going to do is I'm going to allow the motion for review. Um I'll issue an order um that will uh address some of the logistical concerns as stated by council uh to uh give as much notice as we can uh to limit the number of people that are in there. uh and um in a lot of other cases that we've done and council you I'm sure you're aware of it uh they're almost invariably into private homes and private establishments and we've issued orders and I'll issue an order uh in regards to that. So, I'm going to allow the Comos motion for review.

[00:30:50]>> And just so the court knows and the homeowner knows, we've made arrangements with the state police and the local police to have officers there to block off the street um so that there aren't anyone any other people there other than court personnel and the jury.

[00:31:02]>> Okay. All right. So, I'll I'll I'll issue an order and counsel if if uh when your client gets it uh if he wants to contact and speak to uh the court um and has any suggestions, I'll listen to him.

[00:31:18]But that this view is happening. So, [clears throat] just so it's clear. All right.

[00:31:22]>> Thank you.

[00:31:23]>> Okay. Thank you.

[00:31:29]>> All right. So, that was pleading number 98.

[00:31:33]Uh pleading 99 is Commonwealth's motion eliminate to allow introduction of photographs of the victims while alive. Um >> thank your honor. Um the come up is looking to admit a single photo of each child as well as one photo of the three of them together. And the reason we're looking to admit the photo of the three of them together is because when you look at the photos individually, um it can it can tend to give a skewed representation of the actual size of the children. Um so when you have the photo of the three of them together, it kind of indicates the the actual size of each child in relation to each other. I have the photos that I want to use at trial.

[00:32:21]I've showed them to defense council. I can um hand them to the clerk so they can >> Mr. Rick, have you seen these photographs?

[00:32:27]>> I have. Your honor, thank you. And I we have no we have no objection to that motion.

[00:32:30]>> All right. So I'm going to um All right. So I'm going to allow that motion.

[00:32:48]>> All right.

[00:32:49]Next motion is motion eliminate to admit autopsy photographs of the victims and crime scene. uh photographs. Um you probably could. Is there any objection to to that? Uh Mr. Readington, >> this is again one of those odd situations where you have a motion in lemonade before a trial where in the trial traditionally the government shows council photographs they want to use.

[00:33:18]I'm well aware under the old bas argument and all of that, >> they're going to get these in. Yeah.

[00:33:23]>> At some point, subject to the court's discretion. You can crop, you can review, you can limit, but that usually takes place during the trial. I don't know at this point in a vacuum if it's something we can decide now, but I certainly honestly Preston, your judgment is to I mean, you've tried enough horrible cases [clears throat] in your career. You you understand that the impact of gruesome photographs and so I defer to the court's discretion and experience.

[00:33:49]Again, your honor, this is uh just a situation where the coma likes to be prepared and likes to flag issues for the court and for defense counsel. Um we will share the photos from the autopsy of each child that we would like to use with defense council and I'm sure he'll let us know if he objects to any of those um and we can address it at trial, but it's more to flag the issues for the court um so that none of us are surprised during the trial and issues don't come up during the trial to delay the proceedings.

[00:34:15]>> No, I appreciate that. And I think uh so when we get to that point uh close to when you're going to introduce the um the the autopsy photos and crime scene um me just show council maybe we could have a sidebar um and kind of go through them. I I would anticipate um well as as the three of you know some of them are coming in. Um it's just which ones and and limit numbers and things like that.

[00:34:42]So uh we can address that. So I'm going to allow that. um at this point um subject to the specific uh photographs.

[00:34:53]All right. Next is the Commonwealth's motion which is number 101.

[00:35:04]Commonwealth's motion to use a 3D model of 47 Summer Street during the trial.

[00:35:10]>> Yes, your honor. Um we would like to use this model as a chalk. Uh part of the reason we went into the homeowner's home to do the measurements was so that our uh chief digital evidence officer could uh create this digital model. It'll be of the full exterior of the home and then each floor level inside the home.

[00:35:28]And I think that it would be um a much better way for witnesses to identify where they were when they saw certain things or where they were when certain things happened and give the um the jurors a better perspective and a view.

[00:35:40]And I think that will correlate really well when they go on the physical view.

[00:35:44]Um, it's almost complete. When it is complete, I can provide a copy to the court as well as the defense council, but I think it would be a really helpful chalk in the juror's understanding of what happened in the house that night.

[00:35:56]>> Is it a model or is it a just on the screen?

[00:35:58]>> It's on the screen.

[00:35:59]>> Oh, okay. All right.

[00:36:00]>> It's not a physical model. All right.

[00:36:01]It's a digital.

[00:36:02]>> Mr. Kind of hard to kind of hard to um agree or disagree with this because it's not done right. Um, I would just indicate, your honor, that I've had cases where um 3D models such as this as proposed have been used uh by the prosecution as well as in one case I had one done. But um I have generally no objection to the use of the 3D model. I think what we have to do is just take a look at it and see exactly where they want to put what and based on whose testimony, which won't be until the trial. But I have no objection to the I'm going to I'm going to allow that subject to actually seeing it and seeing as the the foundation comes through. Um but like I said, so at this point I'm going to allow that >> and that's to come in basically as a chalk.

[00:36:51]>> Yes.

[00:36:52]>> All right. Now number 102 pleading number 102 is the comm motion to use a physical demonstration during the testimony of Sher Crook which seems to kind of dovetail into the defendant's motion in lemonade regarding the testimony of uh Kerry Cook. So want to hear first from the Commonwealth and then I'll I'll hear from the defendant.

[00:37:20]>> Thank you honor. Uh so Sheri Krook is uh works at the Massachusetts Sher. I'm sorry. Yeah, >> that's okay. And uh she did um some blood pattern analysis in this case. Uh she looked at photos um from the crime scene and um based on her training experience. I anticipate her testimony would be um describing the type of pattern. We will not be asking her to describe based on what she saw what happened in the home that night. Um, I think that's what defense may be concerned with in their motion. Um, it would be more of these are the types of patterns that blood leaves um on a surface depending on how it gets there, whether it's splattered or or transferred or or it drips. Um, so she would be explaining what each of those things are. And then she would be uh testifying about uh what she saw in the photographs and whether the uh the blood she saw in the photographs, whether it was a smear, a splatter, or a drop. Uh what I'm asking for in my motion is to do a demonstration. Uh some jurors will be visual learners and some will be auditory learners. I think the auditory learners can hear the testimony and understand what's being said. I think for the visual learners, a demonstration which is allowed um in under the case law and under the rules would be helpful to th that type of learner. And what I would like to do is have a surface, be it a poster board or something like that, where we um spray a substance, we drip a substance, and we smear a substance. And it won't be the color of blood. U but something like similar consistency. And the the expert wouldn't be saying, "Well, that's the type of smear that was here." It would just be a a chalk basically a demonstration so that the jurors can have a better understanding um of her testimony of what a what a splatter is, what a drip is, what what a smear is. Uh so it's just to better help them understand the testimony. I would do that at the beginning. I would remove the chalk and then I would get into the crime scene photos and the testimony about that. So that would be the comm's preferred method of her testimony.

[00:39:23]>> All right, Mr. Reington. Uh abs absolutely objectionable, inadmissible.

[00:39:29]There are cases I did file a motion. I did site the cases. Um this has been excluded repeatedly. This is referred to as voodoo forensics. Uh it is total speculation.

[00:39:44]I could go on and on. It's junk science, blood spatter testimony and testimony governments all over our country have tried over the years as you all know to introduce testimony of chemists to say or state police crime lab person to say I believe this is a pattern that matches what is on the floor. It matches what's on the bed. It matches what's on the steering wheel. They're entitled to take a look at a photograph of the actual smear, drop, spatter, whatever it may be, and of opine in their experience as to what this the cause of that source of that and their opinion as to how that was deposited on that particular surface. They're not allowed to give speculative testimony as to how they think that it was deposited, taking poster boards and smearing paint or whatever it is that we're going to try to do according to this motion in front of a jury where this is a courtroom demonstration. So you have number one, the issue of the courtroom demonstration concerns. Number two, and more importantly, call it what you want, it's blood spatter testimony. And that's expert testimony. Even if you know in what do they call it the the country of Nania somebody wants to admit that as evidence you have to have a voadia you have to have Sher Cru come in and testify so that she's subject to cross-examination and your observation as the gatekeeper under do under the case law that allows that type of testimony. So I think this motion is a little too soon and I think it has to be after a voad >> if I may your honor.

[00:41:34]>> Yes please.

[00:41:35]>> This field is not junk science and I looked at the two studies that were cited by defense council. Um and the first one um was absolutely refuted when defense council made the same argument in Commonwealth versus Vasquez 462 Mass 827 in 2012 where the court said that uh a hearing as to the scientific reliability of expert evidence is generally not required where we have previously admitted expert testimony of the same type where the testimony is offered for the same purpose and this type of testimony this blood spatter um analysis according to the court had been accepted generally in the courts of the Commonwealth. Um the earliest case I could find was from the 1980s, but it goes back even further. Um and even the studies that he cites um say that blood pattern pattern analysis has been around for 150 years and accepted uh by the courts. And in that Vasquez case, um, the court found that the report defense council cites does not say that it's not reliable. In fact, it says it the in the case it says the report does not conclude that blood spatter analysis is unreliable. The report notes that understanding how a particular blood stain pattern occurred can be critical physical evidence because it may help investigators understand the events of the crime. And then if you look at the more recent case study that defense cites the um 2021 study in that study itself it says these results should not be taken to be a precise measure of the operational error rates. And it says these results do not account for operational quality assurance measures such as technical review or verification. And it does not account for um the fact that in this study um there was a small number of 76 participants from different countries who use different terms to identify what they were looking at which could result in some of the inconsistencies. Um so this has been around for 150 years. It's been approved by the court um and um it's it's a reliable scientific um method and it should be admissible without a doubt by landing. Well, here's here's I think we do need a VOD here, Ryan. Um, for a number of reasons.

[00:43:51]Number one, um, I don't really know what this witness's training and experience is in regards to this this science. Uh, secondly, in regards to the um the courtroom demonstration, I don't know. Oh, I when I hear what's going to be substance like blood, I think it's hard for me making a decision without knowing or seeing the actual uh substance, without seeing exactly what is going to be done.

[00:44:23]Um, so I I'm going to not I'm not going to take any action on that. Um, if the Commonwealth uh wants to uh introduce that, they'll just have to have a voadier at some point of uh both the witness as well as the the actual demonstration to kind of see. I can't you talk about visual learners. I can't picture uh exactly how it would work and and before I would put that in front of a jury, I'd want to at least know exactly how it's going to be done and how the juryy's going to view it.

[00:44:53]>> Is that something we could do on July 13th? Um I don't I don't see why not. Attorney Rington, do you think you're Hi, >> I'll check with the to make sure >> that'd be great. So I'll take no action on that with the assumption that we may take that up on the 13th.

[00:45:10]>> All right. And I think the last of the motions eliminate um is the commos motion eliminate to admit the 911 call made by uh Patrick Clancy. Um >> she had a Kraton motion that I had no objection to.

[00:45:27]>> Oh, I saw. Okay. Yeah, I'll get to that.

[00:45:31]Yeah, I saw that with the with the number of uh individuals. So, I'll allow that as well. All right. And then in regards to this which is pleading number 103 uh the motion regarding the 911 call.

[00:45:46]>> Thank you honor. So uh the first issue about confrontation won't be an issue because uh Mr. Clansancy will be testifying at trial. As to um you whether this is an excited utterance as I lay out in my motion. Mr. Clansancy calls 911 when he finds the defendant in the backyard on the ground. Um he you can hear him relaying information uh to the 911 operators. Um they're asking about her injuries. She he's saying that she has cuts on her wrist and neck.

[00:46:15]They're telling him to apply pressure.

[00:46:17]He's telling them they're not bleeding.

[00:46:19]I don't need to do that. Um so it's about her treatment. It's about her condition. It's it's the ongoing emergency.

[00:46:28]>> I I could I can cut to the chase on this if I can. I apologize. I want to interrupt you presentation. I I'm very familiar with the law as well as the the facts in this case and um this 911 call which I would as lawyers always do object for the record as we say but I'm going to concede that the case law is overwhelming that if the person is making a statement under the stress of an emotional event which this is obviously the person making a statement on a phone to 911 which I routinely ly admitted in trials. I'd be wasting the court's time if I was to object and have a hearing. And so I don't have an objection to that. I have an objection to it being admitted just because it's horrific, but legally uh I have to concede that there's no basis to object.

[00:47:20]So I would have no objection. All right.

[00:47:22]So my my inclination is and I apologize.

[00:47:26]I I had the motion. I didn't realize that I had the um the copy of the 911. I haven't heard it. Um, and so, um, in regards to if it's admissible based upon >> prejudice against the probative value, that's what I'm going to have to listen.

[00:47:43]>> You can play it now. I don't have a problem.

[00:47:45]>> I'm not going to play it now.

[00:47:46]>> I mean, at some point, if it's coming in, it's going to be coming in in this courtroom. So, I don't have a problem.

[00:47:50]>> Well, that's for another day. uh especially where I I've got to listen to it uh to see if if all of it's admissible, some of it's admissible or, you know, portions of it just like like any type of evidence. But my inclination is from having read it and being aware of it um is that I'm inclined to allow all of it in, but I just before it goes in front of a jury, I just kind of want to make sure that I've kind of vetted it. Um, >> your honor, if you were to decide that some portion wouldn't be admissible, would we be able to argue about that?

[00:48:23]>> Yeah. Oh, absolutely. Yeah. Yeah. No.

[00:48:26]So, it's it's just so I guess this is the initial whether it's it's either all in if I find that if I find that I think that some of it has to or should be excluded or redacted, um, I'd allow both parties to kind of argue on that.

[00:48:42]>> And and I know defense has said he's not objecting to it coming in. Um but if the co if the court when listening to it has any question about any certain portion of why it's relevant we've laid it out in >> I saw y okay all right um are those the those are the motions eliminate that I have um comm >> nothing at this point something may arise between now and the final final pre-trial um but nothing at this point all right Mr. Mr. Reington, any other motions in Lim at this time?

[00:49:17]>> No.

[00:49:17]>> Yeah. I I mean, like I said, I I understand in the final prep, it's always things come up. So, if there's an additional motion to eliminate or the parties see something that they have to they want we to want us to address on the 13th, just file it as soon as we can. That way, I get that.

[00:49:37]Um Oh, yeah.

[00:49:42]All right. And then um the parties going to file a a joint uh trial memo.

[00:49:52]>> I did provide one to defense council.

[00:49:54]I'm just waiting for him to fill out his portion.

[00:49:56]>> And and we've kind of addressed probably 99% of the the what's in there. The only reason I'm kind of looking for it at this point is um the agreed statement of facts agreed to the jury. Um I I really want uh both parties to kind of work on that and and get that in regards to that. Um outside of jury selection, um do the parties have an estimate as to the length of the trial? And I know it's a diff this is a difficult one to um to estimate, but >> your honor, um what we've been telling witnesses um when they ask the same question is anywhere from four to eight weeks. Um, my last trial was a little over three weeks and it didn't involve many of the issues that we have here or the number of potential witnesses that we have here. Um, there's also some scheduling issues that may impact how long we go each day, how many breaks we take each day. Um, so um the hope is closer to four weeks, but we've been telling people anywhere from four to eight weeks.

[00:50:59]>> Okay. Attorney Breington estimate.

[00:51:03]>> I mean, I think eight weeks is estimating from the outside, but I think it's more like four or five. Yeah.

[00:51:08]>> Okay. You you go to 401.

[00:51:11]>> Well, my thought would be to hopefully go till sometime in the afternoon. I know that we may have to end early in certain days um for for a number of reasons. It may be difficult to do a whole day. Um, but we've got most of the day for most of these trials days kind of cleared out. Um, I think we're just going to have to see how the the case unfolds. Um, in regards to that, but the hope would, you know, we could go past one:00 if if everybody could do that.

[00:51:45]>> All right.

[00:51:45]>> And I think in terms of telling jurors how long the case would be, I think four to six weeks would be reasonable.

[00:51:52]>> Yeah. All right.

[00:51:55]And then in regards to um I know I've seen some uh exchange all the expert reports been exchanged >> doctors that I expect I'll be sending to them tomorrow. Um I may have one more report I mean which I will as soon as I get it be sending to them. Um it's kind of a work in progress obviously but >> and I have received I think all of their reports at this point.

[00:52:20]>> Yes. Um the three uh experts for the Commonwealth have submitted their reports. Um they may be submitting amended reports to the court um just with some corrections or clarifications but not changing the general content.

[00:52:36]>> All right. The parties agreed to an exchange of the uh reports.

[00:52:41]>> Yes, everything's been exchanged.

[00:52:42]>> Okay.

[00:52:43]>> All right. I have to ask that. I figured that but I had to ask that. Um all right. Any other issues did um from the pre-trial uh issues that we should address right now come up?

[00:52:58]>> Nothing other than logistical issues and one issue that we would like to address at sidebar.

[00:53:02]>> All right. Uh Mr. Bington, anything other than we can I can see everybody's sidebar?

[00:53:07]>> No, I I obviously have to put together uh the rest of uh my witness list and and provide that to the government. But as your honor and government knows, I've been I've just had two backto-back trials. I Haven't had a chance to put pen to paper, but I will get that done next week.

[00:53:22]>> All right.

[00:53:22]>> All right. Council, can I see it?

[00:53:24]Sidebar.

[01:01:42]Heat. Heat.

[01:02:38]Heat.

[01:02:50]Heat.

[01:04:01]for the record. This matter is continued to July 13th, 2026 at 2 p.m. for a further pre-trial conference, final pre-trial conference.

[01:04:10]>> All right. So, we'll be in recess on this matter. Uh, council, thank you, Miss Clint. Thank you. Thank you, everyone.

[01:04:29]They'll clear it up, please.