You’ve Got Mail

Barb (00:12)
Welcome back to Hashtag Sisters in Law with Jill Wine-Banks and me, Barb McQuade. Joyce and Kim are away, but they’ll be back soon and we missed them already. Today’s show we’ll be talking about Trump’s postal plot against America, the slippery charges against an ICE agent, and the trial of Lindsay Clancy. But first, Jill, I have to ask you about your reflections of the great glorious Steinem, who passed away this week, I think at the age of 92.

I certainly know her from reading about her, but I was a little young at the time when she was at the peak of her activism, and I know that was a time that was important in your life. What are your thoughts on the passing of Gloria Steinem?

Jill (00:56)
Well, for me it’s a loss not just for me, for all women, for the country. She really was a dynamo. I knew her first from the invention of Ms. Magazine and from the creation of conversation circles or you know, women talking to each other. I’m have so many things to say about her, but I’m wearing two pins

Th I’ll start with these. She was on Team Hillary. She campaigned for Hillary. But these others are the fifty-nine cents, that’s what women were getting on the dollar. Men got a dollar, women got fifty-nine cents when she first started. ERA, she was a big supporter of. The feminist, she was the original feminist. One of her last wishes was that Donald Trump be gone. And so I’m wearing have on here an impeach. I think it says

Get rid of his sexism, trust women, impeach Trump. But I’m also wearing an ERA because that was really special to me, to the women’s movement. And I’m wearing a Playboy bunny because one of her first things, I don’t know, you probably don’t remember this, but she started

Barb (02:10)
I’ve about it. I’ve read her essay.

Jill (02:12)
Yeah. Okay, so you read that. Doing undercover work as a Playboy bunny. So I just thought it captured some of her spirit and her work and that.

She will truly be missed. I’m going to be talking to Michelle Goodwin on just the facts because Michelle, of course, wrote for Ms. Magazine and knew her very well. And I wanted to get her personal reflections on the person who was Gloria. I’ve been watching lots of videos, and she really was an amazing, amazing woman.

Barb (02:40)
Yeah, plus she was super cool the way she rocked those aviator glasses. as a child in the seventies, the styles of, you know, the older girls and the young women with the hair parted down the middle and the aviator shades and the hip hugger blue jeans, super cool. But you know, one of the things I’ve been reading about her that was less known to me, I knew about, you know, Ms. Magazine, I knew about her outspokenness on her personal experience about an abortion, I knew about her being a you know leading feminist of the era.

But these conversation circles that you mentioned. And they really resonated with me because I’ve been reading a lot. And as you know, I’ve I’ve done research from for my book, my book, The Fix, now available wherever books are sold, little shameless plug. but one of the things that is important in taking back democracy, I think, are are what she called conversation circles. Yes. Which might by today’s standard sound sort of kumbaya, but it it was it was these kinds of small gatherings that really helped

defeat Viktor Orban in Hungary. the you know Peter Magyar was his opponent who ultimately defeated him. And of course Viktor Orban was somebody who was a very Trump-like figure who took power and transformed Hungary into what he bragged was an illiberal democracy. But one of the concerns that Peter Magyar had is nobody talks to each other anymore. We’re all just sitting in our houses and we’ve become selfish and greedy and we are convinced everybody’s awful. But of course in the real world people are lovely.

And so what he campaigned on is just join, just get together, collective action. And I don’t care what you talk about. You can talk about knitting, you can talk about needlepointing, you can talk about politics, you can talk about being a good neighbor, whatever it is. Just get together and join. And these small groups built up these powerful coalitions of people who trusted each other. And so when the time to camp came to campaign, these were the people who were knocking on doors and politically active. And so I think one of the tactics of

these authoritarian regimes is to just divide us, to conquer us, to isolate us, to alienate us. And I think one of the lessons that Gloria Steinem taught us is the power we can get in each other when we’re together. And she said it’s gotta be in person. You need to use all five senses, right? You’re listening, you’re feeling, you’re crying, you’re talking, you’re seeing, all of those things, you’re feeling is so important for that human connection. So that that’ll be a a lasting lesson I take from Gloria Stynum. And maybe, you know, her death can inspire a new generation

of of activism and feminism.

Jill (05:16)
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Barb (05:47)
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Jill (08:06)
Neither snow nor sleet nor rain will stay these couriers, or so the saying goes, but Donald Trump may stop them. He sure is trying, not just once, but twice. Will he succeed? Barb, there’s new developments in Trump’s attempt to interfere with mail ballads. He’s trying to do what I consider to be insert the federal government in something that is completely a state run.

Opportunity by interfering with the mail voting. And I think really he just wants to create chaos and undermine trust in the elections. So I think he has no constitutional authority, but the states have it. So let’s talk about that. there have been some lawsuits filed, one by Blue State’s attorneys general, 23 of them plus the District of Columbia, and Judge Talwani has ruled.

consistently that they can’t do it, that they can implement Donald Trump’s executive order. But I think in order for us to understand that, we have to look at first the history of this, quickly recap, if you would, Trump’s executive order and the first and second challenges to it.

Barb (09:25)
Yeah, I’d be happy to do my best to to recap that. and and I do wanna highlight here some of the great people who are doing legal work right now. You know, many of the largest law firms have been sidelined by those executive orders and their appeasement to Trump by negotiating these pro bono legal services, which I think was part of goal. But instead what we’ve got is state AGs and also groups like the League of Women Voters who are taking on these rules because they’re violating the law. So just to recap,

President Trump issued an executive order in March that said, you know, there’s all this voter fraud, no evidence for it, of course. Non-U.S. citizens are voting and they’re using voting by mail as a way to commit this fraud. So he ordered the U.S. Postal Service to look into this and develop a rule to prevent this from happening. And we had this legal challenge in August, and Judge Tilwani said, just as you said, Jill, there is no role for the executive branch.

in our elections. One of the geniuses of our system, frankly, is that they are so decentralized. It actually makes it more difficult in today’s world of hacking and cyber intrusion for anybody to take out an election because they’re so dispersed. It’s it’s actually 50 elections of all 50 states. and in fact, even here in Michigan, it’s like 1200 elections because it’s so decentralized. It’s down at the local level where local clerks are administering these elections.

The Constitution says that the time, place, and importantly manner for holding elections belongs to the states. But Congress may from time to time legislate in this space. So and they have. They have passed things like the Voting Rights Act of nineteen sixty-five to make sure that there’s no discrimination based on race in voting. That of course has been gutted somewhat by this court, or the motor voter bill to make it easier for people to register to vote. States had to accept voter registration.

At the same time, people were renewing their driver’s license. So those are some of the ways that Congress has enacted legislation to make it easier to vote. but what but it what it doesn’t say is that the executive has any role to play in voting whatsoever. So these groups brought lawsuits and said, this executive order is illegal, the postal service is about to announce its rule, and this would be unconstitutional. The lower court agreed, Judge Talwani in Massachusetts, and said, yes, I’m blocking this order.

the Trump administration ran to the US Supreme Court and said, This question is not yet rape. That is, the Postal Service has not yet delivered its order. Therefore, there is no case or controversy over which a court could decide this issue. And the court actually agreed. Now it’s funny if you I don’t know about the timing, but it looks like it was on a Friday that the court issued its opinion the same day the Postal Service issued its order. But whatever it is, the memo obviously didn’t reach the court because they said

not yet ripe because there is no rule and so there’s been no harm that has happened yet. Well, you know, that same day the order gets issued. So the parties go back to court and they say, okay, if we were too early before, here we go. Let’s let’s address this now. And three days later the court comes back and says, okay, now I’m finding that there is a rule that says that they are going to carry out this this plan.

And that it is now ripe and now it’s unconstitutional. There, good enough for ya. And then the Trump administration runs back to the Supreme Court, they file a motion, and now you know what their their argument is, dear listener, their argument now? It’s too late. Because state I think it’s North Carolina and one other state, Alabama maybe, start mailing out their ballots today. to we’re recording on Friday, September 4th. And so

Like too late, horses left the barn. We can’t do anything about this. It’s too late to file this lawsuit. So a week ago it was too early. Three days later it was too late. which is it? So that’s the the status of where we are, and now we’re waiting for the Supreme Court to rule. They’re expected to rule not before September eighth, which will be next Tuesday.

Jill (13:36)
You know, on this timing issue, I it’s so interesting because Judge Talwani, in her second opinion, kind of is very kind in saying something to the effect of apparently the rule didn’t reach the Supreme Court for the Yeah, they just doubt you, Supreme Court, that it is now done. And and and another thing the rule required was certain envelopes with barcodes and that there had to be a state list.

given to the federal government and a federal list given to the post office. And if the two lists didn’t match, you couldn’t send a a you couldn’t send that voter a mail ballot. And there was also and we’ll talk about this because there’s of course a new development which is there’s been a whistleblower who revealed that it would be impossible to implement the rule

before the November midterms. It just couldn’t be done. And that the rule and the developed plan had such bad technology that it could really kill voting by mail. I even in states where voting by mail is the only way to vote, like Oregon. So Barb, you want to talk about that and what what’s going on with the whistleblower?

Barb (14:57)
Yes. So Senator Blumenthal revealed that he had received this letter from a whistleblower from someone inside the Postal Service who says, This is absolute chaos. He actually used the word this is a family show, so I’ll spell it. S H I T show. It is they are rushing with urgency to try to implement this rule that just got announced last Friday. You know, talk about being a little too late in the game. We know that the ballots are going out in at least two states today, and they

Articulate this rule a week earlier. And so now it’s just like chaos, mad dash, scramble to try to get this ready. And as you said, it essentially does two things. One is there is a portal through which every state is supposed to send its list of qualified voters. And if that list does not match the list that the Department of Homeland Security provides, then that person doesn’t get a ballot. Keep in mind, who knows when this DHS list was created.

Has someone become a citizen in the window between that time such that they are now eligible to vote? They may not be on the DH list. Has someone gotten married and changed their name? They may not be on the DH list. So it threatens to suppress the votes of many people. There is also the concern that as as you said, the second requirement is that the ballots match the prescribed rules of the the postal rule, which says,

There has to be a barcode on both the outgoing and incoming envelope. Not every state does that. And so they’re ready to go. What have they got to reprint all of these envelopes? There may not even be sufficient paper stock available for them to reprint these envelopes, devise the barcode and do this. And so the whistleblower has said, like, this just can’t possibly happen. And if it does go, if we do try to do this, there’s going to be chaos. And if a ballot gets rejected,

It won’t reject just that ballot. It may reject every ballot in the batch, which could be up to 10,000 ballots. So if your ballot just happened to be in the same batch with somebody whose name wasn’t on the list and didn’t get matched up, that means yours and 9,998 of your closest friends will also have their votes not counted. So it’s a way to disenfranchise potentially tens of thousands of voters. And so I think this whistleblower’s

concerns are are being taken seriously. Yeah.

Jill (17:18)
I mean this is one of those cases where one, there is no known fraud that affects the election. So this is a solution to a non existent problem. It is unconstitutional because the federal government has the the executive branch has no role in elections. And it leaves me with the conclusion that the executive order was intended to create chaos and to disenfranchise voters. That’s what

Barb (17:45)
Let’s play that out for a second. So if you’re a conscientious voter and you’ve been reading about this, that this is just a mess, this voting by mail, and there’s some risk that my ballot, my mail-in ballot, won’t get there. What are you incentivized to do? Go to the polls personally, right? And vote in person. but what if you don’t make it to the polls on election day? What if your kids are sick, your elderly parent needs your help, your, you know, the people most likely to

end up not voting are people who are not among the most wealthy, people who live in poorer communities, people who carry two jobs or care for others, likely Democratic voters. So just the chaos alone can have a suppressing effect on people who choose not to opt into mail imbalance.

Jill (18:34)
One last question comes from one of our listeners, and it’s from who says Trump V United States held that presidential immunity from criminal prosecution extends to all official acts, affirming that a president enjoys absolute immunity for official acts within his constitutional authority. Given that the president has no constitutional authority over elections, could Trump be prosecuted for election interference once he’s out of office? What do you think, Barb?

Barb (19:04)
I think this is a fascinating question. You know, one of the things that we have not yet seen is a full fleshing out of what the Supreme Court meant in that opinion. And you’ll recall that Jack Smith later superseded his indictment to strip out things that were clearly within his duties, you know, giving directives to the Department of Justice, for example, but left intact some of the things that they alleged he did in his capacity as a candidate and not as the president, you know, like calling

the Secretary of State of Georgia, Brad Raffensberger, and asking him to find him eleven thousand seven hundred and eighty votes and those kinds of things. So I think the contours of immunity are not yet known. And I think this is something that would be litigated. I think you could make a strong argument that if this is an area where he has no constitutional authority, then there’s no ability to say that this was within his constitutional duties and that this is, you know, election interference. You’d have to find a statute that it matches. But

You know, how about simply interfering with civil rights? The same charge that Jack Smith used in the the indictment that he charged for election interference against Donald Trump. Very interesting issue. What do you think, Jill? You think this would hold up?

Jill (20:13)
I think I if I were the prosecutor, I’d be happy to bring that case. I think that first of all, I still believe that a president should not have immunity of any sort, but I certainly also think that a president should be subject to, even with immunity, to indictment for crimes that are not within his official duties and even while he’s the sitting president. And certainly

once he’s the ex president, once he’s a s private citizen again. And this I thought was fascinating, and I’m so glad that raised this question.

Barb (20:50)
Thanks,

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Barb (24:22)
Well, this week brought more intrigue involving the shooting of a civilian in Minnesota by an ICE agent. Jill, let’s first talk about what’s been happening at the state level. In the absence of federal charges until this week, the Hennepin County prosecutor, Mary Moriarty, had filed criminal charges against an ICE agent named Christian Castro. She charged Castro with assault for shooting through a door, which is certainly never preferred police practice.

And hitting a man in the leg. The victim was Julio Cesar Sosicelis. He’s a Venezuelan migrant who lacked legal status in the United States, but he was not the subject of Castro’s investigation. He was just his roommate. So later, Castro, who’s been charged, turns up in Texas, where Governor Greg Abbott refuses to honor an extradition warrant from Minnesota. So Moriarty sues Abbott.

So before we get to what’s happened with the federal charges, I want to hear your thoughts about Abbott’s obligations to return Castro to Minnesota and whether one state can sue another for failing to honor an extradition warrant. What do you think about that?

Jill (25:37)
I think that it’s pretty clear that a governor does not have the discretion to say, no, that under our constitution and our laws, that a legitimate indictment that’s shown to a governor from another state with evidence that the person indicted is in the jurisdiction of the other governor’s state, that they have to turn him over. That’s it, him or her.

and so what is happening here is Abbott has said, well, it says that he has to be a flight person. He has to be a fugitive. And he left the state of Minnesota on the orders of the the ice because he was actually stationed in Texas. And so when the the episodes in Minnesota, the horrible conduct

of the ICE agents in Minnesota were winding down, he was told to come back to. So he didn’t flee the state of Minnesota. So therefore he’s not he’s not really a fugitive, but that’s not what the law says. It just is clear that it isn’t, and that his delay led to Castro being released from jail because in Texas you can only be held for ninety days

on a request for extradition. And unless you’re turned over in that 90 days, you have to be let out of the incarceration. So he was let out, which was particularly troublesome because there was a flight risk. He was corresponding with his girlfriend who was in Mexico and saying he wanted to marry her and and be with her. And so there was a clear indication that he might leave the jurisdiction of the United States. Now

a as we are gonna get to, that didn’t happen, and that’s because there are new charges that have been brought. Although I do wanna point out that there are some very serious like murders, a actual deaths, and there were there was an endangerment of children because there were two children in the house where Castro was shooting into, and of course this innocent roommate as well, who is the one who ended up injured and in jail, and

There’s also not just the injury, but false charges were leveled by Castro against these two people, which is important to see. He said that they attacked him and he was firing in self defense. And video shows, that wasn’t so much the case. He said he was attacked with a broom and a shovel and for you know, that just it didn’t happen. So he’s also being charged by the DA, the county attorney with

false reporting of a crime.

Barb (28:33)
Yeah, well back to this extradition thing. So, you know, there’s a as you said, it’s in the Constitution. it is also a statute that says that every state has to honor warrants from other states, and that the only thing they really get to do is to have an identity hearing to make sure that the person they’re seeking really is this person, right? Is this, you know, the same Castro that you want before I send him back. Let’s have a hearing to make sure it’s the same guy.

Would you say i is this the same or is this different from what we’re seeing in the state of New York, where Governor Kathy Holkel has refused to turn over, I think to Louisiana, prisoners who have been charged, I guess they’re not even prisoners, doctors who have been charged with violating their, you know, anti-abortion laws in these states. There have been extradition requests

that doctors are prescribing Mifepristone in Louisiana and Louisiana prosecutors want to charge those doctors and Governor Hokel has refused to turn them o turn them over. Do you think that’s the same case or a different case?

Jill (29:39)
Of course, you won’t be surprised that I see them as very different from each other. I think that the assault and the false reporting of a crime in Minnesota, while in Minnesota, is very different in terms of asking that he be returned to the state of Minnesota where the crime was committed, especially because there were no federal prosecutions at the time and none looked likely to happen.

Just as was the case with the killings of Alex Prey and Good. So I think it’s a very different thing where it is legal in the state of New York to do what he did. It would not be legal in the state of New York to have assaulted someone or to have made a false report. So that seems to me to be a difference in that makes it it’s a difference with distinction.

Barb (30:35)
Yeah,

I I think you’re right. And in fact, I think in New York, not only is this not a crime, and that you know, for federal extradition, there’s this reciprocity requirement. I’m not gonna turn you over to Germany to stand trial for c something that wouldn’t be a crime here in the United States and vice versa. But I think in New York it goes even further, right? There was a statute passed by the legislature of New York to protect doctors who are prescribing Miphopristone out of state. And so

If Kathy Hokel were to turn over these doctors, she would be violating the law of her own state. So I imagine we will see that litigated. But I I I agree with you that I think critics who’ve raised that point are missing the fact that there’s a a contrary New York state law that Governor Hochel has to comply with. Well, you started to talk a little bit about what’s happened in the federal case. You know, initially I was pleased to see earlier this week the US Attorney’s Office in Minnesota actually filed charges against Castro for the false statements. And as you said, it was this

false claim that it was self-defense, that they went after him with a shovel and all this, turned out to to be not to to be debunked by video. and you know, even at it’s not as strong a charge as a civil rights violation, it struck me as maybe this is a start, could even lead to superseding charges with additional investigation. But then we learned some things from a Pop Pro Publica report about what was really going on here. that there was some disagreement between

the assistant US Attorney in Minnesota and the Department of Justice in Washington. Can you fill us in on some of that intrigue that was occurring there?

Jill (32:10)
Yeah.

The assistant US attorney who had been in touch with the victim’s family wanted to have some serious civil rights charges which would have carried at least a ten year penalty versus the false reporting, which is a maximum five year penalty. And he actually communicated with these victims’ family by saying

I did the best I could, but it wasn’t enough. This decision was made in Washington and by the US attorney, and there was nothing I could do. We’re gonna have to settle, they’re settling for these lesser charges. So I you know, again, I I’m glad that there’s something for two reasons. One is cause there should be more, but at least there’s something. And two is he has now turned himself in on these lesser federal charges.

And will be returned to Minnesota, at which point Mary Moriarty, the Conte attorney, can can arrest him on the state charges. So it’s it works out to be better than nothing, not as good as the civil rights charges would have been. But we have to be grateful in this administration for any semblance of justice.

Barb (33:35)
Yeah, and you know, there’s recent reporting that this assistant US attorney has been fired. Yes.

Jill (33:40)
yeah.

Barb (33:40)
And that, I think the Associated Press today is reporting that h the prosecutor, this assistant US attorney has been fired, is now under investigation for obstruction of justice. Yes. Because of what you just described, he shared with the victims that he was not permitted to go forward with this civil rights claim. Does that strike you as a well founded investigation or more as retaliation against this prosecutor for speaking?

Jill (34:04)
Barb, need you ask?

Barb (34:07)
Never

ask a question to which you do not know the answer, Jeff.

Jill (34:09)
Well, you do know the answer to this one. Of course, this is cockamami idea. first of all, I mean, just think about the words obstruction of justice. How did he obstruct justice by trying to bring greater charges and saying, well, at least there’s this? there’s no obstruction of justice here. This is complete retaliation. And all he did was tell victims who have a right under most laws.

To have information about their case. He was informing them that it wasn’t going to be what he had promised them. It was going to be this other thing that was lesser. And you know, should he have said it in a more gracious way of, well, be grateful for this? No, he didn’t. And he doesn’t have to. He was giving them facts. And that cannot be obstruction of justice. He did not stop them from doing anything. He wanted them to do more.

Barb (35:03)
Yeah, I you know, I think about, you know, consultation with victims, that we did all the time. And part of it is like preparing them for, you know, look, I know you I can think you know, they always want like this really high penalty. Look, I know you want the death penalty, but let me explain to you why we’re not going to seek it. Right. We would do that all the time. Or we’re not gonna bring bring charges in this case. And I wanna explain to you, you know, that decision is being made today and so simultaneous with that decision, I want you to hear it from me first, because we want to take care of you. You don’t

be to re-victimize you and I want to be able to answer your questions. You know, sometimes reasonable minds can disagree, but we think this is the best course in this case. I I’ve definitely had that conversation with victims and it’s under victims’ rights statutes appropriate to do that. So the idea that he’s being investigated for obstruction of justice strikes me as both retaliatory and designed to have a chilling effect on others who might express dissent from what, you know, the man says at DOJ.

Jill (35:58)
And I would predict the same outcome as has happened in other jurisdictions where these ridiculous charges are brought and the grand jury will not indict. So good that’s against you know, another failure that I can see coming.

Barb (36:13)
Yeah. Let me I want to zoom back to like 30,000 feet and just ask you a question. Why do you suppose this DOJ is so reluctant to file criminal charges against a federal agent who so clearly has violated the law? I mean, shooting through a door to hit somebody is so contrary to you know, police practices. It seems like they could score, you know, even some easy PR points by filing against charges against an officer where they are so richly merited.

and yet they refuse. Like what what drives that?

Jill (36:47)
I wish I could have a a brilliant answer for that, but it seems like over and over again this is what happens. That remember Christine Gnome defend when she was still in charge, defended Castro, saying that he had been attacked and that he did the right thing. And this is what they’re doing, is they’re trying to protect all the agents who are out of control, who have over and over again

In Chicago there were so many unbelievably bad behaviors by ICE in trying to make arrests and in breaking down doors and and you know, this this has happened with police and other local jurisdictions where they have shot through doors or through windows and endangered the neighbor’s apartment by how they were shooting, not just the people in the apartment that they were going after. So I think they just it’s a

You know, to them it must be, well, this is a slippery slope. If we do it here, then what are we gonna do the next time and the next time and the next time? Well, why don’t you stop the bad behavior? That’s what you should be doing. Bring the charges, send a message, don’t let this happen again.

Barb (37:59)
Yeah. I think the message they’re sending is we’re on the side of the police no matter what. And you know, i I’ve I’ve worked with police officers, federal agents, ICE agents, wonderful professionals. Yes. And what they say is, we don’t want you to reward the person who abuses the rights of citizens, because that taints the badge of all of us. It turns the public against us. We want you to hold these bad actors accountable. So they’re not doing anybody any favors. But I think it strikes me as more of a political game of we are the side of law and order.

Jill (38:29)
And there’s recent reporting that the good people are leaving the government because they don’t want to be tainted by these bad actors. the same thing is true in the US attorney’s offices where people who really are committed to doing justice feel they can no longer do it and are leaving, and they also don’t want to be associated with judges chastising their colleagues and maybe it reflects on them. So I think we have a serious problem in America right now.

Barb (39:09)
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Jill (41:40)
The Lindsay Clancy murder trial ended today. We’re recording this on Friday. And the answer was it was a hung jury. The defendant did not contest killing her children and then cutting her wrists and jumping from the second floor, leaving her paralyzed from the waist down and in a wheelchair. She claims she was in a state of postpartum psychosis, which is even more serious than postpartum.

oppression, both of which are apparently much more common than we like to talk about. The prosecution says, no, that wasn’t it. This was a cold-hearted planned murder. But for the jury, the only question was, was she suffering from a mental condition that means that she is not guilty because of it, or was she guilty of this planned murder? They didn’t have to debate whether she committed the crime.

they debated for seven days and in the end the four person of the jury came to the judge three different times to say that the jury was deadlocked because there was one juror who admitted he had reasonable doubt, but would not apply that to the verdict. And so that they were hopelessly deadlocked. the judge then questioned all the jurors to ask whether they were following the law. They all said, yes, I am. And

So without any further ado, he said, I can’t do anything else. And he ultimately said I have to declare a mistrial. The defense said, please hold off on doing that till we appeal. they appealed and the superior court said, No, we’re denying your appeal. So a mistrial was declared. And the case is now over. And although the case is over.

I think there are some very interesting legal questions that I want to talk to you about, Barb. and that is it’s not just of interest here. I got a call from the BBC. They’re interested in hearing more about this trial and the legal issues. And so I think it’s a chance for us to explore with our listeners and our viewers. So Barb, let’s start with what is a hung jury?

Barb (44:03)
Yeah, so one of the things that’s interesting is I think we all know that to convict a defendant, the jury’s decision must be unanimous. you know, typically in a felony, it’s twelve jurors, and all twelve must find the defendant guilty. there was an exception to that in a couple of states until recently the Supreme Court decided a few years ago in a case called Ramos that the decision must be unanimous. You can’t have eleven one or twelve to two. But

Also, it is the case that to acquit or find someone not guilty, you must be unanimous. So whether it’s 11 to 1 to convict or 11 to 1 to acquit, neither one of those things is sufficient. And so we call that a hung jury. They’re, I don’t know, they’re hung up on the issue and they can’t reach a decision. One of the things that’s interesting, I’ve seen this before, where juries come out and they send a note to the judge and they say, We’re hopelessly deadlocked. We can’t possibly

decide th this this trial, what should we do? And the judge will give what’s known as an Allen charge after a case called Allen, where the judge basically says, is you get back in there and do your job. we don’t have any reason to think some other jury would be any better at this than you would. You have sat here, you’ve heard all the evidence. Now get in there and start persuading each other and come back with a verdict. But if after several days, as we’ve seen here, where they continue to say we remain hopelessly deadlocked, at some point

The judge will say, All right, we we give up. If you can’t reach a unanimous conclusion, then we will declare a mistrial and you are free to go home.

Jill (45:42)
So that’s what happened here. He did declare the mistrial. And so what happens next? I although before we even get to that, I’m I don’t know what the answer to this is. So I’m gonna ask you because maybe you’ll know the answer, which is the defense asked that that juror be excused. Would that have led to an eleven person unanimous verdict? Or would that have meant a home jury anyway?

Barb (46:12)
Yeah, so under some circumstances, a judge can excuse a juror and allow eleven to deliberate, but it’s very rare. It’s usually because a juror got sick. So most of the time, as you know, a judge will select alternates in addition to the 12. So depending on the length of the trial, it might be one, it might be six, I’ve seen as many as, because it’s gonna go a long time. And if one of our jurors gets sick or, you know, has a family emergency or something and is unable to continue in their service.

You’ve got somebody who can jump in and they’ve been there in the courtroom listening. The problem here though is that they’ve already been deliberating for some time. And so when they deliberate, only the 12 final jurors participate in that. So it’s too late to have one of those alternates step in and pick up where they left off. So so sometimes you see that, you know, we just started deliberating and somebody got sick. We’re supposed to come back tomorrow and they’re not here. Should we go forward with with eleven? That’s possible, but that’s not what is happening here.

I’ve also seen it the case where a juror simply refuses to deliberate whatsoever. You know, they’re sitting in a corner and I don’t know, putting their hands over their ears and saying, nah nah nah, I won’t talk to you. That also could be a basis for removing a juror. But what it sounded like here is we just got one who disagrees. They said it was because this juror was failing to follow the judge’s instructions. You know, the judge had said, here’s what reasonable doubt is. But

If this juror simply disagrees with the interpretation of the other eleven, right? This is like what we saw in twelve angry men, one holdout juror trying to convince the others that they’re right and the others are wrong, the system allows for that.

Jill (47:51)
But does would in this case in Massachusetts, under their law, would the defendant have been subject to a verdict by eleven, either way, acquittal or conviction?

Barb (48:07)
If there had been this proper basis to remove, I think the answer is yes, you know, an illness or a complete refusal to deliberate. And that’s what the defendant asked for. You know, this is interesting. Most often the holdout juror is in favor of acquittal and it’s the other eleven who want to convict. In this case it was just the opposite, eleven who want to convict and one who want to acquit and one who wants to convict.

So we’ve got a slight you know, it’s it’s not really jury nullification, it’s kind of the anti-nullification and the opposite of it. Though I guess in a way it is nullification, right? I mean, if they are thinking that if this individual is refusing to comply with the order. But this is why we have juries and not just judges deciding cases. It is not a mechanical application of the law. Jurors also are supposed to serve as a buffer between the state and the defendant. And if they think that there is some injustice that is occurring or

in this instance, if they think that it would be unjust for this defendant to walk free, jurors have that right to be that loan holdout. And that’s what’s happening here.

Jill (49:10)
I did have a hung jury in one case where i and it wasn’t hung because of disagreement, but in the middle of deliberations, early in deliberations, one of the jurors’ mothers died and they hadn’t yet reached a verdict and so the jury was dismissed. and so that meant that I had to make a decision about whether to retry the defendant. What’s gonna happen here? Do you know? What are the consequences for Lindsay Clancy?

Barb (49:40)
Yeah. Well, as you said, I’ve had this happen too, where there’s a mistrial it for all kinds of kooky reasons. You know, the defendant the defense lawyer didn’t show up for closing arguments. I had that. I had a holdout juror, right? So you’ve got all kinds of things. And you have to make a decision afterwards about whether to proceed. And you’ve got to think about all these factors. What is in the best interests of justice? On the one hand, you have three young children who were killed.

you know, there are family members who are mourning that loss and feeling a great hole. There is a sense of justice, there’s a sense of deterrence, of public safety, of rehabilitation, all of these things that go into a prosecutor’s decision. On the other hand, there’s some very practical decisions. If these eleven people that I helped select and thought were, you know, reasonable members of the community, if eleven of found that she should be found not criminally responsible

by reason of insanity, then maybe I’m not going to convince the next 12 either. and so I’ve got to think about the costs and the resources that this expends. Are we better to do something else, which is to seek civil commitment? Because that’s an option as well. That would mean she would not go to prison and be convicted of a felony, but she would be found to need to be institutionalized if she is a danger to herself or others. So those are options that the prosecutor is going to have to

to decide. But you know, for today, this is a victory for the defense. They have won to fight another day, but they will learn their fate when the prosecutor decides what they want to do with this case.

Jill (51:16)
And in the meantime, she will remain in an institution until they make this decision. So let’s talk about though the the big issue in the case was her mental state and whether both as an element of the crime, what is the mental state that they would the prosecution has to prove to convict her of murder in the first or second degree and

what is the defense have to show to show that she was not guilty by reason of insanity. so

Barb (51:55)
I love these questions. These are first-year criminal law questions, which of course I’m teaching right now. So I feel like these are in my

Jill (52:00)
Okay, students listen up.

Barb (52:02)
Yeah. So she admits that she committed these murders. So in some ways she’s made the prosecution’s job easy for them, right? That that can sometimes be the hardest thing. Did you not only do the bad thing, but did you do so with the requisite mental intent? And she says, Yep, I did all those things. But what she has raised is

what they call under Massachusetts law lack of criminal responsibility. So we punish people when we believe that they have violated the norms of society. But there are a number of defenses we recognize. Some of them are called justifications. Yes, I did kill this person, but I did so in self-defense. That is a justification. you know they w they would have killed me if I hadn’t killed them first. They pulled the gun, I grabbed it away and I

I shot them instead. This was not premeditated. I had no reasonable alternative. this one is in the category of excuses. There are some people we excuse for their conduct because we say they cannot be morally culpable. They did not appreciate what they were doing was wrong. And so under Massachusetts law, you can be found to lack criminal responsibility if you are one of two things. Either you are unable to appreciate the wrongfulness of your conduct, or

you were unable to control your impulses to commit this conduct. it’s a really high bar. I think one of the things people sometimes have the misconception of, and this came up a lot at the time, you may remember Jill, when John Hinckley tried to assassinate President Reagan, there was a lot of concern like, I guess you just make up a lie that you were insane at the time and and now you’re fine and you get off for murder.

It’s actually a pretty high bar. I’ve seen the insanity defense raised exactly one time in twenty years as a prosecutor and it failed. Because you can’t just fake it. You have to have mental health professionals, you know, psychiatrists who have put you through a battery of tests, who have examined you, who’ve talked to you to reach this conclusion. It’s ultimately the conclusion is for the jury to decide, but these psychiatrists will explain what they believe was the particular psychosis or you know.

situation of the person and then leave it to the jury to decide whether they’ve met this legal definition. So it’s pretty hard to fake. it is also this the case most often that it is the defense that has to raise this issue. Yes. they call that the burden of production, but that ultimately it’s the prosecution that has to prove beyond a reasonable doubt that they are not insane at the time for the purposes of this crime. So

You know, the facts here that she slit her wrists, she jumped out of a second story window, she ended up paralyzed. I think those are some facts that do help her case. I also though think this, Jillian, tell me what you think about this. In many ways, our criminal justice system is sexist in favor of men. But I think when it comes to women on trial for killing their children, the system is sexist in favor of women. I think that jurors cannot get their head around the idea that a mother

Could ever kill her children unless she was insane. And you see it again and again. Whenever women are charged with killing their children, they raise these insanity defenses, they almost always win. And it makes me wonder, like I think because either people who are mothers, who’ve had a mother, all of us, just can’t imagine that a mother could possibly do this. I don’t know what you think about all that.

Jill (55:30)
I I agree with you and it’s really interesting because today’s news in the Chicago Tribune says that a Illinois mother just killed her children and that it was they are claiming the the police that it was part of a domestic dispute not part of you know, postpartum depression or psychosis. but you you said something that raises one other question, which is

If you were insane at the time of the act, but you are now saying, I’m cured, I’ve been through treatment and I’m okay. the medicine worked or the talk therapy worked, how does that play out?

Barb (56:15)
Yeah, it’s possible. I mean, the question is what was your mental state at the time the crime was committed? For most people, if you have some sort of you know, mental disease that caused you to either be unable to appreciate the wrongfulness of your conduct or to control your impulses, we’d want to, you know, spend some time work working through those things. But I suppose to the extent this is related to a a postpartum psychosis and it’s been a couple of years since all of this happened.

it is possible for a jury to conclude that you had a problem then but not now. and so I think that regardless of the outcome of this case, there as you said, she’s still in custody. There will be an assessment of whether civil commitment proceedings are appropriate. And there has to be a finding by a judge that a person is a danger to themselves or to the community. If she is no longer a danger to those people, then release would be the appropriate remedy unless she gets convicted of a crime.

but I just wanna return to the point about the prejudice in the system I think that favors women. Can you imagine if a man had done this, if a man had killed his three young children? now, you know, postpartum certainly is something that’s you need some others that a father might not experience, but I just don’t think he he would get the same benefit of the doubt that we give to women in cases like this. But certainly something that’s captured our attention.

Jill (57:35)
I think you’re right. One one other question is, assuming that she is still suffering from this psychosis, how is she able to stand trial? Don’t you have to be able to participate in your own defense?

Barb (57:52)
Yeah, there’s a difference. There are two different questions that get asked. One is competency to stand trial, which means I understand where I am and why I’m here and what I’ve been charged with. And I have the ability to assist my lawyer in my defense, right? I can answer his questions, I can provide him with information. that is different from the question of insanity, which is was I unable to appreciate the wrongfulness of what I did.

And or was it impossible for me to control those impulses? So, you know, there are some psychotic people out there who can operate very well in everyday life. So they’re two distinct questions, so I’m glad you raised it. Competency is usually an issue that’s discussed at the threshold of every criminal case and it needs to be revisited throughout the proceedings if things should change.

Jill (58:43)
Well, this has been a very illuminating conversation, Barb, and I think we’ll have to wait to see what the prosecutor does as to whether this will be a retrial or a civil commitment or just walking away from it. Yeah.

Barb (59:07)
If you have a question for us, please email us at sistersinlaw at politicon.com or tag us on social media using hashtag SistersInLaw. If we don’t get to your question during the show, we’ll try to answer it during our new show, Sisters Sidebar, which drops every Wednesday. So our first question today comes to us from KS Squire, who would like to know if the tarps in front of the Kennedy Center violate the judge’s order to remove Trump’s name.

The TARPs render the center without any name. In addition, the public has no way of knowing whether the Trump name was in fact removed. Hey, that’s pretty good thought. Jill, what you think about that?

Jill (59:47)
Well, thank you, K Esquire. I love that. And I just have to divert to say I I’m assuming you’re a lawyer and therefore you’re putting the ESQ. When I graduated law school, my husband, who was a law school graduate, got mail with his name followed by Esquire. I got mine without that, because the school said that’s for men. I pointed out that a law degree entitled me to Esquire too. But anyway.

Thank you, K Esquire. and the answer is this is something I raised, I think, in last week’s episode, was that I was hoping the plaintiffs in the case would amend their complaint to ask for the removal of the TART, because technically their case was for the removal of the name Trump and the prevention of now chiseling it in in addition to having renamed the center. They’re now saying we’re not renaming it, we’re just honoring Donald Trump for his.

work in renovating it. And so that’s not the same thing as renaming it, but we’re gonna put his name on twice, once for raising money and once for doing the work. but yeah, there’s nothing about removing the tarp. And obviously I think there should be. So thank you for raising that question. And maybe public pressure will work and they will remove that. They are doing other things. They’ve removed a lovely blue sculpture.

because it offends Donald Trump’s aesthetics as opposed to everything he does that offends mine. so thank you very much, Kay.

Barb (1:01:22)
All right, our next question comes to us from Janet in Dallas, Texas. Janet asks, What do you think of Flock camera deployment? How would you recommend an average citizen try to stop it? So Flock is a company that has produced these cameras that get used for all kinds of things. You probably are aware. License plate readers, so that if you’re speeding, they don’t really need a police officer sitting there. They can just monitor whether you’ve gone through a red light or whether you’ve exceeded the speed and send you a ticket in the mail.

but the concern arises when we see abuses of these flock cameras, and there’ve been reporting of how police officers have queried the license plate of maybe their estranged wife or girlfriend and used it to stalk them or threaten them or harass them or follow them. There’s even a wider privacy issue, I think, that we don’t like the idea that we’re tracked wherever we go, right? It’s a free country, we like to feel like we’re free to go places, and we’ve seen in some cases.

what Justice Sotomayor has described as the mosaic theory that I can put together a profile on you if I go back and look at enough data points about your location. You know, I saw that you were going to the massage parlor or you were going to the political rally or you were going to this place of worship or you know this, that, and the other thing. So I think there is a general concern about privacy. Now the law typically says that we are protected

only in places where we have a reasonable expectation of privacy. So in our homes, before someone can come in and take our stuff or look at our stuff, they have to have a warrant to do that. But when we’re just driving around on the roads, we don’t really have a reasonable expectation of privacy. But nonetheless, the court in recent years, even the maybe especially the conservative justices, Chief Justice Roberts has written on this a lot, the concern about location information with the ability to track our location through new technologies.

has really changed the game. You know, somebody might be able to stand on a corner, a police officer might be able to follow you for so long, but human resources being what they are, they could never replicate what we’re seeing with technology. So we’ve seen it with cell phone location. We’ve seen it now with geofense warrants where, you know, they get all the phone data of the location of everybody that was near the scene of a crime. And the court has demanded search warrants in most of these contexts. So it’ll be interesting to see how this gets teed up

because I think it’s it’s not so much the that that there are cameras where we have no reasonable expectation of privacy, but how pervasive they are becoming. However, the courts are not the only answer. Lawsuits are not the only answer. I think that in a democracy, it seems like they are wildly unpopular. And so even though i police agencies may find legitimate reasons to use this surveillance, if we the people don’t want we can just say so. And so perhaps moving for legislation to limit their use, e eliminate their use or

Or maybe to limit the querying procedures to prevent their abuse is a good way to deal with it.

Jill (1:04:25)
Barb, there’s one more question that I would love to hear an answer to. I don’t know about this, and so I want you to answer it. It comes from at 40 Marbles on Threads, who asks, My personal opinion is that the vast majority of the issues we face are directly related to the money in our politics. What are your thoughts on Hawaii’s law to limit corporate political spending at the state level? And I’m going to just weigh in before you answer to say

I believe Citizens United, which has allowed so much money, is really one of the worst decisions of this Supreme Court. And that we saw in the era of Watergate, there was unlimited money, which led to crimes being committed because they had so much money in their campaign coffers they didn’t have to think about whether they would use things for good and valuable purposes or for silly things like breaking into the DNC. Yeah. So what do you think about Hawaii?

Barb (1:05:23)
Yeah, interesting question, Forty Marbles. I completely agree with you and Jill that, you know, big money, billionaire donors has really ruined our politics because it it gives them outsized influence over ordinary voters. So, you know, the idea of one person, one vote has bit been made a mockery of with that case. But you raised this interesting idea, which is what Hawaii is doing. So corporate corporations, so Citizens United, you know, basically said corporations have the same rights as individuals.

And therefore they have First Amendment rights and they cannot limit how many ex how much money and expenditures you can make on a campaign. Hawaii had an interesting idea, and I think Montana is doing this as well, which is to say a corporation is a creation of state law. We get to say here in our state what you can do and what you cannot do. And here’s a new one: we’re going to amend our corporation law and say corporations cannot make political donations or political expenditures. How about that? So I think it’s a great move.

We w however, we would need all fifty states to do the same. And so, you know, Hawaii’s got it, Montana’s got it. Many corporations are incorporated in Delaware because they like the laws there. so we would it’s it’s a great idea, but it won’t be effective, I think, until we see all states follow the same thing. I don’t know that there’s an easy way around it other than a constitutional amendment which

Senator Jean Shaheen of New Hampshire has proposed to say I I think the court just got it wrong. You know, you can you can limit any right, including right to free speech, if there’s a compelling governmental reason and the statute is narrowly cha tailored to achieve that reason. And I think the court just missed the boat on the harm that can be caused, w which Congress found, but second guessing Congress and failing to perceive the harm

That can come from this unlimited expenditure, and we’re seeing it now. I think you could overturn Citizens United by bringing a case that demonstrates that the facts have changed since that assessment in 2010. I mean Justice Kennedy there said things like, well, the internet will equalize everything, so there won’t be a problem with this in the future. boy were those words ever wrong. And so maybe there’s a way to overturn it. But I like this idea, Hawaii. I just don’t know that it’s going to be able to be as effective as it wants to be unless it can persuade other states to do the same.

Thank you for listening to Hashtag Sisters in Law with Jill Wine-Banks and me, Barb McQuade. If you enjoyed this podcast, please rate the show and send it to a friend. And be sure to follow Hashtag SistersInLaw on Apple Podcasts, Spotify, or wherever you listen to podcasts so that you never miss an episode. Join us every Saturday as we break down the biggest legal developments of the week. Then catch our companion podcast, hashtag sisters sidebar every Wednesday, where we answer your legal questions.

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