SCOTT DETROW, HOST:
There has been a lot of legal back-and-forth and a lot of tension in the Lindsay Clancy trial, all overseen by Judge William Sullivan. After declaring that mistrial, he thanked the jury for their service by referencing a quote from Winston Churchill.
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WILLIAM SULLIVAN: You knew how difficult the case was going to be to listen to facts wise. But still, you braced for that duty.
DETROW: Judge Sullivan himself also braced for that duty. So for some insight into his role and choices, we are joined by Nancy Gertner. She's a former federal judge now at Harvard Law School. Judge Gertner, thanks for joining us.
NANCY GERTNER: Good to be here.
DETROW: I'm hoping, as best as you can, you can get us inside the head of Judge Sullivan. If you had gotten that note from the jury this morning that they were deadlocked for the third time, what would you be thinking if you were presiding over this case?
GERTNER: Well, it wasn't just the deadlock. They had said multiple times that they were deadlocked. It was when the foreperson said that one juror, according to the reporting, quote, "refuses to listen to the law." And at that point, what the judge did, which I would've done as well, is he brought all the jurors in. This, I think, was yesterday, and he talked to each of them individually at sidebar.
One would hope to somehow shake through - shake off more information than just refused to follow - to listen to the law. In other words, have someone say, here's what this person said, or this person said, I don't care about judges' instructions or something. So he had a personal conversation with each juror at sidebar. And then he turned to the jury and asked - and redid his reasonable doubt instructions.
That didn't affect anyone that didn't - no one came forward. There was nothing more information that he had than refuses to listen to the law. Today, he gave another instruction in which he said, you have to follow my rules, even if you disagree with them.
DETROW: Yeah.
GERTNER: So the problem at that point is refusing to listen to the law could mean I'm not going to follow the law, could mean I have some doubts, but they're not reasonable. I mean, I think it is ambiguous. And it's...
DETROW: Well...
GERTNER: ...Fraught when you have to knock off a deliberating juror.
DETROW: Yeah.
GERTNER: And he was cautious about not doing that.
DETROW: That's what I'm wondering, though. What is the best argument against taking that step if it was really one person and a matter of not wanting to follow the clear instructions? Well, why not just remove the juror and replace them?
GERTNER: Well, because, I mean, 11 to 1 jury is an 11 to 1 jury. In other words, that's a deliberating jury. Typically, 11 to 1 doesn't hold. Usually, the jury - the one will cave in. But if you had someone who actually had legitimate doubts about the case, you don't have a right to shake them off - to take them off the jury. But I think what I'm trying to get at is trying to get to the bottom of what this one juror was saying is incredibly difficult.
DETROW: Yeah.
GERTNER: And it he did it - he tried it through individual questioning of the jury. Then, he tried to sort of hammer home his instructions again, and he got no further information. There are surely cases in which jurors have been removed mid-trial. Not happened very often. Sometimes a juror overhears a racist statement. Sometimes you have a juror who is really intransigent and not getting along with the others. But he didn't have any more information than one juror refuses to listen to the law.
DETROW: Judge...
GERTNER: And that wasn't enough.
DETROW: Judge, we've got just about a minute left. And I'm hoping you can help us understand just how limited a judge is and what your options are at that point when you want to know more about what's going on here. It seems like there could be a serious problem. But if you do too much, you can tamper with a jury deliberation. What are you thinking in that moment?
GERTNER: Well, you - the general rule is you do it as little as possible to interfere with a sitting jury and a deliberating jury. And, you know, when you go over what he did, none of what he did shook out anything further than the statement he - you know, that the person was not following the law. It's - I mean, I'm not sure that there was more that he could've done under the circumstances. We're going to find out now, no question about it, from the jurors. Again, there are ways in which a judge can intervene, but he had to have a threshold, enough information to intervene. And the question was whether this was going to be enough.
DETROW: I want to get one more question in in about 15, 20 seconds we have left. But from all you could see from following this case, do you think he made the right decision, took the right path here?
GERTNER: I think he did. I think he did. I - in watching the case, I certainly thought that she was going to be acquitted based on the evidence that had come in. But I sympathize with the judge at this moment that he did what he could.
DETROW: Judge Gertner - former Judge Nancy Gertner now at Harvard Law School. Thank you so much for your time.
GERTNER: You're very welcome. Transcript provided by NPR, Copyright NPR.
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