Who could have best judged Lindsay Clancy?

Nobody likes a mistrial.

After eight months presiding over a 1993 chemical exposure lawsuit from Lockheed workers, a mistrial was enough to turn the trial judge profane: “I feel terrible. I spent 10 goddamned months of my life on this thing.” It’s common to hear mistrials described as gigantic wastes of time, not only from judges and lawyers but also the jury members who took time away from their own jobs and sacrificed it towards ultimately failed endeavors. My favorite quote regarding mistrials comes from California Justice David G. Sills, who called them “a species of prophylactic waste of resources”. (I’m not sure the word prophylactic even makes sense there—I think he might have meant “profligate”—but it just sounds evocative.)

It’s not true that most mistrials are due to hung juries, but a majority of them are, and the percentage caused by hung juries grows as the crimes become more heinous. Around 85% of homicide mistrials are due to hung juries (source).

When eleven jurors swing one way and a single juror refuses to be swayed by the rest, who should take the blame for mistrial? A prejudiced majority, a bullheaded holdout, an incompetent prosecutor, or defense, or even judge?

In Commonwealth v. Lindsay Clancy, I blame the law itself.

A quick recap: In 2023 a woman named Lindsay Clancy strangled her three children (ages 5 years, 3 years, and 8 months) before attempting suicide (cutting her wrists, neck, and jumping out a window, which left her paralyzed from the waist down). She confessed to the murders and attributed them to auditory hallucinations incurred by postpartum psychosis.

Now her trial has resulted in a hung jury; eleven wanted to acquit, but there was one holdout that some people (like most of Reddit) are describing as a hero:

Having neither observed the proceedings nor been trained in psychology, I cannot judge the veracity of this supposed heroism. I can, however, issue a couple of corrections to this tweet:

1. “Lone male holdout” can be a misleading phrase. He was the lone holdout, but not the lone male in the jury (which bears mentioning for a topic that has become quite polarized along gender lines).
2. The tweet judges the female jurors for judging the holdout for getting stuck on the fact of Linday Clancy’s killing of her children. But this is also misleading because the trial was never trying to determine whether Lindsay Clancy killed her children.

Clancy had already confessed to killing her children. The state of Massachusetts wasn’t attempting to verify this fact, but trying to determine whether to assign criminal responsibility to Clancy for these killings. The prosecution, defense, judge, and at least eleven of the twelve jurors were all on the same page about this goal, which required the jury to arrive at one of two decisions:

1. Beyond a reasonable doubt, Clancy was sane enough to be knowingly aware and in control of her own actions (convict).
2. There was a reasonable chance that Clancy was “incapable of knowing or understanding the nature of her act” (acquit).

The jurors who voted to acquit, no matter how repulsed they may have been by these horrific murders, were trying to follow the law. Generally speaking, people shouldn’t be mocked for trying to follow the law! Legal systems don’t work unless people generally follow the law, and legal systems are generally a good thing.

But I’m not saying the holdout juror is not a hero.

“He would not interact with us and try to understand,” the woman said. “We read to him the definition of reasonable doubt. … He said one day, ‘Why don’t we have the judge read it again?’ and we were like, ‘No, we have it in front of us.’” (Source)

The other jurors—who surely felt that unanimity would be possible, and probably wanted to go home—were frustrated with the holdout’s stubbornness and perhaps a perceived lack of intelligence: Why couldn’t he just understand the meaning of reasonable doubt? But I think a surfeit of morality was more likely at cause, rather than any lack of intelligence. Maybe he was rightly expressing confusion over a confusing state of the law, which demands a verdict of either “fully sane criminal responsibility” or complete acquittal. Why only those two options? The juror sought justice for little Cora, Dawson, and Callan. When “fully sane” isn’t possible to prove, what justice can be found in an acquittal?

(Possibly a fair amount. There’s nuance here regarding the meaning of “Not Guilty by Reason of Lack of Criminal Responsibility” (LCR)—more on that later.)

Most places in the world don’t work exactly like this. In fact, 43 other U.S. states don’t work like this.

In the state of California, the questions of guilt and sanity are separate. A California jury might still have hung on the question of Clancy’s insanity, but at the same time found her guilty of the murders themselves. This has happened before. In 1995, Aldo Hernandez shot and killed Jose Quiroga and assaulted others while believing himself to be a messenger from God. The jury found him guilty on most of the shooting charges, then hung on insanity. A second trial unanimously found Hernandez insane during the initial killing, but then hung on whether he was still insane during the follow-up attempted murder of a police officer and evasion of the police. Rather than hold a third trial, the judge simply declared Hernandez sane for all the remaining counts—a ruling which the California Supreme Court later reversed. (Source) As of 2021, Hernandez was still being held in the Patton State Psychiatric Hospital in San Bernardino County for the counts he was found insane and guilty for (source).

I prefer having this separation between what happened versus why. When someone gets run over by a car and the driver gets taken to court, homicide usually isn’t the only option presented to the jury; they can often settle on “guilty of manslaughter” when there exists sufficient doubt regarding the driver’s intentions.

However, Hernandez’s two mistrials prove California’s system isn’t perfect.

In all my research, I couldn’t find any system I’d judge as perfect—but there’s plenty to choose from, and a number of them too young to judge fairly. New Zealand passed its last insanity defense reform in 2022, with further reform passed this year that will take effect in 2028. Scotland used to have guilty, not guilty, and “not proven” verdicts, which seemed to me like a potentially useful distinction, but they removed their “not proven” at the start of this year. India, Indonesia and Belgium overhauled their entire criminal codes, which respectively took effect in 2024, January of 2026, and September 1 of 2026. And did you know Norway eliminated juries back in 2018?

Comparing jury systems to non-jury systems is outside the scope of this post (or mixed juries—did you know that Greece employs juries composed of 4 lay jurors along with 3 lottery-selected professional judges?). If we narrow our search to only England-style jury systems, then the U.S. interestingly captures both extremes when it comes to insanity defenses, with states like Massachusetts making insanity acquittals maximally likely while states like Oregon make them maximally difficult.

I tried to capture a nice variety with the diagram above. Oregon is at one extreme because it requires the defense to prove insanity with a preponderance of evidence (as opposed to the prosecution having to prove sanity, like in MA); Wisconsin has a similar requirement, except only requires 10/12 jurors to agree.

(This was the first I’d learned that American criminal cases do not always require unanimity for portions of their verdicts.)

In between we have systems that rely on “balance of probabilities” rather than standards like a preponderance of evidence. Brazil literally uses majority rule: Out of 7 jurors, whichever verdict gets at least 4 will win. Spain doesn’t like close calls, so when juries fail to reach 7/9 to convict or 5/9 to acquit, the trial will go to a second jury (and if that fails too, then acquittal wins out). Belgium also doesn’t like close calls, but resolves them by handing off to a special panel of one presiding judge and two associate judges.

So how might have the Clancy trial arrived at a better result?

The Brazil system would not have mistrialed because the Brazil system doesn’t have the concept of mistrials. But switching from unanimity to majority rule sounds terrifying; I would think Brazil’s system leads to more miscarriages of justice. (It’s another difficult comparison to make, however, since Brazil’s jurors come to individual decisions without deliberation.)

Oregon’s system might also have avoided the mistrial, because I’m betting the lone holdout would not have been swayed by the insanity argument, so even if 11 others had agreed with the defense, Clancy still would have been deemed guilty. Lindsay Clancy would still have returned to her psychiatric hospital at the trial’s conclusion, but would be forced to finish her prison sentence if her treatment ever completed (though the years of treatment would count towards the sentence).

I don’t know if that represents a better outcome, either for Clancy herself, or as a vehicle for meting out some sort of justice for her children. The only thing I can assert with confidence are my own feelings on the matter, regarding a purely symbolic (and therefore less important) angle: I don’t support the idea of Lindsay Clancy being granted a blanket “Not Guilty” label. Which is not to imply she deserves a prison sentence. I mean this semantically: I’d prefer a “Guilty” label even if it amounted to the same practical consequences. Oregon actually does this, using “Guilty Except for Insanity” (GEI) where California uses “Not Guilty by Reason of Insanity” (NGRI) or Massachusetts uses its aforementioned LCR.

I’m not normally a stickler for semantics, but my desire here goes beyond mere verbiage. A dozen fantasy novels have taught me that names have power; labels bestow certain powers of association, and legal monikers can be directed towards whichever ends lawmakers desire. I want legal institutions to have the ability to recognize the difference between Lindsay-Clancy-the-murderous-postpartum-psychotic and Lindsay-Clancy-the-innocent-mother (if such an alleged distinction exists in reality), and also recognize that both entities have coinhabited the same body. Or alternatively, to recognize that these two versions of Lindsay Clancy may not be entirely discrete and disconnected, that maybe deep down the mind that currently presents as Lindsay Clancy is partly responsible for its previous incarnation’s actions, but not entirely so, neither fully aware sinner nor fully innocent.

For this, I look to one other country, Germany. I would adopt their erheblich vermindert, meaning “substantially diminished responsibility”, which lies between the two poles of criminal responsibility and its absence. Life is made of shades of gray; why not capture more of those shades in the law?

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I don’t know if the Massachusetts jurors would have chosen this option for Clancy, were it available. But I do think if they’d chosen such an option, less fervor would have arisen among the general public, and less electronic ink would’ve been spilled over mildly misleading tweets.

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The ones that do also work roughly like this, by my count: Colorado, Mississippi, New Mexico, North Dakota, Oklahoma, and West Virginia.

Let me tell you, Astra was WAY better at helping me to construct this diagram than Sol or Luna. (By the way—I use LLMs to assist me with research and graphics but NOT for the actual writing of my posts. Human words under human feedback only~)

Unless you loose upon my poor eyeballs incorrectly spelled “lose” or “loose”, which is a pet peeve I don’t think I’ll ever be able to lose nor shake loose.