Why Lindsay Clancy's lawyer is disputing whether she killed her children

During a six-week trial, Lindsay Clancy's lawyer argued that she should be found not guilty of murder because she killed her children during an episode of postpartum psychosis.

Now, he's raising the question of whether she killed them at all.

"I ask the court to hearken back to the evidence that was presented and ask yourself, where's the evidence that she did this?" Kevin Reddington said Tuesday at a court hearing.

The argument shocked some people following the case. Prosecutors said they were hearing it for the first time.

Arguments at trial and online discourse surrounding the case have both been predicated on the fact that Clancy and her legal team conceded months ago that the Massachusetts mother was responsible for the strangulation deaths of her three children: Cora, 5; Dawson, 3; and Callan, 8 months. At trial, Reddington focused on convincing the jury that the 36-year-old former labor and delivery nurse was not in control of her mind when she killed her children.

Reddington's new tactic triggered an online frenzy, particularly among those who believe that Clancy did not kill her children.

Legal experts who spoke with The Washington Post said Reddington's attempt to have the case thrown out is routine. Further, they said his tactics should be viewed in the context of a criminal court's legal machinations and the gamesmanship that often goes into a defense attorney's legal strategy as they attempt to get their client acquitted.

Ekow Yankah, a professor of law and philosophy at the University of Michigan, acknowledged that Reddington's change in tone could be startling to anyone who followed the trial, which focused almost entirely on Clancy's mental state.

But it's a defense attorney's job to try all possible legal avenues on behalf of their client, Yankah said, and casting doubt on the prosecution's case is among them.

"I think the real reason they introduced this was trying to give the judge as many different variables as possible," Yankah said. "The judge knows what's going on. A defense counsel's job is to bring up any reasonable doubt. Any at all. If this is a source of reasonable doubt, even if not well-founded, why not fire the shot?"

What is Reddington's new argument?

Under Massachusetts Criminal Procedure Rule 25, a judge can acquit a defendant if the judge finds that the prosecution did not present enough evidence to support a conviction.

Tuesday's hearing was scheduled to determine how the case would move forward after a mistrial was declared on Sept. 4. Instead, the hearing was bogged down by attempts to argue motions recently filed by both sides.

In arguing a motion on Rule 25, Reddington said prosecutors had not proved beyond a reasonable doubt that Clancy actually killed her children or that she was in a mental state to be held legally responsible for their deaths. Although arguing that Clancy was mentally incapacitated required a concession that she committed the killings, Reddington said, prosecutors still have to prove her criminal liability and responsibility.

Reddington said Tuesday that they did not do either.

Did Clancy admit guilt?

Clancy conceded to killing her children during the trial -- as a matter of legal procedure, not on the witness stand -- because she had to for her lawyers to move forward with an insanity defense. This followed attempts by Reddington to have the trial bifurcated, or split into two parts: one focused on Clancy's criminal liability -- that she actually broke a law -- and another focused on her criminal responsibility.

"It's readily apparent that you are put in a conundrum where you have to, in effect, admit culpability, if you will, to raise the issue of lack of criminal responsibility," Reddington said Tuesday.

Part of Reddington's argument rests on the idea that Clancy never admitted guilt verbally.

Had Massachusetts Superior Court Judge William Sullivan granted Reddington's request for a bifurcated trial, jurors would have heard the case in two parts.

The first would have focused solely on whether Clancy committed the act of killing her children. If she were found guilty, a separate set of legal proceedings would have determined whether she could be held criminally responsible, given her mental state when the crime was committed.

Reddington said in March that without a bifurcated trial, he would have no choice but to concede Clancy's criminal liability in the process of arguing that she wasn't criminally responsible.

David Rossman, a professor of law emeritus at Boston University and a longtime criminal defense attorney, said Reddington is arguing that forcing Clancy "to concede that she killed the children, in order to put the issue of mental responsibility before the jury, was an impermissible choice. And that it burdened her right to litigate the issue of mental responsibility separately."

Sullivan said he denied the motion because it would have been impossible to divide the two issues cleanly.

Keith Halpern, a Massachusetts defense attorney, agreed that it is likely that evidence would have had to be duplicated -- like some witnesses having to testify twice. But he said it's best in mental health cases to bifurcate the trial so the jury can consider the issue of the defendant's mental state objectively.

"The right decision, not just in this case but in any mental illness case, is to bifurcate. To me, what you're balancing is judicial economy -- saving time -- and the right of the defendant to get a fair trial," Halpern said.

Did the prosecution provide evidence that Clancy killed her children?

On Tuesday, prosecutors dismissed Reddington's claim that they did not present sufficient evidence as "laughable."

"We're hearing now for the first time in this argument that counsel is challenging the sufficiency of the evidence as it applies to the three counts of murder," prosecutor Shanan Buckingham said. "I'd suggest to you that the entire record is voluminous as to the information supporting the fact that she did this."

Buckingham pointed to allegations that prosecutors presented at trial, including that Clancy was the only one at home with the children at the time of the killings, as well as sworn testimony from her ex-husband, Patrick Clancy, that he had left the house.

This, prosecutors say, is in addition to Clancy's own statements, including conversations after the killings in which she said she had heard voices telling her to take the lives of her children and herself.

Prosecutors argue that such evidence speaks to both what Clancy did and her mental state as she did it.

"The state, I think, made some argument about the fact that she asked her husband to leave the house, as evidence that she was not suffering from the kind of influence of a mental disease that would relieve her of criminal responsibility, because it shows that she was aware that what she was doing was wrong. That was part of what she did," Rossman said.

"Your behavior does provide some indirect evidence of what your mental state is."

Do legal experts think Reddington's new argument will be successful?

"That's a long shot," Margaret McLean, a former Massachusetts prosecutor, said Monday of the Rule 25 motion. "He's basically asking the judge to step in and throw the case out."

McLean described it as the weakest of the motions Reddington made after the mistrial to have the case dismissed.

After the jury was sent home, the Boston Globe first reported that juror Michael P. Desronvil had an active civil restraining order for allegedly assaulting his nephew. Reddington has requested an inquiry to determine whether this information was disclosed during the legal process in which prospective jurors are checked for bias and eligibility to serve on the jury.

Halpern said that argument is stronger than the Rule 25 motion that Reddington attempted to argue on Tuesday.

Despite saying on the day of the mistrial that he would make a decision on retrying "shortly," Plymouth County District Attorney Timothy Cruz has yet to say definitely whether he will do so and what, if anything, prosecutors would do differently in a second trial.

One holdout juror initially tipped the case into a mistrial. The other 11 jurors were prepared to find Clancy not guilty.

Reddington and Clancy's other attorneys are "just trying to discourage the prosecution from going forward with this again," Yankah said. "They have one powerful thing in their back pocket: They know, and the prosecution knows, the jury was pretty close to acquitting."