Lindsay Clancy and When Justice Cannot Reach a Verdict

Sometimes the most important verdict is the one a jury cannot reach. After weeks of testimony and nearly 40 hours of deliberations, the jury in the Lindsay Clancy murder trial could not unanimously decide whether she should be held criminally responsible for the deaths of her three children. The result is a mistrial — and an extraordinarily difficult question about what happens next.

The easy answer is another trial. The harder question is whether that is necessarily justice.  A mistrial in a case of this magnitude carries costs that extend far beyond dollars. Prosecutors have devoted enormous resources to preparing and presenting the case. Defense attorneys have done the same. Experts have testified, medical records have been dissected, witnesses have taken the stand and court personnel have spent weeks managing a proceeding watched across the country.

Now imagine doing it all again. A new jury — with knowledge of the case — must be selected. Experts must return. Witnesses must again recount painful events. Attorneys must reconstruct arguments that have already consumed weeks of courtroom time. And a family that has endured an unimaginable tragedy must once again watch the deaths of three children become the subject of testimony, argument and public debate.

None of that means prosecutors should abandon the case. Cora, Dawson and Callan Clancy died violently. Their lives matter. The public has a legitimate interest in accountability, and the Commonwealth has an obligation to enforce its laws. Justice cannot become a calculation in which prosecution ends simply because another trial will be expensive or difficult.

But justice has another obligation as well. It must recognize the rights of the accused. A mistrial is not a conviction. Lindsay Clancy remains entitled to the presumption and protections our criminal justice system affords every defendant, regardless of how disturbing the allegations may be. The prosecution’s burden does not become lighter because the first jury could not agree. That leaves prosecutors facing one of the most difficult exercises of discretion our system demands.

They can try again, decline to retry the case or explore another option. In other words, can the parties explore whether some negotiated resolution appropriately balances accountability, public safety, mental illness and the interests of a family that has already suffered enough.

A plea agreement should not be mistaken for surrender. Our criminal courts resolve cases through negotiated pleas every day. The question is not whether compromise somehow diminishes justice. The question is whether a particular resolution adequately serves it.

In the Clancy case, that calculation is exceptionally difficult. Any resolution must acknowledge the enormity of three children’s deaths. It must consider public safety and society’s interest in accountability. But it must also account for the profound mental-health issues at the center of the case and the reality that a jury, after hearing the evidence and deliberating for days, could not unanimously determine criminal responsibility.

Then there is the family. We frequently speak about victims and their families as though another trial automatically serves their interests. Sometimes it does. Sometimes families desperately want another jury to hear the evidence.  But another trial also asks people who have already endured unimaginable grief to return to the courtroom and experience it again.

The human cost deserves a place in the calculation. So does the expenditure of public resources — not because justice has a price tag, but because government has an obligation to use finite resources responsibly. Another lengthy prosecution involving competing experts and extensive medical evidence will consume resources that cannot simultaneously be devoted elsewhere.

I have witnessed that broader impact firsthand: my law office is near the Fairfax County Courthouse, where two nationally watched proceedings — the Johnny Depp-Amber Heard trial and, more recently, the Brendan Banfield murder trial — brought an extraordinary influx of media, spectators, security and traffic that extended the effects of those cases well beyond the courtroom.

None of these considerations standing alone answers what prosecutors should do.  Together, however, they demand that the question be asked. The issue is no longer simply whether the Commonwealth can retry Lindsay Clancy because it obviously can.  The question is what another trial is expected to accomplish. Perhaps another jury will reach the definitive answer this jury could not. If prosecutors reasonably believe that will happen, another trial may be justified.

However, there is another possibility we should be willing to confront: twelve new jurors may listen to substantially the same evidence, confront the same agonizing questions about mental illness and criminal responsibility, and arrive at another impasse. Justice does not require endless repetition simply because the first answer was unsatisfying. Nor does mercy require abandoning accountability.

Somewhere between those principles may lie a resolution that honors the lives of three innocent children, protects the public, respects the rights of the accused, and spares a grieving family from being forced to relive its worst day in a courtroom.

A mistrial means the jury could not find its way to a unanimous answer. What happens next will tell us something equally important:  Whether our system is capable of recognizing that sometimes the pursuit of justice requires knowing not only when to keep fighting —but when to search for another way.

Deborah A. Wilson is a Georgetown University Law Center graduate, a practicing Northern Virginia attorney, and author of the speculative novel “The Seam: Secrets Beneath the North Pole.”

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

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