The ties between the Lindsay Clancy mistrial and a famous 290-year-old press-freedom case

If you’re wondering why a lone juror who may have ignored the law about reasonable doubt could lead to a mistrial in the case of Lindsay Clancy, a landmark verdict that advanced press freedom 290 years ago provides some important background.

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Sue O’Connell of NBC 10 Boston interviewed three jurors after a mistrial was declared. The foreperson, Roni Carlson, said the holdout “admitted he had reasonable doubt” but told his fellow jurors, “I’m still not going to say that she’s not guilty by reason of insanity.”

That direct contradiction of the law led Clancy’s lawyer, Kevin Reddington, to appeal to the state Supreme Judicial Court, claiming “evidence of juror malfeasance.” A single justice of the SJC declined to intervene, leading to a mistrial even though 11 jurors believed Clancy should not be held criminally responsible for strangling her three children.

The outcome has led many to wonder why a single holdout could derail a not-guilty verdict given that he ignored the law, which required that the prosecution prove its murder case against Clancy beyond a reasonable doubt. In fact, though, jurors are free in nearly all circumstances to do whatever they like, including ignore the law, the facts or both. This is known as jury nullification, although usually it refers to a refusal to convict rather than a refusal to acquit.

An early example of this was the trial of John Peter Zenger in 1736. Zenger was a German immigrant whose print shop took on the job of publishing the New-York Weekly Journal on behalf of enemies of New York’s royal governor, William Cosby. Although Zenger was merely the printer, he was arrested and charged with seditious libel because of articles the Journal ran that were critical of Cosby.

Under the law at that time, truth was no defense in a libel claim, and the crime of seditious libel was nothing more than criticism of the government. Thus in order for Zenger to be acquitted, his lawyer, Andrew Hamilton, would have to show that Zenger did not print the articles in question — an impossible task, which led to Hamilton’s admitting in court that yes, his client had printed the articles.

That put the judge, Cosby ally James DeLancey, in an enviable position. Since Zenger had admitted guilt, DeLancey was prepared to instruct the jurors to deliberate on what the sentence should be. Lunch loomed. But Hamilton wasn’t quite ready to concede. Instead, he appealed directly to the jury that it should acquit Zenger on the grounds that what he had printed about Cosby was true, a direct contradiction of the law regarding seditious libel.

Hamilton’s argument was grounded in the first stirrings of liberty that were beginning to awaken both in Britain and in its colonies. The Journal had already reprinted Cato’s letter on libel, which favored truth as a defense: “The exposing therefore of public wickedness, as it is a duty which every man owes to truth and his country, can never be a libel in the nature of things.”

But Judge DeLancey forbade Hamilton from making such a statement to the jury, saying, “The law is clear that you cannot justify a libel. The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.” Hamilton, though, plowed ahead, and in a brilliant summation argued:

The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty.

The jurors did as Hamilton urged them, returning a verdict of not guilty. The case set no precedent, as the jury had blatantly ignored the law. Gradually, though, the idea that truth should be a defense in libel cases took hold. And in 1771, when the Massachusetts Spy attacked the royal governor, Thomas Hutchinson, as a “usurper” and a “monster,” the Spy’s printer, Isaiah Thomas, defended himself against a charge of seditious libel brought by the governor’s council by invoking the “venerable, great and good” Andrew Hamilton.

A grand jury of ordinary citizens refused to indict Thomas.

Say what you will about the holdout juror in the Lindsay Clancy case, but his act of protest may have a salutary effect. District Attorney Timothy Cruz should not have charged Clancy with first-degree murder. If he had opted for second-degree murder, the trial could have been heard in front of a judge, without a jury, thus avoiding the circus atmosphere that surrounded this tragedy.

And the Zenger case is among the reasons that a single juror was able to upend the verdict his fellow jurors had agreed on. Even though I think the majority got it right and the holdout was wrong, there’s a certain rough justice in Cruz’s comeuppance.

A note on sourcing: Much of this is taken from a lecture I’ve been giving for a number of years. It would have taken me hours to track down all of my source material, but this essay by the Historical Society of the New York Courts offers a solid overview.