Lindsay Clancy should not be tried twice

By David Oscar Markus

Eleven jurors voted to acquit Lindsay Clancy, while one juror held out against acquittal.  After almost two months of trial, more than 80 witnesses, and seven days of deliberations, Judge William Sullivan declared a mistrial on Friday. Plymouth County District Attorney Timothy Cruz said he will decide later whether to try her again.

He should not. And the law should not let him.

Most people wrongly assume the Constitution already takes care of this. The Double Jeopardy Clause says no person shall "be twice put in jeopardy of life or limb" for the same offense. That seems pretty straightforward – the government should get one shot at a conviction.  But the Supreme Court has said otherwise.

It started back in 1824 with United States v. Perez. Josef Perez was tried for piracy, a capital offense. The jury hung.  The Supreme Court explained that the defendant could be tried again where there was “manifest necessity” for the mistrial. Then in 1984, the Court decided Richardson v. United States, in which a jury acquitted the defendant on one narcotics count and hung on the two others. He argued that because the government had already had its chance at a trial to convict him, it should not be able to have a second bite at the apple. Justice Rehnquist disagreed. The failure of a jury to reach a verdict, he wrote, "is not an event which terminates jeopardy."  Justice Brennan was right in his dissent where he said that the defendant was being subjected to a second trial, which the Constitution did not permit.

The Court took up a similar issue about 15 years ago in Blueford v. Arkansas. Before deliberations ended, the foreperson told the judge the jury was unanimous against guilt on capital murder and on first-degree murder, deadlocked on manslaughter, and had not yet voted on negligent homicide. The jury kept deliberating, got nowhere, and the judge declared a mistrial. Chief Justice Roberts wrote that the foreperson's report "was not a final resolution of anything." So Arkansas could retry Blueford on everything, including the two charges all twelve jurors had rejected out loud in open court. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.

The Supreme Court has cleared a path for Clancy to be tried again. But prosecutors should not do so and the Supreme Court should take another look at this issue.

The prosecution had a chance to put on its best case. Twelve people listened to all of it. Eleven of them had reasonable doubt. Judge Sullivan told the jurors on Thursday that a strong probability of guilt is not enough. By any honest measure, the prosecution failed to carry its burden.  If the government cannot prove its case at a trial, that should be the end of the matter.

Think about what a retrial means for Clancy. She goes back to the state hospital and waits. It could be a long time. Another seven weeks of testimony about the deaths of her children. Another set of experts. Another bill. Another enormous imposition on jurors, court staff, the judge. 

Plus, it’s not fair.  The prosecution gets a preview of the defense theory, its cross-examinations, its opening and summation. One of the only advantages the defense has in a criminal trial is the element of surprise.  All of that is gone in a retrial, which is why prosecutors typically do not lose twice in a row.

Of course, Massachusetts did just that recently. Karen Read's first jury hung in July 2024. The Norfolk County District Attorney tried her again. In June 2025, the second jury acquitted her of second-degree murder and leaving the scene, and convicted her only of operating under the influence. She got a year of probation. It took two trials and years of her life to get there, in addition to the huge expense to taxpayers.

The Supreme Court explained in Green v. United States, that the State, "with all its resources and power," should not be allowed to make repeated attempts to convict a defendant where he was acquitted because it subjects a defendant to "embarrassment, expense and ordeal" and compelled “him to live in a continuing state of anxiety and insecurity.” So too with a retrial after a hung jury.  Those costs do not disappear because the first jury deadlocked.

The Supreme Court should revisit this issue. "Twice put in jeopardy" means what it says. Jeopardy attaches when the jury is sworn. If the government cannot persuade that jury, the case should be over.

If the Court will not act, Congress or the States should. Nothing in the Constitution stops Massachusetts from barring retrials after a hung jury.

Cruz can make all of this moot. He can announce that he will not retry Lindsay Clancy. Eleven jurors already told him what they think of his case. The prosecution had the burden to prove Clancy guilty beyond a reasonable doubt and it failed to do so.  That should be it.