# Holdout Clancy Juror & SCOTUS Blocks Missouri GOP Maps a Third Time

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 29 Sep 2026, 38 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/c3894b11-6172-46bd-ad3b-b4d4004568e7/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Former federal prosecutor Robert Mintz, a partner at McCarter & English, discusses the defense motions to have the charges against Lindsay Clancy for murdering her three children dismissed and the defense attorney’s repeated attacks on the holdout juror. Elections law expert Richard Briffault, a professor at Columbia Law School, discusses the Supreme Court ordering Missouri not to use Republican drawn maps for the third time. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
[0:09] Speaker 2: We're anticipating the 29th.
[0:10] Speaker 3: I'm hoping that Judge Sullivan allows the termination of the case.
[0:15] Speaker 1: I mean, it's just a case that needs to be done.
[0:19] Speaker 1: It needs to be done.
[0:21] Speaker 3: Lindsay Clancy's defense attorney, Kevin Reddington, is asking the trial
[0:26] Speaker 3: judge to dismiss the murder case against her. saying there
[0:30] Speaker 3: wasn't enough evidence to prove her criminally responsible for murdering
[0:34] Speaker 3: her three children and that trying her again would amount
[0:37] Speaker 3: to double jeopardy. Three weeks ago, the trial judge declared
[0:41] Speaker 3: a mistrial after the jury was unable to reach the
[0:45] Speaker 3: unanimous verdict after seven days of deliberations. The jury was
[0:49] Speaker 3: hung 11 to 1 in favor of acquittal, and Reddington
[0:53] Speaker 3: took an unusual posture for an attorney after the mistrial,
[0:57] Speaker 3: attacking the lone holdout juror repeatedly in media interviews.
[1:03] Speaker 1: They know that they were robbed by one man for
[1:07] Speaker 1: whatever his agenda was, who stole seven weeks.
[1:13] Speaker 2: Of the life of these other jurors.
[1:15] Speaker 3: Reddington is now asking the judge to conduct an investigation
[1:20] Speaker 3: into the holdout juror. My guest is former federal prosecutor
[1:24] Speaker 3: Robert Mintz, a partner at Carter & English. Bob, I've
[1:27] Speaker 3: never seen an attorney attack a holdout juror or any juror.
[1:32] Speaker 3: So it's very unusual. And now the defense attorney is
[1:36] Speaker 3: asking the judge to investigate this holdout juror. What's he
[1:40] Speaker 3: looking for?
[1:41] Speaker 4: The defense lawyer has taken a rather aggressive tactic here
[1:46] Speaker 4: going after the lone holdout juror who has now been
[1:50] Speaker 4: identified by name and has in fact gone out and
[1:54] Speaker 4: hired his own lawyer to represent him in this matter.
[1:58] Speaker 4: And the defense lawyer in the Clancy case is really
[2:01] Speaker 4: trying to focus all of the attention now on this
[2:04] Speaker 4: lone holdout juror. Remember, the jurors apparently were 11 to
[2:10] Speaker 4: 1 with 11 jurors in favor of returning a verdict
[2:15] Speaker 4: of not guilty by reason of insanity based on the
[2:17] Speaker 4: defense argument that she lacked the requisite criminal intent. And
[2:21] Speaker 4: the lone holdout juror refused to agree, which resulted in
[2:25] Speaker 4: a mistrial.
[2:26] Speaker 2: Now, Ms.
[2:27] Speaker 4: Clancy's defense lawyer is essentially going after this loan holdout juror,
[2:32] Speaker 4: asking for all kinds of records about this juror, asking
[2:37] Speaker 4: for information about the juror's cell phone. According to other jurors,
[2:43] Speaker 4: this loan holdout juror was seen scrolling through his cell
[2:47] Speaker 4: phone during deliberation. So the defense lawyer is asking the
[2:52] Speaker 4: court to turn over cell phone records, the calls, text
[2:55] Speaker 4: messages that may have been going on during deliberations, going
[2:59] Speaker 4: after the juror's confidential questionnaire, wants to know whether that
[3:04] Speaker 4: juror who was the lone holdout was truthful in the
[3:07] Speaker 4: questionnaire and whether he was truthful during voir dire, which
[3:10] Speaker 4: is the point at which jurors are questioned during the
[3:14] Speaker 4: jury selection process. So he is really trying to turn
[3:18] Speaker 4: this into an attack on this lone holdout juror, trying
[3:22] Speaker 4: to argue that there was something improper in this juror's
[3:26] Speaker 4: decision to not go along with the other jurors and
[3:30] Speaker 4: to refuse to reach a unanimous verdict of not guilty.
[3:33] Speaker 3: Bottom line, so what? Suppose he finds that out. There's
[3:37] Speaker 3: already been a mistrial declared. What can he hope to
[3:40] Speaker 3: gain from that?
[3:41] Speaker 2: Well, that's a good question.
[3:42] Speaker 4: I think we've seen here a flurry of motions being
[3:47] Speaker 4: filed by the defense lawyer here. One of them is
[3:51] Speaker 4: asking the judge to yet again declare essentially a directed verdict.
[3:56] Speaker 4: What that really means is that under Massachusetts law, a
[4:00] Speaker 4: defendant can ask the court to find them not guilty
[4:03] Speaker 4: on the basis that the evidence is insufficient as a
[4:06] Speaker 4: matter of law for a conviction. That can be filed
[4:10] Speaker 4: when the evidence is completed, which is exactly what Ms.
[4:13] Speaker 4: Clancy's defense lawyer did in this case. The judge denied
[4:16] Speaker 4: it then. It can also be renewed after the conclusion
[4:20] Speaker 4: of the case, which is what's happened here. So the
[4:22] Speaker 4: defense lawyer is asking again for the judge to make
[4:25] Speaker 4: a finding as a matter of law that the evidence
[4:28] Speaker 4: was insufficient in order to convict his client and that
[4:32] Speaker 4: the case should simply be thrown out, basically saying that
[4:36] Speaker 4: there was not enough evidence presented by the prosecutors during
[4:41] Speaker 4: the trial that any reasonable juror could conclude that she
[4:45] Speaker 4: could appreciate the wrongfulness of her conduct or to conform
[4:49] Speaker 4: her conduct to the law, which is the standard for
[4:52] Speaker 4: finding somebody guilty. The defense lawyer has also made an
[4:56] Speaker 4: interesting argument, essentially arguing that another trial would amount to
[5:01] Speaker 4: double jeopardy. Now, the prosecutors in this case have not
[5:04] Speaker 4: yet made a decision about retrying the case, but assuming
[5:08] Speaker 4: they go forward, which is likely, the defense is arguing
[5:11] Speaker 4: that the judge here failed to question the juror, that
[5:15] Speaker 4: lone holdout juror, when other jurors told the court that
[5:19] Speaker 4: that juror had expressed doubts about Ms. Clancy's guilt, but
[5:23] Speaker 4: nonetheless refused to find her not guilty by lack of
[5:27] Speaker 4: criminal responsibility.
[5:28] Speaker 3: The way Reddington, the defense attorney, is attacking this juror,
[5:34] Speaker 3: I mean, has he crossed the line? I know that
[5:36] Speaker 3: the juror's attorney has said that he intends to file
[5:40] Speaker 3: a complaint against him because his conduct isn't consistent with
[5:44] Speaker 3: the standards of professionalism that we expect from members of
[5:47] Speaker 3: the bar. Has he crossed the line in the way
[5:50] Speaker 3: he's treated this holdout juror?
[5:53] Speaker 4: Well, on the one hand, during the deliberations, it's understandable
[5:58] Speaker 4: that the defense lawyer would have aggressively asked the judge
[6:03] Speaker 4: to question jurors and to try to see whether at
[6:06] Speaker 4: the end of the day there could be a unanimous
[6:08] Speaker 4: verdict here. The defense obviously thought that the jury was
[6:12] Speaker 4: leaning towards acquittal. He knew that there was an 11
[6:15] Speaker 4: to 1 voter and knew at least that there was
[6:17] Speaker 4: an overwhelming majority. vote in favor of acquittal. And he
[6:21] Speaker 4: was trying to get that lone holdout juror to go
[6:24] Speaker 4: along with the other jurors.
[6:26] Speaker 2: But that's not what happened here. And what the.
[6:28] Speaker 4: Judge did in the face of the request by the
[6:31] Speaker 4: defense lawyer to question that juror was to bring each
[6:36] Speaker 4: juror in one by one on the sixth day of
[6:39] Speaker 4: deliberations and asked each of them under oath if they
[6:42] Speaker 4: could apply.
[6:43] Speaker 2: The law as instructed. That was the appropriate.
[6:46] Speaker 4: Thing to do because the allegation from the other jurors,
[6:49] Speaker 4: or at least from the defense lawyer, was that this
[6:52] Speaker 4: lone holdout juror was refusing to apply the law. And
[6:56] Speaker 4: if that's the case, then there could be a basis
[6:58] Speaker 4: to remove that juror. But each juror, one by one,
[7:03] Speaker 4: told the judge that they could apply the law as instructed,
[7:06] Speaker 4: including the loan holdout juror. And what the defense lawyer
[7:10] Speaker 4: is asking and what the defense lawyer is criticizing the
[7:13] Speaker 4: court here in not doing is probing the specific complaint.
[7:17] Speaker 4: In other words, specifically asking the lone holdout juror what
[7:22] Speaker 4: was his basis for failing to agree with the other
[7:27] Speaker 4: jurors that there should be a not guilty verdict or
[7:30] Speaker 4: what was his basis for believing that the prosecution had
[7:34] Speaker 4: proved his case beyond a reasonable doubt. That's something that
[7:37] Speaker 4: the judge refused to go into. And I think that
[7:39] Speaker 4: was the appropriate approach because at that point, once you
[7:42] Speaker 4: begin to try to peel back the understanding of why
[7:47] Speaker 4: the juror was voting the way they were, it really
[7:50] Speaker 4: becomes a situation where it could be looked at as
[7:53] Speaker 4: pressuring that juror to change their mind, as opposed to
[7:56] Speaker 4: simply asking whether they could follow the.
[7:59] Speaker 2: Law, which is exactly what the judge did here.
[8:01] Speaker 4: So the defense lawyer at that point, I think, was
[8:04] Speaker 4: reasonable in questioning that juror and asking the judge to
[8:08] Speaker 4: question the jurors, but to attack the juror now after
[8:11] Speaker 4: a mistrial has been declared, really doesn't serve any purpose
[8:16] Speaker 4: because there's not a high probability that any of these
[8:20] Speaker 4: motions are going to be granted, in my opinion.
[8:23] Speaker 2: And going after that lone.
[8:24] Speaker 4: Holdout juror really will have potentially a chilling effect on jurors.
[8:29] Speaker 4: You really want a situation where jurors will make up
[8:33] Speaker 4: their own minds, will use their own understanding of the
[8:37] Speaker 4: law as it's been explained to them by the court,
[8:39] Speaker 4: the facts as they have understood them at the end
[8:42] Speaker 4: of a trial. and come to their own conclusion about
[8:45] Speaker 4: whether or not the prosecution has proven its case beyond.
[8:48] Speaker 2: A reasonable doubt.
[8:49] Speaker 4: And you could certainly see a reverse situation, which I
[8:53] Speaker 4: think most people would find abhorrent, where there was one
[8:57] Speaker 4: lone holdout juror for acquittal and all the other jurors
[9:02] Speaker 4: were voting for a conviction. And if that single juror
[9:05] Speaker 4: who was voting for acquittal ended up in a hung
[9:09] Speaker 4: trial was being pressured in order to gain a conviction,
[9:12] Speaker 4: I think most people would find that to be a
[9:14] Speaker 4: heavy-handed tactic. And so this really does raise the question
[9:19] Speaker 4: about whether the defense lawyer is just going too far
[9:22] Speaker 4: in attacking this juror who has repeatedly said that he
[9:27] Speaker 4: looked at the evidence, he looked at the law, and
[9:29] Speaker 4: simply came to a different conclusion than his fellow jurors.
[9:34] Speaker 2: He's entitled to do that.
[9:35] Speaker 4: And to attack him simply because he refused to go
[9:38] Speaker 4: along with the other 11 jurors is something that most lawyers,
[9:42] Speaker 4: I think, would find to be crossing the line.
[9:45] Speaker 3: Possibility of a plea deal. We don't know if there
[9:48] Speaker 3: have been plea deal negotiations, but the defense attorney has
[9:51] Speaker 3: said he would not accept a plea deal that included
[9:56] Speaker 3: jail time for his client. So that doesn't leave much
[10:00] Speaker 3: room for a plea deal.
[10:02] Speaker 2: You're exactly right.
[10:03] Speaker 4: I think a compromise plea is unlikely in this case
[10:07] Speaker 4: just because the two competing narratives here are so far apart.
[10:12] Speaker 4: On the one hand, the defense story is that this
[10:15] Speaker 4: is a case of a woman who herself was a
[10:18] Speaker 4: victim despite having admitted to this horrific crime of murdering
[10:23] Speaker 4: her three young children. The defense was arguing that she
[10:26] Speaker 4: took all of these steps to try to obtain help
[10:29] Speaker 4: for her mental health issues and that really she was,
[10:32] Speaker 4: in a sense, a victim of a system that overlooks
[10:36] Speaker 4: maternal mental health. That was something that the defense discussed.
[10:40] Speaker 4: that's raised over and over again, and it's completely at
[10:43] Speaker 4: odds with the prosecution's case. The prosecution is looking at
[10:47] Speaker 4: the victims here, the three young children, and is doing
[10:51] Speaker 4: what prosecutors believe is justice, justice for those three young
[10:55] Speaker 4: children who were brutally murdered. And it's hard to find
[10:59] Speaker 4: any common ground between those two competing narratives. And that's
[11:02] Speaker 4: why it's unlikely that that a plea deal will be
[11:05] Speaker 4: worked out here. It's much more likely that this case
[11:08] Speaker 4: will be retried. Prosecutors might change the charges that they bring.
[11:14] Speaker 4: They may not decide to bring first-degree murder charges again,
[11:18] Speaker 4: but I think it's very likely that we'll see another
[11:20] Speaker 4: trial here.
[11:22] Speaker 3: Coming up next, is the judge likely to set a
[11:25] Speaker 3: trial date tomorrow, or might there be more proceedings? I'm
[11:29] Speaker 3: June Grosso, and this is Bloomberg. Tomorrow, Lindsay Clancy will
[11:36] Speaker 3: appear in court for the first time since a judge
[11:40] Speaker 3: declared a mistrial in her murder trial. The jury was
[11:44] Speaker 3: hung 11 to 1 in the trial accusing her of
[11:47] Speaker 3: murdering her three children. I've been talking to former federal
[11:51] Speaker 3: prosecutor Robert Mintz of McCarter & English. Bob, what are
[11:55] Speaker 3: the things that prosecutors consider when deciding whether to retry
[12:00] Speaker 3: someone after a mistrial?
[12:02] Speaker 4: Well, the prosecution is going to go back and they're
[12:04] Speaker 4: certainly going to dissect the case. They're going to look
[12:07] Speaker 4: at the way the case was tried. They're going to
[12:09] Speaker 4: look at the way the evidence went in.
[12:11] Speaker 2: They are not oblivious to the fact that at least.
[12:13] Speaker 4: These jurors were overwhelmingly in favor of acquittal. So they
[12:18] Speaker 4: may try to retool this case in a different way
[12:21] Speaker 4: in terms of how they present the case. They may
[12:24] Speaker 4: try to change the charges. They may drop the first
[12:27] Speaker 4: degree murder. and leave manslaughter in and other charges. They
[12:32] Speaker 4: also consider the victims. In this case, you have the husband,
[12:37] Speaker 4: the grieving husband who lost his three children, who has
[12:41] Speaker 4: to endure the difficulties of sitting through another trial. But
[12:45] Speaker 4: at the end of the day, the prosecutor is going
[12:48] Speaker 4: to do what he believes is the just thing to do.
[12:51] Speaker 4: And if he looks at this case and believes in
[12:55] Speaker 4: his heart that this case was one where the defendant
[13:00] Speaker 4: knew what she was doing, despite the fact that she
[13:03] Speaker 4: clearly had some mental health issues.
[13:06] Speaker 2: He's going to retry the case. And that's, I think,
[13:08] Speaker 2: what's going to happen here.
[13:10] Speaker 3: In light of the attack on the loan holdout juror,
[13:13] Speaker 3: is it going to be hard to find a jury,
[13:16] Speaker 3: you know, jurors that want to sit on this case?
[13:19] Speaker 4: Well, that's certainly what the loan holdout juror's attorney is arguing,
[13:23] Speaker 4: that this will have a killing effect. that this really
[13:26] Speaker 4: is something that people should sit up and pay attention
[13:29] Speaker 4: to because this really is an attack on our constitutional
[13:33] Speaker 4: system in which a jury of our peers are the
[13:36] Speaker 4: people who judge us at trial, and it's important that
[13:39] Speaker 4: we have people willing to serve. And if a juror
[13:43] Speaker 4: believes that if they don't agree with their fellow jurors,
[13:46] Speaker 4: whether that's for conviction or acquittal, that they're going to
[13:50] Speaker 4: be singled out, that they're going to be named publicly,
[13:53] Speaker 4: and they're going to be attacked for their beliefs, That
[13:56] Speaker 4: could make it more difficult to sit jurors who represent
[14:00] Speaker 4: a reasonable cross-section of our society, and that's exactly what
[14:05] Speaker 4: defense lawyers and prosecutors are looking for when they select jurors.
[14:09] Speaker 4: They want jurors who will ultimately make up their minds
[14:13] Speaker 4: independently of the other jurors based on the evidence and
[14:17] Speaker 4: based on the law as it is explained to them
[14:19] Speaker 4: by the court so they can exercise their own independent judgments.
[14:23] Speaker 2: As to whether or not the defendant is guilty or innocent.
[14:27] Speaker 3: Let's talk about some of the motions that the defense
[14:30] Speaker 3: attorney is making. He claims that the judge should have
[14:34] Speaker 3: questioned that holdout juror about why he was holding out, basically,
[14:40] Speaker 3: and also that the judge should have allowed the jury
[14:42] Speaker 3: to deliberate longer.
[14:44] Speaker 4: The standard that the court has to follow when deciding
[14:48] Speaker 4: when jurors can no longer continue to deliberate and the
[14:51] Speaker 4: judge has to declare a mistrial, is when the judge
[14:54] Speaker 4: decides that manifest necessity requires a mistrial. In other words,
[15:00] Speaker 4: when all other options to reach a verdict have been
[15:03] Speaker 4: exhausted and there is simply no point in continuing to deliberate.
[15:07] Speaker 2: Here, the defense is arguing that the.
[15:09] Speaker 4: Judge rushed to judgment, declared a mistrial prematurely rather than
[15:14] Speaker 4: continuing to question the loan holdout juror or the jury
[15:18] Speaker 4: foreperson who had said that the loan holdout juror was
[15:21] Speaker 4: not following the law. and that the judge here acted
[15:24] Speaker 4: too quickly. Again, I don't think this is one that
[15:27] Speaker 4: is likely to succeed on appeal. I think this is
[15:30] Speaker 4: one where the appellate courts will give deference to the judge.
[15:34] Speaker 4: The judge did question jurors one by one about whether
[15:38] Speaker 4: or not they could follow the law. I think that
[15:40] Speaker 4: was the appropriate thing to do. Really here, what the
[15:43] Speaker 4: defense is trying to argue is that the judge should
[15:46] Speaker 4: have gone further and asked that lone holdout juror what
[15:51] Speaker 4: was their basis for failing to agree with the other
[15:54] Speaker 4: jurors that there should be a not guilty by reason
[15:57] Speaker 4: of insanity. And the judge was not going to go there.
[16:00] Speaker 4: The judge was not going to get into the reasoning
[16:02] Speaker 4: as to why jurors reach certain decisions. And that's something
[16:07] Speaker 4: that under the law is generally protected. In other words,
[16:11] Speaker 4: courts do not like to peel back the curtain and
[16:15] Speaker 4: look at jurors and ask questions about how they reach
[16:18] Speaker 4: their decisions. It's done in private. It's in the jury room.
[16:23] Speaker 4: There's no transcript that's created of deliberations intentionally. Jurors are
[16:28] Speaker 4: allowed to go back and forth, conduct those deliberations without
[16:32] Speaker 4: fear that anything they say during those deliberations will be
[16:35] Speaker 4: made public. And so to ask a juror about why
[16:39] Speaker 4: they're reaching or leaning towards a particular decision is just
[16:43] Speaker 4: not something the court was going to do. And it's
[16:45] Speaker 4: not something I think that the appellate court will find
[16:48] Speaker 4: that the judge erred in refusing to go there.
[16:51] Speaker 3: Bob, what does it take for a judge to dismiss
[16:54] Speaker 3: a juror in the middle of deliberations, especially when they've
[16:58] Speaker 3: learned that there is one holdout?
[17:01] Speaker 4: Well, it's highly difficult to dismiss a juror during deliberations, particularly,
[17:06] Speaker 4: as you said, once it's known that the defense is
[17:09] Speaker 4: asking the lone holdout to a not guilty verdict. to
[17:14] Speaker 4: be removed because that looks like it is a results-oriented
[17:18] Speaker 4: decision then in order to try to get a not
[17:21] Speaker 4: guilty verdict. But during the course of a trial, there
[17:24] Speaker 4: are circumstances where jurors are removed, and that's why in
[17:28] Speaker 4: every case, in addition to the men and women who
[17:31] Speaker 4: are seated as part of the jury, they're also what's
[17:34] Speaker 4: called alternate jurors, which are men and women who are
[17:38] Speaker 4: picked to be on the jury but don't actually sit
[17:41] Speaker 4: in the jury box and hear the case, but they
[17:44] Speaker 4: are there in the courtroom hearing all the evidence so
[17:47] Speaker 4: that if a juror is removed, one of the alternates
[17:50] Speaker 4: then steps in and takes their place and the whole
[17:54] Speaker 4: case doesn't have to be tried again. And when that happens,
[17:58] Speaker 4: it's generally a circumstance either where a juror becomes ill
[18:01] Speaker 4: and is unable to complete the trial and to sit
[18:05] Speaker 4: and render a verdict at the end of the case.
[18:08] Speaker 4: Or in rare instances, there's cases where it's proven that
[18:12] Speaker 4: a juror has disregarded the court's instructions with regard to
[18:17] Speaker 4: not discussing the case and with regard to not reading
[18:20] Speaker 4: any news accounts or getting any outside information about the
[18:24] Speaker 4: trial because it's very important to that at the end
[18:26] Speaker 4: of the day, jurors make their decisions based solely on
[18:29] Speaker 4: the evidence that's presented during the trial, that's admitted during
[18:34] Speaker 4: the trial over objections and rulings by the court, and
[18:38] Speaker 4: that they're not influenced in any way by any information
[18:41] Speaker 4: that they may have heard about the case or may
[18:43] Speaker 4: hear about the case during the course of the trial.
[18:46] Speaker 4: So there have been instances where jurors have acknowledged to
[18:50] Speaker 4: reading newspapers or to have looked on their phone and
[18:52] Speaker 4: gathered information about a trial during the course of the trial.
[18:56] Speaker 2: And once that happens, they have.
[18:58] Speaker 4: Essentially infected the deliberation process with information that was not
[19:03] Speaker 4: presented during the trial. And a juror can be removed
[19:06] Speaker 4: for that purpose. But you're not going to have a situation.
[19:09] Speaker 2: Where a juror tells the judge that.
[19:12] Speaker 4: They are making a decision based solely on the evidence
[19:15] Speaker 4: and that they have agreed.
[19:16] Speaker 2: That they will follow the law as it has been
[19:19] Speaker 2: explained to them by the judge.
[19:21] Speaker 4: And be removed because another juror is arguing that they're
[19:25] Speaker 4: not following the law. That's simply a disagreement between or
[19:29] Speaker 4: among jurors as to what the proper verdict can be.
[19:32] Speaker 4: There's nothing improper about it, and a judge is not
[19:34] Speaker 4: going to remove a juror on that basis.
[19:37] Speaker 3: His double jeopardy motion seems like it's more than a
[19:41] Speaker 3: long shot.
[19:43] Speaker 4: If there's a mistrial, you know, your options are much
[19:46] Speaker 4: more limited. And, you know, you can file those motions
[19:49] Speaker 4: that he is filing, but they're just unlikely to succeed here.
[19:52] Speaker 4: You know, there's certainly not going to be a finding
[19:54] Speaker 4: of double jeopardy because the court, you know, failed to
[19:57] Speaker 4: question the jurors the way he would have liked.
[19:59] Speaker 2: It's probably not going to happen.
[20:01] Speaker 3: So you think that what happens tomorrow is the defense's
[20:04] Speaker 3: motions are denied and maybe the judge sets a trial date?
[20:09] Speaker 4: Well, if the motions tomorrow are denied, I think we
[20:12] Speaker 4: will expect to see an appeal, and that will delay
[20:16] Speaker 4: a retrial. If the defense motion concerning the judge's alleged
[20:22] Speaker 4: failure to adequately question jurors based upon the allegation that
[20:27] Speaker 4: one juror was not following the law, If it goes
[20:29] Speaker 4: against the defense, which is what I expect, I think
[20:32] Speaker 4: we'll see that taken up on appeal.
[20:33] Speaker 2: So I think the.
[20:34] Speaker 4: Next phase of this process is going to be an appeal,
[20:38] Speaker 4: which will have to be resolved before the next trial
[20:41] Speaker 4: can take place.
[20:42] Speaker 3: Clancy's defense attorney did make an emergency appeal to the
[20:45] Speaker 3: Massachusetts Supreme Judicial Court to block the trial judge from
[20:50] Speaker 3: declaring a mistrial, and they ruled against that. So does
[20:55] Speaker 3: it seem unlikely that they would reverse based on that
[20:58] Speaker 3: same issue?
[20:59] Speaker 2: No, I think it's unlikely.
[21:01] Speaker 4: Trial judges are given a lot of deference to make
[21:04] Speaker 4: decisions during the course of trials. And in this case,
[21:07] Speaker 4: there's nothing that the judge did that was unreasonable. The
[21:11] Speaker 4: judge did question jurors about whether that juror could follow
[21:14] Speaker 4: the law. I don't think the judge is going to
[21:17] Speaker 4: allow this inquiry into.
[21:20] Speaker 2: The lone holdout juror.
[21:22] Speaker 4: And so I don't think any of these motions that
[21:25] Speaker 4: the defense are making are likely to succeed. And I
[21:28] Speaker 4: think we'll see an appeal first, which will likely ultimately
[21:32] Speaker 4: be denied. And then this case will be set for
[21:34] Speaker 4: another trial.
[21:36] Speaker 3: I guess tomorrow we'll at least learn whether or not
[21:38] Speaker 3: there have been any plea negotiations. And perhaps the judge
[21:42] Speaker 3: will announce his decision on the motions as well. Thanks
[21:45] Speaker 3: so much, Bob. That's Robert Mintz of McCarter & English.
[21:50] Speaker 3: coming up next on the Bloomberg Law Show. For the
[21:52] Speaker 3: third time, the Supreme Court rules that Missouri must use
[21:56] Speaker 3: its map from 2022 in the midterms, not a Republican-drawn map.
[22:02] Speaker 3: I'm June Grosso, and you're listening to Bloomberg.
[22:08] Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
[22:16] Speaker 3: On Friday, the Supreme Court handed down two decisions in
[22:19] Speaker 3: election-related cases. For the third time, the court said Missouri
[22:24] Speaker 3: can't use a Republican-drawn congressional map in the November midterm elections.
[22:29] Speaker 3: That was unanimous for the third time. And over the
[22:33] Speaker 3: dissents of the court's three liberals, the court reinstated President
[22:37] Speaker 3: Trump's expansion of a federal database to help verify voter
[22:41] Speaker 3: eligibility for the midterms. Joining me is elections law expert
[22:45] Speaker 3: Richard Brafault, a professor at Columbia Law School. The Supreme
[22:49] Speaker 3: Court rejected Missouri Republicans' map twice in one week. After that,
[22:54] Speaker 3: why did the Eighth Circuit come back and say that
[22:58] Speaker 3: the Constitution required that the state use that Republican map?
[23:06] Speaker 1: Yeah, so in the Eighth Circuit's view, the problem was
[23:11] Speaker 1: that because the primary— had been held under the newly
[23:17] Speaker 1: gerrymandered map, but the election was going to be held
[23:20] Speaker 1: under the older, the pre-gerrymandered map. That meant that something
[23:26] Speaker 1: like a quarter of the voters were voting in the
[23:29] Speaker 1: general election only, but were ineligible to vote in the
[23:31] Speaker 1: primary in the district in which they were voting for
[23:34] Speaker 1: the general election. Because as a result of the shift
[23:38] Speaker 1: from the gerrymandered map to the pre-gerrymandered map, about somewhere
[23:42] Speaker 1: between 20 and 25 percent of the people, or of
[23:45] Speaker 1: the voters, depending on which you look at it, were
[23:47] Speaker 1: relocated from one district to another. Some of them would
[23:50] Speaker 1: have voted in the primary in one district, but be
[23:53] Speaker 1: in the general election for another district. And that meant,
[23:56] Speaker 1: in Circuit's view, they were not equally situated relative to
[24:00] Speaker 1: the other voters in that district, who also had a
[24:03] Speaker 1: shot at voting in the primary. They viewed that as
[24:05] Speaker 1: an equal protection problem, somewhat very loosely akin to Bush
[24:09] Speaker 1: versus Gore. So in their view, statewide, roughly a quarter
[24:14] Speaker 1: of the voters were being unequally treated because they did
[24:18] Speaker 1: not have the opportunity to vote in the primary that
[24:22] Speaker 1: set up the general election.
[24:24] Speaker 3: And the Supreme Court said, weren't you here before?
[24:27] Speaker 1: The Supreme Court basically said something along the lines like,
[24:30] Speaker 1: that's an interesting argument, but it's too late. It's too
[24:33] Speaker 1: late for this time. They basically said, I think they
[24:36] Speaker 1: sent it back. I mean, that issue may work its
[24:38] Speaker 1: way through the courts eventually, but they basically said, not
[24:41] Speaker 1: only are we close to the election, The election has
[24:44] Speaker 1: already started. The ballots have already gone out. You can't
[24:48] Speaker 1: do that. It was actually a district court decision initially
[24:52] Speaker 1: in Missouri, and then the Eighth Circuit had upheld the
[24:54] Speaker 1: district court. The Supreme Court just said, stop. Everything has
[24:58] Speaker 1: stayed until such time as, in fact, there's a full
[25:01] Speaker 1: litigation of that other issue. But in any event, the
[25:04] Speaker 1: Supreme Court made it very, very clear that the 2022 map,
[25:10] Speaker 1: I'll call it the pre-gerrymander map, is the one that
[25:12] Speaker 1: will be used in the general election in Missouri.
[25:14] Speaker 3: I mean, wasn't it clear before? The Supreme Court said,
[25:17] Speaker 3: given this court's two prior orders in this litigation, our
[25:21] Speaker 3: conclusion that this was error should come as no surprise.
[25:25] Speaker 1: It was quite clear. I mean, all three decisions of
[25:28] Speaker 1: the court were unanimous. I think there is even a
[25:31] Speaker 1: level of, you know, you're really blatantly disobeying us. And
[25:36] Speaker 1: it doesn't matter that you're a conservative panel. I think
[25:39] Speaker 1: it was a Trump-appointed judge on the district court. And
[25:42] Speaker 1: I'm not sure who all the judges were on the circuit,
[25:44] Speaker 1: but I know at least one of the concurring judges
[25:47] Speaker 1: was a Trump judge who basically said the plaintiffs didn't
[25:49] Speaker 1: even have standing to bring the case. So I think
[25:53] Speaker 1: the court said, you know, if there's anything to the
[25:56] Speaker 1: so-called Purcell principle, which is that federal court should not
[25:59] Speaker 1: step in close to an election, this was it. And
[26:02] Speaker 1: I guess in some ways it gave them the opportunity
[26:05] Speaker 1: to show that they will use that against Republicans as
[26:07] Speaker 1: well as against Democrats. Since most of the most prominent
[26:11] Speaker 1: cases in recent years have been ones in which there
[26:13] Speaker 1: were voting rights advocates who lost.
[26:16] Speaker 3: So let's turn to the other Supreme Court decision that
[26:19] Speaker 3: allows the Trump administration to use this government database that
[26:24] Speaker 3: includes social security information. I mean, it's a database that,
[26:29] Speaker 3: should we say it isn't considered 100% reliable?
[26:33] Speaker 1: Yes. To step back a little bit, this database was
[26:36] Speaker 1: originally created. It also has the acronym SAVE but shouldn't
[26:40] Speaker 1: be confused with the Save America Act, SAVE. It was
[26:43] Speaker 1: originally created in the Department of Homeland Security as a
[26:48] Speaker 1: way of being sure that people who use federal benefits
[26:52] Speaker 1: are entitled to them. In fact, it's the systematic alien
[26:56] Speaker 1: verification for entitlements, and it's to make sure that non-citizens
[27:01] Speaker 1: don't receive Medicaid and don't receive various welfare benefits and
[27:05] Speaker 1: things like that. And then one of the initiatives of
[27:08] Speaker 1: the Trump administration has kind of opened it up and
[27:11] Speaker 1: to try and turn it into a more general database
[27:13] Speaker 1: on citizenship. So historically, Homeland Security basically kept it as
[27:17] Speaker 1: a list of immigrants. But Trump said, basically told the
[27:22] Speaker 1: Social Security Administration, which of course only has citizens, to
[27:25] Speaker 1: begin to, in effect, share its database with Homeland Security, DHS,
[27:30] Speaker 1: to create kind of a mega database of citizens with
[27:34] Speaker 1: the idea of figuring out who would be eligible to
[27:36] Speaker 1: vote so that I think the long-term goal was to
[27:40] Speaker 1: combine it with the mail-in ballot restrictions that were proposed
[27:44] Speaker 1: but have been temporarily put on hold, that this would
[27:47] Speaker 1: be the database that the Postal Service would examine to
[27:51] Speaker 1: determine whether or not a mail-in ballot was valid. This
[27:55] Speaker 1: is not nearly that far. All that the administration was doing,
[28:00] Speaker 1: was directing the Social Security Administration to put their records
[28:05] Speaker 1: into this database to create kind of a mega database
[28:08] Speaker 1: on citizenship, which would be available to the states on
[28:12] Speaker 1: an optional voluntary basis if the states wanted to use
[28:16] Speaker 1: it to check on the citizenship of voters. And something
[28:20] Speaker 1: like two dozen states have opted in to do this,
[28:23] Speaker 1: and something like two dozen states have refused to do this.
[28:26] Speaker 1: It should add up to 50, and I'm a little under,
[28:28] Speaker 1: but that's amazing. So-called red states have been using it
[28:31] Speaker 1: to check, and so-called, um, Blue states have not. The
[28:36] Speaker 1: other thing that the administration did along the way is
[28:38] Speaker 1: say once you put the Social Security data in, states
[28:42] Speaker 1: could basically submit multiple requests for checking at the same time.
[28:45] Speaker 1: As previously, it was individuals that they were checking to
[28:48] Speaker 1: see if they were eligible for, let's say, Medicaid. But
[28:51] Speaker 1: now the idea was to create bulk reviews of people
[28:54] Speaker 1: that the states thought might not be eligible to vote.
[28:58] Speaker 1: The lower court struck this down on several grounds, mostly
[29:01] Speaker 1: on violation of privacy. that Social Security Administration is supposed
[29:06] Speaker 1: to be closely held and not shared with other agencies.
[29:09] Speaker 1: And Homeland Security was not supposed to be making it
[29:13] Speaker 1: available except on a limited basis. And so, but the
[29:18] Speaker 1: big issue was whether or not the Social Security laws
[29:21] Speaker 1: privacy provisions and the Privacy Act protections for privacy prevented
[29:25] Speaker 1: the Social Security Administration from sharing this. The Supreme Court
[29:29] Speaker 1: relying on arguments made by the government concerning two provisions
[29:34] Speaker 1: of the immigration law, the 1996 immigration law, said that
[29:39] Speaker 1: those provisions, which prohibited people from interfering with the ability
[29:46] Speaker 1: of DHS, of Homeland Security, to get information concerning the
[29:50] Speaker 1: citizenship or immigration status of individuals, that those in turn
[29:56] Speaker 1: in effect constituted a kind of amendment to to the
[29:59] Speaker 1: Social Security Act or the privacy law authorizing Social Security, SSA,
[30:04] Speaker 1: Social Security Administration, to provide that data. That was the
[30:08] Speaker 1: court's holding on the merits. And the court said, because
[30:11] Speaker 1: this had come up on, I guess, the lower court,
[30:14] Speaker 1: had issued a stay and held that the program was invalid,
[30:18] Speaker 1: the SAFE program was invalid. And then the D.C. Circuit,
[30:22] Speaker 1: a divided D.C. Circuit panel affirmed that, and the government
[30:25] Speaker 1: came to the Supreme Court for a stay. So all
[30:27] Speaker 1: they got was a stay of the district courts opinion,
[30:30] Speaker 1: allowing DHS to go forward with this program and make
[30:34] Speaker 1: the information available. In theory, it's going to go back
[30:37] Speaker 1: to the lower court for a full trial. But the
[30:39] Speaker 1: Supreme Court has already basically signaled that it thinks that
[30:42] Speaker 1: on the merits, it's likely that the government will win.
[30:46] Speaker 3: What impact will this have on the midterm since we're
[30:49] Speaker 3: in what's called the quiet period before elections, right?
[30:54] Speaker 1: Under another federal law, there cannot be mass purges of
[30:58] Speaker 1: voters in the 90 days preceding an election. There could
[31:02] Speaker 1: be individualized checking on individual voters, but there cannot be
[31:06] Speaker 1: mass purges. And the Supreme Court signaled its view that
[31:10] Speaker 1: they thought it was unlikely that this would have much
[31:13] Speaker 1: of an impact in the next 35 days, approximately, until
[31:17] Speaker 1: the election. And the dissenters also made a point of
[31:20] Speaker 1: emphasizing that. So that It's unlikely, although I guess we'll see,
[31:26] Speaker 1: but it's unlikely that this will have an impact on midterms.
[31:30] Speaker 1: It could be more significant for the 2028 general election.
[31:33] Speaker 1: I saw some data that Texas has been using this program.
[31:38] Speaker 1: There are several million voters in Texas, and I think
[31:40] Speaker 1: they found something in the order of 20,000 or 30,000
[31:43] Speaker 1: voters that they thought were problematic under this. It doesn't
[31:46] Speaker 1: mean that they're non-citizens. I mean, and that some of them,
[31:48] Speaker 1: in fact, were citizens on further examination. Social Security, of course...
[31:52] Speaker 1: begins with people who are citizens by birth or are
[31:55] Speaker 1: at the age of getting social security numbers, there's often
[31:58] Speaker 1: a gap in a lot of these databases for people
[32:01] Speaker 1: who become naturalized citizens. The databases are not always up
[32:05] Speaker 1: to date. And it seems that a lot of the
[32:07] Speaker 1: issues may relate to people who have become citizens since
[32:12] Speaker 1: the last time the database was fully brought up to date.
[32:15] Speaker 1: And so there will be issues, I think, about people
[32:17] Speaker 1: who've been through the citizenship process since the last time
[32:22] Speaker 1: the databases were examined and corrected.
[32:25] Speaker 3: So even though the Trump administration and Trump has said
[32:29] Speaker 3: repeatedly that all these non-citizens are voting, there's very little
[32:33] Speaker 3: evidence of it. So why spend so much time and
[32:37] Speaker 3: effort on something like this, you know, this great reveal
[32:41] Speaker 3: of non-citizens voting? Actually, it might kick back Republican voters
[32:45] Speaker 3: as well.
[32:46] Speaker 1: I mean, this has been Trump's obsession since 2016. Remember, 2016,
[32:52] Speaker 1: Trump won the election by winning the electoral vote in
[32:55] Speaker 1: a small number of key states, but he overall lost
[32:57] Speaker 1: the popular vote by several million votes. And he has
[33:00] Speaker 1: from that point on said he had won the popular
[33:03] Speaker 1: vote if only citizens were voted. So from 2016 on,
[33:07] Speaker 1: he has been obsessed with the idea that there are
[33:09] Speaker 1: large numbers of non-citizens voting and that that's why he
[33:13] Speaker 1: lost the popular vote in 2016. And that that's why
[33:17] Speaker 1: he also really won in 2020. if only real, only
[33:20] Speaker 1: actual citizens voted. And so it's been a long-term obsession
[33:23] Speaker 1: on his point that non-citizens have been voting, and that's
[33:27] Speaker 1: why he lost the popular vote in 2016 and 2020.
[33:30] Speaker 1: And in his view, of course, the non-citizens are helping Democrats.
[33:35] Speaker 1: And so it has become a centerpiece of his election
[33:39] Speaker 1: law agenda to root out all non-citizens from voting based
[33:44] Speaker 1: on the assumption that there are large numbers of non-citizens voting.
[33:49] Speaker 1: There was this recent story that the Department of Justice
[33:51] Speaker 1: had alerted the state of Nevada that they had found
[33:54] Speaker 1: out that there were something like tens of thousands of
[33:56] Speaker 1: non-citizens voting. Nevada went back and focused that there might
[34:00] Speaker 1: have been 184, and all the 184 were cleared and
[34:03] Speaker 1: were actually citizens. Some of it is a lot of
[34:06] Speaker 1: the time, if the government thinks that so-and-so is a problem,
[34:09] Speaker 1: they will write to that person and ask that person
[34:12] Speaker 1: to provide proof of citizenship. Many people ignore that mail.
[34:15] Speaker 1: And so it could very well be a question might
[34:17] Speaker 1: arise about somebody. The government sends an official letter of
[34:21] Speaker 1: some sort, and that letter is not answered. And the
[34:24] Speaker 1: government treats that as proof of non-citizenship. A lot of
[34:28] Speaker 1: people don't see their mail or ignore their mail. That's
[34:31] Speaker 1: technically supposed to be what the process is here. If
[34:33] Speaker 1: there's a question about your citizenship, they're supposed to reach
[34:36] Speaker 1: out and contact you and give you an opportunity to
[34:39] Speaker 1: correct the record. But many people don't respond to government mail.
[34:44] Speaker 1: And so they will be treated as registered. Again, no
[34:47] Speaker 1: one knows if they voted as registered, as non-citizens registered
[34:51] Speaker 1: to vote. When they may very well be citizens, they
[34:53] Speaker 1: just haven't gone around to clearing the record. Which is
[34:56] Speaker 1: not to say there are no non-citizens who are registered
[34:59] Speaker 1: to vote. It was a recent development in New Jersey
[35:02] Speaker 1: that several hundred people were improperly registered. That typically happens
[35:06] Speaker 1: when a local registrar kind of made me understand what
[35:10] Speaker 1: a green card is. and think that green card makes
[35:13] Speaker 1: you eligible to vote when it does not. So there
[35:16] Speaker 1: are non-citizens who have been registered to vote, small numbers,
[35:20] Speaker 1: and in most cases that's really a matter of administrator
[35:24] Speaker 1: error rather than any attempt on the part of a
[35:27] Speaker 1: voter to engage in fraud. Non-citizens may think that having
[35:31] Speaker 1: a green card or being in the citizen application process
[35:36] Speaker 1: is enough, but there's just about no evidence of organized
[35:39] Speaker 1: fraud There is evidence of mistakes.
[35:43] Speaker 3: Might this be a problem long term, having, you know,
[35:46] Speaker 3: the states have access to the Social Security numbers, or
[35:49] Speaker 3: is it just a privacy concern?
[35:52] Speaker 1: It's probably both. There is a privacy concern. This information
[35:55] Speaker 1: is now out there in the hands of another government agency,
[35:57] Speaker 1: which may or may not be very vigorous in protecting it.
[36:01] Speaker 1: And then the information will be supplied to the states.
[36:04] Speaker 1: So there are now many more weak links in the
[36:07] Speaker 1: privacy chain. And in terms of voters, there's just a
[36:10] Speaker 1: more serious doubt about the quality of the information. It's just,
[36:14] Speaker 1: as I say, there are errors in these databases. Some
[36:16] Speaker 1: are just errors of data entry. Some are errors of
[36:19] Speaker 1: failure to update databases. And so there would no doubt
[36:22] Speaker 1: be some voters who will be improperly challenged or improperly
[36:28] Speaker 1: deny the right to vote because they will be challenged
[36:31] Speaker 1: based on flawed information and the voter will fail to respond.
[36:35] Speaker 3: You mentioned the 90-day quiet period. Are states aggressively looking
[36:40] Speaker 3: for non-citizens on their rolls? Any red states doing that?
[36:44] Speaker 1: There's been some evidence that some. I think Texas was.
[36:47] Speaker 1: I think there are a number of states that are. And,
[36:49] Speaker 1: of course, now the Justice Department has said that they
[36:51] Speaker 1: will vigorously prosecute state officials who interfere with the removal
[36:57] Speaker 1: of non-citizens or who are in many ways facilitate the
[36:59] Speaker 1: registration of non-citizens. So you can imagine that state and
[37:03] Speaker 1: local officials even Not in red states are going to
[37:06] Speaker 1: be more attentive to this, and they may make mistakes.
[37:09] Speaker 1: But apparently there was a big move in Texas. Many
[37:11] Speaker 1: thousands of people were affected, and it turns out that
[37:14] Speaker 1: at least 20% were mistakes. 20% of the people delisted
[37:19] Speaker 1: were actually done so in error, and that's been proven
[37:21] Speaker 1: to be mistakes. And this is voluntary, so the states
[37:25] Speaker 1: that don't want to use it don't have to use it.
[37:28] Speaker 1: And there are the 23 states that have so far
[37:31] Speaker 1: succeeded in prohibiting delisting, the Department of Justice from getting
[37:35] Speaker 1: their voter rolls. I mean, the ultimate goal of the
[37:37] Speaker 1: administration would be to create this database and then get
[37:39] Speaker 1: the voter rolls from the states and the administration to
[37:41] Speaker 1: its own comparison. So far, that's really only a possibility
[37:45] Speaker 1: for the states that don't resist, and every state that
[37:48] Speaker 1: has resisted has won.
[37:50] Speaker 3: Thanks so much, Rich. That's Professor Richard Brafault of Columbia
[37:54] Speaker 3: Law School. And that's it for this edition of the
[37:56] Speaker 3: Bloomberg Law Show. Remember, you can always get the latest
[37:59] Speaker 3: legal news on our Bloomberg Law Podcast. You can find
[38:02] Speaker 3: them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast
[38:09] Speaker 3: slash law. And remember to tune into the Bloomberg Law
[38:12] Speaker 3: Show every weeknight at 10 p.m. Wall Street time. I'm
[38:16] Speaker 3: June Grosso, and you're listening to Bloomberg.

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