WASHINGTON - TelAve -- Although there are many people urging if not clamoring, for many different reasons, for a retrial now that a mistrial has been declared - e.g., they don't believe her insanity defense, justice for the children demands it, etc. - some of the factors which are typically considered in making such decisions would counsel against again putting her on trial.

Perhaps the most important is that it appears that 11 of the 12 current jurors would not vote to convict.

If that is verified by conversations with some of those jurors, and perhaps confirmed if most of the alternates likewise say they probably would not have voted to convict. the odds that at least one person on any future jury would feel the same way are very high, says public interest law professor John Banzhaf.

Indeed, he earlier spelled out at least three of those reasons:
Clancy Jury - Three Possible Explanations For Refusing to Convict - Doubt Based Upon Burden of Proof and Contradictory Experts, Consideration of the Possible Sentences, and Plain Old Fashioned Juror Nullification

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With those odds stacked heavily against a conviction, both legal ethics and common sense suggest against a retrial.

A second important reason is that those who knew and loved the child victims apparently would oppose it.

Banzhaf explains that before deciding not to retry a case, or in some situations even in decided not to prosecute, prosecutors seek to obtain the approval (or at least the acquiescence) of those in the strongest position to be demanding justice; e.g. family members of those who were murdered.

Here Patrick Clancy (ex-husband and father of the children) reportedly has publicly and repeatedly expressed the view that Lindsay was severely mentally ill rather than "evil" or a "monster," that she should be forgiven, and that the tragedy stemmed from untreated postpartum mental illness.

Similarly, the paternal grandparents/in-laws (such as Susan Clancy and Christopher Clancy) testified about her severe mental-health decline, suicidal ideation, intrusive thoughts of harming the children (disclosed to them), medication problems, paranoia, and repeated efforts to get help. They portrayed her as a loving, dedicated mother whose behavior changed dramatically due to illness.

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Many others who knew the children likewise suggested that she should not be convicted of murder.

So if those most likely to want justice for the children would not favor her criminal conviction, it is hard for prosecutors to argue that justice demands it.

Indeed, if they decide to announce that they will not retry the case, prosecutors can argue persuasively that they are merely following the wishes of those closest to the children, and the other adult victims of the killings, suggests Banzhaf.

http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf