WASHINGTON - s4story -- While there are many possible explanations for the inability of the jury in the Clancy case to reach a unanimous verdict, public interest law professor John Banzhaf suggests three factors which have not been given much considerations so far.  They are expert doubt, sentence consideration, and juror nullification.

EXPERT DOUBT

The jurors has been instructed that they should not vote to find Lindsay Clancy guilty unless they find that she did not meet the legal definition and conditions for the insanity defense beyond any doubt; or at least any doubt for which they can give a reason.

But here they have heard expert psychiatric testimony that she did - to a reasonable medical certainty - meet those standards and conditions, at least during the time period when she killed her three children.

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So since jurors probably realize that they cannot by themselves engage in any independent evaluation of the evidence - as jurors can, for example, in civil negligence automobile crash cases - they have no realistic choice but to rely on the testimony of experts.

While they may themselves believe that the expert testimony on behalf of the prosecution is much stronger than that presented by the defense, and would rule in that direction if the legal standard were "by a preponderance of evidence" or even "by clear and convincing evidence," the testimony of even one defense expert witness whom the jury finds credible (e.g., well credentialed, spoke convincingly, etc.) arguably does provide a bit of doubt for which there is a valid reason.

If so, this may be sufficient justification for one of more jurors to refuse to support a verdict of guilty.

SENTENCE CONSIDERATION

In an unusual move, the judge has shared with the jury information as to the consequences, in terms of permissible sentences, of the major alternative verdicts.

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Usually jurors are not given this information because they are supposed to apply the law to the facts and render a verdict without also weighing the "fairness" or appropriateness of the consequences mandated by the legislature.

But here, for example, some members of the jury may well decide that sentencing her to a life in prison confined to a wheelchair, without even the possibility of parole in her declining years, is too extreme and unjust regardless of the verdict the law may mandate.

If so, despite their oath, some jurors may refuse to vote to send her to a life in prison from which there is no hope of even a brief period of freedom, suggests Banzhaf.

JUROR NULLIFICATION . . .

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