On “Good Morning America” Tuesday morning, Kevin Reddington asked the President of the United States to pardon Lindsay Clancy.
“Mr. President, I would hope that you would consider this young lady, the type of person she is, what she has been through, and consider a pardon,” he said, noting that Donald Trump “felt compelled to speak out about this case.”
The President cannot do it. Not because he would decline, and not because the case is unsympathetic. Because the office does not reach this case at all.
That is worth setting out precisely, and then the more interesting question is worth asking: if Reddington knows it, and after fifty years at the Massachusetts bar he certainly does, what is the request actually for, and does it help his client or hurt her?
Why a presidential pardon is not available
The pardon power comes from Article II, Section 2, Clause 1 of the United States Constitution. The President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
Offenses against the United States means federal crimes. Lindsay Clancy is charged with murder under Massachusetts law, indicted in Plymouth County, tried in Massachusetts Superior Court before a Massachusetts judge, prosecuted by an elected Massachusetts district attorney. WCVB put it plainly in its own report: she “does not face federal charges.”
There is no federal offense to pardon. A presidential pardon here would be a document with no legal object.
Who could actually grant clemency, and why that does not fit either
Clemency for a Massachusetts offense belongs to the Governor, acting with the advice and consent of the Governor’s Council, under Part 2, Chapter II, Section I, Article VIII of the state constitution as amended.
The mechanics are in G.L. c. 127, § 152. A petitioner files a written petition. It goes first to the parole board, sitting as the Advisory Board of Pardons, which investigates and decides whether the case warrants a public hearing. For a felony, a public hearing before the Governor’s Council is required. The Council must then approve by a recorded majority vote, filed with the state secretary within three days. The Governor’s decision has no effect without that consent.
Even that route is closed right now, for a reason that has nothing to do with politics. A pardon operates on a conviction and the sentence that follows it. The statute speaks of a warrant that replaces the original sentence.
Lindsay Clancy has not been convicted of anything. The jury could not agree and Judge William Sullivan declared a mistrial on 4 September. There is no verdict, no conviction and no sentence. There is nothing for any executive, state or federal, to pardon.
What Trump actually said
The request also has to be read against what the President said when asked about the case last Friday. He called it “a horrible tragedy” and “a terrible situation,” and then said this:
“Look, she did a horrible, horrible thing. It can’t be worse. But, we will find out what the price to pay is. There will be a price. It’s going to be mental institution or jail or something.”
That is not a signal of sympathy toward a pardon. It is a statement that she should be confined somewhere. A defence lawyer inviting that particular commentator further into the case is making a choice.
The case for asking anyway
There is a real argument for it, and it is not a legal one.
It costs nothing in court. No motion was filed and no deadline was consumed. A remark on morning television does not bind Reddington to anything or waive anything.
The audience may not be the President. District Attorney Timothy Cruz has not said whether he will retry the case, and that decision is discretionary and political in the ordinary sense. National attention on the proposition that this woman has suffered enough is pressure on that decision, whoever nominally receives it.
It keeps a narrative alive. Reddington’s whole defence was postpartum psychosis, and his case in public has been that Clancy is ill rather than evil. “This young lady, the type of person she is, what she has been through” is that argument in one sentence, delivered to a national audience.
He signalled the real objective in the same interview. Asked about Cruz, Reddington said he hoped the DA “would revisit that issue and hopefully would be willing to work something out that would be acceptable to both sides.” That is a request for a negotiated resolution. The pardon talk may simply be the loud part of a quieter ask.
The case against
It hands the prosecution a free point. Asking the wrong executive for relief invites the response that the defence has run out of legal arguments and moved to publicity. Cruz has every reason to make it.
It politicises a case that may be retried in Plymouth County. If there is a second trial, twelve jurors will be drawn from that county. Injecting a polarising national figure into the case gives potential jurors a partisan handle on a question that is supposed to turn on psychiatric evidence. It is difficult to see how that helps a defendant whose case depends on jurors thinking carefully about mental illness rather than sorting themselves by political tribe.
The commentator invited in was not helpful. Trump’s remarks pointed toward confinement, not release.
It runs into the family. On Monday, Patrick Clancy’s attorneys said he and his family were enduring “a relentless, escalating and destructive defamation campaign” and asked for it to stop. Whatever the merits of the pardon request, it guarantees another cycle of national coverage of a case the children’s father has just asked people to stop talking about. That is a cost, and it is worth naming.
How it actually affects her
Legally, not at all. No pardon petition exists, none can be granted federally, and none can be granted by the Governor while there is no conviction. Her exposure is exactly what it was on 4 September: three indictments for first-degree murder, still pending, with the Commonwealth free to try them again.
Practically, the effect runs through two channels, and both are about people rather than law.
The first is Cruz. He alone decides whether to retry. Public pressure can influence that either way, and a defence lawyer cannot know in advance which way.
The second is a future jury pool. That is the harder risk to unwind. The defence has already fought one jury to 11 to 1. Reddington has said the single holdout was holding out to convict, and that the juror had acknowledged doubt while declining to apply the reasonable-doubt standard as the judge gave it. On his account he was one juror away from an acquittal or a finding of not criminally responsible. A defence that close does not obviously benefit from making the retrial pool more political.
What is actually scheduled
Clancy returns to court later this month for a status hearing, a trial assignment, and a hearing under the rule that lets a judge review a jury’s verdict. Reddington has said he hopes a second trial can be avoided. Cruz has said nothing.
Those proceedings, not a pardon, are where this case will be decided.
Related: Patrick Clancy’s lawyers threaten legal action, and what say he has in a retrial, where Lindsay Clancy is now and why she is not going home, and Kevin Reddington and his defence strategy.