Justice dies when sympathy replaces evidence

The Lindsay Clancy murder trial puts sympathy, mental illness and impartial justice on a collision course

In 2016, after the verdict was delivered in the much-publicized Jian Ghomeshi trial, I recall a female associate posting online that surely if the judge had been a woman, Ghomeshi would not have been acquitted.

The former CBC broadcaster was on trial for sexual assault based largely on the testimony of three female complainants. My associate, who would describe herself as a feminist, seemed convinced the gender of the judge should have made a difference.

I responded that one would hope any judge, male or female, would reach the same conclusion based on the evidence. Justice William Horkins acquitted Ghomeshi because the Crown had failed to prove its case beyond a reasonable doubt. Horkins stressed that his ruling did not determine whether particular events had occurred. His task was to determine whether the evidence established guilt beyond a reasonable doubt. He found significant problems with the evidence, including inconsistencies in testimony and concerns about communications between complainants.

The case was particularly difficult because there was no physical or forensic evidence. Any judge, male or female, therefore had to assess the same problematic testimony.

Impartiality is a cornerstone of our justice system. Those entrusted with judging cases must resist allowing their sympathies, prejudices or personal identification with either side to determine the outcome. That same question of impartiality arose in the recent Lindsay Clancy murder trial in Massachusetts, which ended in a mistrial after the jury was unable to reach a unanimous verdict.

Clancy was charged with murdering her three young children at the family home in Massachusetts. She did not dispute killing them. She had sought mental health treatment before the killings and had been prescribed multiple medications. Her defence argued that she was suffering from postpartum psychosis and was therefore not criminally responsible, while prosecutors maintained that she understood what she was doing and acted deliberately.

Postpartum psychosis is a rare but severe psychiatric condition that can involve hallucinations, delusions, confusion and extreme changes in mood. It affects roughly one or two women in every 1,000 after childbirth. The central question in Clancy’s case was one of moral agency: whether her mental illness prevented her from appreciating that what she was doing was wrong or from controlling her conduct as the law requires.

That is a question for the evidence to answer.

The case also drew strong support from women who identified with Clancy and with the difficulties mothers can experience after childbirth. Some supporters adopted the colour pink. Some believed Clancy should not be held responsible. Others used the case to raise awareness about postpartum depression and psychosis or to question the mental health treatment she received.

There is nothing wrong with compassion for Clancy. The danger comes when compassion becomes identification and identification begins influencing judgment. For jurors, that distinction is especially important.

A juror should never allow identification with an accused, whether based on sex, race, religion or shared experience, to influence the assessment of criminal responsibility. Jurors should also avoid conduct that could reasonably create the appearance that they have identified themselves with a cause associated with either the accused or the prosecution.

During deliberations, reports circulated that two female jurors had worn pink, a colour that had also been adopted by some Clancy supporters. There is no evidence they intended their clothing as a statement of support, and it would be wrong to assume they were biased because of it. But the episode illustrates why jurors must be careful to avoid even the appearance that they have identified themselves with one side of a case.

After the mistrial, jurors said they had been split 11-1 on whether Clancy should be found not guilty because she lacked criminal responsibility, with one male juror holding out. Some of the discussion that followed focused on the fact that the lone holdout was a man.

But judging his motives on that basis would repeat the very problem at issue here. If a male juror is presumed to have acted in bad faith because of his sex, that is the same kind of identity-based reasoning that should have no place in determining guilt. The only relevant question is whether each juror considered the evidence impartially.

That requirement for impartial justice is also central to universal Noahide ethics. Noahide ethics refers to a set of universal moral principles rooted in Jewish tradition and understood to apply to all humanity, including the requirement to establish systems of justice. In The Divine Code, Rabbi Moshe Weiner emphasizes that partiality and bias are serious obstacles to justice. Under Noahide law, justice is administered by qualified judges rather than through the modern jury system, but the underlying principle applies equally well to jurors because they too are entrusted with weighing evidence and determining responsibility.

Judges must not show favouritism, prejudge cases or apply double standards to different people. They must also protect the defenceless. In the Clancy case, the defenceless include three young children who are dead.

This is where impartiality becomes difficult.

That fact must not disappear amid public sympathy for their mother. But neither should the horror of what happened cause anyone to dismiss Clancy’s documented mental deterioration. The trial exposed considerable ignorance about the relationship between mental illness and criminal responsibility.

If the evidence establishes that Clancy was experiencing psychosis so severe that she lacked the capacity necessary for criminal responsibility, the horror of three dead children cannot justify convicting her simply because we want someone punished.

But if the evidence establishes that she retained the necessary mental capacity, compassion for a mother suffering serious mental illness cannot justify relieving her of responsibility for killing her children.

The same standard must work in both directions.

None of this means justice should be without compassion. Noahide ethics recognizes that every human being is made in the image of the Creator, and compassion is part of recognizing our common humanity.

But compassion cannot replace judgment.

Modern juries face the same human temptation as judges: to identify with people who remind us of ourselves and to judge more harshly those who do not. I am arguing that neither identification with Clancy nor revulsion at the deaths of her children should determine the verdict.

The Clancy case should not become a referendum on motherhood, postpartum psychosis, men versus women or competing social causes. The question is whether Lindsay Clancy was criminally responsible for the deaths of her three children. Justice may require reaching a conclusion that makes us uncomfortable. That is what impartiality demands.

Clancy deserves that impartial judgment.

So do her three children.

Joseph Quesnel is the founding director of the Canadian Foundation for Universal Ethics Education. A seasoned journalist and policy analyst with over 15 years of experience, he has provided expert testimony to both the Senate and the House of Commons on public policy.