The mistrial in the Lindsay Clancy case presents a remarkable paradox about justice.
After weeks of testimony and more than 36 hours of deliberation, 11 Massachusetts jurors reportedly favored acquitting Clancy, who admitted killing her three young children but maintained that postpartum psychosis rendered her not criminally responsible. One juror disagreed. Because a criminal verdict must be unanimous, Judge William Sullivan declared a mistrial.
The law demanded unanimity. An ancient Jewish court might have taught us to be suspicious of it.
The Talmud records an astonishing rule: “A Sanhedrin in which all [the judges] saw the defendant as guilty — they acquit him.” (Sanhedrin 17a.) Maimonides later codified the principle: If every judge in a capital case initially declares the defendant guilty, “he is exempt,” and a death sentence can follow only when some judges have first argued for acquittal and are then outvoted.
At first glance, the rule seems absurd. Surely 23 judges agreeing on guilt should be more convincing than 13 judges overcoming 10 dissenters. Why should more agreement produce less confidence?
The Talmud’s explanation goes to the nature of justice itself. In a capital case, a decision for conviction was postponed overnight so judges could reconsider and search for grounds of innocence. If not a single judge could initially perceive any argument for the defendant, meaningful reconsideration had become impossible.
Rabbi Joseph B. Soloveitchik, one of the foremost Jewish thinkers of the 20th century, offered a profound explanation. A court deciding a capital case must be capable of finding at least some “basis and reasoning for acquittal.” If every judge sees only guilt and no possible argument for innocence, he wrote, there is a “defect and deficiency” in the judicial process itself. Unanimity, paradoxically, may demonstrate not that a case has been considered perfectly, but that it has not been considered from every side.
That ancient insight deserves attention after the Clancy mistrial.
American law approaches unanimity differently. It protects the accused by insisting that the prosecution persuade every juror beyond a reasonable doubt. Thus one holdout can prevent conviction — but, as Clancy’s case demonstrates, one holdout can also prevent acquittal. Eleven jurors apparently concluded that the prosecution had failed to establish criminal responsibility; one juror prevented their judgment from becoming a verdict.
The foreperson reported “with a heavy heart” that the jury could not reach unanimity. Prosecutors must now decide whether to put Clancy, her family and the public through another trial.
Jewish law does not provide an answer to the Clancy case. Its capital procedure belongs to a different legal system and cannot simply be transplanted into Massachusetts.
But it offers a question worth asking.
Perhaps justice is not always measured by how completely disagreement has disappeared. Sometimes disagreement is evidence that deliberation has actually occurred.
The Talmud understood something psychologically profound: A dissenting voice need not be an obstacle to justice. It can be evidence of justice at work.
And sometimes the most dangerous courtroom is not the one in which one person still says, “I disagree.”
It is the one in which nobody does.
Rabbi Benjamin Blech is Professor of Talmud at Yeshiva University.
