Lethal Trajectories | How Two Broken Systems Failed Slain Children

Summary

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Crime & Justice with Donna Rotunno

Episode: Lethal Trajectories | How Two Broken Systems Failed Slain Children

Date: July 15, 2026
Host: Donna Rotunno
Guest: Former Judge Carol Erskine, author of A Cruel Injustice

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Episode Overview

In this episode, Donna Rotunno sits down with former Judge Carol Erskine to dissect two harrowing cases from New England—those of Harmony Montgomery and Lindsay Clancy. Both cases involve systemic failures that led to tragic consequences for children, highlighting critical deficiencies in child protection and mental health infrastructures. Judge Erskine brings her firsthand experience as a juvenile court judge and legal advocate for children to uncover not just the facts of these cases, but the grave missteps in the agencies and legal structures meant to safeguard society’s most vulnerable.

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Key Discussion Points and Insights

1. Judge Erskine's Background and Perspective

[01:01]

• Transitioned from pediatric intensive care units to law, focusing on child welfare.
• Served 20 years in the Worcester County Juvenile Court, handling thousands of abuse, neglect, and delinquency cases.
• "So it was a very, very, very busy inner city court." — Judge Erskine [01:57]

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2. Case One: Harmony Montgomery

[02:24]–[22:12]

Case Background

• Erskine’s unique perspective: finalized the adoption of Harmony’s half-brother, Jameson, just three weeks before Harmony’s death.
• Adam Montgomery (Harmony’s father) gained custody despite a violent criminal history and minimal contact with Harmony.

Failures in the System

• Custodial Decisions
  • Both parents found unfit due to substance abuse and criminal activity.
  • Despite limited contact and criminality, father won custody after a six-hour hearing [05:22].
  • Critical info about father’s violent record, lack of relationship, and Harmony’s disabilities was never presented to the judge.
  • “Everything that could have gone wrong for Harmony Montgomery did go wrong, not only in Massachusetts, but in New Hampshire, and that was it. They set her on this lethal trajectory to New Hampshire without any follow up services…” — Erskine [07:44]
• Lack of Oversight
  • No interstate compact—no check-ins or follow-up support after Harmony was sent to New Hampshire [09:04].
  • Harmony’s complex medical needs were ignored; no medical or educational continuity ensured.

Child Welfare Agencies' Inaction

• Seventeen abuse/neglect reports were filed in New Hampshire while Harmony was in her father’s care, including specific pleas from family who had witnessed her injuries.
• Authorities failed to act despite evident warning signs; case closed as “no physical abuse” seven weeks before her death [10:57].
  • “She was completely isolated by Adam Montgomery, which is what abusers do when they want to continue their abuse...” — Erskine [11:53]

Legal Proceedings and Overturned Conviction

• Adam Montgomery’s murder conviction was overturned due to improper joinder of abuse and murder charges in his first trial.
  • “The Supreme Court did not say that Adam Montgomery didn't murder Harmony. That’s for sure.” — Erskine [13:16]
• The court found the jury instruction was inadequate to prevent prejudice; a new trial was ordered [15:34].

Looking Ahead: Retrial and Justice

• Ex-wife Kayla Montgomery, an eyewitness, will testify again as per her plea deal [16:33].
  • “I thought her testimony was compelling… But he's saying he did that [disposed of Harmony’s body] to protect, to protect his wife, which I think was pretty hard for a jury to buy.” — Erskine [17:02]
• Discussion of whether prosecutors would trade a lesser sentence for location of the body (unlikely, given sentencing) [18:23].
• Public and official interest remains high; the state is determined to retrial for “ultimate justice” [20:05].

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3. Case Two: Lindsay Clancy

[22:12]–[37:55]

Case Background

• Lindsay Clancy killed her three children while experiencing severe psychiatric symptoms and polypharmacy—she was on 13 different medications [24:51].
• Erskine draws parallels to systemic failures she observed in juvenile mental health cases as a judge: overreliance on medications, lack of safety planning, and insufficient therapeutic interventions.

Mental Health System's Shortcomings

• Systemic use of antipsychotics and psych meds as first-line responses instead of last resorts [23:17].
• Clancy sought extended hospitalization; both she and her husband pleaded for more help but were rebuffed.
  • “It's typical of the Massachusetts mental health system. It's like, ‘Nope, you know, you've been in the bed for a few days now. You don't qualify as suicidal. We're sending you home.’” — Erskine [26:44]
• No safety planning for children, despite awareness of mother’s deteriorating condition.
  • “What did the mental health system… do to raise the issue of safety planning for the children with a parent who's in such a deteriorated condition?… In my view, in every case like that, providers should be making safety plans for children.” — Erskine [33:30]

The Insanity/Lack of Criminal Responsibility Defense

• Clancy’s defense is expected to hinge on “lack of criminal responsibility” (akin to insanity).
• Erskine believes the documented history of her decline and experts’ testimony will be convincing, possibly leading to committal rather than imprisonment [25:58], [27:15].

Prosecution’s Likely Argument

• State will argue Clancy knew what she was doing—planned the act, asked husband to leave [28:46].
• Erskine counters: “But you have to look at her conduct as a whole… That was part of… an entire picture of her hallucinating, of her being on multiple meds.” [29:23]

Husband’s Forgiveness

• Clancy’s husband has publicly forgiven her; this compassion might influence jury sentiment [30:30].
  • “You can't say enough good about him, you know, and just the person he is. I know they're going to play his 911 call, you know, which I think is going to have an impact on the jury.” — Erskine [31:10]

The Role of Graphic Evidence and Civil Suit

• Graphic images of the victims will likely affect the jury emotionally, but defense will argue the real blame lies with failed mental health interventions [32:43].
• Evidence presented in the ongoing civil suit against practitioners will overlap with the criminal trial, especially in terms of expert witnesses [34:51].

The Challenge of Expert Testimony

• Both sides prepping competing experts; Erskine predicts tough cross-examination for those claiming Clancy ought to have been managed differently [36:07].
  • “The whole notion of mental illness… mental illness and even insanity isn’t the same thing as a lack of criminal responsibility… if you don’t make that connection, then you’re dealing with someone who’s going to be found guilty.” — Erskine [37:00]

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Notable Quotes & Memorable Moments

• On Systemic Failure:
  "Everything that could have gone wrong for Harmony Montgomery did go wrong… They set her on this lethal trajectory to New Hampshire without any follow up services..."
  — Judge Carol Erskine [07:44]

• On Adam Montgomery’s Retrial:
  "The Supreme Court did not say that Adam Montgomery didn't murder Harmony. That’s for sure."
  — Judge Carol Erskine [13:16]

• On Overuse of Medication for Mental Health:
  "It was never the treatment of last resort. It was always the treatment of first resort."
  — Judge Carol Erskine [24:23]

• On the Emotional Toll:
  "I think you'll see tears from people. I mean, it’s hard to believe that any of these folks are not going to be emotionally impacted by it."
  — Judge Carol Erskine [32:43]

• On Parental Forgiveness Influencing Jury:
  "If this man who lost his children can say that he forgives her and he understands the situation and that she was sick, how can we as a jury not do the same?"
  — Donna Rotunno [30:58]

• On Lack of Safety Planning in Mental Health System:
  "You can’t say she was in this deteriorating condition and she needed hospitalization and then send her home without a safety plan for children. But that’s exactly what they did."
  — Judge Carol Erskine [34:05]

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Important Timestamps

• [01:01] – Judge Erskine describes her background and judicial experience.
• [03:02] – The tragic connection to Harmony Montgomery and her half-brother.
• [05:22] – How Adam Montgomery won custody—details on system failures.
• [10:57] – Seventeen calls to child services go unheeded; Harmony remains in danger.
• [13:16] – Overturning of Adam Montgomery’s conviction explained.
• [16:33] – Key evidence and witness testimonies likely in retrial.
• [20:05] – State’s rationale for proceeding with a retrial despite heavy sentences.
• [22:34] – Shift to discussing Lindsay Clancy and mental health system failures.
• [24:51] – Clancy’s over-medication and pleas for help.
• [25:58] – Strength of insanity defense in Massachusetts.
• [29:23] – On hesitation over premeditation versus totality of Clancy’s mental state.
• [33:30] – The absence of child safety planning in mental health cases.
• [36:07] – The expected battle of experts at the Clancy trial.

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Conclusion

This episode provides a riveting, disturbing look into how cracks in the child welfare and mental health systems can lead to unimaginable outcomes. Judge Carol Erskine’s deep experience and passionate advocacy lend insight and urgency to the conversation—reminding listeners that behind every headline-grabbing crime are human failures, missed opportunities, and the unheeded cries of those most in need of protection.

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Transcript

[A]

This is Crime and justice. I'm Donna Rotuno. Today we are taking a deep dive into two cases that show the system failures that have happened in New England and two of the most serious and heartbreaking murders that we have seen take place.

[B]

Cheers to America's 250th birthday. Get 20% off your first purchase at foxnewswineshop.com with code FNRADIO20. 20% discount excludes wine club offers and cannot be combined with any other promotion. Expires July 31. 20. Must be 21. Order to order. Please drink responsibly.

[A]

Our guest today is former Judge Carol Erskine, who has spent her career fighting to protect children who were abused and neglected. She is also the author of A Cruel Injustice. Judge Carroll, thank you for joining me.

[C]

Thank you for having me.

[A]

So tell me a little bit about yourself, your background, your career path, and then we'll get into two really intriguing cases that are coming out of New England.

[C]

Well, I actually started off in health care and then transitioned out of that. I was working in intensive care units and in pediatric intensive care units and transitioned out of that career into law, entered law school. And when I finished law school, I began working as in house counsel for a foster care and adoption agency. I then transitioned into my own practice. And during that practice I represented many children, many parents, in child abuse and neglect cases. I did hundreds of cases as a guardian ad litem for both the Family Court and the Juvenile Court. And I represented two hospitals doing mental health petitions for them. So once I completed that sort of part of my career, I applied for a judgeship and was appointed by the governor to the juvenile court, to the Worcester County Juvenile Court, where I served for 20 years, 15 of those years as the first justice of that court, hearing thousands of child abuse cases, sexually exploited kids, runaways, truants, criminal cases, delinquencies. So it was a very, very, very busy inner city court.

[A]

Sure. I mean, busy and, you know, very traumatic, I'm sure, at times. So we have these two cases that we're going to talk about today, Harmony Montgomery. And we're going to talk about Lindsay Clancy. Let's talk about Harmony Montgomery first. And I know that you have some really interesting insight given the fact that you were involved in the adoption of a stepbrother or relation of hers. So let's talk about that and sort of walk me through what happened to Harmony Montgomery and where we are now into the case and then we'll get into some of the nitty gritty.

[C]

Well, I actually finalized the Adoption of Harmony's half brother, Jameson. I had come to know the two dads who adopted him, reporter and anchor Blair Miller and his husband, Jonathan Bobbitt Miller. I had come to know them and the chief justice allowed me to finalize his adoption. And what, of course, we would later find out, that was in November 2019 on national adoption Day. What we would ultimately find out a few years later is that three weeks after that joyful day of finalizing the adoption that Harmony Montgomery's father beat her to death in the backseat of a car literally maybe 50 miles away from we were when we finalized the adoption. So the, the dads of Jameson asked me to find out what happened. How was it that Harmony Montgomery ended up being with her extremely violent father, who had only visited her probably 20 times in five years while she was in custody in Massachusetts? And so using the report from the Office of the Child Advocate and having been a judge in that court system for 20 years and knowing full well how it works, I was able to piece together what happened, including all the mistakes that were made in Massachusetts, not only through the Department of Children and Families, but through the legal representation system and through the juvenile court, a court that I statewide court that I had been involved with for 20 years. And so that's why I wrote the book. And they were co contributors to the book because we really needed to take a look at what were the deficiencies in the system that set Harmony on what I call a lethal trajectory.

[A]

And let's talk about that. What were the things. I mean, you know, I understand she was in state custody. Correct. And then there, there was a fight about who was going to have her, where was mom, Kind of walk us through that and how dad ended up getting to take her.

[C]

Both parents were actually found unfit. Harmony came into custody really not too long after she was born. Both parents were deeply involved in substance use. The dad was actually in jail having shot someone in a head in the head during a drug deal gone bad. So he wasn't even available when Harmony was born. So he didn't even participate at all with the department, children and families till almost a year later. And even then was very spotty with his involvement. Has a very, very extreme, violent criminal history. All of his crimes basically involved either knives or guns. He stabbed someone in a car and pushed them out of the car. He held people at either knife point or a gunpoint. She's a very violent, drug addicted criminal. And mom was actively using substances. So Harmony came into custody and was then returned to the mother after she was getting substance use treatment, but was removed again several months later when she relapsed. So back into foster care for a second time for Harmony. And then the mom again was able to get substance abuse counseling. She did quite well. And they returned Harmony yet again to the mother who had her for Maybe, I think 10 months, might have been longer. And then she relapsed again. She was also reportedly allowing Adam to see the child, even though he was supposed to be supervised. So they removed harmony for a third time. All in all, the case lasted four years and eight months. And in that time period of four years, the mom only had harmony for about 15 months. The father saw harmony for only 20 hours in a social worker's office. And then they both petitioned the court saying that. Which is allowable because their rights were not terminated. They both petitioned the court seeking a visit, a revisit to the issue of fitness. And that's what brought about the hearing. So it was called a review and redetermination. And that hearing took place. And in six hours, he walked out of that court with custody of Harmony. So I write a lot about just how that could have happened, what went wrong, how the judge never heard about his criminal record, never heard that he only visited 20 times, never heard about the fact that he knew absolutely nothing about Harmony's disabilities and she had significant disabilities. So it's. I have always phrased it this way. Everything that could have gone wrong for Harmony Montgomery did go wrong, not only in Massachusetts, but in New Hampshire, and that was it. They set her on this lethal trajectory to New Hampshire without any follow up services, which is, you know, sort of a normal aspect of these cases to follow a child into another state. That didn't happen.

[A]

What should they have done that they didn't do when it came to determining whether or not he was going to get her? I mean, you said she had disabilities. Did they make any determination as to whether or not he could handle those disabilities? Did they do any, you know, site checks on his home? I mean, if he left court in six hours with her, there couldn't have been much due diligence going on before determining that she was going to go home with her father?

[C]

Yeah, I mean, the one thing that they did was they argued against an interstate compact, which is something, you know, that I personally never would have done. There was never a case that I had when a child was going to go to another state, even if it was with a parent, where there wasn't an interstate compact. They're normally done when kids go into foster homes or adoptive homes out of state. But even when I had cases where a parent was in another state, of course I was not going to let a child leave the state of Massachusetts without knowing there was some follow up in the state that I was sending the child to. That didn't happen in that case because the lawyer for the father argued it wasn't necessary. It was sort of unconstitutional, was the argument, to make a parent have to have some type of social worker following up in the state. So no one followed up to see whether she had school. No one followed up to see whether there was medical care. She had a condition called septo optic dysplasia, which was a neurological condition that caused her to be blind in one eye and to be legally blind. No follow up. He didn't know anything about her disabilities. Wasn't really much of it presented to the judge. So without lawyers presenting it to the judge and without the DCF attorney presenting a weak case, the judge handed custody to the father. And a day or two later she left a loving foster home to go to New Hampshire, where she was basically isolated until the day she was murdered.

[A]

And she was murdered. But let's talk about how two years go by when she's dead and the state doesn't even realize it.

[C]

It's an incredible story when you think about it, because she was there and, and at the time that she was, was in New Hampshire with her father, there were 17 reports of child abuse and neglect that were being made to the Department of Children and Families. So it's not like they didn't know where she was in 2019. I mean, basically she was being abused by the father, especially in July of 2019 where the uncle was reporting time and time and time again to, to the New Hampshire authorities to send someone to basically rescue her because he had seen the results of the beating that she suffered with the. That caused her to have a black eye. But the department didn't follow through. They didn't contact the police, which is required. Well, I shouldn't say that the social worker contacted the police and said there was no bruise, even though we knew from the trial that there was. And they just kept getting these reports just from family members and neighbors because she wasn't in school. She didn't have any of her specialist doctors. She didn't have a pediatrician. She was completely isolated by Adam Montgomery, which is what abusers do when they want to continue their abuse. So they knew where she was. And basically In October of 2019, even after 17 reports of abuse, they made a finding of no physical abuse. They closed the case in October, and seven weeks later she was dead. So again, you know, it's just a tragic story of two states that not missed mishandling the cases, probably not the right word, but that, you know, mishandled these cases in a way that led to her death.

[A]

Sure. My goodness. And we know that the Supreme Court's decision to overturn Adam's murder conviction didn't necessarily have anything to do with the strength of the, of the evidence. So explain to us why the Supreme Court said he's getting a new trial.

[C]

Right. The Supreme Court did not say that Adam Montgomery didn't murder Harmony. That's for sure. That it was very clear by the decision. And a lot of people say it was overturned on a technicality, and I guess you could look at it that way. But in the pre trial period, the prosecutors asked the court to allow them to try the case of the July 29 black eye, which was a severe beating that Harmony underwent by Adam Montgomery and testified to a trial by the uncle. They wanted to combine that with the murder trial. So the terminology is joinder. And so joinder means that a court is allowing two cases that are similar in nature with the same victim to be tried together. So in this case, Harmony was the victim and the allegations of abuse were similar. I mean, he beat her to death in the backseat of the car, punching her in the head, which wasn't different than what happened in July. So the trial court judge said, well, these are spatially connected. It's, you know, economically appropriate to do this because it's a lot of the same witnesses. It would be police witnesses and you would hear from the same witnesses. And so from the judge's perspective, it met the requirements for Joinder to put both cases together at the same time. The judge also denied the prosecutor's request to allow Adam Montgomery's prior abuse of Harmony, which had been going on for most of the almost year that he had her. And the judge said, no, the only thing you can bring in is what he did in that car the last few days that she was alive when they were living in the car. But the problem with that is when she said, you can't really bring in prior abuse, and then at the same time joined the previous assault from July with the murder case, the supreme Court said, it doesn't make sense, you know, because in essence, it wasn't fair because they, they, the. The jury could have used the information about the prior assault to, to say, yeah, he must have murdered her. Look at what he did before. So the court said that the judge was wrong to join the assault case with the murder case. And the judge knew it was a risk. In her decision below, she wrote, I realize this is a risk, so I'm going to give a special instruction to the jury telling them, you have to decide these two cases separately based on the evidence for each case. But the Supreme Court said that wasn't enough. The jury instruction wasn't enough to remove the prejudice against Adam Montgomery. It was basically a violation of his Sixth Amendment rights. You know, other than that, you know, it was pretty clear that they made pretty clear that they weren't saying he wasn't sure. Guilty of the murder.

[A]

And so there'll be a new trial. And I know in the first trial his ex wife Kyla's testimony was impactful, not impactful. What do you think? And do you think she'll testify again?

[C]

Well, I think she'll have to testify again because she struck a deal with the prosecutors, with the AG's office, basically saying she would have to testify in any trial, grand jury. So in a retrial, she has to testify. She was given a deal where she served a very light sentence for two charges of perjury for which she could have served 14 years. And I think she served maybe 18 months or two years. So. And she's released on parole, so she's supervised. And I think she'll have to testify. I, I thought her testimony was compelling. I mean, she's there, she's an eyewitness. He took the position that, yes, I'm going to admit that I abused Harmony's body, that I destroyed her, her corpse and the horrible things he did to her. But he's saying he did that to protect, to protect his wife, which I think was pretty hard for a jury to, to buy. So, yeah, she's going to testify. You know, the problem is you're not going to have all this testimony from the other witnesses related to the assault, although there's forensic evidence, of course, regarding her death. So he's not taking the position anymore that there's no body, so there's no death. And he's already admitted to mishandling and abuse of her, abuse of her remains. So we'll see. I think it's going to be a much more difficult trial with just the testimony of Kayla Montgomery and the forensic evidence, but I do believe it will be enough. I thought her testimony was compelling.

[A]

Do you ever think that the prosecutors would make a deal with Adam Montgomery if he were to say where the body was.

[C]

Well, they indicated that at the sentencing hearing the first time around that they would agree to a lesser sentence if he would say where the body is. I don't believe they're ever going to find the body. And I think that's one of the reasons that he won't agree to the deal. I mean, when you look at what happened, he had. He carried that body around for months after she died. It wasn't until March when he rented a van and took the body with him. And I don't believe they're ever going to find her remains. But will they. Could they offer him a deal? Maybe he's serving 43 years. He's serving 33 years for the firearms cases for which he has no appeal left, and there's no parole on that. And he's serving another 11 years for the assault and for witness handling witnesses. And I don't know if it was intimidation of witnesses, but also for the abuse of the corpse. So he's got to serve 43 years. And so, you know, the question is whether or not they want to strike some. Some deal knowing that he's not going to get out for decades.

[A]

And that's what I was wondering. I mean, once you're. You have that sentence already that he's going to be serving, and odds are he'll, you know, could maybe die there. Why do you think the state decides that they're going to retry this murder case? I mean, obviously this little girl deserves justice. You know, Harmony should have that at least, I think, given everything that she went through.

[C]

Yeah, I agree. And I think that's what the AG has made clear. We're going to try this again. So that makes me think they're not going to offer any deal, you know, as long as, of course, they have what they need with, with the wife. But I agree, you know, this is such a public case, and New Hampshire made so many errors in handling this case that I think they, you know, that they, they want the ultimate justice, which is a murder conviction.

[A]

And what do you think some of the battles are going to be in trial number two?

[C]

Well, again, I think the. The battle is going to be they're losing a lot of witnesses. I don't know whether they'll still bring in, you know, there's not going to be a need, for example, to bring in the uncle whose testimony was compelling about what he saw and how Adam treated her. I'm not sure that that's going to come in. One of his best friends did testify, and I think that her testimony is probably still going to be admissible where she testified to statements that he made saying he hated Harmony, to the words that she testified to to his very core. And so I think, you know, things like that can come in. I also think there will still be evidence with the pictures of his wife with battered black eye, brutally beaten by him, that will, you know, will show what she was going through as he was trying to intimidate her to make sure that she wasn't going to talk. So I think some of those things will come in along with the forensic evidence and along with his. His own statements to his friend. I did it this time. I really effed up. And then gets a rental van to dispose of the body. So I do think there's enough other things coming in, but I do think it's going to be a much harder case to trial, to bring to trial because they have to overcome the fact that a lot of the witnesses they have are no longer going to. Going to be relevant to the murder case.

[A]

Right. Well, we're going to hope that there's justice for Harmony because what an awful situation. And, you know, I know when that case was overturned, there was a lot of people who were quite sad about it. So let's switch gears over to Lindsey Clancy. So Lindsay Clancy situation is obviously different, but it's. It's similar in some ways. So why don't you talk to me about that?

[C]

Yeah. Lindsey Clancy case was of interest to me. And when she was arrested, I wrote and had an op ed piece published about something that I had observed on the bench for years. And that is the way psychiatrists treat people with mental health issues in Massachusetts. This is something I wrote about, connecting it to the Clancy case, because I had always had an issue with it when I was on the bench, because kids who had mental health issues, cases that I presided over, of kids being committed and forced onto psychiatric and especially antipsychotic medications were in my view, oftentimes just being treated to either chemically restrain them or just to control their behavior in a way that I believed should have been controlled through therapy and through other, other treatments instead. It was never the. It was never the treatment of last resort. It was always the treatment of first resort. And when you see kids that are on antipsychotic medications and they can't walk normally, their gait is off. They have things like tardive dyskinesia. We saw kids producing breast milk as a result of treatment, for example, with Risperdone. I always had an issue with it and had to decide hundreds and hundreds of those kinds of petitions, much to the anger of psychiatrists who don't want judges making decisions about medication. But, you know, my. My issue always was with kids is that, you know, the psychiatrists wanted to be the advice. The advice person. In other words, I'm advising that this child be on medication. And at the same time, I'm. I'm agreeing to it. So they wanted to play both roles as the consenter and the advisor. I always had an issue with that, you know, with Lynn, with Lindsey Clancy. It's a, you know, we're talking about massive medication for a mental health issue. And that's why I raised the issue of. Especially of antipsychotics.

[A]

And she was on what, like, 13 different medications. And I mean, you know, case. It's obviously so horribly tragic that these lives at such young ages were snuffed out and have no opportunity to live. It's. It's tragic, but I think it's very difficult to look at this case and not think that this woman was sick. Like, she was sick. She was on all this medication and what, 13 different drugs. You know, the husband has forgiven her. I know that they're not, you know, she's in custody and they're. They're not together, but he has forgiven her. So talk to me about how you think this is going to play out in a courtroom, because, of course, you know, is. Is there any justification for this kind of action? No. But if there's a way to explain to the jury what she was going through, what her mind was like, do you think a jury feels some sympathy and says nobody in their right mind would do this? She then tries to jump out of a window or does jump out of a window. Do you think that there's a chance here that they say, look, she belongs in an institution but not in a prison?

[C]

Yeah, I personally think there's a very strong chance. I mean, it's very difficult, as you can imagine, for a jury to weigh the extreme horror of how these children died, you know, with ligature strangulation, and then say, but we're not going to. We're not going to convict this person, because, of course, she's already going to, as, you know, admit to that. But as you point out, she was on 13 different meds. They were at different times over several weeks and maybe over a few months. But she was pleading, pleading with doctors to let her stay in the hospital. She admitted herself and said she wasn't ready to go home. Her husband was pleading with them. But it's typical of the Massachusetts mental health system. It's like, nope, you know, you've been in the bed for a few days now. You don't qualify as suicidal. We're sending you home. And it was weeks, I think, after they sent her home, that she killed the children. I think it will be difficult for the jury. But this is a case involving. In some states, they call it an insanity defense. In Massachusetts, they call it a lack of criminal responsibility, meaning that a person cannot conform their conduct to the tenets or requirements of the law, and so, in other words, cannot appreciate the wrongfulness of their actions. That's. That's where this is going. And the way it will be tried is with experts. I mean, she has experts already lined up, and those experts are not only going to testify on her behalf, but they are going to testify that the treatment that she was undergoing was essentially negligent. I mean, there's a civil lawsuit pending suing the doctors and practitioners who kept changing the medications, putting her on antidepressants and antipsychotics and meds for bipolar and meds for various diagnoses. I think when the jury hears from these experts, I think that there'll be enough evidence that it will be difficult for the prosecutor to overcome the lack of criminal responsibility. And ultimately, it's the prosecutor in Massachusetts. In Massachusetts, the defense has to just present some evidence that there's enough to go with a lack of criminal responsibility defense. After that, the burden shifts to the prosecutor, and they have to prove it beyond a reasonable doubt that it wasn't insanity. So when the burden shifts, I think it makes it difficult. I think there's a very good chance that a jury will see that her treatment, based on what the experts say and the medications that she was on, contributed to her inability to appreciate the wrongfulness of her actions. However horrific they are, and they are

[A]

indeed horrific, they truly are. I think what the state's going to do, too, is they're going to try to show that although all of these things may be true, and she may have had these issues, and she may be on all this medication and she may be dealing with psychiatric issues, they're going to try to say she still knew what she was doing, she planned this out, she told her husband to leave, that this was a premeditated situation. And so, you know, but again, I agree with you. I think that when you have all these other documented factors, it's hard to say that she just wasn't acting in this, you know, completely illogical fashion.

[C]

Yeah, I mean, I agree with you completely. I mean, just the fact that she told her husband to go. I mean, she was telling people that she was hallucinating. And it doesn't just. And just because when someone has a mental illness and they're hallucinating, you know, whether they're what. Whatever the diagnosis is, it doesn't mean that the. That other acts or other conduct that they're engaged in, you know, is necessarily something that is. Is intentional planning, is premeditated. Yes, she did. She did do that. You know, but you have to look at. At her conduct as a whole. That. That was part of. Of an entire. Of an entire picture of her hallucinating of her being on multiple meds. And the fact that, you know, she. She told her husband to do that and that she used ligatures is only one piece of the entire picture. So you have to look at it through the totality of the circumstances and not just separate it out, as the prosecutor will attempt to do.

[A]

Yeah. And especially because there was such a documented history here that oftentimes you don't have in these cases, somebody could say, oh, I was on medic. But I mean, this. Like you said, there was a seeking out for help here, and she didn't get it, which is just unbelievably sad. And I think that goes to the two system failures that we've been talking about today. How do you think the fact that the husband has publicly forgiven her, do you think that that plays in the mind of the jury? Because the jury's saying, wait, if this man who lost his children can say that he forgives her and he understands the situation and that she was sick, how can we as a jury not do the same?

[C]

Yeah, I mean, you can't say enough good about him, you know, and just the person he is. I know they're going to play his 911 call, you know, which I think is going to have an impact on the jury. And so I think, you know, the. To sort of counteract that. His testimony, I think, will relate to his frustration with the mental health system. He was there, he was asking them to provide help. He was advocating for her. He was doing everything he could, being very well aware of the fact that her condition was deteriorating. He was letting providers know. She was letting providers know. So I think that's probably what people will see, that he was an advocate for her. And to this day, he remains an advocate because he has seen just how. How mishandled her case was by the system, by the mental health system.

[A]

Yeah. It's really astounding when you think about it, and it's just so sad. And the defense fought really hard to keep out. They wanted to limit the use of photographic evidence, and there's some graphic evidence here, but the jury is going to see those images. How difficult is that for the, for the defense to counteract or. Because this is the type of case that this is, is that not something that's going to maybe sway the emotions one way or another? Because, yes, everybody knows it's sad, everybody knows it's terrible. But then they look at this woman and they say, but she's sick.

[C]

I think, you know, when they're going to look at those images, it's going to be emotional. I think you'll see tears from people. I mean, it's. I think it's hard to believe that any of these folks are not going to be emotionally impacted by it. I think what the defense has to show is that these three children that you see in these horrible pictures wouldn't be there under these conditions if the mental health treatment had done its job, if they had made clear that her condition had deteriorated to make her a risk. I mean, one of the questions I have asked, and I feel like I'm the only one that's asked this question about this when I, maybe when I wrote the op ed, is what did the mental health system, the psychiatrist, the psychologist, the therapist, the nurse practitioners, what did any of them do to raise the issue of safety planning for the children with a parent who's in such a deteriorated condition? You know, to me, that is one of the overriding questions of this because, you know, I come from that lens of child welfare. We talked about Harmony's case. Here you have another system sort of pretending that, you know, the children aren't there. You know, in my mind, any, you know, someone who's. And they admit that her condition was deteriorating and she was hospitalized. In my view, in every case like that, providers should be making safety plans for children. You can't say she was in this deteriorating condition and she needed hospitalization and then send her home without a safety plan for children. But that's exactly what they did. And I think that for me is one of the most frustrating aspects of the case.

[A]

You know, obviously they're suing because as you were just saying, there's this massive failure. And the massive failure how there was no safety plan, how no one took care of her, how. So now they're suing civilly. Do you think that civil lawsuit affects the criminal case in any Way, shape or form?

[C]

Yeah, I mean, I don't. Because I don't think the jury will know about it. So. But, but I think what you're seeing in the civil case as discovery is, is moving along in the civil case is that there's a lot of information that you're seeing in the civil case that you will see in the, in the criminal case. And so there's definitely a connection there because the expert witnesses are going to be the same. And one of the experts is an expert that I have seen testify in my court and is and is in my view, a very impressive expert. And so I think you'll see the connection between the civil and criminal. They may not hear about it, but you're going to see a lot of the same evidence.

[A]

And in terms of those experts, how do you think the jury breaks down? Because obviously the state's going to call experts to, to sort of combat. You're going to have this battle of the experts. But do you think it's difficult for any expert that sees a documented history to come forward and say someone shouldn't have done something? Because I would assume on cross examination the state experts are going to just get crucified for. Well, you know, if you had this situation, you're telling me you wouldn't act.

[C]

I couldn't agree more. I think it's going to be a very difficult cross examination and it depends on how the judge is going to limit maybe what can be asked of experts. I mean, they have to be qualified as, you know, as experts first and what they're going to be qualified in. But I think it's going to be incredibly difficult to sit up there as an expert and basically say, well, I think what they're going to say is, yes, she had a mental illness, she had postpartum depression, maybe she had these other things and she was on medication. But I think there's a lot of the whole notion of mental illness, mental illness and even insanity isn't the same thing as a lack of criminal responsibility. In other words, being able to appreciate the wrongfulness. So I think what you're going to see are experts saying, yes, she had all those things and yes, I agree, maybe she shouldn't have been on this antipsychotic or they should have done better with the medication. But again, the role of the prosecutor will be to separate out the issue of someone having a mental health diagnosis, insanity or not, or whatever you want to call it. But in Massachusetts you can't say because someone had a mental illness. And even if they were hallucinating. And even if they were deteriorating, that that doesn't automatically connect to a lack of criminal responsibility to conform your conduct to the tenets of the law or appreciate wrongfulness. That's where their experts testimony are going to have to go, because if you don't make that connection, then you're dealing with someone who's going to be found guilty.

[A]

Well, we'll see what happens there. I know everyone's watching this because it's just so it's so tragic. And as you said, there were system failures here in both of these cases. Thank you so much, Judge Carroll, for joining me. Your expertise is invaluable and really helped us in these two cases. Thank you for joining me for another episode of Crime and Justice. Remember, we want to hear from you. Send us your thoughts, questions or theories, and we will answer them on air.