Plymouth, Massachusetts - Though Lindsay Clancy's first murder trial ended with a hung jury, that's not stopping her lead defense attorney, Kevin Reddington, from doing all he can to keep his client out of another trial, and his sights are set on bringing verbal testimony about juror actions and outside influence to the already-scheduled hearing on November 2.

In a motion filed Wednesday, October 7, Reddington requested that Plymouth Superior Court Judge William Sullivan allow testimony at the November 2 hearing.

Clancy is accused of killing her three young children, though her defense is arguing she was in the throes of severe postpartum psychosis at the time of the murders, and thus, she should not be held criminally liable.

Clancy's defense team argues in the filing that an evidentiary hearing is necessary to determine whether jury misconduct, in any form, occurred, but that's not all. Reddington also believes this type of hearing is necessary to determine if the court preemptively declared a mistrial, and whether it's within the bounds of the law to try Clancy for murder a second time.

The motion was triggered by a quick back-and-forth between the defense and Assistant Clerk Magistrate Dawn Irving-Bissett. Reddington asked on Monday, October 5, whether the court intended to take evidence at the hearing. The following day, the clerk replied, stating that Judge Sullivan had already made his stance clear and does not plan to hear live evidence on November 2.

The defense argues that the judge can't rule on these issues based on court filings alone, which is why Reddington is pushing for sworn statements and live testimony at the November 2 hearing.

Citing case law like Commonwealth vs. Fidler and Commonwealth vs. Kincaid, the motion filed Wednesday by Reddington stresses that while the defense carries the burden of proving jury influence by a preponderance of the evidence – and has a right to use juror testimony to do so – the court can't close the door on proof while demanding the defense meet that standard.

On the double jeopardy front, Reddington points out that under rulings like Commonwealth vs. Nicoll, the prosecution bears a "heavy" burden to prove a mistrial rested on "manifest necessity" – especially since Clancy objected to it. The defense also argues the judge should have questioned the lone holdout juror rather than pulling the plug and ending it in a mistrial.

If Sullivan denies the request, the defense is prepared to object on the record and immediately seek appellate review before any second trial can move forward, citing Neverson vs. Commonwealth to establish that a defendant facing a substantial double jeopardy claim is entitled to an appellate look first.

The November 2 court date is when the defense and prosecution will return to address pending motions – including Reddington's ask for a double jeopardy dismissal and his latest arguments about jury conduct.