Jurors deliberating Lindsay Clancy’s fate were given an instruction Wednesday aimed at breaking a deadlock, as legal observers and attorneys offered differing views on whether that instruction can be given more than once before a mistrial is declared.
Judge William Sullivan delivered what is known as the Tuey-Rodriguez charge, sometimes called a “dynamite charge,” before sending jurors back to continue deliberations in Plymouth Superior Court.
The instruction urges deadlocked jurors to continue deliberating and reminds them that they are in the best position to assess the prosecution’s case and decide whether it has been proven beyond a reasonable doubt.
In the Clancy case, Sullivan gave the Tuey-Rodriguez instruction after jurors had deliberated for more than 28 hours over five days and had reported for a second straight day that they remained unable to reach a unanimous verdict.
There are differing views on whether a judge may give the Tuey-Rodriguez charge more than once.
Retired Superior Court judge Thomas Drechsler said Wednesday that the Tuey-Rodriguez charge is “generally” given only once before a judge declares a mistrial.
“There’s always some discretion,” said Drechsler, who retired from the Superior Court bench earlier this year. A judge “might in response to a certain line of inquiry fashion some sort of instruction” to aid in continued deliberations.
Plymouth District Attorney Timothy J. Cruz said Wednesday that the Tuey-Rodriguez charge can only be given once. Clancy’s attorney, Kevin Reddington, however, said it can be given twice.
A message was sent to a spokesperson for the state’s trial court system seeking clarification on how many times the instruction can be given.
State law also limits how often a deadlocked jury can be sent back to deliberate. If jurors return a second time without reaching a verdict, they cannot be sent out again without their consent, unless they ask for the law to be further explained.
Retired Massachusetts Superior Court judge Christopher J. Muse said the rule, statute, and case law require a judge to discharge a jury that has twice declared itself deadlocked, provided the judge has determined the jury reached that point after “due and thorough consideration.”
Muse said he believes that threshold has been met in the Clancy case, but he said a judge may inquire “in a non-coercive manner” whether further deliberations could be helpful, and the jury can “consent” to continue.
The Clancy jury has now twice told Sullivan it is deadlocked, though Sullivan delivered the Tuey-Rodriguez charge only after the second notification.
Drechsler said the charge “often results” in a verdict, though some juries remain divided, which ultimately leads to a mistrial.
Clancy, 36, has admitted to killing her three children — Cora, 5, Dawson, 3, and Callan, 8 months — in January 2023. She has pleaded not guilty to three counts of first-degree murder and asserted an insanity defense.
The central question facing jurors is whether Clancy was criminally responsible for the killings. Under state law, a defendant can lack criminal responsibility if a mental disease or defect left her unable to appreciate the wrongfulness of her actions to a moral certainty or unable to conform her conduct to the law.
Jurors in the Clancy case can return verdicts of first-degree murder, second-degree murder, manslaughter, not guilty, or not guilty by lack of criminal responsibility.
Jurors returned to the deliberating room after Sullivan gave the Tuey-Rodriguez charge Wednesday afternoon. They deliberated for less than two more hours before he sent them home for the day shortly after 4 p.m.
Deliberations will resume Thursday morning in Plymouth.
Shelley Murphy, Travis Andersen, John R. Ellement, and Tonya Alanez of the Globe staff contributed to this report.
Nick Stoico can be reached at nick.stoico@globe.com.