Westlaw describes judicial estoppel thusly (readers here at EA are familiar with the principle of ethics estoppel):

A common law doctrine that prevents a party from taking a position that is contrary to a position the party took in an earlier legal proceeding. The purpose of judicial estoppel is to protect the integrity of the judicial process by preventing a party from gaining an unfair advantage or imposing an unfair detriment on the opposing party in a later proceeding. A court will typically invoke judicial estoppel where the earlier position was accepted by the court and the later position is clearly contradictory.

Trial practice is not my wheelhouse, but if the latest questionable strategy of Lindsay Clancy’s loose cannon defense attorney doesn’t warrant the infliction of judicial estoppel, I don’t know what would.

After spending the entire six-week triple-murder trial of the Massachusetts mother accused of killing her three young children (above) arguing that Clancy was legally insane and not responsible for her actions, Kevin Reddington argued in a hearing yesterday,”What actions?”

“Where is the evidence that she did this?” Reddington asked the same judge who presided over the mistrial. The attorney claimed that the DNA and fingerprint evidence were “woefully deficient,” that the prosecution’s timeline was “ridiculous,” and the police investigation was inadequate.

Of course, his client did send her husband out on an errand from which he returned an hour later to find his children strangled. She did confess to the murders; she had been behaving erratically and was under treatment, and there is no plausible explanation for the kids death-by-exercise bands other than the fact that their mother did it. “In this case, there was no investigation. They just immediately assumed that this woman was guilty,” Reddington said.

Gee, I wonder why.

In the first trial, Reddington didn’t dispute the charges in any way, and conceded that his client was the killer. The attorney blames the judge, arguing that the fact that Judge Sullivan denied his request to bifurcate the trial, Part I to decide whether she was guilty of murder and Part II to determine if she was if she was not guilty by reason of insanity, put him in a “conundrum” of having to admit she carried out the crimes in order to put forth the insanity defense. That’s why he argued in the first trial that his client had been in the throes of severe postpartum psychosis when she snapped after she had imagined a voice commanding her to kill the children and herself.

Nice try, Counselor. The Hail Mary strategy isn’t unethical; it’s just zealous representation. No lawyers consulted about the hearing think Reddington’s gambit is going to work. The judge is not going to dismiss the case. If there is another trial, and there had better be, will he argue this time that she didn’t murder her children and then attempt suicide? What will be the theory, that a maniac somehow got into the house, killed the kids without leaving any sign he had been there, that Clancy tried to kill herself in her grief and trauma and now can’t remember the attack? Or will he try the insanity defense again?

I suspect that Reddington knows the next jury won’t be packed with women who see Clancy as a victim of a patriarchal society that forces women to bear children they don’t want, and that her prospects of being acquitted are dimming. Stay tuned.