The encouragement and allowance of peaceful protest and free speech is a cornerstone of the United States Constitution and is solidified in the First Amendment. Our nation was created from political dispute with England, and angry protests and fiery speeches energized the rebellion. Now, almost 250 years later, political disputes, speeches and demonstrations are once again front and center.

Like all freedoms, there are rules and parameters to be followed and require close judicial scrutiny. Every demonstration and/or speech has unique characteristics, and the behavior of the crowd and the speakers must conform to the established rules or result in sanctions or at times arrest.

In this episode, Bill and Jordan discuss the significance of the First Amendment and how historic court rulings protect the rights of groups and individuals but also balance them against the rights of all citizens. For example, they forbid speech that threatens violence or incites imminent violence or destruction of property (Clear and Present Danger speech). Similarly, they set limits on the right to demonstrate by allowing government entities to set “time, place and manner” restrictions, but they also tell government officials that their decisions must be “content neutral” and can’t favor one group over another because of their beliefs and ideology.

This episode concludes the discussion about the mass murder in Wakefield MA. on December 26, 2001. Previously, Jordan and Bill led listeners through an exhaustive examination of the investigative process and the legal challenges that led up to the trial of Commonwealth vs. Michael “Mucko” McDermott.

Today they focus on the trial in general and distinguish the differences in trial methods and process when a defendant offers a defense of Insanity. Listen as Bill describes the jury selection, the in-person viewing of three relevant locations and the prosecution’s trial testimony. Regardless of the defense, the prosecution still had to prove 7 counts of Murder in the First Degree beyond a reasonable doubt.

The defense of Insanity requires expert medical testimony that concludes with a medical opinion that the defendant was either substantially unable to appreciate the criminality or wrongfulness of their conduct, or, they were substantially unable to conform their conduct to the requirements of the law. The prosecution is given the opportunity to rebut the defense with testimony from their own medical experts.

The defense in this case differed dramatically from most because McDermott testified in an effort to convince the jurors of his insanity.

A defendant always has the presumption of innocence, and the prosecution always carries the burden of proving their case “beyond a reasonable doubt”. The burden is high because the stakes are as well. In a murder conviction, the defendant could lose their freedom for the remainder of their natural life. So, the preparation work leading up to a trial is enormous and needs to be on point.

In this week’s episode Jordan and Bill discuss the process leading up to a trial, beginning with the thoroughness and required documentation of every step of the investigation. They speak about the presentment of evidence to the Grand Jury and the criminal indictments and the move to Superior Court. They address the mandatory exchange of an often enormous amount of discovery materials between the prosecutor and the defense counsel and how that information becomes the basis of trial motions and hearings that determine what evidence and information will be allowed during the trial.

The murder case against Michael McDermott, while seemingly iron-clad, takes a turn when the defense advises the trial judge they intend to pursue the affirmative defense of Insanity. Now the prosecution must not only prove the murder charges against McDermott but also defend against the claim that he was “substantially unable to appreciate the criminality or wrongfulness of his conduct” and/or that he was “substantially unable to conform his conduct to the requirements of the law”.