Mangione Murder As Terrorism Charge & Judicial Ethics

Published Dec 19, 2024, 2:24 AM

Criminal defense attorney Jeremy Saland, a former Manhattan prosecutor, discusses the first degree murder charges against Luigi Mangione for the shooting death of UnitedHealthcare CEO Brian Thompson. Legal ethics expert Stephen Gillers, a professor at NYU Law School, discusses a finding of misconduct against a judge who criticized Justice Samuel Alito in an essay. June Grasso hosts.

This is Bloomberg Law with June Brusso from Bloomberg Radio.

This was a frightening, well planned, targeted murder that was intended to cause shock and attention and intimidation. It incurred in one of the most bustling parts of our city, threatening the safety of local residents and tourists alike, commuters and business people just starting out on their day.

Manhattan District Attorney Alvin Bragg announced the indictment of Luigi Mangioni on first degree murder charges for the fatal shooting of United Healthcare CEO Brian Thompson. Prosecutors elevated the case to first degree murder, saying the shooting was a carefully choreographed act of terrorism.

This was a killing that was intended to evoke terror, and we've seen that reaction.

He is also charged with one count of murder in the second degree as a crime of terrorism, and another count of second degree murder. In the last few weeks, we've seen the celebration of Mangioni on social media, treating him like a folk hero and an avenger with a superhero type name of the Adjuster. Memes show him as a saint with a Halo songs, praise him on TikTok, there's the hashtag free Luigi movement, and merchandise from t shirts to tote bags, perhaps in part the public's response to a broken healthcare system that many have struggled with. New York Police Commissioner Jessica Tish condemned the lionization of Mangioni.

Let me say this plainly. There is no heroism in what Mangioni did. This was a senseless act of violence. It was a cold and calculated crime that stole a life and put New Yorkers at risk. We don't celebrate murders and don't lionize the killing of anyone.

Joining me is criminal defense attorney Jeremy saland a former Manhattan prosecutor, Jeremy How unusual is this first degree murder charge in furtherance of terrorism?

Well, it's very atypical. Though. First degree murder in and of itself is not meaning if someone is accused of killing a police officer, for example, someone is accused of killing a potential witness in a criminal case, killing someone for hire. There's certain broken out areas of law that allow for certain murders to qualify its first degree. One of those is terrorism and committing a terrorist act, and that's specifically defined in the Penal Law of New York in forty nine point h five of the Penal Law, and it's broken out to three sections, and the DA's office listed them all, so that gives them some leeway to argue that, you know, this was some effort to intimidate the public purse of this agenda that he has. I don't know. I think it's part of a stretch in my opinion, when we think of a terrorist in a sort of general sense, it doesn't have to be someone who's a foreign actor. Can certainly be someone who's in the United States and even locally. But I also think that most people would see that as somebody who is an individual or with a group of people who maybe want to attack our transportation system to send a message to the United States, as opposed to sending a message to United healthcare and insurance suppliers and providers that be warned. The other concern I have with this, and this ties into the insanity defense or lack thereof, that even if Lui Demandioni's mental state is lacking for the purpose of someone we would think would be completely mentally healthy and stable. It may not necessarily rise to a legal defense of insanity. But when I look at it in the view of terrorism, I think of someone or a group of an organization that has been doing this for years or even dec aid in furthering this agenda that they have as opposed to someone who it appears as right a normal, healthy life until relatively recently, and whether there's some trauma an injury that caused this or something else. But in the past few months or even a year, he lost that mental health that he had, So it's just really a terroristic act and just what we think of him as a terrorist. I get the District Attorney's office wants to send a message that you cannot lionize this man's actions, that it's never acceptable to hunt someone down if true because of their career and the services that they provide as a public is galvanized behind them to some extent. But merely because you want to send a message does not mean that the elements of the crimes fit it. And I don't really believe necessarily that calling him a quote unquote terrorist and the purpose of the penal law is applicable or appropriate it's a little bit of a stretch or a lot of bit of a stretch, and it gives them sort of a hammer now that they can really reeld against this young man. True or not that he committed this.

Crime, and brag said a couple of times that the shooting took place in one of the most bustling parts of our city, threatening the safety of local residents and tourists alike, and commuters and business people. That seems to be something of an exaggeration of the dangers, because the shooting happened very early in the morning and the street wasn't crowded.

So I'm going to interrupt on that point and just say that that's neither here nor there really in terms of whether he was acting or committing a terrorist act. Then charged with reckless danger and because you could have hurt somebody else, right, there's a colony for that merely because of when and where he did it, that and of itself should not all of a sudden elevate it to a terrorist act. Because if I'm someone who lives, whether it's Battery Park all the way uptown in Harlem, anywhere in the city of New York, in this case, Manhattan. If a loved one is killed, my cousin, my brother, my sister, my aunt, my uncle, why did the CEO cus killer get treated differently than someone who's dodging, you know, drugs in the street or someone who's killed in a domestic case for example? Why does the CEO get treated differently in terms of who he is? And a message was certainly there from Luigi if you believe it as true and as alleged, but is that elevated to actually and terrorist Act by law? It seems to be a pushing of the statute. And what it does for prosecutors is it goes from generally, on a murder two, you're looking at fifteen to twenty five years to life, meaning you can get sentenced in that fifteen to twenty five year period, but then you're eligible for parole after that. So let's just make it up that to say it's twenty five you know you're eligible for parole. There, twenty six you're eligible parole, twenty seven year eligible for parole. So there is that tags on. Now with the murder one, it elevates it to twenty to twenty five as supposed to fifteen to twenty five and it's still the life side, but there's an alternative of life without parole. Once you go into terrorist, whether it's second or first degree, you have that without pole backside of it. That's a huge hammer. Now it's an overcharge possibly, and if there is a site defense, one of the things that it does is that it sort of forces the hand of the defense and the accused to say, am I going to really risk life without pool? There may be a plea in this case, regardless, I can't tell you what's going to happen. There may be a difficult but viable insanity defense, and difficult for sure. But once you throw out on a twenty six year old person, or anyone for that matter, life without parole, it changes the conversation.

Are they trying this strategy of you know, if the jury doesn't go for the top charge murder one, they may compromise on the second degree murder. Although that strategy didn't seem to work in the Daniel Penny choke hold case.

Daniel Penny is vastly different. Vastly different because it clearly was not an intentional homicide, even if you believed everything. The question is whether it was reckless as a matter of law or criminally negligent, and we don't need to describe those mental states or lack thereof. This is different because you're either going to believe that he had a site defense and he could mentally was aware of what was happening it was his intent or not. So there's still the quote unquote regular murder two that's in there as well. I think it's a waste of an alliplications. If you believed he was mentally incapacitated and had a mental defect or ate in't and if he didn't, then you believe he had the intent, you know, which is hard to overcome, then you've got your murder. So you know, I don't think they have to parse through that. To me, it's the DA's office taking an extra step that I think is unnecessary to say, you don't come to New York, you don't commit these crimes. We should all be safe, and you know what, anyone's standing behind this young man really should be ashamed and understand if you're going to copycat this and mimic this, something wicked. This way comes for you in the four corners of the law. But I do believe that it's a stretch because a murder too is when I say, just as bad. If anyone knows understand the consequences, they're not going to say, oh wait a second. I mean I could face life in prison as opposed to thirty five years before I get parrolled. That's not part of someone's calculus.

So, Jeremy, you said that it's a stretch. But does the prosecution lose anything by having that first degree murder charge? Is there any downside?

They don't lose anything other than possibly credibility, not credibility in the merits of the prosecution, not credibility in the heart of the case. But I go back to what I said before. Let's just say I live in a community and I'm avoiding, you know, drug dealers, and someone comes out to get me, or I'm a victim of domestic violence, or for whatever reason, someone's you murdered, either you're driving uber or a taxi. My life is equal to mister Thompson's life, and he is a victim no matter what the outcome of this case. But the person who is accused of that homicide, that murder should be treated equally and not greater. Because we want to send a message, we should always be sending a message that homicide is wrong. I get it. I get it. We don't want copycac I totally understand that. We don't want to lie. I someone if true about their misconduct, so they don't lose anything necessarily in the eyes of the law. But to the public, I think if you went out and you pulled one hundred people, you'd have some people saying, wait, this is not okay. There needs to be accountability. But this charge is not the right charge.

So you mentioned not guilty by reason of insanity, and his attorney, Karen Friedman Agnifilo, suggested that defense before she became his attorney. How difficult is an insanity defense?

It is very difficult, depending on your sort of facts and evidence here, there's going to be difficulty because if you believe as alleged and what's being shared, this has been something that was not spur of the moment, but premeditated. There's words that were written and said. I'm not talking just about on the shellcasing, but terms of writing things that he has said about this why and acknowledgment. There's conversation about the unibomber, you know, understanding the gravity of what he did. So all of this doesn't help your insanity defense because one of the hallmarks of your insanity defense is I could not formulate that intent because I had this mental defect, and this mental defect that I had prevented me from being aware and understanding the consequences of my actions. So it's quite difficult in this scenario. But at the same time, one could plan, and one could prepare, and one could take a position as to why they're doing something and understand the gravity of it, and still suffer from a mental infirmity that doesn't allow him to fully comprehend the consequences morally, legally of their actions. It's a heavy lift, but I will say this, it looks less and less like a case like this will go to trial, especially on a murder one. Though maybe they can succeed in getting it thrown out when the judge reviews a grand jury minutes and Karen challenges that, which I believe is wife for a challenge success or not, it's right for a challenge, but the mitigation view, So whether or not it rises to the insanity defense as a matter of law, there has to be a reason DA's office that a young man of twenty six years old, who is incredibly bright at giving regular kid made this change and something went awry. What was the catalyst that clauses to happen? If I understand correctly, it's not as if his family was victimized if you will or hurt or not covered by some insurance or something like that, and so it's just some anger that you'll hurt me personally. So there's some sort of mental defect during confirmity that was caused at some point that should bear into what ultimately happens in this case, meaning to lower the potential sentence and plea, even if as a matter of law that wouldn't necessarily negate his intent.

If it does go to trial, do you think that one of the possibilities that the defense will be looking for is dury nullification. I mean you see this outpouring of sympathy and sometimes praise for Mangione on social media and elsewhere.

Yeah, if you're going in for jury nullification and that's your only defense in this case, and it may have to be part of it, you've lost because to hope that you're going to get ultimately, let's just say you do get one or two. The DA's office is not going to turn around and say, you know, we're just going to walk away. Mistrial does not just give him cleaned hands and it's done. This will proceed. Someone has died, so you may win a battle but lose the war. At the same time, there could very well be someone in that jury pool who tells you I will be you know, objective. I will listen to the judges he or she instructs me on the law. I will follow the evidence as presented. But inside they're saying, damn Bee and you know, mister Thompson in the insurance industry, and really be that sort of Manchurian candidate, if well, juror who is really in there for the wrong reasons, with his own agenda. That's not what's being present. There is a risk of that. There was a risk of that, I thought during the Trump trial, but in a different way, meaning that someone might got on who would really just want to convict because they don't like Trump. This is sort of the opposite. I want to acquit because I like what he did, or I believe in what he did, which is more powerful, because all you need is one person to say I'm not convicting and that the trial jury gets hung.

Do you see any other defenses that she could raise? The evidence is overwhelming as far as we know.

Yeah, from what I have seen, overwhelming is being conservatives. From what I have seen, you have the ghost gun, you have the matching ammunition that it allegedly been shot from that firearm. You have the ID, you have his response at the time. You know there was a lot there that you have the video obviously surveillance of something. So there's a lot there. I don't believe the defenses it wasn't me. So if it wasn't me, and there's no legal challenge to the problem cause to arrest him and search him or whatever they did and recover these items, you're looking at that mental state. The best way I would couch this is an angle here is I may have committed the act, but I did not commit the crime. I may have committed the act, meaning yeah, I may be the guy who pulled that trigger, but I didn't commit the crime because of that mental defect, that insanity defense that I lack to be able to formulate that full and accurate intense. So it's a sort of law school issue. But anyone who's in that courthouse would know you need the physical act and you need the mental state. Physical act as they are, the mental state is lacking. That to me has to be your best defense, whether it mitigates or ultimately or successful in as a matter of law, to say there's an insanity of defense.

Do you think it's more likely than not that this will end in a guilty play, that there won't be a trial.

If the prosecution is successful with the murder one with the terrorist piece of it, even the murder two with the terrorist piece to it. That reality of a potential life without parole is enormous. It incentivizes, if that's the right term, a plea. That being said, I would expect there likely, well, I shouldn't say I would expect. I've been around the block long enough not to expect. There is certainly a likelihood that there would be a plea regardless, because I do believe the insanity defense is very, very difficult, and we may find out, though we won't hear about it in real time. The parties are negotiating somewhere in that fifteen to twenty five to life range, trying to get closer to fifteen or twenty as opposed to twenty five.

It's anticipated that Manngioni is going to waive extradition tomorrow. Is there any point in not waiving extradition.

Not really. You can conceive of a situation where he's in a stable place. You know where he is. He's not on Rikers, which is a headache for both him and your council. You're getting more opportun community to get evidence and formulate and strategize, getting more opportunity to meet with him to really understand and prepare and get all of your experts ready to go. But that's nominally helpful because when I'm a New York attorney, as Karen is, I want my client near me. Her being so far away does not help his defense does not help her When she's not by her home based office with the people who are supporting her as an attorney, whether it's the experts, support staff, the other attorneys are involved in this. You want to be at your own home base. There's really nothing valuable, and I believe that Dicky's response of Belle should be a million dollars or five million dollars. I haven't seen the evidence that there's nothing connecting my client and substance was really poor form, not to take a shot at him personally. That's not meant. I just think that sometimes you just got to let your strategy evolve and be more vague in what you're doing until you know what you're doing. This isn't about fighting bail. He's going to be Roman returns to New York. But I believe at this point you get him back and we try to change that narrative if I'm Karen, and get him back here and start working on that defense, which I'm sure she's already started.

Always a pleasure to talk to you, Jeremy, Thanks so much. That's criminal defense attorney Jeremy Salande. You may remember the flag flap over Justice Samuel Alito's flying of flags outside his homes in Virginia and New Jersey that were also carried by Donald Trump supporters during the January sixth Capital riots. There were calls for Alito to recuse himself from two January sixth related cases, but the Justice refused to do so and suffered no consequences. So who has suffered consequences over the incident. A federal judge who wrote an essay critical of Alito's flag flying has been found guilty of misconduct joining me is an expert in legal ethics. Steven Giller is a professor at NYU Law School. This essay by federal Judge Michael Ponzer was entitled a federal judge wonders, How could Alito have been so foolish? Did this essay stand out?

Yeah, I mean, the essay was a mistake, a minor mistake. Worst has happened. But Judge consur should have refrained from jumping into its political play and that generated the complaint.

Yeah, And the complaint was filed by a conservative advocacy group run by a Trump ally, And the complaint was handled by Chief Judge Albert Diaz of the Federal Appeals Court in Richmond, Virginia. What did he say was wrong with the essay?

Well, I mean, in any since, this issue comes down to the following. On the one hand, judges are encouraged to speak out in a way that will improve the law and the administration of justice. Judges are especially knowledgeable about those things, so the Code of Judicial Conduct encourages them to contribute to the development of the law. On the other hand, in what they say, they have to be careful not to undermine public confidence in the integrity and independence of the court, and so they have to walk a kind of fine line between what they say and how they say it and where they say it. For Judge Consor, he used certain inflammatory language, at least inflammatory when judges use it. And he published his accusation on the op ed page of the New York Times, which is about the most public place you can imagine for an opinion about a Supreme Court justice. So that was a mistake. I mean, he could have said pretty much the same things in different language, different tone at a judicial conference or a law school panel discussion. But he had a certain tone and certain word choice, using the words foolish and describing Justice Alito's conduct, and he did it in a very public way, and that created the problem.

Judge says something at a judicial conference that rarely gets out to the public. If no one makes any comments, then you would think that what Alito did was perfectly fine. With members of the federal.

Bench, well, a lot of people were saying a lot about Alito's flag. So the question is not whether anyone says anything. The question is where the lower court judges should attack publicly attack in the language Judge constra use Alito's flag issue in the manner that Judge Consor did. Yes, it's true that statements made at a conference are not discovered by the public. But when you become a judge, you give up certain First Amendment rights. You have a right to criticize the justice in the way that Judge Ponsor did if you are not a judge. But judges are, just like lawyers, are restricted in what they may publicly say consistent with the First Amendment.

I'm confused about what the exact reason was, because there were some things I read that said it was because it might have been considered to be connected to a case, and.

Yeah, yeah, I mean that's part of it. There are several layers here, and Judge Diaz's opinion. One of the problems he pointed out was that at the time that Ponso wrote, almost contemporaneous with the op eds, there was debate about whether or not the flag controversy would require Justice Alito to refuse himself from the January sixth cases. So that was in the news, and that aggravated the situation. It was a politically fraught subject. And if there's one thing we know that judicial ethics, it's that judges should stay out of politics or even the illusion that they are mixing it up with a political question. So that was the case the January sixth cases and Alito's possible need to recuse, And at that moment it comes Judge Consor calling his conduct in regard to the flag controversy foolish, and that could be seen even though Judge Ponsor says he did not mean to say this, He did not mean to connect it to the January sixth cases. It's his job to realize how the public might hear it, and the public might hear it as a judge weighing in on Alito's need to recuse, which is a quasi political question in this context.

He also wrote twenty twenty three opinion column entitled a Federal judge asks, does the Supreme Court realize how bad it smells? So there was no misconduct complaints filed about that.

This is a good example of how work choice matters. There's nothing wrong with the judge writing an out ed saying, hey, we're in trouble. The courts have suffered in public opinions. Critical to the country is the public's perception of the legitimacy of the court that could be in an op ed, a widely circulated up ed in the mainstream media. That's all true, but when you use words like smell or other highly charged words, it takes on a different character. Now, judge sponsor might say, well, I didn't choose the headline, and maybe that's true, although I think for a judge to write and not sare he should have at least veto power over the headline because he has responsibilities that the headline writer is not. So yes, it could have been the basis, but it was more abstract than the later ed and probably would not have resulted in any kind of timing of impropriety coming up.

Public opinion of the judiciary at an all time low. This is Bloomberg. I've been talking to NYU law professor Stephen Gillers about a decision that a federal judge committed judicial misconduct in criticizing Justice Samuel Alito's flying of flags outside his home that were also carried by Donald Trumps supporters during the January sixth, twenty twenty one riots at the Capitol. So what strikes me as unfair and a bit hypocritical is that Poncer violated the code of conduct that applies to all federal judges except Supreme Court justices. And we have had over the last few years instances where Supreme Court justices appear to have violated ethical rules and they don't suffer any consequences, and yet a judge who writes an article suffers consequences.

Yeah, that's true. A justice could have written the same outbed about another justice and there'd be no code of conduct that could be used to sanction or discipline the justice. So justices and judges do not work on a level playing field because there's no mechanism as a realistic matter for disciplining a justice as there is for a lower court judge, and that they seem unfair and may seem wrong. But there are also arguments in favor of that, and that is that it's very hard to create a disciplinary apparatus for a justice. It's not impossible, and it's been discussed, but it's not the same as a disciplinary system for lower court judges who could be judged by higher court judges. There are no higher court justices over the Supreme Court, and that's where the number of the problem is.

The Supreme Court ethics go that they had done opted has no tease to it right. But some of the justices, I believe Elena Kagan and Katanji Brown Jackson have said that they would agree to having some kind of enforcement mechanism.

Would answer that could be an answer. We have to get the details. The details matter, and even justices and scholars who urge some kinds of disciplinary apparatus for the justices have disagree among themselves about the details or have not been precise about how the details would work. There's another aspect here, a bigger story that, to my mind, is more consequential. We have, of late the results of the Gallop Poles showing that the American judiciary is held in very low repute towards the basement among nations in the public confidence in their judiciaris. And I fear that the vitriol and anger a name calling that has infected the political discourse in this country might spill over to how we talk about judges, the motives we attribute to judges, how judges talk about other judges, and that would be just awful. I mean, that could lower the estimation of the public's confidence in the American judiciary even more so. One value of what Judge Diaz wrote in his disciplinary opinion, and what Judge Constor did in accepting the accuracy of what Judge Dias identified. One value is to draw a bright line we are not politics. This is not political. We will not be tempted to behave the way that members of Congress or state legislatures or candidates for political office behaved. We have to ask differently. And that's the message that comes out of the finding by Judge Dias and the acquiescence by Judge Console.

Don't you think that a large part of the blame for the way the public views the judiciary is from recent Supreme Court actions where the Court has chosen to get involved in very political issues. And you've seen sixty three decisions over and over again on these hot button issues and consequential issues, and you have, you know, the abortion decision, And it's the Supreme Court decisions that the public hears about most, not lower court judges decisions. So, I mean it seems like there is politics infused in the Supreme Court.

Yeah, the Court is suffering from the fact that many of its decisions of late and more to come are dramatic and consequential and generate a lot of disagreement among the public. That problem is not about ethics. That problem is about policy differences, where the Court's decisions are seen as going too far among members of the public, leading to a lower estimation of the court in the public's mind. But you know, that's kind of avoidable if we assume, as we should, as I hope we can, that even the justices to participate in that in those six to three opinions are honestly saying what they believe is true. Even if we disagree with their conclusions. Fundamentally, they're doing their job applying the law as they see it, which is their responsibility. There's no corrective. The public and anger at what they're doing. Disagree with what they're doing, but they haven't done anything wrong. It's the job to make decisions. During the Warrant Court era, there was a lot of possibility to the Warrant Court's rulings on protections for criminal accused persons Miranda, you know, generated enormous anger and perhaps some of the listeners will remember the signs along the highway and peach Earl Lawren. So it goes both ways. It could be liberal decisions, it could be conservative decisions that generate public anger. But that's not about ethics, that's about policy, and the only way to correct for that is by voting.

I mean, what about Fifth Circuit Judge James Hoe, who hasn't been shyt on or off the bench about his conservative viewpoints. He's been publicly outspoken about not hiring law clerks from Stanford, Yale or Columbia. Some say he's trying out for the Supreme Court. No one's filing this conduct complaints against him.

Well, trying out for the Supreme Court. And what you say and the right has a long stand and pedigree, so there's nothing new there. Again, it depends where you say it, in the words you use, something said in the law review article or in an opinion of the court. There are two places judges can speak their mind freely within certain limitations. One is in their opinions. I mean, lower court judge can criticize a justice's opinion in the lower court judge's own opinion. That's not uncommon. Or you could participate in a law review panel and make the same criticisms. Again, paying attention to the language you use, of the tone, and all of that is okay, judge, Judge Ponzer could have said pretty much the same thing as in his second op ed if he had chosen the right words and the right forum. It matters where you say it, It matters how you say it. And that's where pants Or crossed the line.

I mean, all cyclical. Do you see any hope for the public's trust in the judiciary to improve? They went down twenty four percentage points since twenty twenty to a historic low of thirty five percent. Anyway, those are going to come up anytime soon?

I don't think so. Those. The low repute of the courts generally and the Supreme Court in particular, is a product of policy disagreements, obviously, abortion, affirmative action, rights of immigrants and those. That's not going to change. We're going to get more of those in the years ahead. That six to three majority is not going to change. Even if Thomas and Alito retire in the next two years, they'll be replaced by a young version of each of them, by a Senate dominated by Republicans and the President who is a Republican. So what we see now is the six to three lopsided nature of the court is going to continue for years to come. It would take some a really remarkable set of circumstances, some justice changing his view of things before we get out of this six ' three dilemma. And so because of that, and because the public's trust in the administration of justice is at least in part a product of how it agrees or disagrees with court rulings, it's only to to get worse. And if it gets worse, because the justices are voting based on what they honestly believe is the correct answer, but we want them to do even if we disagree with how they vote, there's no way of preventing that.

Well, it looks like those disapproval numbers of the Judiciary and the Supreme Court are not going up anytime soon. Thanks so much for being on the show. That's Professor Stephen Gillers of NYU Law School. And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, Slash podcast, Slash Law. I'm June Grosso and this is Bloomberg

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