The Court of Public Opinion: White-Collar Killing

Shootings in America aren’t rare. In fact, according to data compiled by the Brady Campaign to Prevent Gun Violence, an average of 327 people are the victims of shootings every single day in the United States, meaning that by the time I finish typing the next paragraph, there is a very high chance that at least one more person in America will have been shot. https://www.bradyunited.org/resources/statistics

Most acts of gun violence in the US make the news one way or another, but the amount of media coverage of any given shooting can range from a footnote to a phenomenon, depending on a lot of factors that are themselves the subject of many questions and debates. One relatively recent incident in particular has been the subject of extensive media coverage: the December 4th killing of UnitedHealthcare Insurance Company CEO Brian Thompson, who was fatally shot three times from behind as he walked into a hotel in Manhattan to attend an investor conference.

Several factors immediately made this incident stand out from many others: the world’s ability to witness the killing from the perspective of a nearby camera that recorded it; the air of hitman professionalism in the elements of a silencer being used on the gun, not robbing the victim, use of facemasks before, during, and after the shooting, and a very calm and smooth multistep getaway by the shooter; the dramatic flair of words etched into each of the three bullet casings that were intentionally left behind at the scene as a statement of motive (those being “delay” “deny” and “depose”, a clear reference to “delay, deny, defend”, which is a commonly used mantra in the insurance industry to describe companies’ total-lawfare efforts to deny coverage and reject payouts); and finally, the public’s opportunity to participate in the investigation as informally-deputized detectives while the manhunt for the shooter played out.

The ensuing tsunami of international media attention was attributed by some to the wealth of the victim. However, law enforcement leverages media coverage in many cases that don’t involve rich people, and in my experience of more than 20 years as a criminal defense lawyer (including almost a decade as a public defender in Chicago handling thousands of gun cases from unlawful possession up to murder), American police work hard to arrest perpetrators of violence against poor people too. It seemed to me to be far more likely that the police encouraged media coverage of this case in order to help them make an arrest, and their efforts were aided by a combination of broad frustration with the American healthcare system, the public chance to participate in a modern mystery, and the fact that unmasked pictures of the suspect showed he had a very photogenic face.

As we all now know, I’m talking about Luigi Mangione, who was arrested after an intense manhunt and paraded through lower Manhattan in one of the most extravagant perp-walks of all time. Public sentiment about the case is far from uniform, but it is absolutely fair to say there has been unusually high amounts of public cheering for the alleged shooter and disdain for the victim, apparently rooted in the broad resonance of frustration with the human cost of treating health care as a capitalist endeavor rather than a human right. Media coverage isn’t proof, but there have been numerous reports that the victim’s company used an AI-tool to review and deny claims despite knowing the tool had significant error rates; that UnitedHealthcare’s rates of coverage denials were by far the highest in the nation, indeed likely the world; and that the deceased CEO’s personal profits and the profits of his investors were exceptionally high. Additionally, various estimates of the actual human cost of UnitedHealthcare denials emerged, with some claiming that Thompson and his company were directly responsible for tens of thousands of deaths per year, which would mean that literally hundreds of people die every single day who would otherwise survive if they just had different insurance – the kind that would allow them to actually get the medical care they need, and that would be provided as a matter of right in every other developed country on earth except the United States.

The case against Mangione reportedly includes recovery of the gun and silencer used in the killing from the backpack he was wearing during his arrest, and a lengthy manifesto he wrote that advocated violence against insurance company executives. Additional evidence is likely to include Mangione’s fingerprints and/or DNA on the spent casings found at the scene. In other words, there has been almost no public suggestion that the wrong person has been accused. Partly due to the intensely high-profile nature of the case, and partly based on the strength of the evidence against him and the nature of the crimes with which he’s charged, the Department of Justice has announced that they will pursue the death penalty if Mangione is convicted.

So what will his defense be? Plan A in criminal defense trial strategy is always “my client didn’t do it,” but that doesn’t seem like it’s going to be an option here. Plan B is some version of “you can’t prove anything,” which also probably won’t work in this case. Plan C then is “yes, my client did it, but he had a reason that excuses him from criminal liability.” Legally known as “justification” or an “affirmative defense,” the most famous version is self-defense. Lesser known but just as viable in many cases is “defense of others,” which is what I predict Mangione’s defense will be.

First of all, as I understand his writings, defense of others is the truth as far as Mangione’s personal beliefs and motivations are concerned; he seems to have genuinely believed he was acting to save many lives by eliminating the CEO and forcing the company to change policy. Putting on any defense that is built around the truth is a lot better for defense attorneys than relying on the prosecution to fail; instead of just absorbing blows and hoping to dodge a knockout, putting on an affirmative defense allows us to fight back, and it’s especially gratifying in cases like this, where there is potentially a lot of evidence to make our case.

He’s going to face a lot of challenges, for sure; the legal standards to be allowed to raise the defense of others are complicated, and chances of winning are generally somewhat remote. I’ll spare you the citations, but the defense is going to have to show that the people the defendant was trying to protect (the people whose claims were denied) had a right to self-defense in their own right, and the accused did “not use more force than the person defended was lawfully entitled to use under the circumstances.” In other words, the principles of self-defense apply to the defense of others, and the defendant only has a right to use violence if the people he is trying to protect would have that right too. Not just any violence either; in cases of homicide, an individual has a right to self-defense where they reasonably believe that death or grievous bodily harm is about to be inflicted on themselves as a victim of illegal violence, and that the individual believes that the force he uses is commensurate with the threat he faces.

What it all adds up to is that Mangione is going to have to convince a judge that white collar crime in the form of insurance fraud presents the imminent threat of death or great bodily harm. His lawyers will have to plead this (or any) affirmative defense in their formal answer to the charges, which will trigger a pretrial hearing to determine whether or not the judge allows them to present the defense at trial. I expect they will conduct extensive investigations into the denials of coverage UnitedHealthcare was making, and that they will bring in witnesses in the form of surviving relatives of patients who died, to describe what conditions the patients had, and the fact that their claims were denied despite what their doctors said were necessary to treat them to save their lives.

Before anyone gives in to the possible instinct to dismiss the reasonability of such a defense out of hand, take a moment to consider the kinds of sentences the DOJ has requested, and courts have imposed, in white collar cases: Shalom Weiss got 845 YEARS; Norman Schmidt got 330 years; Bernie Madoff got 150; and a host of others got multiple decades, including Israeli Lee Elbaz, who got 22 years for binary options fraud after the Times of Israel wrote a series of columns demanding her prosecution, even though at least one of their key allegations was completely, entirely false (full disclosure: I was one of her attorneys, and I intend to address the details in a future blog). The point is, these sentences were not imposed for mere property crimes, because such draconian sentences for non-violent offenses would obviously be a violation of human rights; the purported justification for burying people alive in prison is that even white-collar crimes have the power to ruin victims’ lives. Therefore, for the DOJ to argue otherwise in opposition to Mangione would be hypocritical, and taking self-contradictory positions in court is supposed to be barred by the legal doctrine of judicial estoppel.

If the jury is allowed to hear such a defense, they will have to decide whether Thompson and UnitedHealthcare were killing people by fraud. It will be a trial unlike any other in modern history, one that could reshape the discussion of America’s unique capitalist treatment of medicine.