A Luigi Mangione Death Penalty Trial

By: James Trusty

The Attorney General’s recent announcement that DOJ will seek the death penalty against Luigi Mangione raises a host of interesting legal and philosophical issues, and it almost certainly reflects a dramatic about-face from the Biden administration’s approach towards federal prosecutions for death-eligible offenses.

Aside from having personally prosecuted three death penalty trials while I was an Assistant U.S. Attorney in Maryland and when I was Chief of the DOJ Organized Crime and Gang Section, I spent a number of years on the Attorney General’s Capital Review Committee (“CRC”). The Committee was comprised of a number of “grey heads” who had personally handled death penalty cases and who developed a solid working knowledge of the intricate field of capital litigation. Ultimately, after the U.S. Attorney’s Office for the case submits a memo and proposal on seeking or not seeking the death penalty, the CRC reviews the material, considers defense submissions, and makes a recommendation for the Attorney General on whether the case is an appropriate death penalty case. The time and resources that go into handling these cases—including fighting a myriad of pre-trial motions, appeals, and other forms of legal relief—are no small matter, particularly for the smaller U.S. Attorney Offices. As a CRC member, I reviewed the Charleston Church massacre case, the Boston Marathon bomber prosecution, and a large number of cases involving murdered police officers, witness retaliation, and gang battles resulting in death(s).

For all that experience, we have to start with the basic recognition that most murders are state cases. General jurisdiction for homicide lies in the county where the murder took place. Federal prosecutions, on the other hand, require a jurisdictional hook to justify taking the case into a U.S. District Court. RICO (Racketeer Influenced Corrupt Organizations)[1] and particularly ViCAR (Violent Crime in Aid of Racketeering)[2] are a couple of typical charges seen in federal death penalty prosecutions, as our murders on federal property,[3] and murders committed to obstruct federal investigations.[4]

Luigi Mangione, the man accused of killing healthcare executive Brian Thompson on the streets of Manhattan, is currently charged with two counts of interstate stalking and two related firearm offenses. The criminal complaint is not the final document for which he will face trial, so DOJ may reshuffle the deck a bit on these offenses, but the current charges are a bit of a stretch basis for asserting federal jurisdiction. The fact that Mangione allegedly traveled from Georgia to New York with bushels full of premeditation is a helpful and necessary element of making an interstate stalking case. But the first Stalking count[5] requires that the defendant’s stalking conduct “placed [Mr. Thompson] in reasonable fear of death” or serious bodily injury. This element makes sense, as the statute was originally designed to cover more traditional domestic violence scenarios, where the disgruntled ex-lover issues a multitude of threats or acts of violence before committing murder. Here, there is no public information suggesting Mr. Thompson had any idea that he was being pursued until a bullet slammed into his leg from behind, soon followed by the fatal shot to his back. In short, the “reasonable fear” of death or injury would have only arisen in the split seconds between shot number one and shot number two. This is not necessarily a fatal problem for the indictment, it just means the jury instruction on this issue could be very important way down the road.

The two variations of interstate stalking currently in the charging document, called a criminal complaint, are actually only punishable up to life. But either one would provide the basis of a predicate for count three, murder through the use of a firearm. That charge piggybacks on the interstate stalking murder but elevates the potential penalty to death because of the use of a firearm.

Assuming a trial of Mr. Mangione resulted in a guilty verdict for that count, the same jury would then determine whether to impose the death penalty, by weighing various aggravating and mitigating factors presented to them by the parties. Many of these factors are statutory[6] and some are called non-statutory because the prosecution or defense thinks they should be considered by the jury. It is not a numerical exercise, where three aggravators necessarily beat two mitigators, for example. At the end, the jury decides whether the aggravating circumstances outweigh the mitigating ones such that a sentence of death is justified.[7]

In Mangione’s case, I would expect that the biggest statutory aggravator is that the case involved “substantial planning and premeditation.”[8] Traveling from Georgia with a gun, silencer, and shell casings with references reflecting hatred of the health care system go a long way towards eliminating concepts of “opportunistic” or “unplanned” conduct.

There is some suggestion that the government will also allege the murder involved a “grave risk of death to additional persons,”[9] but that may be tough sledding with a targeted assassination. In defense of its possible inclusion, there is a lot of case law that treats “grave risk” more like “a risk that someone else gets put in the grave” than requiring facts like literally shooting into a crowd.

I would expect that the hateful motivation attributed to Mangione might lead to a non-statutory aggravator, including “lack of remorse,” and I can guarantee that “victim impact” will be a poignant and perhaps leading aggravating factor, as Thompson left behind a wife and two young children.

On the mitigation side, expect some form of mental health claim that falls short of an insanity defense. This could mean impaired capacity or “disturbance.” While this can create a battle of forensic psychiatrists over whether Mangione was all that ill, the best rebuttal from the government is usually powerful evidence of premeditation, which seems easily at hand here. To the extent that Mangione has no criminal record,[10] that will be mitigation and sometimes the defense will try to gin up an “execution impact” factor, citing the harm caused to his loved ones by Mangione being put to death. At the least, recognizing mitigation evidence is mostly a function of defense attorney creativity, we might expect to see simply worded factors like, “Luigi maintained a positive and loving relationship with his two sisters.” Whether the evidence supports it, or more to the point, whether a jury treats it as actual mitigation is something we leave for the trial.

There are two more profound concepts that coalesce around this recent DOJ decision. First, whether principles of federalism are fast fading in the world of capital litigation, and second, whether President Biden’s 11^th hour mischief regarding the death penalty will have any effect on subsequent prosecutions.

The first issue starts with the above-stated concept that murders are usually local. Historically, where the feds have the option of “doubling up,” they would leave it to the state and only if there was some disastrous outcome would they wade in with a new, federal prosecution. Although it was not a capital case, this concept played out in the beating of Rodney King by Los Angeles police officers. When the state trial ended in surprising acquittals, the feds jumped in with civil rights prosecutions and got convictions of two of the officers. That trend away from federalism principles did not start to fade with the Mangione decision. In recent years, when there was high profile incidents like in Ferguson, or Kentucky, or the George Floyd death, the Attorney General would race to assert federal jurisdiction, notwithstanding existing state cases. None of this is to suggest there is something inherently wrong with prosecuting Mangione in federal court, it is just to make the observation that philosophical notions of federalism appear to be waning, no matter who heads the DOJ.

The second issue relates to President Biden’s commutation of every individual on federal death row, except for three (Boston Marathon bomber, Charleston church shooter, and the Pittsburgh synagogue attack). This was an unprincipled and destructive move, particularly in the intentional decision to avoid consulting victim families, but also by claiming a fundamental aversion to the death penalty while simultaneously carving out exceptions in a few high-profile cases. Typically, the “but you did not seek it in Mr. X’s case” is a point of discussion between defense attorneys and DOJ as the defense tries to convince DOJ not to seek the death penalty in the first place. But, depending on the trial judge assigned to any given death penalty case, it is conceivable that the commutations would find their way into the penalty phase. For instance, in the context of a more traditional “ADX” mitigation (that there exist federal penitentiaries for men serving life sentences that are fully secure and somewhat oppressive alternative to the death penalty) the defense may be able to weave in the fact that the federal government now seems to think an ADX facility is just fine for some pretty horrendous murderers.

The legal process and framework of a Mangione trial are fairly predictable. How a district court judge will react to the revival of death prosecutions is not. An activist, anti-death penalty attitude can wreak havoc on an otherwise strong prosecution case. Neither is the critical issue of jury selection an easy process. Will Luigi continue to be treated in some quarters as a cause célèbres, or will the initial flush of misplaced support fade into recognition that he is simply a broken and murderous young man? Will the existence of two prosecutions for the same event convince Luigi to throw in the towel with a life imprisonment plea overture? Would DOJ even entertain a life plea? Time will tell.

[1] 18 U.S.C. § 1962

[2] 18 U.S.C. § 1959

[3] 18 U.S.C. § 1911

[4] 18 U.S.C. § 1512

[5] 18 U.S.C. § 2261A(1)(A)

[6] 18 U.S.C. § 3592

[7] Id.

[8] 18 U.S.C. § 3592(c)(9)

[9] 18 U.S.C. § 3592(c)(5)

[10] Mangione apparently was charged with trespassing in Hawaii. I would like the opportunity to be similarly charged.