Legal Strategy and Future Federal Implications

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And I find this absolutely shocking , but I got to tell you something , this defense that even though they've withdrawn it now, that they are going to raise again this defense of extreme emotional disturbance in the murder trial involving the killing of Brian Thompson , I think it could work based on things that we're hearing here at TMZ about the feeling that this is the pound of flesh that a lot of people want as a result of what has happened with healthcare in America . Well, they're clearly this guy has a constituency and that's the most important thing when you're trying a jury trial, a criminal jury trial is do you have a demographic? Do you have a constituency that is going to listen to you that's going to give you a presumption or that is going to follow along with what you say. What you're talking about is in September of last year, the defense gave notice under seal under a code section in New York of extreme emotional disturbance, ED . So this has been going on for almost a year that they've had this idea . Wow . Let's just get into what this defense is, which is essentially I mean the ide a of extreme emotion what it does is if you can get a jury to believe that you were kind of out of your head when you did what you did and it was reasonable that a murder case becomes a manslaughter case. And a manslaughter case in New York is five to twenty five years in prison. But there's a minimum of only five years . And so it's a huge difference between that and life in prison for murder. So what they're going to say is that Luigi cared so much about corporate greed and fought so hard to counter it. You know, that he was contacting authors all over the world about corporate greed. He would talk to anybody about it. He seemed off the last year because of his feelings about it . And they're going to try and show that he killed Brian Thompson because Brian Thompson was the symbol of corporate greed and in his head , even though it was twisted , he was parroting what people are saying in America, which is we believe that insurance companies are killing people . Well, there's probably next to child predators . The most reviled people in a courtroom are insurance companies. You can't go one degree of separation until you try a jury trial and see what people do with insurance companies. And in this case , one of the things as a practical matter , they have this They have this in the state case. They've got under New York state law, you can allege extreme emotional disturbance . We don't have that in federal . True. Troops. Why did they why did they withdraw it? Why did they withdraw ? I think I know , but I want to hear what you have to say. Why did they withdraw this defense at the end of this week? Why? Because when they went to court this week, the judge, if you read the transcript , says I'm going to unseal a lot of stuff . I want to see the redactions, meaning when you when I unse al stuff, you're going to blackout things you don't want revealed . And he specifically quoted the code section two hundred or whatever it is that is extreme emotional disturbance. It became apparent when that happened that hey, we've got a problem here. If we do that and he puts this stuff unseals this stuff, the Feds can then use it. And remember there's, the specter of the federal prosecution and do an extreme emotional disturbance basically presupposes you did the crime. Of course, but my understanding is this is a little bit different and I'll tell you why that we looked at the court file and Friday , the day we're talking right now, Friday was the deadline for the def ense to turn over all the psychiatric records of Luigi Mani Mang ioni to prosecutors that the judge ordered this date to be the date they turn it over . And what I think is it's more than coincidental that they suddenly drop this defense because I think what they're doing is strategically they don't want to give prosecutors this amount of time since the trial isn't until September to go over the documents and then they have a right to get their own psych iatrists the state does and then evaluate Luigi. The Luigi is going to have to sit with the prosecutor's psychiatrists and I don't think the defense wants to give them this kind of lead time to do it. That's what I think is going on . Well, you 're not going to disabuse you of that, but if they did it later on , it's an interesting issue. If they waited until end of July or August, right , would the judge allow them to do it then or would it end up continuing the trial ? And part of what you've got with people like this. Remember Ted Kazinsky, you remember the unibom . The unibomer was highly intelligent, had screens that he wrote about , and in his case, his defense lawyers basically tried to show that he had mental issues and ended up working out a non death penalty case or resolution to the case and he forever did not approve of what his lawyers did. He said they got me in a weak moment, blah blah blah. When you've got a client, you're talking about the client's mental state. India is a very difficult thing both for the defense and for the judge because if you were to say, Judge, we're withdrawing it, you could say that. And the judge says why you could say it's tactical. The judge says, well, I need more than that because if you later they say we're not done evaluating him and we want to make sure we have our ducks in a row. Right. But the judge may put their feet to the fire and saying no, you can't just do this at the last minute. You have to make that decision so that the prosecution has time. I don't think there's ever going to be a situation where the judge says, you can do it once you've said you've invok ed this code section. I'm going to say that you don't the prosecution doesn't have time. I just don't think that's going to happen . Yeah, but you know what? The defense is going to say, look, we're entitled to a fair tri al. We are not ready yet because it's complicated. We need more psychiatric evaluation and we don't want to commit to this until we know because if we do commit to it, we're admitting to the murder and you can't force us to make that kind of choice that either you admit to the murder or you get a valid defense . So I could see the judge being boxed in here because the last thing the judge wants to do is to say, yeah, either admit to the murder or you or pick a defense, but you can't have both . That is going to get reversed on appeal . Well, except I think you've got this you, can't look at this in a vacuum as the state court case. The fact that the state is going first , I think has to come into the calculation. There is no extreme emotional disturbance in the federal law . So if this gets unveiled , if it gets basically put out there and you've turned over all of this these items, the feds can then use it against you or against him in their prosecution . So you could win the battle in the state court and lose the war in federal court. I get it, but the defense knew that a year ago, almost a year ago when they decided they were going to mount this defense. So you know, a year ago, they didn't know that the state was going first . Yeah, but they knew it was a fifty fifty chance. They didn't know that the federal was exactly right. It is a fifty fifty chance. Well, so are you saying that they're going to drop this forever now ? Because look, if that look I want to get into how effective this defense would be, but are you suggesting that if they drop the defense , they have any other defense in this case because Luigi did it . Well, look, he did not suppress. He the judge did not suppress the gun, did not suppress the notebook and there's video. I mean, Mark, he did it. So I mean, I look, I mean, I'm sorry for prejudging, but even the defense was raising this for a year . So it's very little doubt that Luigi is the one who pulled the trigger on Brian Thompson. So if he, you know, if they don't do that defense, what do they have left ? Well, I can conceivably come up with something. Give me a give me give it to me . Well, it may be one of those crazy cases where the defendant takes the stand and and did you kill Brian Thompson and he says , Yes, but the yes but is the psychiatric defense . Well, not necessarily. You can say yes, but finish the sentence. Yes, but yes, but I have I did not have the mens re a. I did I was so overtaken. I did this, that or the other thing. That's the that's the emotional disturbance defense . If you're invoking that code section, if you pick a jury and you think that you've got some jurors what it's rare that it happens that there are defense stealth jurors, but this may be the one case where you have defense stealth jurors? You've seen the people outside . Absolutely. Believe me, we were doing like TMZ Live. Everybody who skypes in, all the viewers are saying, We support Luigi. What the insurance companies do every day is murder . Brian Thompson committed murder . So they are bending over backwards to justify it in some way . And in this case , you know , it gives the jury a middle ground that the jury doesn't have to say it's all or nothing. It's either guilty or not guilty. They'll say, look , he shouldn't have done it, but we get why he did. So we're going to call it manslaughter. And it's more palatable, I think, to a lot of jurors, if you have that emotional disturbance defense than saying, guys, you gotta either say he's guilty or not guilty . Either he sent him to prison for comes down. That comes down to jury instructions, the charging confirmation comes down to selection . What? Well, selection is everything with all cases it's over after selection. If there are some of these Luigi fans , people who are supportive and by the way, they aren't this is not these are not one offs. There is a large number of people who support him . It is it's incredible . And if they get onto a jury , if they do, sometimes what I claim prosecutorial jurors do, which is they say, Oh, yeah, I can be fair, I can be fair and then get back in the jury box and as soon as they go into deliber ations, they say we're going to convict this guy blah blah blah take him out back and hang him. What if it's the opposite? They say yeah . And say Luigi gets on the stand . Say he says testifies to something along the lines . And by the way, a judge is going to have a very difficult time excluding anything he testifies to because you've got that kind of base constitutional right. It's the one right that a lawyer can't overrule. He starts saying, look, this guy was killing people . They had just entered into an agreement where they admitted that they were based without any basis , they were cutting off medical care to people. It was a constant drip of people being killed and not supported and being bankrupted. If I didn't kill him, this guy was going to kill others . How's the judge going to stop him from saying that? I'll go one further. I'll go one point further because you have to show it's reasonable. So Luigi makes that argument . And then the defense calls to the stand Sophie Jones . And they call Sophie Jones to see if what Luigi said is accurate. So Ms. Jones , your husband was suffering from a certain type of cancer and the insurance company would not approve the medicine that your husband needed . What happened, Ms. Jones? He died, a horrible , painful death . You put United Healthcare on trial to buttress what Luigi is saying to show it's reasonable . And this is the OJ Simpson put Mark Ferman on trial defense where they're saying, yeah, he did this but, look at what United Healthcare did . And I know this sounds crazy , but I could see Luigi testifying and then calling witnesses who se loved ones either died or maybe people who are suffering right now get on the stand to show Luigi's not lying . I don't think that's beyond the scope. Twenty years ago I represented the Sarkesian family . Their daughter was denied a transplant twenty years ago by Cigna and to the point where the family or ganized in Glendale, California protest, and that protest was against Cigna. Finally, Signa couldn't take it anymore. They reversed course , gave her the transplant, but at that point, Natalie died because she did not get it timely. It's heartbreaking . People have virtually everybody I know has a story like that where an insurance company has let somebody die that they know one or two degrees of separation . Smart security made simple. That's the new blink two K video doorbell lineup. Choose battery powered convenience or hardwired reliability , whatever suits your home, set up in minutes, then start greeting your guests and seeing your deliveries in detail from anywhere. Leave it on the mat, thank you. Because whether you're a renter or homeowner, you deserve peace of mind. Shop new blink two K video doorbells at Amazon dot com slash blink it's I know that it drives people crazy crazy and you put United Healthcare on trial . And and you know, it's sort of like , yeah, what Luigi did is bad, but look at the scope of what these insurance companies are doing and I could see them , you know, finding that manslaughter middle ground. And the other thing is, you know, in the jury room , you know, you're going to have people talking about their own stories, whether they should or should not because everybody knows somebody who went through something like this where the insurance company wouldn't approve it. And probably a lot of people themselves have had that problem. So you in the jury room you're going to have people who are going to be taking up a cause in a way and that could just sweep the whole jury you know into buying the defense . Well to my point , I suppose , if you anecdotally ask any twelve people, the next twelve people you meet, have you ever had or heard of a story of somebody who died because the insurance company wouldn't come through, somebody who was bankrupted, somebody who lost everything they work for for forty years, somebody who just died an awful death due to cancer because they couldn't afford some lifesaving drug or the insurance company just stalled them until they died. It's virtually impossible . You get twelve New Yorkers in a room who don't have who two of them basically one sixth don't have one degree of separation from one of those stories. That's right . So you know, if the jury comes back , look, the judge has a lot of lititude and it really depends on, you know, the judge 's sentiments, but you know, the judge could go as high as twenty five years if it's and by the way , this is not a defense that Mang oni would have to show beyond a reasonable doubt. All they have to show is it's more like ly than not that he suffered from this disturbance. If they can just show fifty one percent to forty nine percent that he suffered from that emotional disturbance and that's what caused him to do it, and it was reasonable it',ss manlaughter. Right. And one of the interesting things, if it's true, I don't have any inside information, but if it's true that the reason they withdrew what they stated to the court under sealed in September of last year was because the judge was going to unseal it and that's what he said in the transcript . And they did not want to be hung on the federal case by because they're being forced to go through it first in the state . It's an interesting situation because if they don't basically reassert the extreme emotional disturbance, but they just have to get up and testify . And he just says, this is what, this is why I did it, whatever else and that jury hangs and does not convict him. They've now got his testimony to use against him in the federal court . And in the federal court, it's a lot tougher to get a medal defense of any kind. I don't understand because either way, whether the defense look, here's the problem with what you're saying that if he just gets up on the stand and says it and they don't ass ert that defense . He still admitted that he did it. He had two things. A hemitted, he admitted he did it and B the jury isn't getting a specific instruction about reducing the charge . So there's no benefit in him just getting up and saying it. What you want to do is get the judge to approve the defense and then put manslaughter on the table so that the jury has choices , but the way you're saying it, they wouldn't have choices . Depending on what the jury instructions look at, if you say or if he testifies , for instance, you've got a jury instruction that talks about premeditation deliberation that I didn't and he gets up and he says, I didn't deliberate . I mean I did, but at one point I rethought of it or I rethought the going through it, but then I thought and my mind was clouded by the fact that this guy has destroyed so many lives and I just snapped at that point . Arguably under the jury instructions, if the judge gives a one that mitigates malice, you can potentially get an instruction in a manslaughter , I think that's highly unlikely. I think what would end up happening if he testified is that one or two people would say I'm not going to ever convict him. Okay, maybe so, but that's just a hung jury. What if if what you could get a manslaughter conviction ? Oh, if you could if you could get a manslaughter, the problem is I keep going back on a one trick pony when it comes to the feds . If you get a manslaughter and it's based on the fact that you've had some mitigation , but you've admitted you did it and you don't have that mitigation or the ability to use that mitigation in the federal, you win the battle lose the war. And I agree with you and I want to get into that, but the fact is what you're suggesting, same thing. If he gets on the stand and just says it, it's exactly the same thing. He's admitted on the stand either way. Yes, he has unless there's a way that he can thread the needle in terms of how he you don't call him to the stand, you call the psychiatrist to the stand and then you start calling witnesses who suffered from United Healthcare. Well that',s that's really kind of interesting. Would a judge allow you to put on witnesses who had told let's hypothetically say right there are witnesses who he had talked to. You've got familiarity with the evidence. You've seen some of the stuff . Are there witnesses or are there instances in his journal and other spots where be careful what you wish for prosecution . He's going to be able to point to those instances and say look he was driven mad so to speak by some of the actions of United Healthcare. Those journals could be the prosecution wants them. They fought mightily to get them. But what if in the journals , there is that the defense can use to at least tell their story. And then the judge, under the basic law of if you get in part of this, you've got to let in the hole in California and B three hundred and fifty two and three hundred and fifty six . But under that theory , if there's something in that journal or more than something and you can tell a story through that journal, the prosecution may regret the fact that they didn't let the judge suppress it. Okay, so here's what I know that his thing was not specifically healthcare. It was corporate greed. Healthcare is a part of that, but his thing was bigger. It was about corporate greed . And there's nothing that I've heard. And we did a documentary on this, spent a lot of time on it. Nothing I've heard of the documentary on Luigi on exactly this right. And what did you when you say corporate greed? There's a guy for example, who wrote a book on corporate greed. Luigi hunted this guy down ordered a whole bunch of books, like two hundred books, I think , just to elevate him on the best seller list and contacted him and critiqued the book. He was really into this concept of corporate greed and would talk to people about it. We talked to two guys who Luigi traveled with in Europe , two German guys , and he would talk to them about corporate grief, not insurance specifically . So I don't know that the journal is going to get him that way, but if I was his lawyer , what I would do, I think, is I would n't call him to the stand for the very reason you said that if he admits he did it on the stand exactly if he admits that he did it when he's on the stand all of a sudden , you know, the federal case is over. He's guilty . But if you don't call him to the stand and you call a psychiatrist for the purpose of showing his state of mind , then you could theoretically and this is really threading the needle, you could have the psychiatrist say he was in such an altered state that if he did kill him he did it because was kind of out of his head . So if you can get that word if in with the psychiatrists and if you can bar the prosecution forcing the psychiatrist to answer , did he ever say he did it , then at least maybe you can get a manslaughter conviction in the state court and not basically admit to the crime when he's tried federally . You know, that would be quite a seventh seven ten split in order to hit the fact that he doesn't testify that a psychiatrist that a judge allows a psychiatrist without giving the prosecution the ability to have him examine and asked about whether he did it, which I don't think any judge is going to deny the prosecution that . So I come back but what if what if the psychiatrist what, if it's structured so the psychiatrist never asked the direct question? I don't think that there is a way that if you put the psychiatric state of mind in play , that any judge is going to restrict what the psychiatrist because the psychiatrist No , what if the psychiatrist never asked Luigi this specific question, did you pull the trigger? It's just on this date , I want to get into your state of mind, Luigi. Number one, are you happy he's dead ? Are you happy he was shot ? What was your state of mind when he was shot? So you never have him make that you never have the shrink actually I could see the defense doing that. Well, that's what I'm saying. No prosecution psych is gonna do that ever . Mother of the prosecution psych hasn't been born that's gonna limit himself to asking the question that the prosecutor. Oh no, the prosecution psychiatrist will ask the question. Why can't Luigi assert his miranda right at that point? I don't think they can once you put it in play and that's precisely why I think to some degree not wholly, why would disagree with you on that? I don't see why can't because it's arguing in the alternative. You say to the jury, we are pleading not guilty . But even if you believe he shot him , at the time this happened, this was his state of mind. That's the way you present the case. And that way, when it goes to federal trial, the Feds can't say he ever confessed. Yeah, I don't think you'd ever get there. You should have your daughter call me 'cause I got an I got ideas. No, I'm serious. I think I think this works. I mean, I realize you're walking the tightrope here, but I don't think that Luigi ever has to say he did it. You just put him in that time frame and tell the jury, look, we are not admitting to anything , but if you believe he did it , this was his state of mind and this is why he had a state of mind like this buttressed all these other witnesses who come up and testify how monstrous the insurance industry was to their family . So it's the person that he idolized and tried to pump up on the best seller list . Is that person in their book or their treatise ? Do they have some some dissertation or point or thesis that would support what you're saying right now . Well I looked at the God, you know, it's really funny. I have some connection to this author too. I'm trying to think of what it is. Either I taught him, he's a lawyer. I don't remember. I have weirdly, I have a connection to the author and I talk to him and he wouldn't fully open up on this, but the book is not specifically about healthcare. It's a much broader book about just the fact that corporations are destroying the fabric of America . And by the way, for the last ten years, there are those who would argue that the populist movement, whether it's Bernie Sanders Sanders, Donald Trump , Madami. He's right Niffy and L that the populist kind of democratic socialist movement has its roots in the inequality of wealth and the corporate you know Bernie Sanders has been making a compelling case against healthcare and putting profits over people and it's a lot and it's but it's resonating now . It's resonating now . So you know, that's my theory that you don't admit to it, but you make the jury say you tell the jury, look, if you believe he did it, here's his state of mind . You preserve your rights for the federal case and maybe you get a manslaughter conviction. Give me a better give me a better strategy . Now I'm going to read the book and I'm going to read the journal. Is the journal out? Did you put it in your dock? We interviewed we we showed we wouldn't do an interview, but we did talk about the book at length in the documentary . Um forward this on to your daughter. I'm telling you I'm telling you, this is, I mean I'm very intrigued . I don't know that I'm all the way where you are, but I think I've now come around to there is a I've always said he has a constituency or a demographic and that to people who don't try to forget that is one hundred percent across the board the board ahead of where you normally are with an accused of somebody who is infamous because normally you are demonized and you are made into the worst human on the planet. That clearly is not him. And it doesn't hurt that he's good looking . Oh no, it doesn't hurt at all. That's a whole other episode. Oh, I think it's a huge point. Well, it is another episode, but it's a huge that you're looking at that guy in a sweater reminds me of the Menendendez brothers in the first case. Looking at this guy in a sweat, by the way , he shouldn't wear a suit, he should wear a sweater the way the Menendez brothers did. I'm serious. But disagree. I think he should either a sweater or a polo shirt. And by the way, for people watching this or listening, I'm not making light of this. I mean I mean, I 'm gonna we have so crossed the rubicon on that. No, I'm actually we're going to have a thousand comments about what I am not saying I approve of what Luigi Mangoni did because I don't, personally, I don't. I got another hat on and I'm just thinking if I were his lawyer , that's what I would do. That's what I'm saying. My personal view is different from what I would do as his lawyer. That's all I'm saying . I got you. It's a fascinating legal conundrum that they find themselves in and I'm fascinated by it and we're going to be watching and we'll return to it. Yeah, now this was really interesting . Okay, this is fun Thanks Harvey. Good to see you. We can.