It may seem an apostasy for someone in my line of work, as a criminal defense attorney, to pontificate on what is such a delicate subject. But here goes.
There are far too many among us whose inner voice allows them to somehow convince themselves that UnitedHealthcare CEO Brian Thompson had it coming — that Thompson deserved to be murdered, either because he was himself directly guilty of some insurance coverage denial or was a tangible proxy for a heartless industry that leaves its insured out to dry.
And, if secretly rooting for Luigi Mangione, now charged with murder, is not enough, too many publicly protest the prosecution of Mangione or make deposits to his prison commissary account to help fund his defense. We shouldn’t then be surprised, then, if Mangione admirers somehow manage to steal their way onto a jury slated to try him for the murder. Do we find ourselves in a new moment of the stealth juror, and if we do, what then is the fallout?
Featured centrally in the criminal defense lawyer’s toolbox is a determination to find the most effective method of prying open the deepest thoughts of jurors, particularly the elusive nullifier — those jurors whose most intimate views motivate them to work to acquit a trial defendant regardless of the facts, even in the face of strong evidence of guilt. Of course, it is the prosecutor’s duty to exclude them. My heresy notwithstanding, it is indeed the defense lawyer’s righteous obligation to identify those nullifiers and try to seat them.
There has been no time in recent history where the media has been as fixated on an arrest and prosecution, and the possibility of nullification lurking as a real potential threat for prosecutors in jury selection. That is, the prospect of a defendant like Mangione who faces what appears to be overwhelming evidence of guilt, escaping virtually certain conviction when one or more nullifiers succeed in hanging a jury by deftly declining to follow the evidence and the law.
Despite the growing mountain of evidence against Mangione, the hold-out juror might calmly drink their burnt coffee in a dusty jury deliberation room and explain to the other “11 Angry Men” or women that “I simply don’t believe he shot Thompson and you can’t make me think he did, no matter how hard you try.” That is, if the nullifier/s even feel the need to utter any defense for their recalcitrance.
So why is this scenario more likely with Mangione? Perhaps because the defendant is young, handsome, fit — not unimportant in this context, given the social media explosion on the topic of his physical appearance. He is a self-anointed gladiator vindicating the public’s belief that the American health care industry actively steals from its insureds by delaying and denying coverage for legitimate health care claims.
The anger felt by so many Americans about their insurers' denials of claims has raised real concerns in prosecutors that jurors may so sympathize with the motivations of the defendant on trial for murder that they would actually vote to acquit him. And further, because the victim, given his executive role at a health care company, is somehow an appropriate representative of the industry, does it then follow that he's also the appropriate sacrifice?
Make no mistake, jury nullification, like it or not, is as American as apple pie: Courts recognize that jurors surely have the power to nullify, even if not the right.
In this context, it's understandable that a Manhattan jury recently acquitted Daniel Perry for having caused the death by chokehold of an emotionally troubled rider on a New York City subway car who may have posed threat to other passengers. Some may posit that the Perry jury included nullifiers who chose to ignore the meaningful evidence against the defendant in response to the now sometimes dangerous New York City streets and subways. Perry has become a hero to some New Yorkers (and even to the president-elect, who invited him to his suite at the Army-Navy football game in light of his acquittal), but he emerges differently from those who seem to be looking for a fight like Bernard Goetz years ago. Or having a plan to kill like, allegedly, Luigi Mangione did.
But no one argues that Perry’s jurors were a gone-rogue bunch of wayward nullifiers. Instead, many New Yorkers — even those who favored his conviction — view the verdict as the result of citizens who quietly hope for a braveheart to have their backs should they find themselves on a similarly fated subway train. There is the argument that citizens brought their common sense to that jury room as well as their life experience. And theoretically, there may well have been a juror or two who wanted to be seated on the Perry case precisely to nullify.
And here lies the difference between Perry and Mangione: that is, the concept of a plan — a detailed, comprehensive, philosophically and diabolically motivated plan.
While jurors don’t have an express right to nullify, once seated, they do, as a practical matter, have the power. The presiding judge may remove a juror if he determines that “nullifying,” rather than weighing evidence and following law, is the juror’s goal. The judge might even declare a mistrial if the juror had already begun trying to evangelize fellow jurors. At the same time, defense attorneys are not permitted to outright encourage jurors to nullify.
A juror nullifying in a case like Mangione — i.e., “I’m not voting to convict period, no matter what they produce as evidence” — would be a dereliction of duty. The tangible facts already in the public record should make that clear.
Whatever the perceived objectionable role of Thompson in the health insurance system, at day’s end, we are a nation that believes in the rule of law. Nullifying a jury’s potential murder verdict, particularly when accomplished through deception during the jury selection process and merely because we dislike the victim and like his murderer, is as dangerous as it sounds.
And prosecutors here are not without fault in providing would-be nullifiers with grist for the mill. They share some responsibility for the spike in public sentiment for Mangione by charging terrorism and raising the offense level to Murder 1 in one jurisdiction, threatening a possible death penalty in another jurisdiction, and participating in a food fight over who takes him to trial first. The piling on, the escorts with body armor and rifles, the perp walking and the overcharging intensify his folk-hero standing and add fuel to a potential nullification fire that is already burning bright.
Let's hope that the flames now being fanned by social media, fury over health care and somewhat short-sighted prosecutors don't ultimately leave us engrossed with the rehashing of nullified verdicts, rather than having the opportunity to reflect on the loss of Brian Thompson, a man who, by all accounts, was a good man and father from the Midwest who simply didn’t deserve to be murdered in cold blood.
And to any would-be Mangione nullifiers, it would be far more honorable to just try to get out of jury duty altogether.
Joel Cohen, a former prosecutor, practices white collar criminal defense law as senior counsel at Petrillo, Klein & Boxer LLP in New York. He is the author of “Blindfolds Off: Judges On How They Decide” and teaches at Fordham and Cardozo law schools.
