I have little sympathy for the murderer of United Healthcare CEO, Brian Thompson. It has nothing to do with my views about healthcare, but with my views about murder. But as despicable an act as it was, the subsequent “piling on” is deeply concerning and, in all likelihood, problematic as well. The feds just couldn’t keep their nose out of it? New York County district attorney Bragg had to up the ante with a first degree murder charge by making it about terrorism rather than a second degree charge for the murder itself?

Was it not sufficient that a murder be prosecuted in the usual jurisdiction under the usual charge?

The federal criminal complaint against the suspect, Luigi Mangione, 26, includes one count of using a firearm to commit murder, which carries a maximum potential sentence of death, along with two stalking counts and a firearms offense.

It came two days after the Manhattan district attorney filed state murder and terror charges against Mr. Mangione in the killing of the executive, Brian Thompson. Mr. Thompson, 50, was gunned down on a Manhattan sidewalk this month.

The highest penalty Mr. Mangione could face if convicted in state court would be life in prison without parole.

The question isn’t whether Mangione, folk hero to the unduly passionate and sex symbol to the pathetically lonely, has earned the very serious charge of murder. In New York, the murder of a person other than a cop and some others is second degree, and it carries a maximum punishment of an indeterminate sentence of 25 years to life. It’s a steep sentence, no matter what anybody says. Spend 25 years in a cell and then you can call it too lenient, and then there’s the matter of getting parole, almost invariably denied for a decade or two when the case involves a heinous crime.

But that wasn’t flashy enough for this high profile killing, so Bragg shot for the moon by indicting for first degree murder under subdivision PL § 125.27{1}{a}:

(xiii) the victim was killed in furtherance of an act of terrorism, as defined in paragraph (b) of subdivision one of section 490.05 of this chapter;

Under Murder 2, the prosecution need only prove intentional murder and not motive. By introducing terrorism into the mix, the New York district attorney has added the burden of proving additional elements.

[The murder is ] intended to:

(i) intimidate or coerce a civilian population;
(ii) influence the policy of a unit of government by intimidation or coercion; or
(iii) affect the conduct of a unit of government by murder, assassination or kidnapping.

To what end is this done? To up the sentence to life imprisonment without parole. The problem is that there is serious doubt that the murder satisfies the element of terrorism and that tossing the charge into the trial will muddy the waters sufficient to get an acquittal on the top count.

But there’s still the federal case, you say? Why are the feds involving themselves in what would otherwise be a state murder prosecution? Can they not stand being left out of the headlines, particularly after the myriad failures of the Department of Justice that have been shouted from the front page of the New York Times? Except the feds pushing their way into a state case raises a different problem.

While there is no federal double jeopardy issue based on the Dual Sovereignty Doctrine, there is a state double jeopardy problem of grave significance. In New York, double jeopardy is a matter of statute, Criminal Procedure Law § 40.20, and the New York statute differs from the federal constitutional prohibition.

A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction unless:

(a) The offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other; or

(b) Each of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil;

Here, the federal charges for murder are essentially the same as the state charges, thus implicating the double jeopardy prohibition without coming within an exception. In other words, if the feds proceed with their prosecution, it could pre-empt the state prosecution altogether.

The problems weren’t lost on Mangione’s lawyer, Karen Agnifilo.

In court, Ms. Agnifilo made it clear to the judge that she was unhappy at what she called a “highly unusual situation.” She noted that when the district attorney’s office announced charges against Mr. Mangione this week there was “absolutely no mention that Mr. Mangione was going to be charged federally.”

She said she had been prepared to appear in state court at 2 p.m. on Thursday for Mr. Mangione’s arraignment. “I find out today all of a sudden we are here,” in federal court, with her client facing charges including one that carries a potential death penalty.

She also called Mr. Mangione’s situation confusing. She said the state’s argument that Mr. Mangione committed terrorism that would have an impact on many people and the federal charge of stalking a single person appeared to be in conflict.

From a straightforward murder case on the streets of New York, these dual prosecutions are already turning the case into a mess, and by doing so, creating issues and potential conflicts that provide the defense with opportunities that a basic state murder 2 prosecution wouldn’t provide. Before, the only defense that appeared viable for Mangione was insanity, an extremely difficult defense to make and one unlikely to succeed. This isn’t to say that Mangione won’t be convicted, at least of the murder, but that by taking a simple murder case and turning it into a multi-jurisdictional circus, the defense will have cracks to exploit that would otherwise never have existed. Then again, a federal conviction could mean the death penalty, so there’s that.