Something one acquires from working in emergency medicine — as I did during my service as a medic during the Vietnam war, and a civilian paramedic — is a dark sense of humor.
Such as the logo several of us designed for our medical unit softball team t-shirts. It was the Grim Reaper, with the words:
“Medics — We Bury our Mistakes”
The powers that be nixed that, but did give a nod of approval to this one:
(For the curious among you, here is an explanation of GNID.)
Like I said, our sense of humor got very dark. Constantly coming face-to-face with carnage causes that. It’s why the VA has figured out that so many medics have a unique, non-violent variant of PTSD.
And it’s not just a dark sense of humor… it’s also a dark recognition of irony.
Which brings us to the murder of Brian Thompson, the CEO of UnitedHealthcare, captured on video that has been plastered all over the media.
This was clearly not run-of-the-mill, everyday, random New York City street violence. Depending on what the investigation ultimately reveals, it was either Murder in the First Degree — if a jury believes this was an act of terrorism (see NY Penal Code ss125.27 (1)(a)(xiii)) — or Intentional Homicide in the Second Degree under NYPC 125.25.
There has been no Death Penalty in New York since 2004, so regardless of which, the killer won’t face the death penalty if convicted.
But lack of a death penalty may not be the primary concern of prosecutors.
Back in my professional prime, I developed a certain expertise at assessing the likelihood of successful prosecution of murder cases.
The most high-profile example was the prosecution of George Zimmerman for the killing of Trayvon Martin, which occurred in my jurisdiction. I was one of the first prosecutors to review that case.
My assessment was that when a jury heard the actual facts, rather than the distortions portrayed in the media, Zimmerman would be acquitted. That’s what ultimately happened, after the case was transferred out of our office for political reasons. (The prosecutors in that other office apparently chose to believe the media distortions, to further their own political agenda, and went down in flames.)
In another case from central Florida, I predicted no jury would convict Casey Anthony of First Degree Murder of her young daughter. I suggested they would likely convict her of some lessor degree of homicide. Unfortunately, the prosecutors at that trial denied the jury that opportunity. The prosecution took the bait offered by the defense, and agreed not to ask for anything other than a verdict on First Degree. They too went down in flames.
I know one of the prosecutors in the Anthony case. He disagreed with the decision to seek only First Degree murder, but was overruled by the others who should have known better, but who (in my opinion) let their egos get caught up in the media hype of the case.
My point is that in the prosecution of the murder of Brian Thompson there are a lot of things that can go sideways. Foremost is that the victim is the CEO of a health insurance company with a less than stellar reputation.
Thompson’s killing was NOT justifiable homicide. Nor am I dismissing the horrible trauma this murder has caused Thompson’s family. I’ve sat with too many families of murder victims to disregard what they are going through – and likely will go through for the rest of their lives.
I worked on a case in which the convicted murderer has since been executed for the crime. The father of the victim (who witnessed the killer’s execution) said afterward that while he was satisfied justice had been done it would never bring his son back to to him.
He will have to live with that loss forever. Based on my experience, the idea of “closure” in crimes of this sort is psychobabble bullshit.
So there is not likely to be any disposition of the prosecution Brian Thompson’s murder that will be a true resolution for his family. Even if the killer is convicted — which ain’t a sure thing.
In some of those meetings with “family survivors of homicide” I had to explain that however clear-cut the evidence may seem, the conduct of the victim could not be ignored in a realistic assessment of the case. How to have that conversation isn’t taught in law school, so I relied on my real world experience dealing with death (both medically and legally). I’ve learned the only way to get most folks to accept reality is to tell them the blunt truth.
It may be difficult to get a murder conviction in the Thompson case, despite having a video recording of the actual crime. That’s the blunt truth.
A mental health defense offered to the jury — such as the killer being under “extreme emotional stress” resulting from the actions of the insurance company Thomson runs — could (and likely will) make this case problematic for the prosecution.
The character and actions of the victim are not supposed to be considered by jurors in determining guilt — unless the killing was in self-defense, which this clearly wasn’t.
“Not supposed to be considered” is the operative component of that legal principle. It’s also what we refer to as “a legal fiction” in some cases.
This, in my professional opinion, is one of those cases where it will be very difficult, if not impossible, for a jury to ignore the victim’s character if they are given the option of considering how it impacted the killer’s mental status. This is where my (PTSD-induced?) dark sense of irony kicks in — and affords me insight into how some jurors may perceive the case.
(You may have been wondering where my opening paragraphs were going. Well … here it is!)
I’ve previously written about the execution of British navy admiral John Byng, and noted Voltaire’s famous quote about that event. “In this country, it is good to kill an admiral from time to time, in order to encourage the others…”
Substitute “a health insurance company CEO” for “an admiral” in Voltaire’s quote, and you’ll see my point — however dark that point might seem. A juror may see the case the same way.
That’s not to suggest in any way that Thompson’s murder was justified. It wasn’t. But an appraisal of the crime requires an honest assessment of all the factors in order to formulate a successful prosecution. Failure of the prosecutors to honestly assess all the factors in the Casey Anthony case, (and the O.J. Simpson case decades earlier) resulted in acquittals that never should have happened.
Honest assessment may require an approach to the jury such as needed in the successful prosecution of a neighborhood feud that turned deadly (which has been the subject of multiple television broadcasts). The only position the prosecution could take was to concede the three victims’ conduct was reprehensible — but that none of them deserved to die.
Were I prosecuting Thompson’s killer, that is the approach I would take. But why, you ask? The crime is on video. It’s an “open and shut case”.
There is no such thing as an open and shut case. The murders in the neighborhood feud case I prosecuted were all captured on video — and the killer confessed.
The fact of the video doesn’t negate Thompson’s prior actions. If you read some of the social media posts about Thompson’s killing (I’m not going to repeat any of them) sympathy for him isn’t what you would call universal.
Apparently (according to various news sources) the health insurance company he runs has a sordid reputation for denial of claims — and family members of those whose claims were denied are not very sympathetic about Thompson’s death. There has also apparently been some shady insider stock trading by him and other executives of the company.
Thompson is not what we prosecutors refer to as “a sympathetic victim”. There is an old legal adage — not written anywhere, but known to experienced criminal lawyers and judges down through time. It was told to me by a well-respected, now-deceased, judge on the eve of a murder I was prosecuting, where the victim was killed while buying crack cocaine.
“Gary” the old judge said, “No matter what the facts of the case, the jurors will at some point ask themselves a couple of questions: First, did the victim ‘need killin’ ? If they think he did, then they’ll ask if the accused was the right person to do the killin’ ? If they decide he was, they will acquit regardless of the evidence!”
In that case, I assumed the jurors would probably answer ‘Yes’ to the first question, but not the second. I guessed they’d probably figure they are getting two lowlifes off the street by convicting the dealer! They did.
But (as I was subsequently told by one of the jurors) they declined to recommend the death penalty because they decided “the crack-head got what he deserved.” That’s a blunt example of how jurors see cases.
There is a scene in the movie As Good As it Gets where the mom finds out from a doctor that her son had been previously misdiagnosed simply because her health insurance company wouldn’t pay for the necessary testing.
Here’s the scene:
I saw that movie in a theater. When the doctor said, “Actually I think that is their technical name!“… there was cheering in the theater.
It only takes one juror to prevent a conviction because of a “hung jury” in the Thompson murder case. Only one juror who cheered at that scene from the movie… and believes Thompson’s killer was under emotional stress because of the actions of the health insurance company.
Only one juror who read that just days after Thompson’s killing, another big health insurance company reversed its decision to deny benefits.
It’s not relevant whether that other company was influenced by Thompson’s killing. It only matters that one juror thinks it might have been.
After completing the foregoing, but before I submitted it for publication, I learned there has now been an arrest made in this case. Turns out the guy they’ve arrested (I won’t mention his name) has a issue with health insurance companies and has written (according to the media) a “manifesto” of his grievances. Get ready for a mental health defense.
My condolences to Thompson’s family. And good luck to the prosecutors…