Weekend Law: Superstar Lawyer on Trial, Mangione's Outburst & Mandatory Detention

16:44Leon Fresco:How do you please misindicate this term? Guilty or not guilty?

16:49Tom Goldstein:Not guilty.

16:50June Grasso:Luigi Mangione pleaded not guilty to murdering UnitedHealthcare CEO Brian Thompson in December of 2024. The public hasn't heard much else from Mangione until his outburst after a tense hearing setting the date for his state murder trial. As he was let out of the courtroom, Mangione shouted, It's the same trial twice. One plus one is two. Double jeopardy by any common sense definition. And state and federal prosecutors have been engaged in a virtual tug-of-war over who will try Mangione first. And even the judges seem to be jockeying for position, with the state judge setting a trial date of June 8th, only after the federal judge set a trial date of September 8th.

17:42June Grasso:My guest is former federal prosecutor Robert Mintz, a partner at McCarter & English. Bob, the state prosecutors and the federal prosecutors have been fighting over who gets to bring Mangione to trial first. Isn't that something that's usually worked out beforehand by the prosecutors?

18:00Leon Fresco:generally prosecutors do try to work together and what they do is they look at the federal case and the charges that are brought there they look at the state case and the charges that are brought there and they make a decision objectively as to which office has the stronger case and the higher likelihood of conviction so in many cases the state charges will have slightly different elements than the federal charges, and the penalties may be different. And so prosecutors will essentially agree which is the strongest case and lead with that. In this case, there seems to be no cooperation between the federal government and the Manhattan DA's office, and there is a virtual tug of war between the two, a battle as to which case is going to be tried first.

18:47Leon Fresco:We even saw at a hearing before the state court judge, the judge make a very unusual comment saying that U.S. prosecutors had essentially reneged on an agreement to let the state trial proceed first. So we're seeing here a very unusual situation where the federal judge has set the trial date for September 8th, which has prompted the state court judge to set a June 8th trial so that the state court case can proceed and be completed before the federal case goes to trial.

19:18June Grasso:Yeah, aren't the judges also jockeying for position a little bit here? The federal judge said that she was proceeding as if the federal case was the only case unless one of the parties raised an issue with her. And the state court judge only sets a trial date when it looks like the federal trial may go first. How do judges usually handle it when there are competing trials?

19:43Leon Fresco:Well, just like with prosecutors' offices, there is no set process by which state and federal judges must interact with one another in terms of setting trials or anything else. It's just usually a pattern in practice that there is some degree of cooperation and some understanding as to which case should proceed first. Here we saw a case where the state made the arrest first and the first appearance was in state court. But then the case got somewhat bogged down in state court, which has slowed that process. And in fact, there was a hearing in December, an important hearing regarding the exclusion of certain key evidence in the case.

20:24Leon Fresco:State prosecutors had argued that evidence from the backpack that was seized by police when Mr. Mangione was arrested at the McDonald's in Altoona should be admitted into evidence. It includes some key evidence, including a nine millimeter handgun, a silencer, a loaded gun magazine, and a diary, which according to state prosecutors, include some very incriminating statements made by Mr. Mangione, including a comment that Brian Thompson, quote, had it coming. So that's all very critical evidence to prosecutors. There was an extended hearing in December as to whether or not that evidence was going to be admitted into the state trial.

21:05Leon Fresco:The trial judge expects to rule on that decision in May. So the trial judge is taking some time to make what is a very critical decision about what evidence may or may not be admitted in the state court. Interestingly, the very same motion was argued in front of the federal judge, and the judge rather expeditiously ruled that all of that evidence will be admitted, denying the defense's argument that the police improperly searched the bag without a warrant. So that case, in some sense, is teed up and ready to go because that critical decision about what evidence may be admitted to trial has already been decided in federal court.

21:46Leon Fresco:But state court prosecutors are adamant that their case should go first based on the theory that the New York Police Department investigated the crime, and federal prosecutors only became involved two weeks after the murder. They say that they have a greater stake in the case. And in fact, it's only the state court case in which murder is being charged. It's second degree murder. The federal charges are stalking charges, which carry a serious penalty because as a result of the stalking, a death occurred. But the murder charges are only the state court charges. And so state court prosecutors are saying that the case should be tried in state court first, and that federal prosecutors should try the case only after the Manhattan DA's office completes their prosecution.

22:33June Grasso:Mangione had an outburst in court saying this is double jeopardy, trying him twice. And the average person might look at this and say he's accused of committing one crime, so why are both state and federal prosecutors trying him for that crime? So tell us about the law of double jeopardy and why it just isn't that simple.

22:55Leon Fresco:Yeah, double jeopardy is a nuanced concept in the law, although it does have a common sense understanding. Basically, the Fifth Amendment precludes a person from being prosecuted twice for the same offense. But there are some exceptions, one of them being separate sovereigns. So, for example, if the federal government and the state government want to prosecute the same defendants for the same act, often that has been permitted. If you go back to the days of the civil rights movement, you may remember instances where a white defendant was tried for the murder of a black person and acquitted in state court.

23:33Leon Fresco:And then we saw federal prosecutors come in and essentially tried the case again, alleging civil rights violations in federal court and often could get convictions in federal court when state court convictions were not possible due to the makeup of the jury pool. So there is a long history of cases that are substantially similar being tried by different sovereigns, the federal government and the state government. Interestingly, on the federal level, double jeopardy is controlled by a 1932 case called Blockbuster v. United States that basically says that if there are different statutory elements of a crime, then you can be tried in separate cases.

24:15Leon Fresco:So in other words, if in state court you're being tried for murder and there are certain elements to convict somebody for murder, but you're being tried in federal court for violations of someone's civil rights and there are different elements. In other words, prosecutors have to prove different facts in order to gain a conviction. Then those are considered separate crimes and do not violate the double jeopardy clause. In New York State, however, the laws of double jeopardy are actually broader than the protection that the federal constitution applies. And that's why we're seeing this interesting interplay between the Mangione defense and federal prosecutors saying that they would rather be tried in federal court first, because that will give them at least an argument that the New York State case should be blocked by the double jeopardy clause if the federal case proceeds first.

25:07June Grasso:And explain why the New York double jeopardy law is better for the defense.

25:11Leon Fresco:The New York state double jeopardy law is broader than the federal constitution because under federal law, it looks at that blockbuster test, which is only looking at elements of a crime. While the New York state law looks at the second prosecution as the same offense or the same criminal transaction. And so it gives defense lawyers a chance to argue that even though the elements may be different, it's really the same offense and the same criminal transaction. In this case, my opinion is it will be an uphill battle for the Mangione defense team to convince the court that the New York state case is barred by double jeopardy.

25:48Leon Fresco:But there's no question that they will have a better argument if the federal case proceeds first and then they are in state court arguing that the state prosecution is barred by the prior federal prosecution.

26:01June Grasso:The defense attorney complained about the timing of the trials. Right now, they're three months apart if they go off as scheduled. Karen Friedman Agnifilo told the state court judge Gregory Caro the defense will not be ready on June 8th. And Judge Caro said, be ready. Basically having to prepare for two trials at once does seem like a lot for one defense team.

26:26Leon Fresco:Generally, judges are pretty solicitous of defense lawyers who say they need additional time to prepare for a trial because what the judge does not want to have happen is they go through an entire trial and ultimately there's a conviction. And then on appeal, the higher court looks at the case and decides that the defense was not provided adequate time to prepare for the defense, and the whole case gets thrown out and has to be retried again. So what we're seeing here is that the federal judge set that September 8th date for the federal trial, and the state court judge then counted backwards from that date in order to set a trial beginning on June 8th to allow that trial to be completed first.

27:11Leon Fresco:But as you say, the defense has strenuously argued that they will not be ready by June 8th and that it is an undue burden for them to have to try the state court case only to then approximately three weeks later have to be sitting in federal court ready for another trial. What the defense is arguing is that the defense team is unfairly burdened because they have to prepare for two trials while prosecutors only have to prepare for one trial each.

27:40June Grasso:Also, Bob, you talked before about how the state court judge hasn't decided yet about whether that critical evidence from the backpack will come in at trial. Judge Caro said he's going to make the decision by May 18th, but they're supposed to go to trial just three weeks later. Even though it's unlikely that the judge is going to suppress that critical evidence, shouldn't the defense know that definitively while they're preparing for trial?

28:07Leon Fresco:You're exactly right, and the federal judge has already heard argument on that very issue and allow that evidence to be admitted, so I think we can expect the state court judge to rule the same way. It would be a devastating blow to prosecutors if the state court judge were to suppress that critical evidence, and it would make it much more difficult for them to gain a conviction. But nonetheless, from the defense standpoint, if you don't know for sure where that evidence is coming in until the middle of May, and you've got to begin the trial in the beginning of June, it doesn't give you a lot of time to reset your case and to prepare for trial.

28:43Leon Fresco:And that's exactly what they're going to argue. So it's going to be very interesting to see whether these dates hold. One possible issue that could push the dates back is that if federal prosecutors decide to appeal the federal judge's decision to throw out the death penalty charge in the federal case, the state court judge said that he would likewise move back the start of the state court trial.

29:08June Grasso:It wouldn't be the first time or the last that we see delays in trial dates. Thanks so much, Bob. That's Robert Mintz of McCarter & English.

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31:18June Grasso:After widespread criticism of the aggressive tactics by federal immigration agents in Minnesota that left two U.S. citizens dead and spurred massive protests. It came as no surprise when White House boarder czar Tom Homan announced the end of the operation, although he was careful to say that ICE will not be backing down.

31:40Holly Barker:If you are here in the country illegally, you're not exempt from our immigration laws. If we encounter you, we'll take appropriate enforcement action. But also to say we are backing down from immigration enforcement or the promise of mass deportations, You are simply wrong.

31:56June Grasso:What's been missing in all the criticism of federal immigration operations is a policy that affects every non-citizen detained by ICE, the Trump administration's mandatory detention policy. It's a reversal of every other administration's policy for the last 30 years. The Trump administration is locking up all non-citizens without hearings indefinitely, even if they've lived in this country for decades. And in a huge win for the administration, the ultra-conservative Fifth Circuit Court of Appeals just greenlit that mandatory detention policy. Joining me is Leon Fresco, a partner at Holland & Knight.

32:37June Grasso:He was the former head of the Office of Immigration Litigation during the Obama administration. Leon, both the Fifth and the Seventh Circuit had arguments on this policy on the same day. The Fifth Circuit made its decision within days. The Seventh Circuit has yet to make a decision. How big a victory is this decision for the Trump administration?

32:57Luigi Mangione:The reason it's a big victory is because most of the detention facilities in the United States are in the Fifth Circuit, Texas, Louisiana, and Mississippi. It's a big part of the detention infrastructure of the United States is actually in those locations. And so what the Fifth Circuit held is that if a person crossed the border illegally and entered the United States illegally, if and when the United States government finally apprehends them, whether it's two days later, 10 days later, one year later, 20 years later, 40 years later, none of that matters. What matters is that they were apprehended when they had crossed the border illegally.

33:41Luigi Mangione:And so under the version of the statute that the Trump administration and the Fifth Circuit feel is the correct interpretation of the statute, they say that no matter when you're apprehended, if you've crossed illegally, your intent is you're trying still every day of your life to be admitted into the United States legally, that this is your goal. Because the statute says if you're seeking admission into the United States, then if you get apprehended, you will be detained indefinitely without bond until we decide whether you win or lose your deportation case. Previously, for the last 30 years, all the administrations prior to this said that at a certain point, after you cross the border, you're no longer seeking admission.

34:26Luigi Mangione:You're just here in the country. And that seeking admission is only for people apprehended at or near the border, right when they're trying to cross. It's not for people who've been here an extended period of time. Those people are entitled to bond. And so this is a new interpretation that's different than what has occurred in the last 30 years. And so what the Fifth Circuit has said is absolutely, if someone is in detention in the Fifth Circuit and they cross the border illegally, it does not matter how long they've been in the country, they can be detained without bond until they can finally be deported.

35:03June Grasso:And if the Seventh Circuit comes out with a contrary decision, it won't make that much difference because not that many people are held in detention in the territory of the Seventh Circuit?

35:17Luigi Mangione:Correct. What's very interesting about this is usually the government is motivated to go to the Supreme Court whenever it's got bad law. But it would be very interesting if what will have to happen is that the Fifth Circuit petitioners, the foreign nationals, will have to go to the Supreme Court and hope that the Supreme Court takes the case. Because usually the Supreme Court only takes these cases for the most part because the Department of Justice is asking them to take the case. Almost always when the Department of Justice wants the Supreme Court to take a case, they take it. But the Department of Justice may say, you know what, if we lose in the Seventh Circuit or the Ninth Circuit, no big deal.

35:57Luigi Mangione:We'll just put the visa overstay people in detention in those facilities and they can get a bond and it's not a big deal and whatever. But for the people we want to keep in detention as the border crossers, we will put them in detention in the Fifth Circuit and that way they won't be able to have a habeas petition. And if the Supreme Court never takes this case, then that can't be fixed.

36:20June Grasso:And I've heard that when immigrants are released, while their case is pending, their odds of winning improve.

36:28Luigi Mangione:There's two sort of big dramatic complications when immigration detention is involved. One, to the extent that you have family and friends and everybody else, you're separated from them and you're separated from your source of income, which makes it harder for you to even hire a lawyer in the first place. So you may not have a lawyer because you can't afford a lawyer. That's bad enough. But then it gets even worse, which is even if you have a lawyer, the lawyer now has to communicate with you basically through ICE, whenever ICE decides to allow you to be able to communicate with your lawyer. So, you know, most of these detention facilities are in the middle of nowhere.

37:06Luigi Mangione:They're not near any lawyers. And so very few lawyers are driving out or flying hours and hours. Usually what you're having to do is set up conferences. So all of that makes it very, very hard if you're trying to prepare, let's say, an asylum application. You'd be with your client maybe 8 to 16 hours getting their whole story, documenting it, trying to really set forward a case. And you just don't have the ability to do any of that if your client is in detention. So it basically is like saying, fine, we're going to let you play basketball, but you can't use your left arm or your right leg. Good luck to you.

37:43Luigi Mangione:See if you can win this match against Shaquille O 'Neal or something like that.

37:48June Grasso:Impossible odds there. Leon, federal courts have been flooded with habeas petitions to force bond hearings. According to ProPublica, more than 18 ,000 habeas petitions have been filed in the first 13 months of Trump's second term. And that's more than were filed in the last three administrations combined. Will this Fifth Circuit decision stop that flood?

38:12Luigi Mangione:So if you're in the Fifth Circuit, absolutely, because that becomes binding precedent. So none of those habeas petitions will work in the district courts in Texas, Mississippi, and Louisiana. If you are in other district courts around the country, the problem you have is that that Fifth Circuit decision could be cited as persuasive, and maybe the particular district judge who's listening to the case will find it persuasive. And then you'll need to go to the circuit court, and we'll have to see what happens. But the other problem that could happen is the government can try to move you and get your habeas dismissed.

38:46Luigi Mangione:And then the court would have to decide whether it wants to keep the habeas or not. So there's just too much uncertainty and procedural machinations that can occur in all of these cases, where at the end of the day, many, many of these foreign nationals involved, unless they get some very committed pro bono project, are not going to have the resources to make all of these challenges.

39:07June Grasso:It almost sounds like game over.

39:09Luigi Mangione:I mean, the only way that this detention issue will change is if the Supreme Court gets involved and says that the Fifth Circuit got it wrong. But if the Fifth Circuit decision stands, then what you will see is the entire detention infrastructure of America moved to the Fifth Circuit and then that will be how it operates.

39:29June Grasso:And another problem is that attorneys are struggling just to find their immigrant clients who've been detained because they've often been moved to out-of-state facilities and then bounced around. An ACLU lawyer called it a game of whack-a-mole. From the beginning, you can't find your clients. If you find them, you can't access them because there are no phones or visitation rooms. And if you do find them, it takes weeks to contact them. and sometimes they're just moved and deported.

40:00Luigi Mangione:Absolutely. If you are a representative of a person, a foreign national who's in immigration detention, it's the most challenging time it's ever been to do that in the sense that when you're a criminal, let's say, when you're a criminal and you're in detention, you're usually in detention within some reasonable space from your attorney and a criminal defense can be planned and a criminal defense can be implemented in a court of law. Here, if you lived in, I don't know, Houston, or you lived in Atlanta, or you lived in New York, you could be detained in Kansas or in Louisiana or something. And then whatever lawyer you would have procured wouldn't have done you any good because that lawyer is not going to travel to Louisiana or Mississippi or somewhere else in order to be able to reach you.

40:50Luigi Mangione:And then even if they did, you might be moved the next day. And so the question of how you actually conduct a defense when you can't speak to a lawyer is very, very complicated. And this is yet another issue that is going to have to come to some resolution because people are going to start saying that they've had due process violations and the courts are going to have to decide what is the process that you're due in these situations.

41:17June Grasso:Even when ICE does release detainees, judges are finding that they're releasing them in other states without their papers or phones and with just the clothes on their back. So some judges have been issuing very detailed orders. For example, one Minnesota judge said ICE had to release a detainee, one in Minnesota, two with all personal documents and belongings such as driver's license, cell phone. Three, without conditions such as ankle monitors or tracking devices. And four, with all clothing and outerwear he was wearing at the time of detention or other proper winter attire.

41:56Luigi Mangione:And this is not new. This is something I remember from the very first case that I won with a client in detention a long, long time ago. I won't date myself. I remember speaking to a senior lawyer and I said, what do I do now? And they said, no, When you win a case and your client is in detention, what ICE does is they just open the door of the facility. And so you better go get them because my client was in the middle of the Everglades. And so they either are going to walk from the middle of the Everglades into civilization or somebody has to go get them. This is not new. This has always been that way, that all ICE does is open the door of the detention facility and say, OK, walk out of here.

42:35June Grasso:And I thought it was something new. Thanks so much, Leon. That's Leon Fresco of Holland and Knight. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

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