A Bitter End, part 5: The strange prosecution of Barbara Mancini

In print, this story was split across more than one issue because of its length. Online, we've split it into six chapters: 

1. The very old man who wanted to die
2. The hospice
3. The overdose
4. The pro-life coroner
5. The strange prosecution of Barbara Mancini
6. The legal land mine, undefused

Or you can read the story as a single page. 

Part 5: The strange prosecution of Barbara Mancini

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In Schuylkill County a few years prior, David Fitting, who was 26 at the time, had invited some friends over to drink and play beer pong. Around 2 a.m., Fitting’s friend Andrew Mullins, 27, told Fitting and another person that his life had no meaning. Fitting got a loaded handgun from inside the house and left it with Mullins. A few minutes later, Mullins shot himself in the head.

The Commonwealth initially charged Fitting with the same thing Mancini would later be charged with — the second-degree felony of causing or aiding suicide, which carries a potential 10-year prison sentence. Fitting cooperated. He turned himself in, waived his preliminary hearing and took a plea bargain. The felony charges were dismissed; Fitting plead guilty to misdemeanor reckless endangerment and was sentenced to 23 months probation and 20 hours of community service.

Mancini was not interested in cooperating. “To take a plea bargain, you have to plead guilty to something. And I didn’t feel like I was guilty of anything! So to hell with that!” says Mancini. “And look at me — $100,000 bail and fully prosecuted, with the possibility of up to 10 years in prison.”

Mancini says her first attorney, whom she’d found in a rush by asking the advice of the guy who’d done her mother’s will, “was all about getting a plea bargain, plea bargain, plea bargain.” He was used to negotiating pleas for local-level DUI and assault charges, and was surprised by the hard-line stance that the prosecutor, Senior Deputy Attorney General Anthony Forray, took — that Mancini needed to waive her preliminary hearing before a deal could be discussed. (The attorney general’s office declined comment for this story.)

At a preliminary hearing, a judge reviews the witnesses and evidence and decides whether the case is solid enough to go to trial. If you’re planning on fighting charges, it offers a crucial chance to see what evidence the prosecution is bringing to the table so you can plan your defense. If the legal system were poker, waiving your preliminary hearing would be like folding a bad hand before knowing what your opponent has in the hole.

Forray wrote in an email to Mancini’s first lawyer on June 6, 2013:

I am not going to offer a misdemeanor or other resolution without hearing something that changes my current view of the case. We don't give a misdemeanor on a felony case just for the heck of it. I have suggested you should waive the Preliminary Hearing … if you want a Preliminary Hearing you have that right. Put this on the front page of the paper and try to aggressively attack the hospice witnesses, the EMT or the police at a Preliminary Hearing and I guarantee you have a zero chance of a plea resolution. This is a Defendant who is charged with a felony 2. The standard range for conviction is jail time. She has a lot to lose, beyond her nursing license.

Mancini didn’t take very well to what she perceived as being pushed around. She got a new lawyer, Fred Fanelli, whom she picked because he’d demonstrated his willingness to fight the state attorney general’s office and win. Fanelli had recently defended one of a series of sewer-plant operators who were being prosecuted by the Commonwealth. Fanelli’s client was “the only one who fought back and didn’t cop a plea — and he was acquitted within 20 minutes,” says Mancini. The details of the case are probably less relevant than a quote Fanelli gave to the Pottsville Republican Herald at the time: “This case represents the worst of our government, an abuse of power, a bureaucracy unchecked … The bullying stops here. This man is innocent.”

Fanelli was more on board with Mancini’s desire to fight the charges against her. They went ahead with the preliminary hearing, after which they got all her father’s medical records in discovery. “After the preliminary hearing, when [Forray] realized he had some problems with his witnesses, he called my attorney on three separate occasions to talk about a plea bargain,” Mancini says. She wasn’t interested.

“If they were going to pursue this with the vehemence that they did, I was going to fight back tooth and nail,” she says. “I wasn’t going to just lie down and let things happen to me. I’m gonna fight back!”

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There’s a couple notable things about the transcript of Mancini’s court proceedings. One is that Fanelli and Forray snark at and object to each other a lot. The other is how often the Constitution and Supreme Court are name-dropped. Here’s an exchange from the preliminary hearing that demonstrates both:

MR. FANELLI: Your Honor, I'm going to ask the charge be dismissed … for a couple of reasons: First, there is United States Supreme Court precedent … that Mr. Yourshaw had the right to —

MR. FORRAY: Objection, your Honor. I hate to object to Mr. Fanelli. He's attempting to apparently raise a constitutional argument that would be appropriately raised if it's raised in common pleas court, not at this level.

MR. FANELLI: Your Honor, I appreciate counsel's interrupting me, but I am building a record as well and I never want, in the event you don't dismiss this case, I don't want it being said by anybody later on down the chain, you didn't raise it at the first opportunity.

This and other exchanges throughout the legal process made it sound very much like the defense was “building a record” for use in a much higher court.

“We would have been prepared to stand by her all the way to the top,” says Barbara Coombs Lee, president of Compassion & Choices, the nation’s biggest, oldest and most influential right-to-die advocacy group that contributed $20,000 to offset the costs of Mancini’s legal defense. Coombs Lee says her organization acted merely as “a knowledgeable, interested third party,” but this is a little modest; C&C’s legal director, Kathryn Tucker, acted as a consultant to Mancini’s defense, and wrote an amicus curiae brief in support of her petition for habeas corpus. Such “friend of the court” briefs, usually written by advocacy groups with large legal budgets in cases where the decision might have an impact on their cause, are almost always found in appeals rather than lower-court decisions; they’re hardly ever seen as early as a preliminary hearing, like this one.

Forray consistently sounds irritated beyond belief with C&C, saying in the Commonwealth’s brief opposing habeas corpus that he “has never encountered a situation where an outside group has been permitted to make such a filing at the trial level,” and that he believes “we are being put in a situation where we have to respond to arguments that should have never been permitted to be raised by anyone other than the attorney hired by the Defendant to represent her.”

He further wrote that C&C “has chosen to attempt to make this a ‘media circus’, by arranging a media event on the day prior to the Preliminary Hearing.” This is almost certainly the reason Forray was granted a gag order preventing all involved from talking to the press until the case was resolved.

Coombs Lee says that it was entirely Fanelli’s strategy to start throwing around Constitutional implications early and often, but that it was “a good call — this has been litigated at the level of the Supreme Court,” which ruled “that people have a right to as much medication as it takes to relieve their own suffering at the end of life, even if the consequence is abbreviation of that life.” This is also a little misleadingly modest. The case Coombs Lee is referring to, plus a few others that set important precedents, was argued before the Supreme Court by Tucker for a past iteration of C&C.

In short, some very significant players in the national battle over end-of-life issues thought that this case had a lot of potential, right from the beginning.

“I think everybody understood that this was a big case — not only because of Barbara Mancini’s personal jeopardy, but also because of precedents in Pennsylvania,” says Coombs Lee. “These questions — How am I going to die? Will I be able to have the medication that I need? Will my decisions jeopardize my family? — are hot-button items for a generation of Baby Boomers as we deal with our parents and think about ourselves. I think there was a widespread understanding that a high-level appeal would be a teachable moment for the nation.”

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But, of course, the case didn’t get to the appeals process, because it didn’t even make it to trial. Judge Russell ruled that the prosecution’s case relied on “little independent investigation, significant hearsay, including double hearsay received from third persons, speculation, guess and defendant's alleged incriminating statements” too much for her to conclude that Joseph Yourshaw’s death had even been a crime.

The statute's language:

A person who intentionally aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor of the second degree.

So for Mancini to be found guilty of felony charges, the prosecution would have had to prove all of the following:

• That Yourshaw’s death would not have occurred but for the morphine overdose.
• That Yourshaw had intended to end his life by drinking the whole bottle, as opposed to just relieving his pain.
• That Mancini had known her father was planning to end his life when he asked her to give him the bottle.
• That Yourshaw would not have been able to overdose without her direct help.

The Commonwealth’s case had been essentially this, as taken from Forray’s closing statements at the preliminary hearing:

This was a lot more than simply handing a bottle of medicine to someone. … There was no morphine in the home. Who was responsible for requesting the morphine to be in the home? The defendant. ...

The defendant, on the day in question, indicates that she handed him the bottle because he wanted to die. She's an RN. She knows the effect of morphine. … She very much knows exactly what she wants to do and goes ahead and does it. ...

And … the most compelling evidence from Nurse Cattermole when the bottle didn't do the trick, she wanted Nurse Cattermole to get more morphine to do the trick.”

The next time the two sides argue in front of a judge, at the habeas corpus hearing two months later on October 10, 2013, even the dry formality of a court transcript can’t hide how much this sounds like something out of a corny TV legal drama. There’s interruptions! Stammering! The surprise introduction of game-changing evidence! Russell never pounds her gavel nor shouts “I will have order in this courtroom!” but neither would have felt out of place.

The new evidence Mancini's defense wanted to introduce was the hospice doctor’s much stronger, undelivered morphine prescription, which the prosecution had overlooked:

MR. FANELLI: I studied those hospice records, and I'm telling the Court as an officer of the court that … Opioids were prescribed for Mr. Yourshaw … in advance of the phone call by Miss Mancini to the hospice people. If I'm wrong, then counsel should have no objection to that because the records will prove him right; but if I'm right, then the Court should have all of the information before relying on the inference by Mr. Forray that Miss Mancini on her own was seeking out opioids … to assist her father in causing his own death.

MR. FORRAY: Your Honor, as I stand here, I'm not aware of that information; and, again, based on the testimony of the hospice nurse, the team leader, she apparently was unaware of that information either. So as an officer of the court I'm telling the Court I don't know that that information does or doesn't exist.

MR. FANELLI: [I]t's right in the record. I'm not making it up, and I don't doubt for one second Mr. Forray may not have read this, okay, but it's there.

The transcript then reflects a brief debate, filled with many hyphens signifying stammering and interruptions, about whether the defense should be allowed to introduce new evidence at this point. Eventually Judge Russell asks to see the records.

THE COURT: May I see what you have — you've been raising in your hand — out of curiosity.

Fanelli passes up Yourshaw’s admission plan of care from 2013, with the original morphine prescription highlighted. The next thing recorded is:

THE COURT: Do you want to continue with your argument at this point in time, is that what you'd like to do?

Fanelli says yes, but from that point on, it feels like a football game where one team is up by 50 points at halftime. He rattles off the defense’s counterpoints:

• Yourshaw was competent and mobile, and could have gotten the bottle for himself.
• Yourshaw had attempted something similar the week before without his daughter present, something hospice workers were aware of — proving he could open the bottle himself and calling into question how much morphine was even left in the bottle on Feb. 7.
• It would be difficult to prove that Yourshaw intended to commit suicide rather than relieve his pain really well.
• That the Supreme Court has ruled that terminally ill patients have the right to take as much medicine as they need to relieve their pain, even if it shortens their life.
• That almost all the prosecution’s witness testimony would be inadmissible hearsay at trial.

“It seems to me that the total substance of this case against my client is her alleged statements as to what she thought and what her father thought,” Fanelli said. Judge Russell agreed in her opinion, released on the one-year anniversary of Yourshaw's death.

But Fanelli’s final point was about a larger-scope issue that, since the case was thrown out, still remains unaddressed: That the statute Mancini was charged with violating was too vague. “There are so many problems with this statute that need to be addressed and fixed legislatively after it's declared unconstitutional,” said Fanelli.

“The way this statute is worded, they could have charged my mother with assisting suicide because she brought him chocolate candy and soda,” says Mancini. “He had uncontrolled diabetes, and that could have put him into a diabetic coma and killed him. It opens this door — if you supply cigarettes to someone with chronic lung disease, are you going to charge them with assisting suicide? Are you going to charge someone who provides a six-pack to an alcoholic with assisting suicide? Where do you draw the line?”

“Because I handed him his prescribed medicine, not a loaded gun,” says Mancini.

Why did Attorney General Kathleen Kane approve the aggressive pursuit of such a loser of a case for so long? It’s unclear. Even opponents of assisted suicide were puzzled. “It is odd to see one like this prosecuted,” one told New York Times columnist Frank Bruni, then worrying that the publicity this was getting might screw up their efforts with cases “that really call out to be prosecuted.”

Since Kane’s office declined to comment about the case for this story, and at all since Russell’s ruling was handed down, those paying attention across the state and country were left to their own speculations.

The Philadelphia Daily News editorial board just called it “inexplicable.” Left-leaning columnists saw Kane’s decision to pursue the case as an effort to balance the political scales after announcing in July 2013 that she wouldn’t defend the ban on gay marriage. Right-leaning columnists saw it as Kane picking and choosing which cases to prosecute based on personal whim — just like she’d done with gay marriage.

All Kane said, as a defensive-sounding postscript to the press release announcing that her office wouldn’t appeal Russell’s ruling:

If the citizens of the Commonwealth disagree with an existing statute, it is incumbent upon the people to work with the General Assembly to amend the law. Until amendment occurs, it is the legal responsibility of prosecutors to enforce the law as it currently exists.

In other words: Lay off, I’m just doing my job.

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Part 6: The legal land mine, still undefused..