First, an important credit: The Philadelphia Inquirer has devoted a half-dozen stories to the plight of Barbara Mancini. All the facts described in this post come from their reports.
Joseph Yourshaw, 93 years old and a World War II veteran who had served in the Battle of the Bulge, was in home-hospice dying from kidney failure, end-stage diabetes, and heart disease, with additional complications from a stroke and pain from arthritis. Barbara Mancini was a nurse in Philadelphia and, it seems, quite a good daughter, as she had made the 2-hour trek up to Pottsville in Schuykill County to be bedside with him and to help him with his medications. He was in severe pain, as usual, and he had a prescription for morphine. She asked the hospice nurse for a bottle of morphine; it’s apparently disputed whether she asked for a second one after already giving him one, or whether she asked for a second one because the first hadn’t arrived yet and Yourshaw was in pain.
And that’s when the nightmare started. The hospice nurse called 911, and reported the following:
The nurse “told me that her client had taken an overdose of his morphine with the intent to commit suicide,” [police officer] Durkin wrote in his report.
The nurse said Mancini, who also is a nurse, gave her father the morphine “at his request so that he could end his own suffering,” Durkin wrote.
Before getting to the prosecution, let’s start with the factual predicate. If everything the nurse said was true — thus far, as is typical when there is a criminal prosecution, Mancini has not given her side of the story publicly — then so what? Pennsylvania law allows a person to voluntarily die by way of suspending medical care, food, water, ventilation, and so on and so forth; the state even has a website set up so people can correctly set up their advance directives for health care paperwork. If we allow someone to literally starve himself to death rather than continue living with a terminal illness, why don’t we allow him to simply increase the dosage of the pain medication he’s already taking?
Indeed, the United States Supreme Court has already said it’s okay for States to allow patients to request life-threatening levels of palliative medication:
Just as a State may prohibit assisting suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit palliative care related to that refusal, which may have the foreseen but unintended “double effect” of hastening the patient’s death. See New York Task Force, When Death is Sought, supra n. 6, at 163 (“It is widely recognized that the provision of pain medication is ethically and professionally acceptable even when the treatment may hasten the patient’s death, if the medication is intended to alleviate pain and severe discomfort, not to cause death”).
Vacco v. Quill, 521 U.S. 793, 807, Fn 11 (1997). But, just because something is “ethically and professionally acceptable” doesn’t mean it’s lawful in Pennsylvania, and our Commonwealth still has the absurd notion that what allegedly happened to Mr. Yourshaw was a terrible crime.
Yourshaw had a living will stating his wish to die at home without extraordinary measures; after the nurse called 911, that living will was ignored and he was taken to a local hospital, where he was given Narcan (naloxone), an opioid antagonist used for a variety of purposes, including preventing morphine overdose. I’ve written a little bit about it before, in the context of anesthesia complications. As you can imagine, reversing a suspected morphine with Narcan is like slamming on the brakes in a car: the side effects of reversal include tachycardia, agitation, nausea, vomiting, diarrhea, tremors, and increased pain, including a “pain crisis.” Yourshaw lived four more days, was apparently given more morphine at the hospital (presumably by a doctor or nurse that wanted to grant him a smidgen of dignity in his last days), and thereafter died.
All of which is to say that, Yourshaw, survivor of the bloodiest (for the U.S.) battle of World War II, died exactly how he didn’t want to die, at a hospital after suffering through days of pain and extraordinary measures. We can only hope he didn’t have an inkling that after his death there would be a Kafkaesque prosecution done in his name.
It’s almost a cliche these days to reference the quote by Justice Robert Jackson that “the prosecutor has more control over life, liberty, and reputation than any other person in America.” I’ve referenced it before. Justice Jackson was talking about federal prosecutors (he was giving a speech, as Attorney General, to the U.S. Attorneys under him), but it may apply more to state prosecutors. Federal prosecutors at least exist in a hierarchy that arguably affords some checks and balances, with U.S. Attorneys reporting to Main Justice which reports to the Attorney General who serves at the President’s discretion. State prosecutors exist in a world onto themselves; they are, by and large, elected, and so nominally accountable to the people but practically accountable to no one. When’s the last time you saw the election of a District Attorney turn on the prosecutor being too aggressive on crime?
In this case, the local Schuylkill County prosecutor is apparently friends with Mancini’s sister, and so appropriately recused themselves entirely from the case, leaving it to the Pennsylvania Attorney General’s office, which inexplicably thought a terrible crime had occurred, one worthy of the Commonwealth’s limited resources to prosecute.
For inexplicable reasons, the Commonwealth has forced Mancini to put up a costly, lengthy defense, one she has to endure while on unpaid leave from her employer. Can Mancini do anything now to stop the prosecution? And, in the event she prevails (as I hope she does, based on the facts publicly reported so far), is there any possibility of compensation to Mancini?
The short answer is no to both questions. In addition to being among the most powerful people in America, prosecutors are among the most protected. There’s a razor-thin line of precedent arising from Dombrowski v. Pfister, 380 U.S. 479 (1965), which allows defendants in state court criminal cases that are unconstitutionally overbroad to obtain an injunction against the prosecution where state authorities were engaged in “bad faith-harassment” or where other “exceptional circumstances” existed. Alas, not too much later, in Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court sharply limited Dombrowski, and held that a federal injunction of a state criminal proceeding is “a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.” If Mancini wanted a federal court in Pennsylvania to stop the prosecution, she would have to prove “bad faith” by showing the prosecution was “brought without hope of success,” or she would have to prove “exceptional circumstances” by showing the local court is “incapable of fairly and fully adjudicating the federal issues before it.” Getson v. State (3d Cir. 2009). Both of those would be a hard sell.
Mancini also likely can’t obtain compensation for her considerable losses in wages, in reputation, and in emotional harms. Even though they’re unlikely to ever be personally liable for a judgment (for the same reasons police officers are virtually never liable for civil rights lawsuits), courts have erected insurmountable barriers around them. Look no further than the United States Supreme Court, which decided Connick v. Thompson back in 2011, holding that a district attorney has no constitutional obligation to ensure that the prosecutors under his or her command actually know the first thing about constitutional law, and so can’t be sued for damages when prosecutors intentionally conceal evidence, thereby keeping an innocent man behind bars for 18 years. Prior to Connick, the law used to be that, while prosecutors had absolute immunity for “participation in court proceedings and other conduct intimately associated with the judicial phases of litigation,” claims could be made based on that fact that “a prosecutor acting in an investigative or administrative capacity is protected only by qualified immunity,” Carter v. City of Phila., 181 F.3d 339, 356 (3d Cir. 1999). Whether that is still true after Connick might be an open question.
Some states have state law tort claims that can overcome sovereign immunity, as I discussed in my West Memphis Three post. But that generally isn’t the case for Pennsylvania. Consider In re Petition of Dwyer, 486 Pa. 585, 406 A.2d 1355 (1979), or McCormick v. Specter, 220 Pa. Super. 19, 275 A.2d 688 (1971).
All of which is to say that Mancini’s only hope is the fairness of the judge and the jury on her case. It seems that the judge has already noticed some problems. As the Inquirer reported,
Reacting to the charge that Yourshaw wanted no medications, the judge said, “It seems odd that a person in pain would not want pain medication.”
“I hope you’re giving me an appropriate picture of what actually happened,” the judge told the prosecutor at one point.
“I am as far as I understand them,” Forray replied.
One wonders how Attorney General Kathleen Kane’s office intends to prove that Yourshaw didn’t actually want the morphine, in spite of his conditions, and in spite of him apparently trying before to end his life on his own terms with a bottle of morphine.
Kane told media, “We will be prosecuting that case because it is a violation of our state laws,” which is no excuse at all — prosecutors are not and cannot be parking authority collectors simply writing up every violation in sight. As a society, we don’t have the time, energy, or resources to do that, and it would hardly be just. Such a mentality would produce the exact sort of injustice we are seeing today.