INTRODUCTION Jack Kevorkian was born on May 26, 1928 in Pontiac, MI. He attended the University of Michigan and graduated from the University of Michigan Medical School with a specialty in pathology in 1952. In 1970, Jack Kevorkian became the chief pathologist at the Saratoga General Hospital in Detroit, Michigan. An advertisement was placed in the Detroit papers in 1987, which described Jack Kevorkian as a "physician consultant" for death counseling.
In 1989, Kevorkian invented the Thanatron, which translates from Greek to English as the "Death Machine". The Thanatron was Kevorkian's tool that he used in many physician-assisted suicides. The machine operated through the use of intravenous drip to administer various doses of fluids to facilitate the death of a patient. Typically, the first dose, which is administered by the patient, was a drug called thiopental. This drug acts as a sleeping agent that sends the patient's body into a comatose state. Once the patient is asleep the lethal dose of potassium chloride is administered to stop the heart within minutes.
The patient dies as a result of a heart attack. Jack Kevorkian has assisted in the suicide of at least 120 patients. In calculating the demographic data of these patients, I have concluded three different findings with respect to underlying patient illness, age and gender of the patients. All of these patients have suffered from a terminal or debilitating illness.
The three highest incidents of illness among the 120 patients were cancer, multiple sclerosis and amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig's disease. The highest incidents of the 120 physician-assisted suicides occurred in the age range of 40 to 60 years of age. Approximately seventy percent of Kevorkian's patients were female and thirty percent were male. As a result of Jack Kevorkian's success in assisting in the suicide of these 120 patients, family members, law enforcement and the courts sought many legal inquiries. The state of Michigan, where most of the assisted suicides occurred, does not have a law against this practice.
There have been several legal attempts to imposed criminal charges against Jack Kevorkian for his participation in these suicides. In June of 1990, Jack Kevorkian performed his first assisted suicide using the Thanatron. The patient was Janet Adkins, age 54, of Portland, Oregon. Adkins had been diagnosed with Alzheimer's disease.
Murder charges were brought against Kevorkian as a result of his assistance in the death of Janet Adkins. In December of 1990, the murder charges were dropped against Kevorkian because the state of Michigan has no law against physician-assisted suicide. This case was the beginning of nearly a decade of attempts to stop Jack Kevorkian and sanction him for his participation as the physician assisting these suicides. The next legal attempt against Jack Kevorkian occurred in May 1994. Kevorkian was acquitted, in Wayne County, Michigan, of assisting the May 1993 death of Thomas Hyde, age 30. Hyde suffered from Lou Gehrig's disease.
In March 1996, Kevorkian was acquitted by an Oakland County, MI jury of charges that he participated in assisted suicides of two patients in 1993, Meri an Frederick, age 72, and Dr. Ali Khalili, age 61. The assisted suicide method, performed at Jack Kevorkian's apartment, of these two deaths was through the use of inhaled carbon monoxide. In May 1996, the Oakland County, MI jury acquitted Kevorkian of charges that he assisted in two 1991 suicides of Sherry Miller, age 43, and Marjorie Want, age 58. The June 1997 trial took a different turn of events where instead of an acquittal, a mistrial was declared by a Michigan judge.
In this trial, Jack Kevorkian was charged with assisting the death of Loretta Peabody and practicing without a license. The prosecutor in this case requested a mistrial upon hearing the defense's controversial opening statement. November of the following year was an election year. Michigan voters rejected a ballot measure that would legalize assisted suicide for patients with terminal illness. Also during that election period, Jack Kevorkian's attorney's bid for governorship in the state of Michigan was rejected by the voters.
On November 4, 1998, Jack Kevorkian was convicted on two misdemeanor charges. The charges were as a result of a scuffle that Kevorkian had with police after he had dropped a body off at a Royal Oak, Michigan hospital. On November 22, 1998, just about all of America was tuned into the CBS, "60 Minutes" interview with Jack Kevorkian. By now there had been enough media coverage of Jack Kevorkian to familiarize the country with his career choice of physician-assisted suicide. The show aired video footage of the actual assisted suicide of Thomas Youk, age 52. Youk suffered from Lou Gehrig's disease.
This was the first time that Jack Kevorkian claimed to administer the lethal dose in any of his assisted suicide cases. On September 14, 1998, Jack Kevorkian was indicted on three charges: 1) first degree murder; 2) criminal assistance of suicide; and 3) delivery of a controlled substance. On November 25, 1998, Oakland County prosecutors charged Jack Kevorkian on those indictment charges. The focus of the remaining sections of this paper will be on the key elements of the judicial process as it relates to Jack Kevorkian's trial, followed by the appeal of his conviction. INDICTMENT Through three acquittals and a mistrial, Dr. Jack Kevorkian seemed unstoppable in his quest to assist those who wanted to die. But his luck ran out when a video that aired on national television not only captured him helping Thomas Youk commit suicide, the video also showed the doctor practically daring Michigan prosecutors to charge him.
They called his bluff, and the result was a murder trial. On November 25, 1998, a Michigan judge ordered Dr. Jack Kevorkian to be tried on charges of first-degree murder, assisted suicide and delivering a controlled substance. "The intent to kill was premeditated and thought out beforehand", said 51st District Court Judge Phyllis McMillen at the hearing. Oakland County prosecutor David Gorcyca stated there was not a contradiction in charging Kevorkian with both murder and assisted suicide, and he felt prosecutors could convict him on both counts. "Not withstanding public sentiment on the issue of assisted suicide, it's incumbent upon me to make charging decisions solely on the law and not emotion or sympathy", Gorcyca said. "In this case there's an obvious violation of the law that I won't turn my back on" (web).
If convicted of murder, Kevorkian could face a mandatory life sentence. The assisted-suicide charge carries up to a five-year sentence and the controlled substance charge carries up to seven-year sentence. The assisted suicide charge later was specifically dropped in order to prevent Dr. Kevorkian from bringing up issues that could influence the jury in his favor. JURY NULLIFICATION Jack Kevorkian attempted to persuade the jury that his action had not been "murder", but a justifiable act of mercy. He sought jury nullification on the grounds of humanity, which is something a lawyer cannot do (Jury).
Jury nullification means that a jury finds a defendant innocent because the law itself is unjust, or is unjust in a particular application, and so should not be applied (Jury). The Constitution provides five separate tribunals with veto power: representatives, senate, executive, judges and jury. Each enactment of law must pass before it gains the authority to punish those who choose to violate it (History). STAND-BY COUNSEL Although Kevorkian waived his right to counsel, he was assisted by a stand-by counsel on issues of law and procedures. Although counsel was present, he was not allowed to speak for the defendant at trial.
In Kevorkian's closing argument he stated, "Thomas Youk didn't want to die... no one does. But there are times when you must because of certain circumstances. The issue here is whether Tom wanted what was done or whether I committed murder in the process of my helping him. That's what you must decide". (CourtTV). Kevorkian exercises the free choice to represent himself even though he may face certain consequences.
Kevorkian claims that his attorney, Gorosh did too little as stand-by counsel. Kevorkian placed himself in the unenviable position of suggesting that, in light of his own inadequacies in representing himself at trial; his attorney should have done more. Therefore, Kevorkian cannot now suggest that his free choice to represent himself, standing alone, denied him effective assistance of counsel. As the trial court accurately put it, Kevorkian cannot use his waiver of trial counsel as both a sword and a shield in order to achieve the outcome he desires. CONVICTION Kevorkian, who represented himself, told jurors in his closing statement "There are certain acts that by common sense are not a crime. Thomas Youk made a choice to end his agony.
By helping him, did I commit first-degree or second-degree murder or manslaughter?" The jury deliberated one and a half days, and on March 26, 1999 they delivered a guilty verdict on the charges of second-degree murder and delivery of a controlled substance (web). SENTENCING Before delivering the sentence, Oakland County Circuit Judge Jessica Cooper announced that this is a court of law, there are ways of challenging laws; however, you may not take the law into your own hands (web). On April 13, 1999, Judge Cooper sentenced Dr. Jack Kevorkian to 10 to 25 years in prison for second-degree murder (750.317, Michigan Penal Code) and three to seven years for delivery of a controlled substance (333.7401 Michigan Public Health Code). Arguing that Kevorkian had repeatedly vowed to keep assisting terminal patients to die, Judge Cooper also denied Kevorkian's request to remain free on bail pending appeal. INCARCERATION Dr. Jack Kevorkian, prisoner number 284797, is serving out his two concurrent sentences at Southern Michigan Correctional Facility, 4010 Cooper Street, Jackson, Michigan 49201. APPEAL PROCESS Jack Kevorkian appealed his conviction, murder in the second degree and delivering a controlled substance, to the State of Michigan, Court of Appeals, Oakland Circuit.
This appeal was presented before a three judge panel. Consisting of Judge P.J. Hoekstra, Judge Saad, and Judge J.J. Whitbeck. The opinion was published on November 20, 2001 at 9: 05 a.m. Judge JJ.
Whitbeck delivered the opinion for the Court. Mr. Kevorkian argues three major grounds for his appeal. First, the defendant asserts that his trial attorney, David Gorosh, did not provide him with his constitutional right to effective counsel. The Sixth Amendment of the Constitution guarantees the right of the criminally accused to assistance of counsel. Second, the defendant claims that the prosecutor improperly referred to defendant's decision to remain silent, thereby denying him his rights under the 5th Amendment.
The Fifth Amendment of the Constitution guarantees that no person shall be compelled in any criminal case to be a witness against himself. Third, the defendant claims that the trial court error ed in excluding the testimony of Terrence and Melody Youk, brother and sister-in-law of the deceased. This is a procedural claim. Mr. Kevorkian wanted this testimony for the jury to be able to consider the deceased's pain, suffering, and state of mind. Collectively the Court ruled on Kevorkian's three major grounds for appeal. As to Mr. Kevorkian's claim of ineffective counsel, the Court states that the defendant failed to demonstrate that attorney Gorosh performed deficiently at any time he acted as counsel.
The defendant also failed to prove that attorney Gorosh, while acting as standby counsel, took control of the case of did anything to destroy the jury's perception that the defendant was representing himself. Finally, the Court stresses that the defendant chose, almost certainly unwisely, to represent himself. He cannot now assign the blame for his conviction to someone who did not act as his trial counsel. With regards to Mr. Kevorkian's Fifth Amendment claim, the Court states that the prosecution made remarks that were proper objections to the defendant's repeated and improper attempts to inject into his closing argument facts that were not evidence.
The prosecutors remarks were not direct and unequivocal references to defendant's failure to testify, and therefore, did not constitute misconduct. Mr. Kevorkian was attempting to interject statements about Mr. Youk's pain, suffering, and quality of life. Finally, with regards to Mr. Kevorkian's procedural claim, the Court states that the defendant fails entirely to demonstrate how the proposed testimony would have been relevant to the case at hand. Before trial, the prosecutor moved to preclude the defendant from asserting the defenses of consent and euthanasia and from introducing any irrelevant testimony regarding Youk's medical condition, including pain and suffering to prevent a jury nullification argument. In its order, the trial court granted the prosecutions motion, but allowed evidence of Youk's pain and suffering where it related to the assisted suicide charge that was still pending at that time. At that point the prosecutor decided not to pursue the assisted suicide charge, the defendant then asked the court to reconsider its decision to exclude evidence of pain and suffering.
The trial court denied his motion. Any testimony at trial regarding Mr. Youk's pain and suffering would be irrelevant and not permissible. SUPREME COURT CASES None of Kevorkian's cases have ever been approved for review by the Supreme Court because the question of Due Process wasn't clearly defined. In the cases of Washington vs. Glucksberg and Vacco vs. Quill, each made it to the Supreme Court because of their in-depth question of the liberty or the right to assistance in committing suicide is a fundamental liberty protected by the Due Process Clause.
The argument in tells that a person has the right to determine the time and manner of his or her death, the right to die, a liberty to choose how to die, a right to control of one's final days, the right to choose a humane, dignified death, and the liberty to shape death. Washington statute prohibits aiding another person to attempt suicide. The argument to the courts by certain physicians is whether the liberty, which is protected by the Due Process Clause, includes a right to commit suicide which itself includes a right to assistance in doing so (UC, Pg. 4). Justice O'Conner announces a narrower question that was brought about by the plaintiff which is "whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death". New York and Washington do not have any laws that prevent physicians from administering medication to reduce the suffering of dying patients as well as speed up the process of dying.
So the question of whether or not a competent person can demand certain medications to aid in the suffering of dying is not under fire, it is those who are incompetent during the time of the request is what is in question. Time is a major factor in the sequencing of physician-assisted suicides. In Cruz an vs. Director of Missouri Department of Health, it was decided that patients signing Refusal to Resuscitate (RTR) forms is legal due to the competency during the signing of the document as well as remembrance of the patient. Most patients do not want to remember their loved ones with life support units and tubes protruding from their body. Justice Stevens supports this theory but rejects the assisted suicide because of the effects it may have on the relatives of the survivor. The fact that a person signs an RTS form just takes the decisive burden away from the relative to remove life support where as the request for assisted suicide takes away the probability of survival.
In the ending result of Washington vs. Glucksberg, the Supreme Court concluded that physician-assisted suicide should be in the best interests of the public. These interests include prohibiting intentional killing and preserving human life; preventing the serious public health problem of suicide, especially among the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders; protecting the medical professions' integrity and ethics and maintaining physicians' role as their patients' healers. These interests do not infringe on the fundamental rights of the patient and are in the best interests of the public. The same decision was meet in the case of Vacco vs. Quill in 1997.
The case declared that the distinction between letting a patient die and making that patient die is important, logical, rational, and well established and it comports with the fundamental legal principles of causation that was proven in the case of People vs. Kevorkian. This goes back to the time of death and how it happened. If one dies due to the refusal of treatment, it is based on the fact that no one may be forced-medicated if they refuse it. Whatever their body does after that is due to medical problems. But make a patient die is cutting off any chance that the patient may recover on their own. In many medical cases, patients recover due to their will to live and not on the medications given to them.
In both Supreme Court cases, the conclusion was that no one has the right to assisted physician suicide because it unsure of what their state of mind is when they ask for their death...
Hutchinson, Dennis J. Supreme Court Review: 1997.
University of Chicago Press, Chicago, 1998;
pg. 1-38. web Cornell School of Law. web Court TV website. web CNN headline news website. web "Prisoner of Conscience" Online posting. January 22, 2002.
web "Jury Nullification and the Rule of Law" Online posting. web "History of Jury Nullification" Online posting. web pm ctv. html "Kevorkian Denies Intending to Kill Lou Gehrig's Disease Patient in Closing Arguments" Online posting-CourtTV. com, March 25, 1999.