Kevorkian trial poses new legal questions

April 1, 1996
Web posted at: 8:30 p.m. EST

PONTIAC, Michigan (CNN) -- The saga of Dr. Jack Kevorkian, twice acquitted of assisted-suicide charges, resumed Monday as jury selection began in a Michigan case charging him with assisting in two 1991 suicides.

Kevorkian arrived at the courtroom in a Colonial-style costume complete with powdered wig.

"If Thomas Jefferson justifies and endorses and advocates suicide for cancer, why am I in this courtroom?" he shouted. (174K AIFF sound or 174K WAV sound)

Prospective jurors filled out questionnaires in Oakland County Circuit Court. The prosecution won an order from the state Court of Appeals limiting the questioning of jurors about their religious beliefs.

Kevorkian, 67, faces trial in the October 1991 deaths of Sherry Miller, 43, of Roseville, who had multiple sclerosis, and Marjorie Wantz, 58, of Sodus, who had severe pelvic pain.

Theirs were the second and third of the 27 deaths Kevorkian has acknowledged attending since 1990. On March 8, Kevorkian was acquitted on charges stemming from two 1993 deaths. He also was acquitted in neighboring Wayne County in 1994.

While Kevorkian's latest trial may seem like a repeat of earlier ones, the new case involves a different law, which eliminates a key part of Kevorkian's previous defenses.

Unlike last month's trial, the retired pathologist is not being tried under Michigan's now-expired assisted-suicide law. Instead, Kevorkian is accused of violating Michigan common law, which prohibits aiding a suicide. Kevorkian faces up to five years' imprisonment if convicted.

Oakland County Prosecutor Richard Thompson explained the difference.

"We are not dealing with the statutory law in that case but the common law, and the common law does not have the exception," Thompson said.

The exception involves the defendant's intent. The statutory law stipulates that the defendant is innocent if his intent was to help the patient ease pain and discomfort, even if his actions lead to death.

In this trial, the prosecution must prove only that Kevorkian helped the women kill themselves. Kevorkian's intent in this case is irrelevant.

At the root of the new trial is a Michigan Supreme Court ruling that says since there is no longer a statutory ban on assisted suicide, Kevorkian can be tried for murder under state common law.

The decision was based largely on a case from early in this century in which a man put sleeping pills next to his ailing wife's bed. When she took the pills and died, he was found guilty under Michigan law of murder, according to law professor Steve Safranek.

The common-law tactic was first used against Kevorkian in 1990 during the case of Janet Adkins, the first suicide Kevorkian admits to attending. The case was dismissed.

Kevorkian's lawyer, Geoffrey Fieger, claims the premise for the entire trial is preposterous. He claims it is unfair to prosecute Kevorkian under a law that the Legislature never put on the books.

"Everyone understands that this is a phony law," Fieger said. (119K AIFF sound or 119K WAV sound)

Adding to Kevorkian's defense is a video recording made by Miller and Wantz the night before they died. The tape shows the two women saying they want to die, because their quality of life is gone. (454K QuickTime movie)

Miller died from inhaling carbon monoxide, while Wantz died from lethal injection.

Just days before the end of last month's trial, California's Ninth Circuit Court overturned a Washington state law banning assisted suicide.

While the California ruling had no direct bearing on laws elsewhere, Safranek says it could help Kevorkian's team build a stronger case for the U.S. Supreme Court. (119K AIFF sound or 119K WAV sound)

Despite the controversy surrounding Kevorkian, Thompson promises he will pursue the case to its conclusion.

"It is the duty of the prosecuting attorney to enforce the law, not just laws that have popular consent," he said.

Fieger has the same resolve. "They'll be damned if anybody will convict anybody under such a ridiculous proposition."

The Associated Press contributed to this report.

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