Kevorkian forces case back to court

April 17, 1994|By New York Times News Service

DETROIT -- Dr. Jack Kevorkian will force a jury to try him this week for breaking a law that has already been ruled unconstitutional by three judges, that is under review by an appeals court and that the doctor has openly flouted, daring prosecutors to charge him.

"I assisted Thomas Hyde in a merciful suicide, no doubt about it," he said on Aug. 4, just hours after Mr. Hyde, a 30-year-old man with Lou Gehrig's disease, inhaled carbon monoxide in Dr. Kevorkian's van.

Since then Dr. Kevorkian, a 65-year-old retired pathologist, has assisted three more suicides and has been charged three more times. Those charges were dismissed when judges declared Michigan's year-old suicide statute defective. One judge recognized a right to commit suicide, based on broad freedom and privacy grounds. Two ruled that the bill violated the state constitution.

All three decisions were appealed to the Michigan Court of Appeals.

But the Hyde case remained. Judge Thomas E. Jackson of Detroit Recorder's Court declined in February to dismiss it but offered to postpone the trial until after the appeals court had ruled. That offer was rejected by Dr. Kevorkian's lawyer, Geoffrey Fieger, who argued: "My client has a constitutional right to a speedy trial. This outrage has gone on long enough."

The judge then scheduled the trial for Tuesday. The three-judge appeals panel had been expected to rule by now. Oral arguments were heard on Jan. 6. But the court has not issued its decision.

Mr. Fieger is expected to try to persuade the jury to nullify the law in effect by refusing to convict Dr. Kevorkian.

Timothy Kenny, an assistant Wayne County prosecutor, said Friday that he would ask the judge to prevent Mr. Fieger from talking about jury nullification during the trial. He also said he PTC would ask that the defense counsel be forbidden from mentioning that other judges had ruled the law unconstitutional.

Mr. Fieger says he will ask that the Wayne County prosecutor, John D. O'Hair, be disqualified because the official is also a member of Michigan's Commission on Death and Dying, which was established by the same law Dr. Kevorkian is charged with breaking.

Lawyers for both sides also are certain to wrangle over jury selection. Opinion surveys have found that most whites in Michigan support Dr. Kevorkian's cause, while most blacks oppose doctor-assisted suicide. Mr. Fieger has expressed concern that Detroit Recorder's Court draws its juries from a pool that is 80 percent black.

He also asked Judge Jackson to disqualify himself, saying, "It seems evident to me you are biased against this defendant." The judge declined to remove himself from the case.

Michigan's assisted suicide law carries a penalty of up to four years in prison, but it is not clear if the prosecution will ask for any jail time. In December, after his 20th and latest suicide, Dr. Kevorkian pledged to refrain from assisting more suicides until the courts clear up the confusion.

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