Laws seen as lacking on assisted suicides Emotional reactions also make prosecution difficult, experts say

October 21, 1998|By Del Quentin Wilber and Edward Lee | Del Quentin Wilber and Edward Lee,SUN STAFF Sun staff writer Nancy A. Youssef contributed to this article.

With grand jury proceedings looming in the case of a possible assisted suicide in Columbia, legal experts said the lack of clear laws and the emotional reactions of jurors pose severe obstacles for prosecutors.

No charges have been filed, but police have named William Fishback, 68, of Columbia as a suspect in his mother's death. Fishback's lawyer said yesterday he would not speculate on the case, which stems from the suspicious death Sept. 7 of Fishback's ailing mother, Helen V. Fishback, 90.

"We can't speculate about what the grand jury will do," said Fredric G. Antenberg, the lawyer. "As I said earlier, I hope he won't be indicted."

Legal experts, including prosecutors in Michigan who have brought and dropped cases of assisted suicide against Dr. Jack Kevorkian, said Howard County State's Attorney Marna McLendon has an unenviable task.

"I wouldn't wish an assisted suicide case on any prosecutor in the country," said David Gorcyca, a Michigan prosecutor who dropped several charges of assisted suicide against Kevorkian early last year. "They are very difficult, very emotionally driven."

McLendon told The Sun on Monday she expects to take the case to a grand jury late next month but would not discuss specifics.

About 3 a.m. Sept. 7, police arrived at the Fishbacks' apartment and found Helen Fishback on her bed with a plastic grocery bag wrapped around her head, officials familiar with the investigation said.

After initially thinking it was a suicide, investigators turned their attention to Fishback, who later told a reporter he gave statements to police without his attorney present.

Detectives also discovered an audiotape recording in which Helen Fishback described her desire to die, said the officials, who asked not to be named. In the background, her son can be heard sobbing, those sources said.

Little is known about the family. Even Helen Fishback's exact birth date is in question. Police said she was 89 and her maiden name was Vanmeter. Her birth certificate indicates 90 and Van Meter.

The case could draw attention to the lack of a specific state law addressing assisted suicide.

McLendon recently requested a 1993 opinion on assisted suicide by the state attorney general's office. That opinion says prosecutors can bring charges without a specific law.

"It depends on the facts," Assistant Attorney General Jack Schwartz said yesterday. "Our opinion in 1993 expresses that view, that assisting someone else's suicide is a crime."

But prosecutors said jurors often feel they lack clear legal guidance.

In Michigan, prosecutors have tried to win cases against Kevorkian without a specific statute. They all lost.

Jurors also face trials that can be emotionally charged, and they could allow those feelings to influence their decisions, despite what prosecutors see as clear violations of the law, experts said.

Unlike the Kevorkian incidents, the Fishback matter involves a mother who may have been willing to die and a son who may have been willing to help, says Ruth Faden, director of the Bioethics Institute at the Johns Hopkins University.

"When an individual family member helps another family member commit suicide, it's perceived as a much more private act between people with a deep history and relationship that deserves a special type of protection," Faden said. "It's often perceived as a loving act by some segments of the population."

The deterioration of the patient and its effect on a family member can also complicate a prosecutor's decision, says Faye Girsh, executive director of the Hemlock Society, a right-to-die group based in Boulder, Colo.

Sometimes the caretaker is "so desperate and they don't know what else to do," Girsh said. "[Assisted suicides] are often done when it becomes too much for the caregiver."

Pub Date: 10/21/98

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