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Doctor might escape conviction on a technicality

BMJ 1998; 317 doi: https://doi.org/10.1136/bmj.317.7172.1547 (Published 05 December 1998) Cite this as: BMJ 1998;317:1547
  1. James Ciment
  1. New York

    A contentious legal struggle that is likely to be settled on narrow technicalities rather than broad ethical questions has emerged over the assisted suicide of Thomas Youk. The 52 year old man from Michigan, United States, had amyotrophic lateral sclerosis, an inoperable disease of the nervous system that is popularly known as Lou Gehrig's disease.

    Jack Kevorkian, 70, the Michigan doctor who claims to have assisted the suicides of over 130 terminally ill patients, faces up to seven years in prison for the assisted suicide killing of Youk in September. A videotape of the suicide was broadcast in November on the popular TV news magazine show 60 Minutes.

    But David Gorosh, Kevorkian's lawyer, argues that the charge of assisted suicide is unconstitutional, because the law banning assisted suicide was enacted too recently and by too small a margin to be used. Under the Michigan constitution, a two thirds majority is required for a law to go into effect in less than 90 days. The law was passed in late summer by a 66:40 majority and, says Gorosh, cannot be applied against Kevorkian.

    Most legal experts believe that if the charge of assisted suicide is thrown out on a technicality, the state stands little chance of convicting Kevorkian of murder. “Realistically, the murder charge is out of reach. In cases of euthanasia, whenever the family [of the victim] is unified behind the defendant, it's almost impossible to get a murder verdict,” says Yale Kamisar, a law professor at the University of Michigan.

    Meanwhile, the American public remains deeply divided over assisted suicide. A CBS poll taken two days after the 60 Minutesbroadcast found nearly 40% of respondents maintaining Kevorkian should receive no punishment and over 25% saying he should face a lesser charge than murder.

    Still, on 4 November Michigan voters rejected an initiative that would have created a procedure for legal doctor assisted suicides of terminally ill patients. Ballot initiatives also failed in California and Washington state in the early 1990s. Some 20 state legislatures have defeated bills that legalise some form of doctor assisted suicide.

    To date, Oregon remains the only state to allow doctor assisted suicide. In November 1997 Oregon voters passed a second ballot initiative--the first was thrown out in federal court--allowing for doctor assisted suicide.


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    AP PHOTO/CARLOS OSORIO

    Dr Kevorkian hits back at critics

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