The ordeal of another trial

Finally, after much fanfare, Jack Kevorkian gets his latest wish — he goes on trial for murder next week. The smart money says he’s finally going down at last.

Until now, I, too, thought this was the end of him, that the K was now engineering his own destruction and damaging the cause he had virtually created.

Suddenly, I am not quite so sure. More on that in a minute, but first: There is, indeed, a whole lot of reason to believe that this time a conviction and the slammer are the indicated Rx for Dr. K. Last Nov. 22, millions watching CBS-TV’s "60 Minutes" saw a videotape of Kevorkian euthanizing a local man dying of Lou Gehrig’s disease.

Not much wiggle room there, and to top it off, "Well, it might not be murder, maybe only manslaughter," Kevorkian chirped on the show.

He has fired Geoffrey Fieger, the cunning, blustery pilot who steered him successfully through four previous trials. Not surprisingly, the wounded ego-in-exile predicts Kevorkian’s swift conviction and says he is a self-destructive would-be martyr with a fool for a client. This has not brought about a reconciliation.

Though Kevo has retained David Gorosh, a young, Botero-like figure who either quit or was fired by Fieger’s office, he means to be his own lawyer. Last week, after Oakland Circuit Judge Jessica Cooper ruled the defense could talk about Thomas Youk’s suffering in response to the assisted suicide charge, the prosecutors dropped that count. Any such discussion couldn’t help, they reasoned, but affect the murder rap too.

That was shrewd. Testimony about the patient’s agonies has been a key factor in previous cases. That, and the fact that they at some level did it themselves, if only by tugging on a string to start the flow of poison gas the doc rigged up for them.

Theoretically, all the prosecution now has to do is show that K did it. Which the videotape graphically does. The complete tape may prove to be damaging to Kevorkian in another way; he fumbles around for many minutes, painfully trying to find a vein.

Yet just maybe the conventional wisdom is wrong. Not perhaps about the likelihood of a conviction, though all it takes is one die-hard pro-Kevorkian juror (every trial so far has had more than one) to produce a hung jury.

What we may have been wrong about is our assumption that Jack the Dripper either, 1) wanted to be a martyr or 2) thinks he can win by dressing up like Thomas Jefferson and reading philosophical tracts to the jury. Last weekend, the netherworld’s shuttle bus driver told me something of his strategy. Should he win a not-guilty verdict, well, OK. "That would mean that they will never charge me again, in Oakland County anyway, and it will be de facto legal," the obitiatrist said.

But what I think he really wants is to be found guilty.

Why? This time, if the prosecutors are rolling the dice to try and get a murder conviction, Kevorkian is betting the farm. He has spent weeks researching an appeal based on what one author called "the forgotten Ninth Amendment."

That is the one that says "the enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

He is arguing that the right to end one’s suffering is "perhaps the most fundamental and universal of all rights of any kind. It is a unique ‘core’ right, a ‘right of natural endowment’ like those of life, liberty and the pursuit of happiness."

He wants to firmly establish euthanasia with consent as a broad constitutional right — or, if he fails, to lay the philosophical underpinnings for a wiser ruling in the future. Last month, he asked Cooper to dismiss the whole case on Ninth Amendment grounds. She declined, and he appealed to the state court of appeals.

"They won’t give me the time of day. But we have to do that," he said. "Then we take it to the Michigan Supreme Court, who are thoroughly corrupt, but then we take it to the U.S. Supreme Court, which may still have some vestiges of integrity."

Two years ago, the highest court unanimously overturned two rulings that found a constitutional right to assisted suicide. But those cases, Kevorkian notes, were based on liberty interests and the equal protection clause, not on the Ninth Amendment.

"And even (Chief Justice William) Rehnquist said they might have to revisit this," Kevorkian said. Indeed, Justice Stephen Breyer added there may be a "right to die with dignity ... at its core would lie personal control over the manner of death, professional medical assistance, and the avoidance of unnecessary and severe physical suffering."

But what of his pledge to starve himself if jailed? For the first time, Kevorkian is backing off. "I will not starve myself while I wait for the Supreme Court. If they refuse to hear it, or they rule against me, then, yes, but not till then."

Even if they take the case, the high court might make a distinction between assisted suicide and euthanasia. My own view is that the K may have taken more of a leap than society, at this juncture, can make. Humanity didn’t evolve from ape to Aristotle overnight. But then, who ever thought in 1990 that Kevorkian would get as far as he has?

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