SUMMARY OF THE CASE
Hugh Gale, 70, of Roseville, Michigan, died as a result of inhaling carbon
monoxide on February 15, 1993, at his home in the City of Roseville, Macomb
County, Michigan. Dr. Jack Kevorkian was present together with two Kevorkian
assistants, Margo Janus and Neal Nicol. The wife of the deceased, Cheryl Gale,
was also present. On the date of this death, Michigan had no law against either
suicide or assisted suicide. (1) Because of a document authored by Dr.
Kevorkian detailing the circumstances of the death, there arose a question as
to whether Hugh Gale may have changed his mind in his last seconds of
consciousness. If it factually could be shown that Gale did change his mind
and that his request for assistance was unheeded by Dr. Kevorkian, it would be
appropriate to consider whether murder or manslaughter charges should be
brought against Dr. Kevorkian. Prior to the legal analysis as to the propriety
of charges, however, it was necessary to first gather as many facts as possible
to establish with as much accuracy as possible what actually occurred at the
Gale residence on February 15th.
To this end police officers attempted to question the persons believed to
be present at the time of Mr. Gale's death. All such persons declined to
answer questions. Under the law, however, no person may ever be called
to speak to a police officer or other agent of the state, and this right to
remain silent may be exercised without regard to whether or not the person
sought to be questioned is suspected of criminal activity. The innocent as
well as the guilty have a right to remain silent, and no adverse
inference of guilt should ever be drawn from the exercise of that fundamental
right.
As prosecutor, it was nevertheless my duty to pursue all legitimate means
to try to obtain statements from the witnesses. An attempt was made to compel
testimony by means of an inquest under MCLA 52.207 and MCLA 773.1, the plan
being to grant immunity to certain witnesses so as to remove their Fifth
Amendment right not to testify. Since a person testifying under a grant of
immunity cannot be convicted of any potential crime related to the questioning,
it becomes legally impossible for such person to incriminate himself or
herself. Testimony can then be compelled by invoking contempt of court
penalties for refusing a judge's lawful order to testify.
The hearing was convened on March 22, 1993. The witnesses all took the
stand, outside the presence of the inquest jury, to place their Fifth Amendment
right not to testify on the record. The prosecutor then placed an
immunity officer on the record for certain witnesses. The District Court Judge
then ruled that while the prosecutor could offer immunity, a witness did not
have to accept it; and, accordingly, there was no compulsion that could be used
to force testimony. The judge advised in a written opinion that forced
immunity could only be ordered in a grand jury investigation or in a
preliminary examination or trial once charges had been brought.
Because the goal of the prosecutor's office was to determine the facts
before charges were brought (2) and without the procedural delay of convening a
grand jury, another attempt was made to obtain witness statements on a
voluntary basis.
Renewed discussions with the attorneys for the witnesses produced an
agreement that full and complete depositions of two witnesses, Mrs. Cheryl Gale
and Mr. Neal Nicol, would be taken on Sunday, March 28, 1993.
These depositions have produced the factual detail necessary for a
decision in this case.
DECISION
It is my decision that no charges will be filed against Dr. Jack Kevorkian
or any other person in connection with the death of Hugh Gale. Mr. Gale's
death can only be regarded as a suicide. Those present at the time of his
death did nothing more than provide the means for him to accomplish a result
that he desired. The great weight of evidence is that he never faltered in
that desire up to the point that he lost consciousness.
REASONS FOR DECISION
At the time of Hugh Gale's death there was no law in Michigan making it a
crime for a person to assist another in committing suicide. Case law was
divided on the question of whether murder statutes could be expanded to apply
to an assisted suicide case. In People v Roberts, 211 Mich 187,
178 NW 2d 690 (1920), the furnishing of poison by a husband to his invalid wife was held to be first degree murder. (The authority of the case is weakened, however, by the fact that the defendant pled guilty, thereby conceding the propriety of the conviction and arguing only the degree of murder on appeal).
In People v Campbell,124 Mich App 333, 335 NW 2d 27
(1983), 1v. den. 418 Mich 905, 342 NW 2d 519 (1984), the Michigan Court of
Appeals held that the furnishing of a gun to a drunk and despondent individual,
coupled with taunts to that person to commit suicide, was not murder. The
Court of Appeals explained that "hope alone" that someone might kill himself is
not sufficient to satisfy the intent element of murder. The court, being a
lower court, did not and could not
overrule People v Roberts (the 1920 Supreme Court case), but
did conclude that Roberts no longer represented the law in
Michigan.
The Michigan Supreme Court refused to hear an appeal from the decision of
the Court of Appeals in Campbell, thereby allowing the decision
to stand. Justice Boyle dissented from the denial of leave to appeal saying
that "[i]f People v Roberts is no longer the law in this
jurisdiction, this court should say so." 418 Mich at 905, 342 NW 7d at 519
(1984).
The state of the law, therefore, on February 15, 1993, was that a 1920
case from the highest court of the state said assisted suicide was murder. A
later, 1983, case of a lower appellate court said assisted suicide was not
murder. And the Michigan Supreme Court declined the invitation in 1984 to say
which case was right.
In the analysis necessitated by the above described ambiguities in
Michigan law, a prudent prosecutor would be well advised to accept People v
Campbell as controlling law. There are several factors which support this
conclusion. First, the Campbell case is the most recent
expression of the appellate courts of this state. Second, the Michigan Supreme
Court had an opportunity to correct the Court of Appeals panel if it believed
they were in error, but declined to do so. Normally, the rules of stare
decisis (the guide for following previous cases as precedent) assign no
value to the refusal of a higher court to decline a request to review a lower
court's ruling; notwithstanding this rule, the notation that leave to appeal
was denied is often referenced as a reason why a lower court should feel at
ease in following a particular case as controlling precedent by virtue of the
self-evident argument that if there were clear error in the case, the higher
court would have addressed it. Third, the 1920 Supreme Court case assumed
without argument that assisting suicide was murder since the defendant conceded
that issue and brought the appeal to contest only the issue of punishment. The
Roberts case, therefore, is less persuasive on the issue of the
criminality of assisting suicide than the Campbell case since
Campbell directly addresses the issue. Fifth, as noted by the
Court of Appeals in Campbell no defendants who had been charged
with inciting or assisting suicide had been found guilty of murder in any case
since 1920 (124 Mich App 333 at 339-40, 335 NW 2d 27 at 30-31). Sixth,
although of no precedential value outside of the local judicial district where
the case was decided, it was the holding of Judge McNally in the 52nd District
Court that Dr. Kevorkian could not be bound over to stand trial on murder
charges following Kevorkian's preliminary examination for murder in an assisted
suicide case in that court on February 5, 1991. People v Kevorkian,
No.90-20157 (52d Dist. Ct. Mich., 1991).
Since Campbell rather than Roberts is
controlling, the legal analysis into the death of Hugh Gale must accept at the
outset that regardless of the degree of assistance and encouragement, Dr.
Kevorkian cannot he charged with murder unless it can be shown that Dr.
Kevorkian performed some act which in itself was sufficient to cause the death
of Hugh Gale.
Immediately following the death of Mr. Gale the Roseville Police Department
conducted a routine investigation based on the knowledge that a death by
unnatural causes had occurred in their city. This investigation was not
premised on any suspected criminality nor was there any assumption that it
would lead to criminal charges. This was simply prudent, sound, thorough
police work.
The purpose of the investigation was to determine if there were any
evidence that Dr. Kevorkian or one of his assistants had crossed the line from
assisted suicide to homicide by taking some physical action to directly
initiate the mechanical or chemical means of death. Although previously
reported Kevorkian assisted suicides had always followed the law in limiting
assistance to merely the supply of the lethal materials, with the decedent
initiating the actual flow or ingestion of the lethal materials, it was
necessary to establish that there was no deviation from that practice. Since
the burden of proof is always on the prosecutor, this meant that no charges
would be contemplated unless there were affirmative evidence that something
different had happened in this case.
I am now able to say that there is no evidence that Dr. Kevorkian (or
anybody else who was present) took action to directly initiate the mechanical
or chemical means of causing the death of Hugh Gale. Hugh Gale himself was
ultimately the person to begin the flow of carbon monoxide to his lungs. This
was accomplished by means of pulling a clamp which was attached to a
crimp in the tubing leading from the carbon monoxide tank. The deposition
testimony of Neal Nicol explains how the clamp was applied to hold back the
flow of gas from the tank. Tests on the tubing by the Michigan State police
confirm that the tube was bent over upon itself and at some point clamped with
a device similar to the clamp found attached by a string to one of Hugh Gale's
fingers. The deposition testimony of Neal Nicol is, therefore, consistent with
the physical evidence, and taken together leads to the conclusion that Hugh
Gale, and not any other person, pulled the clamp which started the carbon
monoxide flow, thereby causing his own death. Under the authority of
People v Campbell, neither Dr. Kevorkian nor any other person,
can or should be charged with murder.
CONSIDERATION OF MANSLAUGHTER CHARGES
While the above analysis completes the determination on the consideration
of murder charges, there was an unexpected document discovered in late February
which if corroborated at least suggested the propriety of considering a charge
of manslaughter.(3) This is the document found in the trash by Lynn Mills, a pro-life activist with the Right to Life organization and an opponent of
assisted suicide. The document, if authentic, raised the issue of whether Hugh
Gale had changed his mind shortly before losing consciousness. Because this
document changed the nature of the investigation, it is well to recount the
circumstances of its discovery, its admissibility as evidence, its
authenticity, its legal effect, and the weight to be given it in light of
deposition testimony which, frankly, contradicts it.
DISCOVERY OF THE DOCUMENT AND ISSUES RELATED TO ADMISSIBILITY AND AUTHENTICITY
On February 23, 1993, eight days following the death of Hugh Gale, Lynn
Mills drove to the neighborhood of Neal Nicol, one of Dr. Kevorkian's
assistants. She observed Nicol take two (2) garbage bags to the curb. After
Nicol returned to his house, Mills picked up the garbage bags placed them in
her car and drove to another location where the bags were opened and thoroughly
searched. Inside one of the bags she discovered a document entitled "Final
Action" listing the patient as Hugh E. Gale. Mills turned this document over
to James A. Hearn of the Waterford Township police.
The next day, February 24, 1993, Mills met with Oakland County Prosecutor,
Richard Thompson, to discuss the document.
In the afternoon of February 24, 1993, Prosecutor Thompson called the
Macomb Prosecutor's Office and spoke with Joseph Cozzolino, the Chief
Assistant, advising Cozzolino that he was in possession of a document which
indicated that Hugh Gale had expressed doubts and second thoughts about taking
his own life. In the course of this conversation Prosecutor Thompson told
Cozzolino that the document was found by a neighbor who had rummaged through
Nicol's trash. Even though Lynn Mills was not identified by name, her identity
and status as a pro-life activist were not relevant legal facts for purposes of
securing a search warrant. It was important, as will be explained below, that
she was not a police officer or a person working at the direction of a police
officer, prosecutor, or other state official. Thompson did assure Cozzolino,
accurately, that the "neighbor" did not have any such state connection.
On the morning of February 25, an affidavit for search warrant for the
house of Neal Nicol and Dr. Jack Kevorkian prepared by the Oakland Prosecutor's
office was delivered to the Macomb Prosecutor's Office for review together with
a photocopy of the document found in Neal Nicol's trash. (This affidavit did
identify a "Lynn Mills" as the person who found the document.) Roseville Police
Department Officers met with Cozzolino, Eric Kaiser, Chief Trial Attorney, and
myself and were told to cooperate with the Oakland County Prosecutor's Office
and Oakland County police agencies in executing the search.
In the early evening hours of February 25, 1993, search warrants were
executed on the residences of Neal Nicol in Waterford Township and of Dr.
Kevorkian in Royal Oak. At Dr. Kevorkian's residence, the original of the
document, a copy of which had been found in Nicol's trash, was discovered. A
portion of the original was whited out and typed over with different details.
A copy of the revised document was found at Nicol's residence.
The first task in analyzing the document found in the trash and the
original of the document subsequently found at Dr. Kevorkian's residence was to
make a determination if either could be used as evidence over objections
raising the obvious privacy violations.
The first basis for accepting the document as evidence was that the United
States Supreme Court has ruled that trash is abandoned property in which the
owner has relinquished any reasonable expectation of privacy. Accordingly, a
warrantless search which turns up incriminating evidence may be used in a
subsequent criminal prosecution. See California v. Greenwood 486
US 35, 108 S Ct 1625, 100 L Ed 2d 30 (1988). The same result obtains applying
the Michigan Constitution. See People v. Thivierge, 174 Mich App
258, 435 NW 2d 446 (1988) and People v Pinnix, 174 Mich
App 445, 436 NW 2d 692 (1989).
The second basis for accepting the document is that the United States
Supreme Court has also held that the Fourth Amendment's prohibition against
unreasonable searches and seizures and the exclusionary rule which enforces
that prohibition are applicable only to the states and particular individuals
(police officers, prosecutors) acting as agents for the states. Private
persons, not acting on behalf of the state may conduct searches which might be
unconstitutional for state officials, and evidence found pursuant to such
searches, if truly not prompted by a state official, is admissible. See
United States v Jacobsen, 466 US 109, 104 S Ct 1652, 80 L
Ed 2d 85 (1984); People v Smith, 31 Mich App 366, 188 NW 2d 16
(1971); and People v Willey, 103 Mich App 405, 303 NW 2d 217
(1981).
On either of these two independent bases, therefore, the document satisfied
the requirements for use as evidence, provided that it could be authenticated
as a document created by Dr. Kevorkian.
The authenticity of the document was easily established. The signature
was determined by an expert handwriting analyst to be the signature of Dr.
Kevorkian. The typeface was determined to be consistent with the typewriter
characters on the typewriter found at Dr. Kevorkian's residence. Most
importantly, Neal Nicol, one of Dr. Kevorkian's assistants, testified
under oath that it was from Dr. Kevorkian that he received the photocopy which
was later thrown out in the trash and subsequently found by Lynn Mills.
There is no question, then, that the document is an authentic document
created by Dr. Kevorkian and usable in evidence to determine if criminal
charges should be filed against him.
LEGAL EFFECT OF THE DOCUMENT
The document bears a date of February 12, 1993, but there is no doubt
that it records the events of Hugh Gale's death on February 15, 1993. Neal
Nicol testified that the February 12th date was simply a mistake, and all other
circumstances clearly
corroborate that explanation.
The significance of the document is that in lines 12 through 15 of the 16
lines of type in the document, there is an indication that Hugh Gale requested
assistance in taking off the mask immediately before he lost consciousness.
The lines in question are contained in these sentences:
In about 30-35 seconds he again flushed, became agitated with moderate
hyperpnea; and immediately after saying "Take it Off!" once again, he fell into
unconsciousness. The mask was then left in place. Hyperpnea continued for
about 35-40 seconds, after which a slower and calmer breathing pattern ensued,
lasting about 8 minutes, gradually diminishing in rate and intensity.
Heartbeat was undetectable about 3 minutes after last breath.
The original of the document was photocopied and one of the photocopies was
given to Neal Nicol. According to Neal Nicol, he and Margo Janus advised Dr.
Kevorkian that the document inaccurately recorded the events of the death in
that the above-referenced request to "Take it off! once again" just prior to
Gale losing consciousness did not happen. Nicol stated under oath that after
he and Janus had told Dr. Kevorkian of this mistake, Dr. Kevorkian produced a
revised version which deleted any reference to a second request to take it (the
mask) off. Nicol identified a nearly identical 16-line document as the revised
version. The Michigan State Police Crime Laboratory confirms that the revised
version was created simply by applying white-out and typing over the four lines
which were said to be in error. The original wording, consistent with the
initial photocopy, is still readable underneath the white-out.
The question then becomes whether the original version, being.
Dr. Kevorkian's first impression of the events without the benefit or
hindrance of the later advice of his assistants, should be regarded as the
authoritative version of the death of Hugh Gale, and if it is regarded as the
authoritative version, does it record events that would constitute the crime of
manslaughter.
For the reasons described below it is my conclusion that the original
wording in the 4 lines of the document at issue were typewritten in error and
that Hugh Gale did not ask for assistance to take off the mask a second time.
I do wish to note, however, that it would have been my conclusion under
Michigan law that if Hugh Gale had asked for help in these circumstances and if
Dr. Kevorkian had refused to render assistance, a prosecution for manslaughter
could have been authorized. (4)
In this case it is my conclusion that I would not be able to prove to the
satisfaction of a jury beyond a reasonable doubt that Hugh Gale had made a
second request to remove the mask just prior to losing consciousness. In fact
the testimony of Cheryl Gale is persuasive that the following is a reliable
account of the events of that day:
(a) Hugh Gale desired to end his life by suicide because of the tremendous
physical and mental agony he was undergoing; he expressed his desire often, but
most pointedly during the Christmas season at the close of the 1992
year.
(b) Cheryl Gale was a devoted and loving wife whose abiding motivation was
to assist her husband to do what he wanted for himself. She would have strongly
resisted any attempt to do anything to him against his will.
(c) Cheryl Gale had nothing to gain from the death of Hugh Gale.
(d) Dr. Jack Kevorkian had nothing to gain from the death of Hugh Gale.
There was no fee for his services.
(e) Dr. Kevorkian questioned Hugh Gale extensively both before and on the
morning of February 15, 1993, about his desire and readiness to go through with
the suicide procedure. Hugh Gale wanted to proceed. Kevorkian even suggested
that Gale wait a few days since his breathing seemed less stressful on that
day. Gale absolutely insisted that the suicide should go forward
immediately.
(f) After the mask was applied Hugh Gale pulled the clamp that
had been attached to the tube leading to the mask.
(g) Hugh Gale did at one point say, "Take it off; take it off".
This was not an indication of doubt or hesitancy. Rather he was having
trouble breathing due to his lungs "locking up" consistent with his usual
symptoms of emphysema.
(h) Dr. Kevorkian inquired of Hugh Gale whether the procedure should be
postponed to another day. Gale insisted that he wanted to continue.
(i) After the mask was put in place a second time, Hugh Gale
again pulled off the clamp.
(j) Cheryl Gale stayed by Hugh Gale's side until he lost
consciousness. Hugh Gale did not say anything from the time that the mask was
put in place the second time until he lost consciousness.
The deposition of Neal Nicol is consistent in all material respects with
the deposition of Cheryl Gale. In the Nicol deposition there is more
exploration of the mechanical means of delivering the carbon monoxide from the
tank to the mask. This questioning was prompted by the fact that the physical
evidence found at the scene of Gale's death was not making sense when subjected
to scientific analysis. Specifically, the Michigan State Police Crime Lab
conducted tests showing that the tubing, if crimped and clamped to stop the
flow of gas, was immediately blown off the nozzle of the carbon monoxide tank
when the valve on the tank was turned on. This produced a question as to
whether Dr. Kevorkian or some other persons would have had to initiate the flow
of gas by turning the valve after the clamp was pulled off of the
crimped tubing. If such were the physical sequence of events, such actions
would constitute murder.
The deposition testimony of Nicol, however, describes a legally proper
sequence in which events occur in the following order: (1) the tubing is
crimped and cramped; (2) the mask is put in place; (3) the valve to start the
gas flow is turned on; and (4) Mr. Gale removes the clamp. For this sequence
to occur, there had to be an explanation why the tubing did not blow off the
nozzle prior to the clamp being removed.
Nicol offered an explanation by saying that a regulator had been used to
connect the carbon monoxide tank to the tubing. He explained that the
regulator was a device to modulate and reduce the pressure from the tank into
the tubing. With the regulator in place, according to Nicol, the tubing is not
blown off by the pressure of the gas.
Nicol further explained that the regulator was removed from the
tank prior to the arrival of the police because it is an expensive piece of
equipment and he did not want to have to buy another one if it were seized as
evidence. Nicol gave no satisfactory explanation as to why the tubing was then
connected directly to the tank to simulate a death scene that was not
accurate.
Pursuant to a request to produce the regulator for inspection and testing,
Geoffrey Fieger, the attorney for Nicol, agreed to produce it. Tests by the
Michigan State Police Crime Laboratory indicate that the plastic tube connected
to the nozzle of the regulator does fit into the plastic tube leading to the
mask. The additional pieces of plastic tubing which fit over the end of the
tubing leading to the mask are surplus pieces of plastic incapable of attaching
to anything.
A reasonable conclusion to be drawn from these extra pieces of useless
plastic is that there was an attempt, and, indeed a successful attempt, to
disguise the actual configuration of how the tubing attached to the tank. If a
crime had occurred, such a disguise or concealment of physical evidence would
constitute obstruction of justice. Further, as a matter of the law of
evidence, such disguise or concealment can be used as evidence -- in
conjunction with other evidence -- that a crime took place. The problem here
is that this evidence of disguise or concealment does not link up with any
other evidence. Accordingly, even though the physical evidence was altered,
the fact of its alteration is not in itself sufficient to lead to the
conclusion that there were improper motives or criminal activity.
There are additional lab findings. When the regulator is attached to a
similar tank and the gas is turned on, the regulator does reduce the gas flow
sufficiently to permit a crimped and clamped tube to remain in place without
being blown off. Further, tests on the regulator and the nozzle of the actual
tank found at the scene of Mr. Gale's death show that microspocic brass
shavings consistent with the brass threads of the regulator, are present on the
threaded nozzle of the tank. These tests tend to corroborate the deposition
testimony of Neal Nicol that the regulator was attached to the tank and did
serve its purpose in modulating the gas flow.
These crime lab tests, however, are incapable of establishing the physical
events with absolute certainty. For example, the regulator at some settings
does perform its function of reducing pressure sufficiently to permit the
crimped and clamped tubing to stay in place. At other settings, the tubing is
still blown off. Also, the brass shavings tend to establish that the regulator
was attached to the tank as Nicol testified; but the absolute certainty of this
conclusion is clouded by the fact that the company which produces the carbon
monoxide advises that the gas is fed into the tanks initially by means
of a brass coupling.
The ultimate conclusion is that the physical evidence raises some questions
which cannot fully be answered. For criminal law purposes, however, the test
is not whether there are some unanswered questions; the test is whether all of
the questions can be answered in a way that is consistent with guilt beyond a
reasonable doubt. Where evidence is capable of differing interpretations, and
where these interpretations are equally reasonable, the law requires that the
interpretation consistent with innocence be accepted. See People v
Crofoot, 254 Mich 167, 235 NW 883 (1931).
For the reasons stated above, no charges will be authorized.
Carl J. Marlinga
Prosecuting Attorney
Macomb County Court Building 40 N. Gratiot
Mt. Clemens, Michigan 48043
Phone: (313)469-5641
Dated: April 27, 1993
NOTES
(1) The right of an individual to take one's own life may
even be a constitutionally protected right. As far back as 1891 the United
States Supreme Court observed that "[n]o right is held more sacred, or is more
carefully guarded, by the common law, than the right of every individual to the
possession and control of his own person, free from all restraint or
interference of others, unless by clear and unquestionable authority of law."
Union Pacific Railroad Co. v Botsford, 141 US 250, 251 (1891).
Justice Cardozo while on the Court of Appeals of New York wrote: "Every
human being of adult years and sound mind has a right to determine what shall
be done with his own body..." Schloendorff v Society of New York
Hospital, 211 NY 125, 129-130, 150 NE 92, 93 (1914). In
Superintendent of Belchertown State School v Saikewicz, 373 Mass
728, 370 NE 2d 417 (1977), the court noted that "the state's interest in
preventing suicide [is] not threatened...where the patient's decision...was not
an act of irrational self-destruction but rather a rational choice because
death was imminent." In Bouvia v Superior Court, 225 Cal Rptr
297 (1986), the court concluded that "a desire to terminate someone's live is
probably the ultimate exercise of one's right to privacy." In the related area
of refusing medical treatment the United States Supreme Court has held that the
right to refuse treatment even includes the right to refuse food and water, the
court saying that "[f]or purposes of this case, it is assumed that a competent
person would have a constitutionally protected right to refuse lifesaving
hydration and nutrition". Cruzan v Director, Missouri Department of
Health, 110 S Ct 2841, 2843 (1990). On the other hand, the
involvement of another person in the exercise of an individual's choice to die
may be a sufficient factual difference that allows the state some right to
intervene at least to the extent of assuring that the choice is voluntary.
University of Michigan Law School Professor Yale Kamisar has argued that
permitting some assisted suicides may lead to the killing of patients who want
to live. Kamisar, Some Non-Religious Views Against
Proposed "Mercy-Killing" Legislation, 42 Minn L Rev 969, 1030-41
(1958). Care must also be exercised to assure that the state never be granted
the power to determine what is best for the individual since the power to force
someone to remain alive comes dangerously close to implying the power to
determine when a life is no longer worth living. The right to die must never
be transformed into a duty to die. See Longmore, Elizabeth Bouvia,
Assisted Suicide and Social Prejudice 3 Issues in Law and Medicine 141,
158-59 (1987).
(2) It is the duty of the prosecuting attorney to investigate all
allegations of criminal activity. In doing so the prosecutor is to act as an
impartial arbiter of justice. It is the task of the prosecutor to assure that
the guilty are convicted, the innocent are set free, and the constitutional
rights of all are protected in the process. When a prosecutor undertakes an
investigation, there should be no pre-ordained result in mind; rather the
prosecutor must persist in gathering the facts and come to a charging decision
solely on the basis of where those facts lead. In the comments to Rule 3.8 of
the Michigan Rules of Professional Conduct the following is stated:
A prosecutor has the responsibility of a minister of justice. This
responsibility carries with it specific obligations to see that the defendant
is accorded procedural justice and that guilt is decided upon the basis of
sufficient evidence.
In People v Brocato, 17 Mich App 277, 169 NW 2d 483 (1969),
the Court of Appeals said (17 Mich App 277, 290-291):
It is the duty of the prosecutor to see that the defendant has a fair trial
and to protect the interest of the people, who are as concerned with protecting
the innocent as with convicting the guilty, People v Evans (1988), 72 Mich 367.
In this sense a prosecuting attorney stands in a different position than
private counsel.
The decision to bring charges or not to bring charges is exclusively the
function of the prosecuting attorney. In People v Matulouis, 60
Mich App 143, 230 NW 2d 347 (1975), the Court of Appeals held (60 Mich
App 143, 149):
As the chief law enforcement officer in the county, the prosecuting
attorney, not the police nor the court, decides the initial charge.
(3) Normally, a person has no duty to save another person from danger. In
People v Beardsley, 150 Mich 206, 113 NW 1128 (1907), the
Michigan Supreme Court reversed the manslaughter conviction of a man who
refused to aid a girlfriend who had overdosed on morphine at his home. The
court quoted the following with approval from United States v
Knowles, 4 Sawyer (U.S.) 517, which was a case in which a ship's master
was charged with murder (but whose conviction was reversed) for omitting any
effort to rescue a sailor who had fallen overboard:
In the absence of such obligations, it is undoubtedly the moral duty of
every person to extend to others assistance when in danger;...and if such
efforts should be omitted by any one when they could be made without
imperilling his own life, he would, by his conduct, draw upon himself the just
censure and reproach of good men; but this is the only punishment to which he
would be subjected by society.
People v Beardsley goes on to say, however, that manslaughter
may be the proper charge if one voluntarily assumes a duty of care towards
another person and thereafter breaches that duty (150 Mich 206 at 210). The
dispositive question, therefore, is what if any duty did Dr. Kevorkian
voluntarily assume with regard to Hugh Gale.
(4) I would have argued that the public statements of Dr. Kevorkian coupled
with the private representations to Hugh Gale that the offered suicide
assistance was intended to carry out the will of the patient, created an
expectation on the part of the patient, Mr. Gale, that he would be assisted in
effectuating his choice -- whether that choice was to end his life or to go on
living -- and that this expectation fostered by Dr. Kevorkian created the duty
to assist in aborting the procedure if that were Mr. Gale's wish. The
remaining analysis would be identical to the comments found in Criminal Jury
Instructions CJI 2d 16.10 p.16-30:
Omission to Perform Legal Duty
People v Ryczek, 224 Mich 106, 194 NW 609 (1923), lists as a
third type of involuntary manslaughter a negligent failure to perform a legal
duty causing death. The duty neglected must be legal and not a mere moral
obligation. It must be an obligation imposed by law or contract. People
v Beardsley, 150 Mich 206, 209, 113 NW 1128 (1907) (defendant
had no legal duty to aid girlfriend who had overdosed on morphine at his home).
Given the existence of the duty, the question then becomes whether neglect of
it constitutes gross negligence. Wayne County Prosecutor v Recorders
Court Judge, 117 Mich App 442, 324 NW2d 43 (1982); People v
Ogg, 26 March App 372, 182 NW2d 570 (1970). If so, the remaining
inquiry is whether such grossly negligent failure to perform a legal duty was
the "immediate and direct cause of death." Beardsley, 150 Mich at
209.
In People v Giddings, 169 Mich App 631, 634-635, 426 NW2d 732
(1988), the court summarized the elements as follows:
To support a bindover on involuntarv manslaughter based on defendants'
omission to perform a duty, the prosecutor was required to submit evidence
indicating the existence of a legal duty, defendants' knowledge of the duty,
that defendants willfully neglected or refused to perform said duty, that such
failure was grossly negligent of human life, and that death was caused by
defendants' failure to perform their duty.
Because of my factual determination that no request for assistance was made
by Mr. Gale, it will not be necessary to test the above analysis in
court.
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