The Kevorkian Verdict

MEMORANDUM REGARDING INVESTIGATION INTO THE DEATH OF HUGH GALE


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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