In the Michigan Court of Appeals: People vs. Jack Kevorkian *.

• Author: Bostrom, Barry A.

HELD: There is no right to euthanasia within the constitutional right of privacy. Recognition of such a right to euthanasia would impermissibly expand the right of privacy and thus place the issue outside the arenas of public debate and legislative action. Such a holding would also involve the judiciary in deciding questions that are simply beyond its capacity. There is no principled basis for the court to legalize euthanasia.

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A jury convicted Jack Kevorkian of second-degree murder and delivering a controlled substance. The trial court sentenced him to concurrent prison terms of ten to twenty-five years for the murder conviction and seven years for the controlled substance conviction. Defendant appealed of right and the Michigan Court of Appeals affirms.

This case arose from the death of Thomas Youk in September, 1998. Youk was 52 years old and had amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig's disease. Kevorkian twice videotaped himself interacting with Youk. In the first videotape, Kevorkian went to Youk's home to discuss his condition. In the second videotape, Kevorkian administered a lethal drug to Youk. Defendant later was a guest on the television news show 60 Minutes, during which segments from both videotapes were shown. The jury saw the videotapes and the 60 Minutes interview at defendant's trial. Kevorkian attempted to persuade the jury not to convict him because the murder he was charged with committing was, in his view, a "mercy killing."

Kevorkian asked the Court of Appeals to find euthanasia legal and, therefore, to reverse his conviction on constitutional grounds. He also argued that (1) his trial attorney did not provide him with his constitutional right to effective representation; (2) the prosecutor improperly referred to Kevorkian's decision to remain silent, denying his rights under the Fifth Amendment; and (3) the trial court erred in excluding the testimony of Terrence and Melody Youk as res gestae witnesses.

Euthanasia and the Constitution

On appeal, Kevorkian made two related, but separate, constitutional arguments. First, he argued that the unenumerated rights protected by the Ninth Amendment and its Michigan constitutional counterpart include a patient's right to be free from unbearable pain and suffering. Second, he maintained that the Fourteenth Amendment and its Michigan constitutional counterpart also include this right by proscribing state deprivation of liberty without due process of law either under constitutional privacy concepts or as a "necessary and direct corollary of this position ... that a person should not be forced to suffer unbearably." Kevorkian contended that he was entitled to have his murder conviction reversed and no further criminal proceedings instituted against him for "aiding in Thomas Youk's assertion of his constitutional right to be free from intolerable pain and suffering."

Generally, a trial court's decision to grant or deny a motion to dismiss charges is reviewed for an abuse of discretion. But the proper standard of review for core constitutional questions that underlie the trial court's ruling on Kevorkian's motion to dismiss the charges is review de novo.

The Ninth Amendment to the United States Constitution states, in relevant part, that "[t]he enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Similarly, the Michigan Constitution states, in relevant part, that "[t]he enumeration in this constitution of certain rights shall not be construed to deny or disparage others retained by the people."

The Fourteenth Amendment to the United States Constitution states, in relevant part, that no state shall "deprive any person of life, liberty, or property, without due process of law." Similarly, the Michigan Constitution states, in relevant part, that "[n]o person shall be ... deprived of life, liberty, or property without due process of law."

The Nature of Defendant's Arguments

The Court of Appeals begins by setting out the constitutional arguments that Kevorkian did not raise as the best way to understand the nature of his constitutional claims. First, Kevorkian did not ask the court to hold that he acted properly in furtherance of the right to refuse life-sustaining treatment. In Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 279 n.7 (1990), the United States Supreme Court "assume[d] that the United States Constitution would grant...