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Murder or mercy?
By SYDNEY P. FREEDBERG © St. Petersburg Times, published January 31, 1999 If you read the law, you'd think Palm Beach prosecutors had Elaine McIlroy dead to right on a manslaughter charge. For one thing, she knew exactly what she was doing when she helped her 75-year-old husband, Richard, commit suicide. For another, the retired nurse confessed three times to three different law officers, each time with the same cut-and-dried facts: On Christmas Eve 1997, Mrs. McIlroy, 71, broke open some red capsules of Seconal, mixed the bitter-tasting powder with chocolate ice cream and handed the bowl to her husband, a retired psychiatrist suffering from leukemia. He choked it down and died about two hours later. She said she did it out of mercy, not malice. But in Florida the law is clear: "Assisting self-murder" -- even out of love and at the victim's request -- is manslaughter, punishable by up to 15 years in prison. Elaine McIlroy never even had to go to court, however. State Attorney Barry Krischer dropped the case last month, saying the confession wasn't proof enough. "She's everybody's favorite aunt," her lawyer, Richard Springer, explained. "Why would anybody want to take this sweet lady on?" Across the country, the criminal justice system can't -- or won't -- put away mercy-killing suspects like Elaine McIlroy. Citing lack of evidence, uncooperative family members and juries' reluctance to convict defendants, law-enforcement authorities often close the books on such cases without prosecution. Medical examiners often don't get the bodies, and when they do, mercy killings can be hard to detect. Police officers generally give the cases low priority. Prosecutors, left balancing the rights of individuals against the demands of the law, press charges only sporadically. And in the rare instances when mercy killers go to court, sympathetic judges often back plea agreements, letting defendants go with a slap on the wrist. The bottom line, according to interviews and a St. Petersburg Times' review of 24 recent cases around the country: The law on the books differs radically from the law in action. It's a "perfect example" of how the law is out of touch with society, said M. Shawn Askinosie, a Missouri defense lawyer. He represented a man who helped his 76-year-old mother, a disabled, former kindergarten teacher, commit suicide. She used sleeping pills, alcohol and a plastic bag held in place by rubber bands. In 1996, prosecutors dropped a manslaughter charge without explanation. The special treatment of mercy killers is rekindling the nation's smoldering debate over assisted suicide. In 1997, the U.S. Supreme Court upheld laws banning assisted suicide. Last year, the Florida Supreme Court ruled in the case of Charles Hall, an AIDS patient from Citrus County, that the state Constitution does not give dying people the right to kill themselves with their doctors' help. To supporters of assisted suicide, the national debate points to the need for new state laws distinguishing crimes of mercy from crimes of malice. Some favor a special manslaughter category requiring reduced sentences for defendants who plead guilty to "compassionate homicide." But opponents say weaker laws would provide an easy out to family members who want to rid themselves of burdensome relatives or state officials eager to eliminate patients without health-care coverage. Either way, mercy killings seem to be happening with growing frequency, and authorities predict even more enforcement problems as baby boomers age and advances in medical technology keep people alive longer. "The trend is that prosecutors don't want to handle these cases," said John Young, an assistant district attorney in Jefferson Parish, La. In 1997, he won a rare second-degree murder conviction and life prison term for a 61-year-old man who claimed he shot his bedridden father to end his suffering. "I worry we're slowly expanding the boundaries of what is an acceptable killing." Nowhere is law enforcement's dilemma bigger than in Michigan, where Jack Kevorkian has beaten four homicide charges since 1990. In the latest case, he faces a first-degree murder trial for injecting a disabled man with a muscle relaxant on 60 Minutes. Then he allegedly used potassium chloride to stop the man's heart. Into the headlinesThe scales of justice probably have always tilted in favor of mercy killers, but legal historians cite two cases that forced the issue into sharper focus Remember Karen Ann Quinlan? She was the pretty young woman from New Jersey who fell into a coma in April 1975 after overdosing on Quaaludes and alcohol at a birthday party. She was kept alive on a respirator. Although not officially brain dead, she was in a vegetative state. Her parents wanted to remove the respirator. The hospital refused. After Karen's parents finally won a court battle, the ventilator was cut, but Karen didn't die as expected. She breathed on her own, fed through a nasogastric tube, until she died of pneumonia in 1985. That same year, a Broward County case propelled mercy killing into the headlines: Roswell Gilbert, 75, a retired engineer, shot his mentally confused wife, Emily, 73, twice in the back of the head. His defense: He killed his wife of 51 years rather than watch her suffer from osteoporosis and Alzheimer's disease. When a jury convicted Gilbert of first-degree murder, many people gasped in disbelief. After the judge sent Gilbert to prison for life, jurors said they followed the law but thought the law was wrong. Then-Gov. Bob Martinez pardoned him in 1990 after receiving an avalanche of letters. The frail ex-con died in his sleep four years later. He was 85. Medical examiners: Hard to detect * * *If Roswell Gilbert hadn't used a gun, he might never have been arrested. "If you're going to kill grandma because she has Alzheimer's disease, do it with drugs, because no one is ever going to find out," said Benjamin Dobrin, an assistant professor of health and human services at Virginia Wesleyan College. He worries about back-alley homicides or assisted suicides going on all over the country under a veil of family secrecy. Cecil McIver, a doctor in Jupiter, said he knows of at least 10 unreported assisted suicides -- whether by a doctor who injected a fatal drug dose or a spouse who provided the medication. Even though homicide laws don't distinguish between slipping Seconal into the ice cream and putting a bullet in someone's head, medical examiners acknowledge that drug overdoses can escape detection. That's because the law doesn't require an autopsy if a person dies at home and the death looks natural. "It's scary," said Charles Siebert, an associate examiner in Palm Beach County. "But that's the way people get around the system." Joan Wood, Pinellas-Pasco's chief medical examiner, remembers deaths originally reported as suicides that turned out to be homicides. In one case, an elderly man said his wife killed herself with a pink plastic bag, but police became suspicious because of the pink coloring on her face. An autopsy revealed the woman was so forcefully smothered with the bag that her dentures came loose, bruising her palate. "Whether or not this woman wished to die," Wood said, "she fought back as she began to lose consciousness." But pathologists on the front lines of assisted-suicide investigations caution that a variety of problems frustrate their ability to bring such crimes to light. Reason No. 1: Family members won't cooperate and are often accomplices in the act. Reason No. 2: Medical examiners can't even agree on how to define assisted suicide. A recent study by Larry Bedore, operations director at the Pinellas medical examiner's office, revealed that Florida's 23 pathologists are split over whether such deaths should be classified as suicides or homicides. Police: not a priorityAt police agencies, where resources are limited and street-crime problems are pressing, mercy killings usually don't get high priority "Not nearly so much investigation goes into those cases" as other homicides, said Chris Morrell, the chief of police in Hinesburg, Vt. And with good reason, he added. "With this type of incident, the homicide laws become so complex and unwieldy, they're unworkable." Morrell's former neighbor, retired librarian Jane Hearn, 64, confessed in 1997 to fatally shooting her sickly and depressed husband, Jack, 69. One of her sons found her standing over the body in the couple's log home north of Albany, N.Y. A modern-day Romeo and Juliet story, Morrell called it, adding, "Some of these people don't belong in jail." That's what Sarasota sheriff's deputies thought after questioning Henri Brod, a soft-spoken, 74-year-old psychologist now living near Daytona Beach. Twelve years ago, he helped his cancer-stricken wife, Li, commit suicide. He told her how to get barbiturates in small doses from two doctors by saying she couldn't sleep. Then one night in March 1987, after the couple returned home from a ballet by Rudolph Nureyev, Mrs. Brod, 61, ate raspberry Jell-O laced with Seconal powder. After washing it down with bourbon, she fell asleep in his arms. "It was easy and it was beautiful," Brod said, weeping. "The deputies who fingerprinted and interrogated me were very delicate and kind. After I told them what happened, I never heard from them again." Police officers also went easy on the Rev. George Exoo, a West Virginia chaplain, when he reported the 1996 suicide of his friend, Lorraine Orr, in Sarasota. The morning she died, Orr, 79, told a Sarasota Herald-Tribune columnist she planned to kill herself. She had suffered two strokes and feared a third would leave her "paralyzed and stupid." She said Exoo, a Unitarian-Universalist minister, would be present but "won't be helping." That afternoon, Exoo called the newspaper to say it was over. He told a detective he read the 23rd Psalm aloud as Orr fell asleep with a plastic bag over her head. Exoo said he didn't prepare the drug-and-apple sauce mixture she ate or do anything else to cause her death. But he says he has played a more direct role in other suicides. In a recent interview with the Times, the self-proclaimed "local Jack Kevorkian" said he has assisted in 24 deaths. He prefers to say he "guided them through self-deliverance." "We tell people we guarantee success," he said, adding that he has put plastic bags over the heads of people very near death. "In most cases, with very few exceptions, there's no motion whatsoever," he said. "And then we remove the bag and throw it away. . . . It's simply reported that the person died in his sleep. . . . He has cancer and was terminal anyway." The Sarasota County Sheriff's Office concluded there was no probable cause to arrest the Rev. Exoo. Once in a while, however, authorities conclude that people of evil intent commit murder and try to make it appear to be assisted suicide. In Jefferson Parish, La.,, detectives uncovered evidence that the motive in the 1997 death of 90-pound, 90-year-old Joseph Rodriguez was money, not mercy. He suffered from Alzheimer's disease and severe arthritis, and his caregiver, son David, 60, said he shot him twice with a pistol to end his suffering. The elder Rodriquez also had a $300,000 estate, said Young, the prosecutor who got a life sentence for the killer. "And the guy just got tired of taking care of his father." Prosecutors: a balancing act"The safest thing for a prosecutor to say in these cases is that there's not enough evidence," said Yale Kamisar, a University of Michigan law professor who studies mercy killings. "Let's face it: They don't make points and get great images as crusading DAs. Their dilemma: "On the one hand, you're sworn to uphold the law," said Virginia Beach Commonwealth's Attorney Robert J. Humphreys. "On the other, you're an elected official and you have to be guided by the community." In 1997, Humphreys refused to charge a 67-year-old registered nurse, Florencetta Bassett, with murder for fatally shooting her husband, an Alzheimer's sufferer she had long cared for. Caught in a balancing act, Humphreys instead filed a voluntary manslaughter charge and eventually went along with a deal: In exchange for a guilty plea, the ex-nurse got a 10-year probation, with no jail time. "She didn't get away with murder," Humphreys said. "She's a little old lady who's pathetic. Should we put her in the penitentiary? Is that in the interests of the taxpayers? She's not a threat to public safety." Mercy-killing defendants can arouse sympathy from judges as well. After a jury in 1997 acquitted a Sebring physician, Ernesto Pinzon-Reyes, of injecting a dying cancer patient with a fatal dose of drugs, Circuit Judge Robert Pyle attended the defendant's victory party. There are, of course, judges and prosecutors who worry about giving virtual carte blanche in mercy-killing cases. "I am simply not prepared to tell all of the people of the county who have family members who are ill and depressed and weary of living that it is permissible to kill them," Saratoga County (N.Y.) Judge Jerry J. Scarano Jr. said at the 1997 sentencing for Jane Hearn, the retired librarian who shot her husband. Overruling a more lenient recommendation from prosecutors, Judge Scarano sentenced Hearn to one to four years in state prison. The manslaughter charge carried a maximum term of five to 15 years. Hearn was freed after a minimum 11/2 years. "It was one of the most difficult cases morally I ever had to wrestle with," said Assistant District Attorney James Murphy. "We had a lot of sleepless nights." Ready to dieIn Palm Beach, prosecutors wrestled with the case for a year before deciding not to prosecute Elaine McIlroy, the former nurse who helped her ailing husband prepare the bowl of Seconal-laced chocolate ice cream State Attorney Krischer said his decision not to charge Mrs. McIlroy was "purely legal" and had nothing to do with politics. "Outside of her confession," he said, "there was no evidence of a crime. No witnesses, nothing." The only reason her husband's body came to prosecutors' attention to begin with was because the evidence fell right into their lap. Two hours and 10 minutes after Dr. McIlroy ate the ice cream, Mrs. McIlroy called the funeral home to pick up his body. The mortician refused because no local doctor was around to sign the death certificate. When the funeral home told her to dial 911, she did. In her taped statement, Mrs. McIlroy recounted to Detective Thomas Becksfort how she and her husband both had cancer. Years before, they had decided to commit suicide if things got too bad. They began stockpiling barbiturates, she said, and on Christmas Eve day her husband told her he was ready to die. Dr. McIlroy, who was in pain from the "horrific complications" of chemotherapy, first washed down about 10 Seconals with a martini, she said. That made him throw up, so he tried sprinkling powder from the gel capsules into the ice cream. Finally, when his palsied fingers could no longer break open the capsules, Mrs. McIlroy said she did it. After getting her side of the story, however, Detective Becksfort came up against a stone wall. First, officers found a note from Dr. McIlroy, dated the day before, saying "no one helped me arrive at this decision." Then, Dr. Siebert, who did the autopsy, ruled the death a suicide, not a homicide. "Mrs. McIlroy clearly helped her husband," Siebert concluded, "but Dr. McIlroy ate the ice cream on his own." Complicating things further, prosecutors lost a court battle to subpoena Dr. McIlroy's medical records. They would have shown whether he really had a terminal illness. And the doctor's three daughters stood together with their stepmother and refused to talk to the police. "If the family isn't united and some relative makes an issue of it, it makes it harder for the prosecutor not to proceed," said Springer, Mrs. McIlroy's lawyer. Krischer cautioned against reading his decision as a green light to right-to-die activists. He vowed to review any new evidence that comes his way. As for Mrs. McIlroy, she has moved to Tampa. Last week, she wouldn't open the door to a Times reporter. "I've had a year of suffering with that situation,"she said. "I'm trying to put it behind me." "She was stunned by the publicity," Detective Becksfort added. "She'd wanted her husband to have a private, peaceful death. It all blew up in her face. It took the dignity out of dying."
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