OPINION: Civil disobedience over a bad law were at core of Jack Kevorkian's assisted suicides

Dr. Kevorkian's conduct over more than a decade amounted to what was a clear case of classic civil disobedience. This is so because he acted openly and at great risk to himself, without personal gain, in a morally creditable way, in an attempt to change what he and others saw as ethically indefensible law -- that which criminalized assisted suicide. But the doctor was (eventually) convicted and the judge in the case handed down the maximum sentence, hardly in the tradition of lenience for civil disobedience.

Worse than this, the conviction was obtained only by hiding the full story from the jury. The prosecutor clearly feared that a fully informed jury would apprehend the tragic, human aspects of the case, realize that Kevorkian’s "crimes" involved no victim, and acquit. Two previous juries had done exactly that, so this prosecutor took no chances. Even though the most obvious charge was that of assisting a suicide, the prosecutor dropped that one. The judge had ruled that Kevorkian could counter indictments for assisting suicide by placing his actions in context for the jury. Thus, the jury would learn the whole story and likely acquit on the murder and delivery charges as well.

So there were two principled courses available to the prosecutor. If he was the stripe of man who believed that "the law is the law," he should have pursued every charge he thought Kevorkian guilty of and let the verdicts fall where they may. If, instead, he believed in prosecutorial discretion, he should have used it to drop all charges because, as his maneuverings reveal, he knew that he could not obtain a conviction from a jury in full possession of the facts.

Bent on conviction, however, the prosecutor eschewed both honorable courses. He dropped the assisted suicide charge as his only means of keeping the jury in the dark, thus creating the factual vacuum in which he had some hope of prevailing on the other charges.

The judge’s dispassion is also in question. Her harangue at sentencing was gratuitous and self-stultified by at least two non sequiturs. She reasoned that the defeat of a contemporaneous assisted suicide ballot initiative proved that the public wanted Kevorkian "stopped." How do we know that the public didn't reject the measure because it promised an ungodly bureaucratic monstrosity? Kevorkian himself urged it defeat on those grounds. Or perhaps the public was misled by months of disingenuous advertising implying a better solution from people with no intention of offering an alternative.

In any case, the only direct evidence we have suggests that people did support the doctor, when faced with the sometimes awful facts of real life. Jury nullification in previous trials twice set Kevorkian free even though he was clearly guilty of assisting suicides. The judge’s other error was her contention that Kevorkian’s flouting of the law and challenge to the authorities warranted a severe sentence. On the contrary, his principled campaign of civil disobedience (the "challenging" is partly what makes it civil disobedience) earned him leniency. Furthermore, this case involved compassion for suffering, no victim and a tainted verdict. For the judge to pretend that these were not mitigating factors justifying a light sentence was farcical.

The trial had the worst possible outcome: a technically correct, letter-of-the-law verdict, arguably unjust and topped by a vindictive sentence. Ultimately, the basis for the notion of civil disobedience is the possibility that sometimes the law is an ass, and this prosecution proved it.

Will Warner lives in Lodi Township. He can be reached at warnerwm@aol.com.