Appeal not likely to delay murder trial

Kevorkian filed the emergency appeal Friday with the Michigan Court of Appeals, asking for a dismissal of a first-degree murder count. The appeal came just hours after prosecutors dropped the assisted suicide charge against him in the Sept. 17 death of Thomas Youk.

Youk, of Oakland County's Waterford Township, was suffering from Lou Gehrig's disease. His death was videotaped and later shown on CBS' "60 Minutes."

The appeal, which Kevorkian attorney David Gorosh said his client wrote and filed himself, also asks the appellate court to delay the trial, scheduled to begin March 22.

"I would be surprised if the trial is delayed," Larry Dubin, a University of Detroit Mercy law professor, told the Detroit Free Press.

"It seems to me likely that the Michigan Court of Appeals would rather hear Dr. Kevorkian's constitutional arguments as part of an appeal if he is convicted."

The Oakland County prosecutor's office filed its response yesterday.

"Kevorkian is contending that the Ninth Amendment to the U.S. Constitution allows him to practice assisted suicide or euthanasia," said Daniel Lemisch, chief of the prosecutor's appellate division. "Our response is that there's no constitutional right to commit murder or deliver drugs."

John O'Brien, chief assistant prosecutor for Oakland County, said he doubted the appeal would delay the trial.

"My sense is they'll tell him this is an issue that can be heard after the trial," he said. "It's premature at this point."

Past Kevorkian appeals in assisted-suicide cases have raised privacy and right-to-die issues under the 14th Amendment to the U.S. Constitution, Dubin said.

The appeal Kevorkian filed Friday raises a Ninth Amendment issue that hasn't been ruled on before, Dubin said.

The Ninth Amendment states that rights not otherwise addressed by the Constitution are reserved for the people. Kevorkian contends that forbids the government from forcing someone in severe pain to continue to suffer.

Last week, Oakland Circuit Judge Jessica Cooper ruled that testimony on Youk's pain, suffering and emotional state would be allowed on the assisted-suicide charge, but not on the murder charge.

Prosecutors then dropped the assisted-suicide charge to keep emotional testimony from reaching the ears of jurors.

Defense attorneys this week are expected to ask that Ms. Cooper allow such testimony on the murder charge, Gorosh said.

The court will probably decide in the next several days whether to hear it, Gorosh said.

If convicted of first-degree murder, Kevorkian would spend the rest of his life in prison.

The retired pathologist is also charged with delivering a controlled substance for allegedly administering drugs without a medical license.

That charge would carry a seven-year sentence with a conviction.

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