The trial of Dr. Jack Kevorkian, his fourth for assisting in suicides, frequently resembles an existentialist play in which two sets of the most important characters never actually appear.
The most central figures, of course, cannot. They are the patients, Marjorie Wantz and Sherry Miller, who died side by side on two cots in a rustic cabin nearly five years ago.What has made the trial so distinctly unusual, however, is that it resulted not from any statute but from a decision by the Michigan Supreme Court, and that it is being waged concurrently in a courtroom in Pontiac and before an appeals court far removed from the judge, the lawyers and the jury.
Since the trial began a month ago, the prosecution has appealed at least 10 rulings by the presiding judge, David Breck of Oakland County Circuit Court. And in nearly every instance a three-judge panel of the Michigan Court of Appeals has reversed him.
On one occasion, when the prosecutors were not satisfied with the appellate court's ruling on jury instructions, they successfully appealed further, to the state Supreme Court.
On Friday alone, the prosecution appealed two of Breck's rulings. He had allowed the defense to show a videotape of Wantz and Miller meeting with Kevorkian the night before they died and had refused to allow the prosecution to show a 1991 Australian television interview in which the suicide-assistance crusader, speaking metaphorically, said of the severely ill people who seek his help, "I'm loading the bullets and handing them the gun."
Within hours, and without comment, the appeals court reversed the judge on both matters, not waiting for a transcript of the trial proceedings or for the defense to file a response to the prosecution's appeal.
The appellate judges directed Breck to tell the jury not to consider the defense video, which had been intended to demonstrate the two patients' feeble condition and the fact that the decision to die had been theirs alone.
Intervention by Michigan appeals judges during a trial is extremely rare, and the number of interventions in this trial all but unheard of. Asked whether he could recall a precedent for even one, Lawrence Bunting, the chief prosecutor in the Kevorkian case, could cite only previous Kevorkian trials and a 1980 murder trial.
Breck in 1992 ruled that the Wantz-Miller deaths were suicides, dismissing murder charges against Kevorkian. Breck said in court on Friday that he was baffled by the latest decision of the appeals court. He offered to delay the trial to allow the defense time to appeal, but Kevorkian's chief lawyer, Geoffrey Fieger, declined, saying bitterly, "Why bother?"
The trial, Fieger said, is being directed by the higher courts of Michigan "to a degree unprecedented in the history of this state and perhaps the country."
In his three earlier trials, all of which led to acquittal, Kevorkian was charged under a state law that specifically prohibited suicide assistance. That law has since expired, but the state Supreme Court ruled in December 1994 that such assistance could be prosecuted as a common-law felony carrying a maximum sentence of five years in prison.
The decision meant that despite Breck's dismissal of murder charges two years earlier, a prosecution of the same case could proceed.
Notwithstanding the series of setbacks he has encountered at the appeals court, Fieger said Saturday that "we still hope to win," in large part because of the testimony of Mrs. Wantz and Mrs. Miller themselves, in letters and videotapes that the defense has succeeded in introducing.