Jan
13

Prosecuting An Act Of Kindness

It seems paradoxical to suggest that we need to fight for the right to die. We owe nature a death. Most of us spend the better part of our lives trying to avoid the inevitable; we want to extend this business of living for as long as possible. We do all this without ever pausing to think we need to petition the state for the right to carry on.

But come horrible illness, hopeless suffering, unremitting pain, life can become a burden. A decent regard for human autonomy ought to respect the right of those struggling with terminal conditions to take their exit without the permission of the state. But the state, somehow, has managed to slip its sterile hand beneath the sheets of our sick bed. It seeks to hold us here, even against our will.

You see, we have no right to die.

Ask Bruce Brodigan of West Hartford, Connecticut. He has been accused of manslaughter for helping his father die.

Bruce’s father, George, suffered from Alzheimer’s disease. The once prominent attorney was living in a twilight, the borders of the known world shrinking. In August and September, George’s condition deteriorated rapidly. He had a choice to make: See it through to the end, losing sight of all the landmarks he had associated with his dignity and becoming, in the end, the appendage of machinery. Or he could say farewell, quietly and on his own terms.

George chose his own farewell. His son gave him antidepressants that had been prescribed for the son’s use. The father swallowed them, and then chased the pills with rum. Bruce urged his father to write a suicide note, then prepared him bread and butter to help keep the poisons down and settle George’s stomach. All these were steps the duo had read about in Derek Humphrey’s Final Exit.

I read about this death and hope that one of my son’s, or my daughter, will be as good, as kind, and as helpful when my time comes. But I love my children; seeing them prosecuted as criminals for simple acts of kindness is distressing.

Connecticut does not recognize a right to die, But even in states that recognize such a right, the suicide of George Brodigan would be unlawful. That’s because a person suffering from late-stage Alzheimer’s is not regarded as competent to make such a decision. Before they become incompetent, their disease is not of the sort that is likely to kill them within six months.

The state does not give life. It ought not to take it. And it ought not to insist that we can only leave life on the terms and conditions that suit it. Yes, the law holds that there is a justified presumption in favor of life. But the point, one notorious suicide, Socrates, once said, is not to live, but to live well. There are times in which death is a rational decision. On those occasions, the state ought to stand down.

I am a reluctant fan of jury nullification. But when prosecutors lack the fundamental human decency and sense to avoid bringing charges simply because they can do so, there needs to be some sort of means by which justice can be done. It simply doesn’t make sense to permit prosecutors carte blanche authority to bring charges and then deny both judge and jury the right to say that although the law is technically on point, it is nonetheless unjust.

Our penal codes evolve, seeming to become ever more complicated, and embracing more and more conduct. The result is a world in which all of us are potentially criminals at one point or another. Giving prosecutors the discretion to make a criminal out of just about anyone is terrifying.

The prosecution of Bruce Brodigan for coming to his father’s aid is a case in which I embrace nullification wholeheartedly. Prosecuting a son for a final act of kindness to a man on the cusp of death is obscene. The jury in his case should look the prosecutor in the eye and say two things: First, "Not Guilt; then, "Shame on you."

Reprinted courtesy of the Connecticut Law Tribune.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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