Juris Magazine- March, 1970

Juris DUQUBSNE UNIVERSITY, PITTSBURGH, PA.

Duquesne Law School Newsmagazine M....,b. 1910 Vol. 3, Mo. 3

Mercy Killings -Pll':l:' 8.

Page Two

Juris

EDITORIALS

DUQ uesne University

law School Newsmagazine 600 Forbes ,Avenue, Pittsburgh. Pa, 15219

Edltor-in-C hief ROBERT W. GOEHRING

Society and The

Takin~

of Life ...

• ..lIn_ Mana....

Fattwe Edttor FRANK SMI ZIK

ALBERT MAIl'. R

THE AR'I1CLES on capital punishment and euthanasia (mercy killing) which appear in this issue of JURIS present one of the most complex moral and legal questions confronting man and his society - that is whether or not a society should author1ze a taking of a human life. The article on capital punishment argues that the death penalty should be abolished as it is cruel and unusual punishment prohibited by the Constitution. On the other hand, the article on euthanasia adVocates the legalization of mercy killings under certain conditions because it is the most humane approach to the problem.

Can the same logic be used to Justify two different conclusions? Is the basic question in each situation the same?

Alumni Editor STEPHEN GOLDRING Gnphlc Arts Edlto~ HARVEY EGER

Circulation M."ater ANTHONY POPECK

Newt Editor JOHN HOVAN

Ad""'.,. M .....

RICHARD CHAMPNEY COIThPeltMUn!! Editor MATTHEW VON STAUOACH

The problems involved are indeed difficult, but they can be dealt with ;If they are faced directly. However society has chosen to ignore them.

SOCiety keeps sentencing men to death while not executing them. Every branch of government and every segment of society waits for the other

Staff Memb .....,

ELMER BEATTY, CLAUDE CARSON, FRANK COLUNS, JOSEPH HOPPER. ROBERT JOSEPH, STEVE MARCINCIN. DAN PELLEGARINI, E. KEARS POLLOCK, BRIAN T. STANNY, AND ROBERT WAEGER.

to take action and make a decision. The problems connected with mercy ltlllings have had a simUar fate. They have been subjected to the "benign neglect- of society which has placed the burden on sympathetic juries.

In order to find a solution to these difficult problems they must be faced directly with open and rational c\Jscusslon, such as the procedure England .used when it reconsidered its stand oncapitalpunishment. The time has come to consider these problems, not to hide our heads in the sand. It is hoped that a presentation of the articles will aid in the much needed discussion.

S. B. A. Aucu:ilIte, TOM SCOTT

Allyl.on, JOHN J.sel ULLO and NICHOLASJ. DEMAS

JURIS ill a pUblication of the Duquesne University School of Law,

J. D. and the M. B. A. SEVERAL LA \'1 S::::nOOLS have recently instituted programs whereby both the J.D. and the M.B.A. degrees will be awarded to students who successfully complete a combined four year course of study. It permits a student to accomplish in four years what normally would take five or more years. It also allows any student who is interested in corporate law to enter the field more qualified than other law school graduates. Other advantages of the program are numerous. With Pittsburgh being the third largest city for corporate headquarters, and with Duquesne having the facilities for the granting of both degrees, perhaps it is time to consider such a program.

Correspondence may be addressed to J URIS, School of Law, 600 Forbes A venue Pittsburgh, Pennsylvania. 15219 Telephone 471,4600, Ext. 371

Copyright

©

Duquesne University, 1969

Printed at NEWS COMP 1263 Northwestern Drive MonroeviUe, Pa. 15146

JURIS

March, 1970

Page Three

Faculty Profile

by Matt Von Staudach

(:orllelius F. l\lurphy, Jr.

T WAS NOT until his final year of undergraduate work as an Economics major at the College of the Holy Cross in Massachusetts that Cornelius Murphy, Professor of Law, felt a definite interest in the law. Until then, he, like most college students today, was uncertain as to how he could best apply his academic training after graduation. A senior course in Ethics, however, proved to be the decisive factor, which also perhaps serves to help explain his keen interest in Jurisprudence.

Having completed his master's program, Professor Murphy took up the challenge of helping to establish a new law school at the University of Maine. Since the school's administration decided to adhere to a policy of high entrance standards, the first academic year commenced with an enrollment of five to six students, providing for an almost ideal teaching environment. Here he continued the study and teaching of International Law. as well as teaching Torts and Constitutional Law.

After graduation from the School of Law at Boston College in 1957, Professor Murphy served a one year clerkship with Federal District Court Judge Edward Day and for the next two years was employed by the law firm of Moore, Virgadamo, Boyle and Lynch in Newport, Rhode Island, his home town.

But, a man is largely the product of his environment, and the Murphys being a teaching clan - both of his parents were teachers - it was, therefore, only a question of time before the family tradition would stir the soul of the young lawyer, and cause him to embark on his present career.

At this point we may well ask why anyone would leave the apparently ideal atmosphere at Maine, especially when one is a native of New England. to come to Pittsburgh, "where the sun hides all winter?" This last comment about winter is his only complaint about our town. which he finds to be a much friendlier environment than most large industrial centers. But, to answer our question. in 1966 Duquesne offered Professor Murphy a chance to continue his studies in International Law, as well as enabling him to pursue his interest in Jurisprudence. his first love. He was also asked to help develop a course in Legal Process, which he first encountered at Virginia.

I

After a year as a teaching instructor at the University of Virginia's School of Law, where he conducted the Moot Court Program, Professor Murphy received a grant from a rather unlikely source, a whiskey distillery, to do his master's theSiS, in the tort law concerning automobile accidents.

While involved with his master's study at Virginia, he met a man who was to have a profound influence on his academic career. Percy Corbett, a renowned Canadian legal scholar, interested Professor Murphy in the study of International Law, in which he is becoming involved ever more deeply. Professor Murphy feels that the study of International Law transcends the mere acquisition of factual knowledge in a narrow field and helps the student to broaden his understanding of the basic concepts underlying all law, since the legal interaction between nations is yet at an embryonic stage as compared to the complex relationship of man and law in most modern societies. In class he often refers to international relationships in conveying the concepts of Jurisprudence.

resulting material rewards, and, thus, losing of the law's underlying objectives justice and the redress of wrong. In this he blames law schools for failing to produce legal teachers properly grounded in the cultural, philosophical and historical foundations of law.

Significantly Professor Murphy is a supporter of student activism, it constructively applied. He supports the students' desire for more voice in academic affairs, and has recently made efforts in that direction.

He also deems law students to be of sufficient maturity to constructively criticize the quality of the instruction given them. If a man isn't doing a proper job, then Professor Murphy thinks that it should be the students right to complain and be heard.

Professor Murphy feels that he has the • ideal package" at Duquesne, teaching Legal Process, Jurisprudence and International Law. At the moment, however, he is somewhat apprehensive about the fate of the course in International Law at Duquesne.

Unless student interest in the course is revitalized, the future of the course is in doubt. This would be a sad loss in face of the excellent source library he has established with the aid of Miss Scheib, for whose assistance he is very grateful. The collection contains numerous volumes in International Law, such as the complete transactions of the World Court, which are not to be found in the libraries of many schools of similar size.

Althougb upon his arrival four years ago Professor Murphy was apprehensive about the Evening Division. he very quickly developed a high regard for the quality of scholarship among evening students. He has hopes for a larger endowment as one way that the Law School as a whole could be impreved, thus, enabling it to provide financial assistance to evening students as weH as day students. He feels that to a great extent the future of Duquesne lies in strengthening the Evening Division, and having a small.. but high quality Day Division. Professor Murphy thinks tllatthe Law School's present enrollment is too high. which partially results from the School's failure to adequately screen the students with lower LSAT scores and undergraduate QPA's. By this he does not mean to imply that students at the lower end of the scholastic scale should not be admitted, rather that closer scrutiny should be made of their inclination toward the law and their capacity to assimilate legal concepts.

Professor Murphy's philosophy of teaching is not to force his own philosophy on the student, but rather to cause him to deduce the basic concepts and to analytically apply such concepts to the problem at hand. He faults today's lawyers for often becoming too involved with the law for its own sake and the

If one were to describe Murphy the man and teacher of the law in one word, '"dedication- would be the most appropriate choice. for in talking to him one immediately senses the integrity with which he approaches his work, and with which he hopes to imbue his students.

JURIS

MfUCh, 1970

PaacFour

Soviet Legal Development (

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-from SOVIET LIFE

RED SQUARE, MOSCOW JURIS

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March, 1970

PaICFivo

by PATRICK ELIAS

or Something!

Repriated 'raa

Bracton Law Journal. University of Euter. Exctc£. Enaland

since law was the central means used to achieve an end which included its own destruction.

A CCORDING .t\. inspiration

TO Karl Marx, the original behind the Communist theory, law drew the raison d'etre from the existence of a divided class society. The content and purpose of law, and indeed the whole nature of the society was determined by the economic basis of that society; in the capitalist society law was seen as an instrument of control preserving the ruling classes in the seat of power.

Marx thought that once the classless Communist society had been achieved (a natural and inevitable historical process), the state and law would wither away. It was not a question of substituting a socialist concept of law for a capitalist one, but of replacing law completely by a new social order based on administration. Thus STUCHKA, Chomm. Supreme Crt., in 1927 ·Communism means not the victory of Socialist laws but the victory of Socialism over ANY law, since, with the abolition of classes with their economic interests, law will disappear altogether. Initially after the Revolution legislation was largel} concerned with abolishing laws contradicting the Revolutionary dec r e e s and establishing new revolutionary norms e.g. Family Code 1918 which freed marriage and divorce from Church control.

Also it was provided that existing laws could be ignored where they confiicted with ·the revolutionary conscience and consciousness of justice.- In order to carry out their plans it was necessary to establish judges in tune with the revolutionary spirit, and many of the eXisting trained lawyers, drawn largely from the conservative environment and given the traditional legal training, lacked this. However, the r e were insufficient Communist lawyers to replace them and so in order to meet the problem new local courts were set up. These were the people's courts, which consisted of a chairman, who often had no legal experience himself, and at least two people's assessors. The assessors were drawn from an elected panel and, although without any legal training, they were considered to be the equal of the chairman and therefore could overrule him even on matters of law.

Thus, a very great weight was given to the discretion of a rather fickle revolutionary conscience.

It cannot be said that law was a mere sham at this period. There was a system of supervision by superior courts, and judges who disregarded existing laws had to state their reasons. However, the distinction became blurred, and the predictability and certainty of law suffered in the effort to achieve the desired Revolutionary Aims. The main purpose of law at this stage was to establish order; it was still seen as a "bourgeois fetish- which would be dispersed with in time.

By 1921 the civil war was completely over and Lenin set about carrying out his New E'~onomic Policy in an effort to rebuild the economy and feed the people, many of whom were starving. It was obvious that the expected world revolution would not materialize, and also that the transition to the classless society in Russia itself would take longer than was first expected. Thus law was used to preserve and maintain the proletarian dictatorship.

There was great legislative ability - a Criminal Code, Code of Criminal Procedure a Labour Code and a redrafting of the Land and Family Code.

There was still no ideological retreat, however, but it was considered that law was it ~uitable weapon of social co-ercion. It was a paradoxical situation,

The end of the New Economic Policy gave way in the 1930's to en for c e d collectivisation and industrialization with Stalin. The legislation of the early thirties was marked by an emphasis on discretionary powers with coercive effect. In criminal law the element of personal guilt was minimized, and crime was seen in terms of the social background and character of the offender. Acts were vaguely dubbed 'counter-revolutionary crimes' and the offenders were 'enemies of the people'. The concept of revolutionary legality emerged as a semi-permanent one in soviety society; it became the excuse for lawless terror. The stability which normally accompanies a legal system gave way to political expediency. Vyshinski, then a leading Russian lawyer and a great disciple of Stalin, wrote 'the formal law is subordinate to the law of Revolution.'

In 1936 Stalin stated that the Socialist Society had finally been achieved, but Law and the State had not withered away. At this time there was an about-turn in soviet legal thinking; instead of being a temporary civil law was seen as a continuing, beneficial form of social control. The Soviet jurists who had claimed after the Revolution that law was the instrument of the bourgeois society were not attacked as enemies . of the people.

The ideological foundations for this change of outlook was that although law stemmed from and was conditioned by the economic base, nevertheless it also exerted a reflexive action upon the base. Although Engels had accepted this possibility towards the end of his life, it had never been accepted by Marx, whose basic contribution to legal thought was that law was to be identified with capitalist oppression.

Despite the new respectability given to law the discretionary nature of the legal processes continued to prevent stability, and the unlimited police power, deparations and the concept of counter-revolutionary "crimes,- although running counter to the 1936 Constitution, eXisted with Stalin's death.

FollOwing Stalin, Krushchev emerged as the new Soviet leader. He set about stabilizing the legal institutions and reducing the repressive machinery of the state. There was also an attempt to substitute communal sanctions for the judicial process, the moral boycotting of laW-breakers replacing legal coercion. Following this line of collective, probation was introduced, whereby an offender is handed over to a community which has pleaded on his behalf, to re-educate him. This desire to replace legal rules and sanctions by moral ones is more in line with the abolition of law predicted by Marx and Engels, though in fact they thought that in the perfect Communist state there would not ever be the desire to commit a harmful wrong.

Although the extra-legal institutions survived Krushchev's departure in 1964, it was said in 1966 that too much emphasis had been put on them, and in fact a Ministry for the Preservation of Public Order was established, indicating a reversal from the former trend and placing more power back into the central organization again. This change of attitude may not reflect an ideological change so much as the practical realization that, at present anyhow, the traditional methods of preventing crime i.e. through state organs, are more likely to curb the ever-increasing crime wave than the ·softer- line developed through the extra·legal institutions.

JURIS

March, 1970

Despite the material improvement of the worldDg classes in Russb!.. the great society eDVisaged by Marx has failed to emerge. The problem With which Marx was most concerned i.e. the problem of alienation, still remains, and indeed is becoming an ever increasing problem in ALL societies.

Everywhere man's values are being dictated for him, and the power he has in his own destiny is placed in institutions e.g. the State, or property owners, or the Church etc. which instead control him. In Soviet Society the State, instead of Withering away, has taken on this role. Marx said -Freeoom consists in transforming the state from an organ dominating society into one completely subordinate to it. - This is the reverse of the Soviet position, and short of complete anarchy it may be wondered whether it is in the power of the human nature ever to achieve it.

The present state of law in Russia is very close to that in England, insofar as no basically new concept or legal relationships bave been developed.

Private property is permitted, albeit in a more restricted form than here; after much fluctuation the monogamous family unit has been restored as a central social institution, so that in practice It is equally difficult and expensive to get divorces there as in a Western Society; the law of contract, once thought to be the most repressive and oourgeois branch of the law, is prevalent even between the state-controlled agencies. and indeed the problems of policy planning, Which have caused the soviet doctrine of frustration to be extended, is playing a more significant part in Western Societies now e.g.

Prices and Incomes Act, the new White Ppaer for Quasi Tori actions are similar, as is the system of insurance. In all these branches of law the two systems seem to be converging. After starting from opposite poles the soviets have moved from a posltion of collectivism to giving greater freeoom to the individual, Whilst Western Society is tending to place a greater consideration on social and communal, as opposed to individual, needs.

There are of course certain characteristics of the soviet legal system which will always distinguish it from Western systems. Thus the rule of law is condemned, there is no distinction of public and private law and also there is no doctrine of separation of powers. The ultimate force behind the organs of justice is the Communist Party, and the direction taken by Soviet law depends upon party policy. Law in soviet society can never therefore be the stable safeguard that it is here. The Party retains a grip on all appointments and cbanneIs of discussion, and it even issues directives on how the law should be interpreted.

The totalitarian nature of the Soviet government has however contributed to the well-being of the people in a very positive way. Firstly it has led to a far greater material standard of living, and has achieved a measure of education that would have seemed impossible at the time of the Revolution.

The emergance of a new educated., middle class may mean that the ruthlessness and internal oppression will not return because it should no longer be necessary, and anyhow the people will no longer permit it. Nevertheless the concentration of political and legal power will continue to give the government great scope.

The present Chinese society with its essence on grass roots democracy and its almost continual revolution, which prevents the central state organs from becoming too dominant, is attempting to solve the problem of alienation in a more conscious manner.

Its development should be of interest to all political and legal thinkers.

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SIDORE ZIMMERMAN, convicted of the murder of a pollce detective and sentenced to die by the electric chair, spent twenty-four of his years in jail. Most of them were spent on death row waiting for the sentence to be carried out. Fourteen years ago, in 1955, his appeal had run out and the date of execution was set. Two hours before the scheduled time Zimmerman's head was shaved in preparation for the execution, and he had requested his final meal. With barely an hour of the prisoner's life remaining the governor telephoned the warden to grant Zimmerman a reprieve - he was returned to his solitary cell in death row.

I

Case

Against Capital Punishment!

By HUGH GRADY

At first glance Zimmerman's case would not seem unusual - he had protested his innocence throughout the trial and during his term in prison. Many condemned men have received last minute reprieves as did Zimmerman, most of them claiming they were innocent as well. But the one factor making his case unusual is that Isidore Zimmerman did not commit the crime he was convicted of. It took him another ten years in jail to prove it - it was not until the court of appeals found that a prosecution witness had lied, and the prosecutor had concealed the fact, that Isidore won his freedom.

This case, an example of the extreme cruelty of the death penalty, shows the senseless and irrational way in which it is currently applied. Less than one percent of those people convicted of capital crimes are actually executed - the rest die a slow death of uncertainty in their death row cells. In 1968 more than 500 men were awaiting execution throughout the United states. The average time in death row is four years, some men have spent as many as thirteen not knowing if they are going to live another year, There are numerous documented eases of innocent men being put to death, though when aUegedcriminals are executed it almost always puts an end to efforts to prove their innocence. The case of Isidore's existence on death row makes a strong argument that death by execution is the 路cruel and unusual punishment- forbidden by the constitution. W hat can be more horrible than for an innocent man to suffer for years, his fate unknown, only to find in the end that the legal process has broken down and sent him to die. The defenders of capital punishment - whose numbers are growing - say that the majority of men executed were not innocent.

It is unfortunate (they say) that a few men have suffered, but it is not reason enough to abolish the JURIS

March, 1970

system. The supporters also believe the age-old argument that capital punishment deters crime. and is needed as an elample for those who might otherwise be murderers or rapists.

The first argument is nothing more than a belief in the retention of a system (inhumane in its application) for its own sakei the second is only an emotional reaction - statistics prove IT to be untrue. The reaction stems from the current demands for law and order. Increasing crime rates and the growth of civil disorder are responsible for the demand. People want more severe punishment for crimes - including the death penalty. The commnnity has become polarized. on the one side people are asking for a strieter enforcement of the are saying law in all its aspects; on the other that "'justice is a basic pre-requisite of a democratic society and the maintenance of law and order must be subject to the basic guarantees of justice.The alarming thing about the groWing change in the attitude favoring capital punishment is that IT is infiltrating the profession. In New York. where capital punishment has been abolished for several years, a recent survey showed that 84 out of 118 judges wanted the reinstatement of the death penalty for those crimes to which it had previously applied. This is shocking - that the horror of the penalty alone is not enough to convince men to abolish it. At least those familiar with its application and effects (judges) should realize that capital punishment is not a deterrent of crime-and that its only use is a way of revenge.

A demand for strict enforcement of punishment for crime should not overcome the statistically proven fact that capital punishment is not adeterrent.

The homicide rate in the United states has fluctuated since 1900, none of its downward trends coincide with the application of the death penalty. Studies have shown no correlation between the death penalty and the homicide rate in those states which have executions. Even in the seven states which have abolished capital punishment and then reinstated it, there is no proof the reinstatement lowered the homocide rate.

There is another argument, one not shown to be statistically true, that retention of the penalty protects policemen and prison guards. In New York, which abolished capital punishment except for the murder of a law enforcement officer, there is no evidence of a correlation between the death penalty and the murder of policemen and prison personnel.

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Page Seven

And in a study conducted by ThorstenSellin, President of the International Society of Criminology, the police homicide rate in death penalty states was 1.3 per hundred thousand, 1.2 per hundred thousand in abolition states.

Apart from its not having been proven that capital punishment deters crime, there are indications that execution may be an incentive to murder. In 1967, just before he was electrocuted for the murder of a cellmate, James French told a University of Oklahoma psychiatrist that he wanted the state to execute him. French had been convicted of a previous murder and had not received the death penaltyhis motivation for the second murder was his wish to die. While cases of this nature are rare (there are a few others), they do help to point out the fallacy of the "deterrent- argument. Men do not stop killing one another because of fear of the death penalty.

The argument for the abolitionofcapitalpunishment is not restricted to the moral or emotional point of view. There are some very strong arguments for abolition on constitutional and legal grounds. On November 31, 1965, a 35 year old white woman from Hot Springs, Arkansas, was dragged from her home and raped by a black man. Se~ral hours later, William Lee Maxwell, a 22 year old resident of Hot Springs, was arrested and charged with the crime. With speedy justice •.• characteristic of southern courts • • • William Lee was brought to trial four months later, in March. On April 5, following the all-white jury's verdict ofguiIty(without a recommendation of mercy), Judge P.E. Dobbs passed the required sentence on Maxwell - "death in the electric chair on June 13, 1,962.· Maxwell was not executed that June, and is still living today - although his sentence has not been commuted. But William Lee is no longer an obscure southern black man sentenced to death for the rape of a white woman; he is the center of an important constitutional argument to abolish capital punishment.

and will seek reversals of convictions carrying a sentence of death,· There are four good legal arguments for the abolition of capital punishment, each one based on constitutional grounds. The first ground is that capItal punishment is the "cruel and unusual punishment" forbidden by the constitution. This argument, for all its merit, is the one the Supreme Court has most resisted. The Court rarely listens to an Eighth Ammendment case of any kind - much less one on the issue of capital punishment.

The second argument is based on the exclusion from juries of those people who do not believe in execution as a method of punishment. The Supreme Court (in the ease of Witherspoon v. Illinois) said that such practice is unconstitutional, but jurors Who do not believe in capital punishment are still effectively barred in capital cases by the use of challenges available to prosecutors.

The third and fourth arguments, the equal protection (a man is entitled to the same protection under the law as any other man) and discrimination theories, are now before the Supreme Court in the Maxwell case. The third argument is based on the use of a Single jury - one jury decides guilt or innocence and immediately passes sentence. The fourth is the 'standardless jury' argument - a jury hands down a sentence without any instruction on criteria to determine degrees of guilt.

In noncapital cases and in those states not using the single jury system, there is usually a~jlable to the judge or jury a record of the convicted man's background. The record includes any reports (eg. probation) on the criminal's po ten ti a 1 for rehabilitation. When such information is not

Since 1930, 1,664 whites and 1,630 Negroes (whicn seems a fairly even distribution) have been executed for murder - Negroes make up only about 13 percent of the population. In a racial comparison of executions men executed for rape in the South since 1930, 405 have been Negro and 40 have been white. Today there are 58 Negroes and 7 whites awaiting execution for rape convictions in the eighteen Southern and border states.

The obvious discrimination in the south towards Negro rape convictions has led the Legal Defense Fund to attack the death penalty on the grounds that it is discriminatory and violates the equal protection clause of the constitution. The Fund's first test is William Maxwell - a decision on the constitutionality of the death penalty will be handed down at the Fall term of the Supreme Court.

Many men convicted of capital crimes have had their convictions lifted on constitutional grounds.

But when the death penalty is commuted it is not because the sentence is unconstitutional, it is the conviction itself which is wrong - example, a man may not have been advised of his right to remain silent and to have an attorney. Rarely, if ever, has the death sentence been lifted because the death penalty had some constitutional flaw. The Maxwell case may be the first time the penalty is ruled constitutional.

Support for the abolition of executions (as a denial of civil liberties) has come from the American Civil Liberties Union. In 1965 the ACLU revised the position on capital punishment and introduced its new policy with these words: -The ACLU believes that capital punishment is so inconsistent with the underlying values of a democratic system that the imposition of the death penalty for any crime is a denial of civil liberties. We believe that pas t decisions to the contrary are in error and we will seek the repeal of existing laws imposing the death penalty,

JURIS

March, 1970

available. and when the accused has not testified in his own behalf, the jury is not in a position to reach a fair decision on the punishment. The lack of information available to the jury often leads to a great deal of pressure on the defendant to take the stand to give facts which migbt lead to a reduced sente~ce. In effect it forces him to testify, violating his con s ti t uti 0 n a 1 guarantees against self incrimination, and denies him equal protection under the law.

The 'standardless jury' is given no oppJrtunity to determine a convicted man's crime in degrees of guilt. The defendant's wrong may have been less serious than a similar crime for which another man was executed. The accused's crime might also have been more serious than a crime for whieh others received life imprisonment. The 'standardless Jury' has no way to judge this. Because the law sets no standards the death penalty is -unevenly. arbitrarily and discriminatorUy applied.· The conscientious juror may have no standard to apply the penalty, while the 'discriminator' is free to vent his biases in judging whether a man shall live or die. The end result is that a man's legal right against discrimination is violated.

Capital punishment is not based on sound legal or psychological grounds. It does not prove a deterrent to crime - criminals simply do not weigh the possible consequences of the penalty before committing murder. And if the legal arguments bave not been accepted yet, one of the strongest is soon to be decided and it can only be hoped that the Supreme Court will see the light. As for those who want a stricter enforcement of present punishment procedures perhaps a short stay in death row or the feel of a hangman's noose may convince them otherwise.

Page Eight

Mercy Killings-ShoD

BY BARRY A. ROTH PHYSICL\.,{ DECIDES not to prolong the life

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of a patient who is dying from an incurable

disease. I'~ the physician a murderer, similar to the gunman who releases the trigger? At first glance, the answer seems obvious. But is the physician a murderer? How many courts Will indict a physician for this type of murder? How many people will testify against the physician? What penalty does the physician usually receive? Should the law recOgnize these acts, known as mercY,.aets or euthanasia. as jUstifiable homocide? Or does the deliberateness of the practice require its continued legal clasSification as murder?

New medical techniques used to advance life are raising questions on behalf of both the legal and medical professions to review their established views. toward life and death. The following Situation occurs often: A comatose patient shoWs no Signs of activity.

He has an infinitesimal chance of recovering, yet he can be kept alive bya mechanical respirator.

How long should the physician sustain this medical apparatus?

When the physician attempts to make a decision, he is confronted With the patient's family's Wishes, the family's financial ability to incur these additivnal and empty medical means, and the prospect that he could use his time more advantageously for other patients who have Ii greater chance of recovery. If the physician turns off the medicalresptrator, he, like the gunman, is as liable as if he had pulled the trigger. Yet the penalties Im}Xlsed on physicians and laymen for performing "'acts of mercy" have been minimal. Thus, the physician is confronted With sustaining life by medical devices even though he is unsure of the legal consequences of discontinuing therapy or of advancing death. 1 Common law courts have never convicted a medieal nl'actitioner for either shortening the life of a. suffering terminal patient or for refuSing to render life sustaining aid. 2 In 1950, Dr. Norman Sanders was brought to trial .in a New HampShire common law court for a "mercy

killing." 3 He was indicted for first degree murder for injecting ten cubic centimeters of air into the veins of the deceas(>d, Mrs. Abbie Borrotto, Mrs. 'Borrotto was suffering from terminal cancer. Her normal weight of 165 pounds had dropped to 80 pounds. She was constantly in pain. She had asked Dr. Sanders several times to end her life. Dr, sanders recorded his act of mercy on Mrs. Borrotto's medical chart. When he was 3.3ked why, Dr. sanders replied. -It may be against the law, but morally I don't think I did anything wrong." 4 Even members of Mrs. Barrotto's tamily testified to Dr. Sander's kindness and wonderful care that he had given to the deceased. Dr. Sanders was acquitted by the jury.

In 19GO at the AssiZes Court in Kingston. Great Britain. George Jobnson was trIed for the murder of his three month old son. 6 The child was a mongoloid who had utt)e chance of learning anything more difficult than feeding himself. As in RepouUle. Jobnson had continually cared for bis chUd and committed this act out of mercy. The Honorable Judge Slade said of Johnson: "No thinking person could feel other than the greatest sympathy for you. I accept that your terrible deed was done solely to put your chIld out of his miser}'.It 7 Jobnson received a sentence of twelve months imprisonment.

In REPOllILLE v. UNITED STATES, Repouille had requested for a second time a petition for naturalization. This petition had originally been denied by the District Court. In order to become eligible Repouille had to prove that he was of "good moral character" for the rast five years. 5 Four years ago, Repouille had deliverately put to death his thirteen year old son. a mongoloid. The Court of Appea1s for the second circuit reversed the order of tbe District Court. Judge Learned Hand said:

It is interesting to note that in the preceding cases as well as the ones following, the juryhas deliberated more on the moral issues than on the law! In DtJRHAM v. UNITED STATES, tbe court had to decide ab:mt the often reappearing area of menial responsibility.

It was concluded that: .... tn leavIng the determinationotthe ultimate question of fact to the jury, we permit it to perform its traditional function which ••• is to apply our inherited ideas of moral responstblUty to individuals prosecuted for crime ••• Juries Will continue to make moral judgements, still operating under the fundamental precept that our collective conscience does not allow punishment when it cannot impose blame.

In 1927, a father drowned his incurably 111 daughter who was suffering from tubereulosis and gangrene of the face. The father had dutifully cared for and nursed his daughter. In arriving at a verdict of not guilty, Judge Branson remarked that if the poor child were au animal instead of a human being than the man would actually have been liable topunisnment had he not put an end to its suffering. 9

*

His reasOt!. for this tragic deed was that the child had suffered .from birth from a burning which destined him to be an idiot and a physical monstrOSity malformed in all four limbs. The chtId was bUnd, mute and deformed . • . his entire life was spent in a small crib ••• He was indicted for manslaughter in the first degree; but the jury brought in a verdict of manslaughter in the second degree with a recommendation of the utmost clemency; and the judge sentenced him to not less than five years or more than ten ••. and the defendant was placed on probation •••

*

.From the above holding it appears clear that the Jury which tried Repouille was not repulsed by the crime. Although his crime was clearly murder in the first degree (deliberate and premeditated), the jury brought in a verdict for manslaughter in the second degree. This verdict pre-supposes that the kllUngbas not been deliberate. The jury even recommended that the offender be freed. From the sentence imposed, it is clear that the .Judge could not have seriously disagreed With them .

JURIS

March. 1970

In 1950, in Allentown, Pennsylvania, Harold Mollr killed his blind brother who was dying of cancer .

Altbough it was established that Mobr killed his brother out of mercy. the jury was less sympathetic than others, supra, and it convicted him of voluntary manslaughter. Mohr received a jail sentence of six years and was fined $500. 11 Even where the administration of deathtotbevictim appears most cruel, the courts have rendered mUd sentences. In COMMO~"WE.d, rJ v. NOXON, 319 Mas;;,

Page Nine

'1 They Be Legalized?

495, Noxon had electrocuted his six month old son who was an incurable mongoloid. Although Noxon pleaded that the electrocution was accidental, the ease was regarded as a mercy kilUng. Unlike the other mercy killers previously mentioned, Noxon was disliked in his community and regarded as a vicious lawyer. In the heavily Catholic state of Massachusetts, the Court found Noxon guuty of first degree murder, He was 3\'!:ltenced to death in the electric cbair.

Appeals were begun and eventually Noxon's sentence was reduced to life imprisonment and later to a suspended sentence of six years, These cases reflect the handling by various courts throughout the world of mercy killers. In all the countries reported first degree murder carries with it the penalty of death or life imprisonment. All these cases are similar in that an incurably ill patient has been killed out of mercy. Yet the penalties imposed on all of the mercy killers reflect. the inequality of the law. The law becomes subordinate to the emotional impact of such controversial cases.

From these cases, it must be noted that mercy killing has been performed by laymen as well as by physicians. Not all cases resulted in acquittals. The cases of MOER, REPOliILLE, and NOXON supra, ended in lengtby jail sentences. Althougb Dr. Sanders was acquitted of murder, COMMONWEALTH v.

SANDERS, supra, his act was condemned by some influential organizations; consequently, the stigma of the act hurt him both medically and soc1ally.12 The inequality of the punisbments imposed however, make it imperative for the legal profeSSion ~ re-evaluate its demands that justice be distributed equally. A reevaluation can first be assessed by inquiring into the mental attitude of incurably ill patients who often request death from their physicians. 13 An observation of 102 patients was conducted at a teaching hospital in King's College Hospital, London, England, from 1959 to 1961.14 The aim of the observation was to assess, the amount of mental and Physical distress exparienced in a terminal illness. None of the patients knew that he was dJing from an incurable disease. The patients were selected on the basis that their terminal illness would be fatal within six months.Interviewsconducted by tlie physicians were ,geared towards revealing the patient's background, his mental stability. his

pain, and his daily attitude. As the physical discomfort increased, the patients indicated depressive and morose attitudes. Every type of medicine was given to the patient to relieVe bis pain. But the medication did not relieve the patient of his depressed mental attitude. After a few weaks, some of the patients committed Suicide while other patients attempted suicide but were unsuccessful. Although there is no report on the actual number of patients who requested It death," it was reported that the majorIty of the patients at one time or other urged the physicians for "death." 15 The mental state of all the patients experienced distressing degrees of depression. When some of these patients realized that they were dying, they lost a desire to live, Although this observation is not conclusive, it is indicative of people's attitudes towards life when they are suffering from an incurable disease, These patients were not told that they were dying. Had they been told, these patients might bave attempted suicide since their II death" requests to their physicians would go unheeded and they would continue to suffer.

Charlotte Perkins, a mother and housewife, was dying from metastatic cancer. Sbe bad often requested her physicians to end her life. Prior to committing suicide, Mrs. Perkins bad written a note revealing her attitude about being kept alive by drugs: This is my last duty. Human life consists of mutual service. No grief, pain. misfortune or 'broken heart is an excuse for cutting of! one's own life while any power of service remains but when all usefulloess is over, when one is assured of an imminent and unavoidable death. it is the Simplest of human rights to choose quick and easy death in place ofaslow borrIble one. Public opinion is cbanging on the subject.

I pray tbat the time Will come when we sl1all consider it abhorrent to our civilization to allow a human being to remain in prolonged agony Which we should mercifully end in any other creature, Believing this choice to be of social service in promoting wiser views on this question, I bave preferred chloroform to cancer. 16 In re-evaluating the inequality of penalties imposed on mercy ktIlers, it is apparent that the penalties imposed. on physicians are less, if any. The 路reason for imposing路 a minimal sentence or no sentence at JURIS

March, 1970

aU on phySicians occurs because of lack of evidence.

In the Urst place, when a patient is gravely ill and bas been receiving large doses of a drug over a considerable period of timet it is often difficult to determi.ne the amount of the Unal dose, if that is disputed, or whether death resulted frOlJl it. The line between a lawful ~ugh large dose of a and one so large as to be unlawful is a narrow one.

Secondly. prosecuting authorities are naturally reluctant to prosecute a physician in tbese circumstances. There is little satisfaction in instituting criminal proceedings against a of repute for an act done in gootl faith.

Thirdly, a jury Will be reluctant convict a physician in these circumstances, Juries often acquit the defendant even when the evidence and the judge's discretion leaves them with any legal reason to do so, Fourthly, if the worst happens and the physician is convicted of murder (we have no case on this), it is most likely that executive clemency will in all probability be granted to prevent the execution of the death penalty. 18 In theory, it is also possible that a liberal and humane judge might cbarge the jury that voluntary euthanasia is justified in extreme circumstances - contillud em Paue 11 1. Fletcher, 'Prolonging Life.' 42 WASHINGTON LAW REVIEW 999 (1966061).

2. Ihid., p. 1000.

3. The New 'l/'orl< Times, March 10, 1950, P. 1, col. 6.

4. The New York Tim"s, May ,33, 19$0, p. 25, col. 4.

5. R"pouil1e v. United States, 1/i5 F. ,'ld 153 (2d 153 (2d ctr. 1941).

6. 'The Quality of Mercy,' TIME MAGAZINE, (July II, 19(0). 64.

7. Ibid., p. 65.

8. TIME MAGAZINE. (Nov. 16. 1962),67.

9. Silving, 'EUTHANSIA: A STUDY IN COMPARATIVE 9. CRIMINAL LAW,' 103 university of P~sylv_;a Law Review 354 (1954).

HI. The New York Times, April 4. 1950, p. 60, col. 4.

11.-,48 Michigan Law Review 1197.

12. Exton..smllh, "Terminal Illne"s in the Ailed,' 2 Lancet 305 (19tH).

13. Hinton, 'The Physical and MentaJ Distress of the Dylnil,' 32 QUarterly Journal of Me.Hcln .. 1 (1965).

14. Ihid., 5.

15. Gilman. THE MEDICAL RECORD, May 11. 1939,5.

16. Inb"u and Sowle, CRIMINAL JUSTICE, p. 126.

17. Ibid" p. 125.

IS.WilUams. THE SANCTITY OF LIFE AJiD THE CRlMNAL LAW, p. 319

Page Ten

Do you make these five common mistakes about selecting diamonds?

TEST YOUR KNOWLEDGE. IF YOU ANSWER ALL FIVE QUESTIONS RIGHT, YOU'RE AN EXPERT. 1. The finest diamonds are A. White B. Slightly yellow D. Colorless

8. The extent to which the angles and proportions of its C. Blue-white

2. When a diamond's clarity is not marred by any scratch. spot, cloud or other blemish, the gem can properly be described as A. "Ideal" B. "Perfect" C. "Flawless"

3. When professionals refer to a diamond's "cut" they mean

many sides, or facets, conform to the ideal for its particular shape.

C. The diamond's ability to scratch other hard surfaL"es. such as glass or steel.

4. The l'alue of a diamond is determined bv its A, Carat weight B. Cut C. Col~r

D. Clarity

E. Price

5. Aside from differences in the price ranges of various prodA. Its general shape, such as round, oval, pear, marquise or emerald.

ucts, selecting a diamond is most like choosing A. a watch B. Savings bonds C. a steak D. a new car

Here's boU' to score Jour answers. (BlIt please. don't read any furtber Il1ltil you've answered all tbe questions to the best of )IOtll' ability.)

1. If you checked answer "D," you're absolutely right. The finest diamonds have no color of their own whatever. They merely blaze with all the colors of the light that enters them.

If you checked "Blue-white," be careful. The term is fraught with many meanings and loopholes. It is used as a sales aid by some jewelers to help sell diamonds of inferior color. Because "blue-white" is inexact and mISleading, we forbid the use of this term in referring to any diamond at Hardy & Hayes.

2. If you checked "flawless," you're right again. A flawless diamond is not necessarily a "perfect" one, however. The Federal Trade Commission's ruling on the use of this term states that besides being flawless a diamond must not be of inferior color or make. There really is no such thing as a "perfect" diamond.

Like the term "blue-white," t:le term "perfect" is forbidden at Hardy & Hayes.

3. You are right if you chose answer "8." Diamonds are cut in different styles, such as round, oval, etc. There are Ideal angles and proportions for each style.

When a professional refers to cut, he is talking about the human factor of a diamond's beauty. Just how well has man done his job? If the cutter deviates from the precise angles and proportions of the Ideal, your diamond would have less beauty and should therefore cost you less than a more precise cut.

4. If you chose anyone of the four Cs, you're partly right. A diamond's value is determined by all four.

The price you pay for a diamond includes more than the value of the gem itself; the value of the ring or other setting, for instance. A portion of the seller's cost of doing business also is included, as is his profit.

Because all Hardy & Hayes diamonds are obtained directly, via New York cutters, from the London sights of the Central SeIling Organization (marketing arm for all jewelry diamonds in the world) our price does not include the profits and expenses of intermediate brokers, wholesalers or agents. For this reason, you often pay less at Hardy & Hayes than you would elsewhere for a diamond of comparable quality.

Judge for yourself. We'll give you a booklet':: that explains how the various characteristics of a diamond are rated and how the professionals compare one diamond with another. It's a

JURIS

clearly written little booklet, easy to understand. W'e'll answer any questions you may have and, if you have time, show you examples of the characteristics you'll want to watch for.

Then shop around. " Buying a diamond has something in common with all four possible answers. of course. Watches and automobiles. being manmade, can be standardized, however. You can usually expect one new car to perform as well and ride as comfortably as another of the same make, model and equipment. But nature never does anything quite the same way twice.

Savings bonds have but one variable-their size, or dollar value. You look at the denomination and you know what each one's worth. Not so a diamond.

Selecting one is thus most like choosing a steak. No two are quite alike. Price per pound (or carat) is only one of several considerations. Color and clarity are as important in a diamond as tenderness and flavor in a steak. And cut, certainly. is vital to both. .

Of course, one way to be sure of getting a good steak is to go to a good butcher. Wfe'll spare you the rest of this analogy.

If Jail got four of the five questions right, .1'0111' knowledge of diamotlds is abol'e t:werage. But even if 1'011 missed onl1' OtJe, it It'ould be U'ise to fitld Ollt all ]'011 e,m ~"out dialllrmds before JOII actually itwest i1l otle. If/ e'll be delighted to help j'OU l~ltm as milch as .1'011 care to. Don't feel you'd be imposing. After all, tbe more you k,ww "bout diamonds. tbe belfer for /15. q{ you would like us [0 mail the booklet to you at home. simply send us a postcard, giving your name and mailing address. We'll send your booklet the day we get your card.

OOWNTOWN, WOOD AT OLIVER

March, 1970

SHADYSIDE, 552') WALNUT ST.

281路0440

Page Eleven

Mercy Killings - continued from Page 9

under the general doctrine of necessity. In REX v. BOL'RNE. (1831) the jury was instructed that the unbOrn child may be destroyed for the purpose of preserving the more precious life of the mother.

In the case of voluntary euthanasia, therefore it is possible to imagine: The jury being directed that the sanctity of life may be submerged by the overwhelming necessity of relieving unbearable suffering in the last extremity, where the patient consents to what is done and where in any event no span of usefulHfe is left to him. 19 If we allow the physician to perform mercykilUngs, we must determine some type of workable standard.

It is conceivable that the physician maybe approached to commit euthanasia in the following situations: (1) The patient, a two day old infant with severe spina bifida, is beyond medical help. At the request of the parents the physiCian gives the child a fatal drug. The physician is guilty of murder. The fact that the parents requested that the child be killed does not justify the physician's act, for the parents possessed no right to decree the death of their child. (2) The patient, a man fifty-six years Old, has been wounded by a bullet in .the spine. As a result of the injury he is afflicted with paraplegia, incontinence of urine and feces, and intense pain.

He will probably die within a few months. The patient requests the phYSician to end his life and the phYSician complies. The physician is guilty of murder. The phYSician, instead of attempting to dissuade the patientirom committing suicide, approves the patient's plan and administers the fatal drug.

(3) The patient's tongue and jaws are completely replaced by carcinoma. Because of the stench and the constant drivel mixed with blood, he is nauseating and repulsive to all who attend him. The physician administers a fatal drug to the patient because it is useless to nurse the patient and the patient is dying a very painful death. The physician is guilty of murder. The fact that the patient is an intolerable burden to others does not deprive him of his right to life. (4) The patient, an eighty year old woman, has an incurable disease that is causing her grave pain. The physiCian places morphine tablets on her night table and advises her to take two pills to sleep well. He also tells her that if she takes all fourteen of the tablets she will die. If the physician intended the patient to take all the pills, he may be guilty of murder. This hypothetical case bas been subject to various views among the States. The majority of states will indict the physician for first degree murder while Texas finds that the physician has done no more than committed a very serious sin. 20

From these hypotheticals presented, we m u s t determine whether mercy killing should be permitted only by phYSiCians, and if so, in what particular situations. It has often been argued that if we are going to allow mercy killing, we must allow only phYSicians to commit it. It is the phYSician who can most objectively and honestly estimate whether the patient has any chance of recovery. It is the physician who is most aware of the newest medical lifesaving devices. It is the physician who Is most concerned with saving the patient's life~ if the patient can be saved. 21 In order to implement mercy killing petitions or proposals of legislation have bee~ introduced in various countries advocating that only the physicians ought to be allowed to commit euthanaSia. In 1936 and again in 1950 in The House of Lords England, a bill was presented to legalize voluntary euthanasia. The Bill originally proposed the following procedure: (1) The patient deSiring euthanasia must be over twenty-one years at age. (2) He must be suffering from an incurable and fatal disease accompanied by severe pain. 22 Arguments opposed to this Bill asserted that this proposal may lead to further legislative proposals that would ultimately be a complete breakdowp of accepted standards. But this argument could be used against ANY legislative proposal. The advocates of euthanasia inserted safeguards, requiring that the patient Sign a statement requesting euthanasia in front of two witnesses. The form along with two medical certificatesls presented to the Minister of Health who interviews the patient

to make sure that he Is aware of his decision. If an standards are satisfied, euthanasia is then administered in the presence of an official appointed by the Minister of Health.

The opposition argued that there would be too mucb formality in the sick room and the relationsbip between physician and patient would be destroyed.

Ironically, the opposition agreed that "one should make the act of dying more gentle and more peaceful even if it does involve curtailment of the length of life.- 23 Yet they opposed the Bill because it did not give the physician a complete control which they felt left the physician unprotected against the possibility of vindictive prosecution resulting in profeSSional ruin. Also, the possibility of prosecution would discourage the physician from acting solely on the patient's behalf.

In other countries, attempted LEGALIZA nON of euthanasia has not succeeded, but penal codes have been amended to distinguish mercy kUling from any other killing. These codes impose less severe penalties and have often been directed toward the physician who commits these acts of mercy.24 In Germany and Switzerland, the motive olthe mercy killer is regarded as the altruistic desire to comply with the patient's request to be killed. This crime faUs within the category of homocide upon request, punishable by imprisonment in terms of only a few years. The SWISS PENAL CODE, Article 3, #3 (195'1); The CHINESE PE~AL CODE, Article 275 (1955); the JAPANESE PENAL CODE, Article 202 (1951); the POLISH PENAL CODE, Article 227 (1932); the RUSSIAN PENAL CODE, Article 460 (1903); and the NORWEGIAN PENAL CODE, Article 235 (1902) classify euthanasia as homocide upon request. The most severe penalty is a five year imprisonment, but usually the sentencing is left to the Judge's discretion.25 The URUGUAY PENAL CODE, Article 37 (1934), provides for total exculpation when homocide is motivated by compassion and performed upon the victim's own reouest.

Yet in the United States the rule prevails that when a person kills another person, who is suffering from a fatal and incurable disease, at the latter's request, the administrator is guilty of first degree murder. 26 Apparently the poSition is different in Texas. The act of providing the deadly poison to the sufferer at his request is not an offense even if tbe sufferer takes the drug and death ensues. SANDERS v. STATE 112 s.w. 68 (1908).

In the United States unsuccessful attempts to legalize euthanasia occurred in bills introduced into the Nebraska Assembly in 1936 and into tl1eNew York Assembly in 1947.27 The Bills, encouraged by the American Society of Euthanasia, ,"re similar in form: 1. The patient must be atleast twenty-one years of age; 2. He must be suffering from severe physical pain caused by a disease for which no remedy affording lasting relief or recovery is at the time known to medical SCience; 3. The petition for euthanasia must be made in the presence of two witnesses; 4. A certificate by an attending physician must confirm (1) and (2); 5. A committee of three people of whom at least two must be phYSicians must examine and interview the patient and must report whether or not the patient understands the nature and purpose of the petition and the act; 6. The Court shall grant the petition unless there is some reason to believe that the report is erroneous or untrue; 7. Euthanasia is to be administered in tbe presence of the committee, or any two members thereof.2B The difficulty of securing political action on this type of Bill occurs because the legislators know that there are no votes in law reform, but only votes to be lost through offending sectarian opinion. 29 Many polls have been taken in the United states to justify the work being done toward legalizing euthanasia. In 1938 of 3272 physicians questioned in New York State, 80% favored voluntary euthanasia.

1776 of these physiCians joined a committee specifically geared toward legalizing euthanasia,30 In 1939 a nationwide poll was conducted to arrive at society's feelings toward legalizing euthanasia. 46%01 the people favored the proPlsed Bill, supra, while a similar poll conducted in Great Britain revealed that 68% of the people favored euthanasia. 31 JURIS

March, 1970

In 1957, 166 New Jersey physicians signed a petition urging for the adoption of The AmedcanSociety's Bill, supra. These physicians admitted having practiced euthanasia at one time. 32

Misfortunes arise in this area because social, mediCal, and legal attempts become entangled With the divergent religions beliefs. Although this writer is not going to discuss the religious views of mercy killing, it is interesting to note a ebanged attitude toward mercy killing. statementsadvocattnghastening of death and legalization of some type of euthanasia have been made by the late Pope Pius XII and by Bishop Sbeen. 33 Opposition to euthanasia rests on the probl€ms that legalization of it might raise: (1)erroneous medical judgments made as to the patient's incurable disease; (2) other types of legislation would be presented that is geared toward dispoSing of sickly people; (3) medical science would lack the initiative to do researcb on diseases currently regarded as incurable; (4) the possibility of a cure may be discovered tomorrow. 34 These arguments raise the ones most commonly heard; yet, in effect, they appear most remote.

But it is not the purpose oftbis article to contribute to the ethical justification of Its aim is to acquaint us with the intricate legal problem that occurs within the framework of The American Law. In particular, this article questions the ineqUitable punishments received by those persons who have committed euthanasia.

From this inequality. there occurs a need to limit the people practicing eutbanasia, or to legalize euthanasia or to impose stricter pellalties on those persons who commit marcy killings.

Since premeditation and deliberation is no longer an exclusive test of the gravest type of homoeide and motive is accepted as a substantive element of certain types of crime, the legislator is faced with three approaches: He may vest in judges a broad discretion in classifying the homocide committed; or he may enumerate in the statutes particular motives deserving exceptiollal treatment: or he may attempt to legallze a restrictive practice of euthanasia. References to European and Oriental types of legislation revealed that euthanasia did not fall into the classification of murder.

Legalization of euthanasia, however, would afford certain advantages. In addition to relieving the patient of severe physical and mental distress, it would afford a relief where 00 other relief is in sight. It would be administered by the most capable men in our system. Administration of euthanasia does not simply mean the putting to death of a patient, but the evalua.tion by physiCians of the effects, cures. and medical relief afforded the dying patient. type of legislation would require state supervision and control; therefore, the current practice of placing the Judge in a position of making an emotional judgment (as we have seen most often occurs) would no longer occur and then there hopefully would be no inequality of penalties imposed through tile law.

Consideration given to the prevailing moresofsociety indicate that a majority of people consider that a killing activated by mercy is less reprehensible thah a killing for a base motive. Thus, it seems that time has come when we must either afford a ~""',"'u.~ statutory reduction of penalty for this type of homocide or we must effectuate a restrictive standard by which a physician with his patient's request call legally administer euthanasia. By arriving at one of these ends, there will no longer be a circumvention of legal provisions, a lack of uniformity of adjudication, and public dissatisfaction.

19. Healy, MEDICAL ETHlCS, p. 210.

20. - , 3 t New York University Law Review 1160 (1956).

21, Roberts, EUTHANASIA, AND OTHER ASPECTS OF LIFE AND DEATH PI'. 21-26.

22. Ibid•• p. 26.

23. SUylng. p. 363.

24. ,ibId., pp. 363-371.

25.lnbau and Sowle, p. 125.

26. Fletche., MORALS AND MEDICINE, p. 184. :1:7. Sullivan. THE MORALITY OF MERCY KILLING, pp. 22. 23.

28. Williams. p. 33l.

29. Ibid., p. 332.

30. Ibid.

31.96 J\.merican 375 (1957).

32. TIME MAGAZINE, (July 11. 1960), 38.

33. Healy, 225.

路 Pap Twelve

The Trial Moot Court Board Praised For Work Few people realJr.e the amount of time and energy that must be spent for the TrfaJ Moot Court program to be a success. Tb1s years competition bas run mucb smoother tban In the past, and J1D'1s WOIlld lite to reeogrdze the men -behlnd-the-scenes," who are responsible for tbIs year's success. ~or two of the JUt tbree years, Professor AarOll Twerskl has been In complete charge of the program.

Tbls year be was assisted by Professor Nicholas F1sf1s. Together these men directed the actions of the Trial Moot Court Board.

The members of tbIs Board are selected according to academic ranking. In the day division, the four students next In line for Law Review selection are appointed to the Trial Moot Court Board. In the night division, the same procedure Is followed. With only two students being appointed.

The members of tbIs year's Board are: James West (Chairman) Peter Barnes, Steve Goldring, Albert Maier, and from the night division Michael Remy and John Bonacci. Also a member of the Board Is James DIllman, a Law Review member, who serves as Professor 'l'werskt's student assistant.

The fUnction and responsibility of the TriSl Moot Court Board Is to schedule the trials, assign witnesses, appoint tipstafts and Jury commissioners, and obtain attorneys from downtown to act as judges. Despite the seeming Simplicity of these tasks, many complications arise because of the fact that nearly five hundred people are involved.

One of the major problems of the present program is finding attorneys who are willing to serve as judges. Because of the efforts of James West, James DUlman, and the co-operation of Miss June Schulberg, wllling attorneys were obtained for all of tbIs year's trials.

Appellate Team Loses National Finals The appellate team of Duquesne UnI'ferstty LaW Sehool lost at the NatiODll FtDals of the tweuttetll Annual National Appellate Moot Court Competit1on.

Despite the defeat of tills years team, wldcb was composed of Lorraine Mullen and MIchael Reilly. u-,oDe who witnessed the presentation of their arguments In the Falk Moot Court OIl FebrllU'Y 19, Uno at 8:30 p.m. was made aware of the tremendous competency of tbIs year's team. Their performance was overwhelming, even tbollgh tbeir arguments had not been presented tor tvto montbs.

There Is little doubt why they are the first Duquesne Appellate team to Win the Reglonals, and also the first team to participate In the Natioual FtDals.

Clearly. Lorraine Mullen and Michael Reilly are to be commended for their achievements and sacrltlces on behalf of Duquesne University Law School. They now pass a challengtngexample totbls year's appellate competitors.

~.~

"''''-

TRAVEL SERVICE, (NC.

To insure the smooth fUnctioning of each trial, a note of reminder was mailed by Mrs. Kathy Gersna to each attorney to Inform him of the date and time of his trial. If problems arose With individual attorneys and schedullng, Mrs. Gersna served as liaison between the Law School and the attorneys.

One suggestion for improvement of the program was made by steve Goldring, who would like to see the outdated tUms (used In earlier rounds) replaced by films made at Duquesne using the Duquesne Dramatics Club to act out several skits. ThIs proposal faces approval or rejection Within the next month.

On commenting on this year's Board; Professor Twerskl said, aThe Board was most co-operative, and Dillman and West were just fantastic. ReCognition given to this Board Is well deserved, they were excellent!a

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JURIS

March, 1970 ,

nar!\楼aIe SAVINGS

ASSOCIATION

Pqe Thirteen

Egan Chapter

Student Bar Column

P.A.D.

by Tom Scott, s.b.a. president There's an old vaudeville ioke that goes "Mary had a little lamb and boy was she surprised", How Mary got in her sad fix has been a topic of comedians for generations. Perhaps had Mary been aware of the sad fix of the law school, she might have taken comfort in knowing that she was not alone in being put upon by those with apparently less than her best interests at heart. I am referring specifically to central University and its treatment of the law school. The growth of the law school and the steady deierioriation of Its physical plant have gone totally unheaded by central university administration. The law school is in most urgent need of expansion and refurbishing of its facilities.

The law school moved into its present facilities in January of 1959. Enrollment in the whole school was approximately 100 students. The classroom facilities consisted of two large classrooms to contain 40 students. The entire physical plant of the law school was designed for a school bf aDDroximatelv 250 students, Seating capacity in the library consisted of 18 tables with six chairs each. While there is technically space for all of 108, because of the smallness of the tables there is seldom enough spaee for even four students per table. This effectively limits cacily to a maximum of seventy-two, and when the number of students in the ijbrary even approaches this, the total inadequacy of the ventilating system becomes eminently apparent.

The present enrollment of the law school is 500 students. Tbe inadequacy of the physIcal plant is ready discernible during any school day when one may be trampled in the halls, urinated upon in the johns, and suffocated in the classrooms.

The chairs in the lounge are on the i r last three legs and even the bright shiny new milk machine basn't given the right change since it was installed, There are 125 students in each of the first year classes alone. These gentle bewildered souls must not only face the academic rigors of the first year of law school, but must aiso face going to class in room 910. Room 910 is a brogdingnagian sized roost With louzy acoustics and painted a nauseous yellow. Professors teaching there are known to have their heads in the clouds, not necessarily beeause of their personal vanity, but also because the ventilation is so bad the room has its own weather. Room 910 would meet neither the federal nor state standards on air pollution. On bad days students must be warned to exhale only. One has only to attend class there once to realize the importance of "Scope" and wish everyone used 'Dial/ not to mention deoder:Llts for the other places.

When one approaches central university as to why nothing is being done, the answer given is that the law school runs at a loss and there is simply no money available, This seems at first to be an almost justifiable reason, Wltil it is learned just how central administration determines what the law school 'loses' each year, According to the accounting methods on the 'hill: all the revenue taken in by the entire university is added up, and all the expenses of the entire university are deducted from it. Since the remainder is a minus figure (the university as a whole runs in one) this minus figure is then prorated to each school within the university according to some mysterious formula based primarily on the number of students in each school. Obviously, according to this system no school within the university operates in the black. Just which schools operate at a profit and which schools operate at a loss is a jealously guarded secret.

However, While not much is known about the other

by Sam Pangburn, justice---l On March 10, 1970, the members of P.A.D. elected officers to represent the chapter for the sebool year 1970-71. Tbe following people were elected to the six positions: JORn Reed. Justice; Jack Sherry, Vice-Justice (day). Paul Barcbie, Vice-Justice (evening); John DeAngelis, Secretary; Joel Perr, Treasurer; Thomas Silverman, Marshal.

The brotherhood also voted to re-name the cbapter's "Distinguished Member Award,- It will be hereafter known as the Patrick T. Schombert Memorial Award in memory of our brother who died on February ZI, 1970. The award is presented annually to the Phi Alpha Delta senior who has excelled in the various aspects of his la.w school career. The nominee's for this award are: James Curtin, Robert Goehring, Albert Maier and Michael ReWy. The chapter Will also present three other awards.

The ·outstanding Memberlt award will be presented to the brother who has excelled in his work for the fraternity. The "Scholastic- award wW go to the brother Who has achieved the highest academic standing in his first two years of his law school career. Finally. the chapter Justice will receive the ·President's Award.-

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through a plan that never fails: schools within the university, it is known from the financial records of the law school that the law school operates at a profit. In recent years and for the next budgeted year, that profit figure is substantially in excess of $100,000, The Student Bar Association certainly recognizes the law school's duty to contribute to the overall well being of Duquesne University. The inequity of the situation arises in that just what the law schools contribution should be bas never been clearly defined in monetary terms. The only real formula the Student Bar Finance Committee could find was that whatever funds were left over from the direct and indirect expenses of running the law scbool were immediately syphoned off by University administration to cover their own misadministration.

In a recent interview with Dr. Erfft# 11 g Ii b administration official of considerable stature and many titles, it was learned that when the new dormitory is finished their will be such an excess of dormitory capacity that one of the smaller dorms will have to be closed until there is a demand for the extra space some years hence. The amount of extra money needed to keep the current small excess number of students at the William Penn Hotel will be nowhere near the amount of additional money it Will take to house them in the new dorm with its plush facll1ties. swimming pool and interest expense, and at the same time minimally maintainanentireemptybullding on the campus. Clearly. there have been some colossal mistakes in planning and clearly the law school is paying for them. Somehow the equities do not balance in this situation. The Student Bar Association urges all students and alumni to make their feelings on this matter known to central university administration and support the law school in its request for the sixth floor of Rockwell Hall.

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March,l970

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Page Fourteen

Editorial Board: Law Review 1970-1971

L. to R. Joseph C. Visalli, Stanley M. Stein, William C. Costopoulos, Will lam J. McKim, Gary R. Cassavechia, and Stephen M. Sokol.

The Board of Editors of the Duquesne Law Review for the 1970-71 Academic year has been selected by the current board, The new board consists of the following students: W11liam C, Costopoulos, editor-in-chief: Stephen M. Sokol, article f!ditori Gary R. Cassavechia, comment editor; William J. McKim, recent decisions editor; Stanley M. Stein, book review editor, and Joseph C. Visalli, managing editor.

for The Valley Dailey News, Tarentum, and the Jewish Chronicle, Pittsburgh.

Okla. He is a rt'sictent of

The new managing editor is a graduate of Lasalle College, Philade lphia, where he majored in accounting.

A former first lieutenant in the U.S, Army, Visalli. who is 28, served as an instructor at the United States Army Artillery and Missile School, Ft. Sill,

James S. Curtin. recent decisionS hook review editor, and editor.

The selection was made February 19 by the current board.

Known as "The Greek- by his colleagues, the new editor-in-chief did his under graduate work at Dickinson College, Carlisle, and served two years in the Army, At Duquesne, Costopoulos, who is 25, received the T. Robert and James H. Brennan Scholarship and the Corpus Juris Secundum Award.

His home town is Carlisle.

A Complete LiTlf' of lA',unl Bhm In-

Sokol: a native of Melbourne, Australia, studied at Orlord University, England, and graduated with honors from the University of Pittsburgh where he majored in history, Sokol, 25, is a resident of the Forest Hills section of Pittsburgh.

A Complete LiTH'

The new comment editor is a resident of Ridgefield, Conn" and a graduate of Duquesne University's School of Arts and Sciences. A Dean's List student, his major was history, At the age of 23, Cassavechia is a licensed real estate salesman in the State of Connecticut and a member of the Ridgefield Board of Realtors.

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Another graduate of Duquesne is McKim, who majored in biology, The 23-year-old "note- editor is a resident of New Castle, Pa.

Law & Finance Building

Stein, 27, is currently assistant executive director of the Allegheny County Bar Association and a night student at Duquesne, He is also a member of the Legal and Nominating committees of the Pittsburgh Chapter of the American Civil Liberties Union and of the National Guard. A graduate of the University of Pittsburgh, Stein was an editor of The Pitt News and President of Pi Delta Epsilon, an honorary Journalism fraternity. He also worked as a reporter

425 Fourth A venue

JURIS

Pittshurgh. Pa. 15219 PhoneB: 261-0:166

March, 1970

261路5841

Page Fifteen

"DEATH IS A TRAGEDY, fOR If IT IS NOT, THEN LIFE ITSElF HAS BECOME ONE" T. ROOSEVELT

accordingly, his favorite courses at law school were those involving ideals and inteUectualruwlenge, rather than the memorization of stale rules, Although he was idealistic, he was far from quixotic. Pat's goal was to earn a living as a lawyer, but at the same time helping those HI equipped to fend off the crush of the punch-card world, which mayaceount for his enthusiasm in Constitutional Law While most of us were preoccupied by the spectre of the approaching exam.

Perhaps constant adversity breeds courage, for while Pat's life was filled with personal tragedy, he never let it defeat him. As a final tribute, it should be noted that during the last few weeks of his life, while racked with ~in, Pat wrote an exam paper in Conflicts which rated one of Professor rare B's. Sooner or later everyone loses Twerski's What the obituaries fail to relate, and what statistics don't reflect, are the make-up of the man, his drives, a loved one, but Pat Schombert's family may take his ambitions, his emotional profile; in short, his some confort in that their's was one of a rare breed, individual stamp on life. Thus, it saddens me when one who can well serve as an example others should a man of intense character ~sses the scene with follow, only scant notice. This is especially the case with The esteem with which his classmates and his Pat, who wished to be very involved with life, who teachers held him is reflected by the University saw the study of law with perhaps less selfishness granting Pat Schombert the degree of JURIS DOCTOR than most of us. He was very concerned with the posthumously in June of this year. dehuminizing effects of modern life on man, and the resultant development of mediocrity as the MATT VON STAUDACH standard. It was Pat's goal to use law in a way to 4th Year, Evening Division help his fellow man retain individual dignity. and

THOMAS PATRICK SCHOMBERT, fourth year student at Duquesne University, School of LaW, died of cancer on February 20th in the twentyeigbth year of his life. Statistically, and as reported in the local ~pers, there appeared to be uttle extraordinary about the man. He was a 1963 graduate of Washington and Jefferson College, where he was a member of Lamda Chi Alpha fraternity, Upon graduation he served as an officer in the U.S, Army in Germany and after his release from active duty he was employed by the Jones and Laughlin Steel Corporation in the Labor Relations Department. Surviving him are a wife, two year old son, his mother, a brother and sister, However, statistics are not the full measure of the man, as our punch-card, tranistorized, statistics oriented society is wont to forget.

JURIS

March, 1970

Page Sixteen

Alumni Record L '65 - Norvell E. VOD Behren is currently working as a ~tent attorney with AMSTED Industries in Chicago, Illinois. Mr. Von Behren joined Amsted in 1969.

He received his B.S. degree in mechanical engineering from the University of Pittsburgh in 1954 and his law degree from Duquesne in 1965.

by

Stephen Goldring

Having recently become a member of the Illinois Bar, Mr. Von Behren is also a member of the Pennsylvania Bar Association and is a registered professional engineer in Pennsylvania. He presently serves on the subcommittee for ethics of the American Bar Association, the economic committee for the American Patent Law Association, and as a regional arbitrator for the American Arbitration Association.

Mr. Von Behren resides with his wife and their four children at 1651 Ardmore Avenue in Glendale Heights, Illinois.

L 'S6-Allen Ashe is currently serving as an international taxation specialist in the Tax Department of the Gulf Oil Corporation. Mr. Ash did his undergraduate work at the University of Michigan and is a 1966 graduate of the Duquense University School of Law where he was enrolled in the day division. After graduation he attended Boston University Law School where he received his Master's of Law's in Taxation.

In June of 1967, Mr. Ashe joined the Tax Department of the Gulf Oil Corporation and assumed his present position. This summer Mr. Ashe spent three months with the London office of Gulf working in the area of international tax law.

Mr. Ashe lives in the Shadyside area of Pittsburgh with his wife and son.

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L 'S7 - S. Asher Winikcff has recently been apPOinted as full-time Counsel for the Pennsylvania Human Relations Commission. Commission Chairman Max Rosenn said the selection of Mr. Winikoff for the agency's top legal position was approved by a unanimous vote, and he praised Mr. Winikoffs excellent qualifications and grasp of human relation's legal problems.

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L '63 - Robert L. Hartig has recently been placed in charge of the Anchorage civil division's twelve man legal staff in a reorganization of the Attorney General's Office of the State of Alaska.

Prior to his recent promotion, Mr. Hartig served as an Assistant Attorney General at Anchorage. In addition to his new duties of directing the division'S legal activities Ilnd administrative operations, Mr. Hartig will continue as chief of the natural resources section.

Upon graduation he continued to work for Mellon Bank in the capacity of Assistant Secretary. He then became associated with the firm of Paul, Lawrence and Rock. Mr. Bucey became a ~rtner in this firm When it reorganized as Lawrence, VanGorder, Bucey and Plum.

Although engaged ingeneral practice, Mr. Bucey devotes a great amount of his time to the Family Law area. From his extensive experience in the field, he has observed a need for more arbitration in divorce proceedings especially relating to preliminary matters concerning property settlement, alimony, and cbild support. He also feeis that mea.ningful marriage counselling should be available within the Family Division of the Court on a public basis in order to encourage and work toward reconciliation as an alternative to divorce.

Two areas Which Mr. Bucey feels need statutory revision in Pennsylvania are grounds for divorce which should be expanded to include "irreconciliable differences,Âť and a rela.xing of abortion laws to make them more realistic in light of recent developments in Colorado and Hawaii.

Mr. Bucey was formerly a member of the Commission of Mt. Lebanon Township, and is an officer in the Oberlin College Alumni Association of Pittsburgh and the Mt. Lebanon United Presbyterian counsel to Pittsburgh Church. He is also Presbytery, a member of the Board of Directors of the Pittsburgh Council of Churches (Christian Associates) and a member of the Family Law Section of the American Bar Association.

Before going to Alaska, Mr. Hartig was a senior geologist for Mobil Oil Company in Wyoming. He had been associated with Mobil for 13 years. In the Attorney General's office, he has been specializing in legal matters concerning natural resources.

After receiving his law degree from Duquesne University School of Law in 1967, Mr. Winikoff was selected by Attorney General William C, Sennett to work in the Attorney General's Honor Law Graduate Program - a position which provided Mr. Winikoff with a wide range of experience in dealing with problems of state government.

L '56 - Wiley A. Bucey, Jr. graduate of OberUn College in 1947, earned his law degree from Duquesne University School of Law in 1956.

Juris

He resides with his wife and four children at Jefferson Drive in Mount Lebanon.

Duquesne University School of law 600 Forbes Avenue

Mr. Winikoff is a member of the Pennsylvania Bar Association and is an ex officio member of its committee on unauthorized practice of law. He also is a member of the Allegheny County Bar Association and has been admitted to practice before the Pennsylvania Supreme Court, the U,S. Court of Appeals for the Third Circuit, the Federal District Courts for the Middle and Western Districts of Pennsylvania, and the Courts of Allegheny County.

He is a member of the Phi Alpha Delta Law Fraternity.

U. S. POSTAGE

PAID

I

Pittsburgh, Pa. Permit No. 390

Pittsburgh, Pennsylvania 15219

Mr. Winikoff had been serving as a Deputy Attorney General prior to his recent appointment. Mr. Winikoff, a native of Pittsburgh, is married to the former Miriam Gross and they now reside with their two-year-old daughter in Camp Hill, Pennsylvania.

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JURIS

March, 1970

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