Jury selection in the reputed "Dr. Death's" murder trial is scheduled to begin Monday, March 22. Last week, prosecutors decided to drop the assisted suicide charge against Kevorkian after Judge Jessica Cooper ruled that Youk's pain and suffering was relevant to assisted suicide but not to murder.

Prosecutors wanted Judge Cooper to bar evidence related to Youk's pain and suffering because they wanted Kevorkian's trial to focus solely on the issue of whether he committed murder, not the national debate over euthanasia. Kevorkian, prosecutors argued, would only use evidence of Youk's condition to generate sympathy for the victim and encourage jurors to implicitly condone his actions.

But the prosecutors' decision to pursue only the murder charge against Kevorkian may not only be a gamble for them. It also limits the retired pathologist's defense. Kevorkian's attorneys claimed they will argue that he only wanted to ease Youk's pain and suffering — a defense which may be hampered by an inability to present evidence about the patient's disease.

In a motion filed Tuesday, defense lawyers argued that assisted suicide is a related, lesser-included offense of first-degree murder and that evidence at trial could be used to prove both charges. Because of this, and the fact that their client has a right to prevent any defense theory, Kevorkian's attorneys claim that evidence of Youk's condition should be admissible and jurors should be able to consider the assisted suicide charge.

"The obvious purpose behind the prosecutor's dismissal of the assisted suicide charge is an attempt to prevent relevant, probative, and admissible evidence regarding Thomas Youk's medical condition and pain and suffering from being introduced at trial," the motion said. "This court should not prohibit the introduction of this evidence at trial because Dr. Kevorkian has the due process right to present any theory of defense that is supported by sufficient evidence. Dr. Kevorkian has the right for the jury to consider assisted suicide as a cognate included offense of first degree murder."

To convict Kevorkian of first-degree murder, prosecutors must prove that he intended to kill Youk. It seems that, even with the edited and unedited tapes of Youk's death, it will be difficult for prosecutors to prove Kevorkian's intent without mentioning either the alleged victim's illness or referring Kevorkian's verbal challenge to prosecutors to settle the debate over euthanasia once and for all. Any prosecution reference to Youk's illness or the debate over assisted suicide would provide Kevorkian's attorneys with the opportunity to bolster their defense.

While the defense filed its motion, the Michigan Court of Appeals rejected Kevorkian's motion to delay the trial and refused to rule on his argument the murder charge against him is unconstitutional. The appeals court said it would not address his argument unless he is convicted. Kevorkian had tried to convince the court that the Ninth Amendment protected him from being prosecuted for murder in Youk's case. The Ninth Amendment says that rights not addressed by the Constitution are reserved for the people. Kevorkian believes that amendment gives people the right to decide how they would like to die and prevents the government from forcing people to endure severe pain and illness.

On Nov. 25, 1998, Michigan prosecutors charged Kevorkian with first-degree murder, criminally assisted suicide and delivery of a controlled substance after viewing unedited and edited tapes of Youk's death, which was televised Nov. 23 on CBS' "60 Minutes."

A national audience saw Kevorkian challenge prosecutors to charge him because he wanted to settle the ongoing debate over euthanasia. According to Kevorkian, Youk died Sept. 17, approximately three weeks after Michigan enacted a law making assisted suicide a felony punishable by up to five years in prison.

In both the unedited and edited versions of the tape, Kevorkian is shown having Youk sign consent forms for his assisted death. Like Kevorkian's previous patients, Youk initially thought he was going to inject himself with lethal doses of drugs by operating an apparatus. But unlike his previous cases, Kevorkian administered the fatal "death potion" to Youk himself.

While he conceded that Youk could have operated the machine, Kevorkian said that he persuaded Youk to allow him to directly administer the fatal drug because it was more efficient and more humane. He said he told Youk of his intent to use him to extend the national debate over assisted suicide to euthanasia. Prosecutors will focus on Kevorkian's stated intentions and his actual administration of the fatal drugs in their attempts to convict him of murder.

— Bryan Robinson