Zimmer, Duncan & Cole

"I Was Only Trying to Help a Friend"

Right on the heels of Dr. Jack Kevorkian's death, our Supreme Court wrestles with South Dakota's laws regarding assisted suicide.  The case is called State v. Robert Goulding (2011 S.D. 25).  A link to the full opinion is available at LessLegalesePlease.com.

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Allen Kissner wanted to die.  He had constant, incurable pain related to his failing health.  He was addicted to heroin.  He was in trouble with the law and, at age 56, was probably headed back to prison because of his legal troubles.

He had already attempted to take his life once before, but failed.  After his release from the hospital, Allen returned to Redfield, where he lived with the Goulding family. 

Allen then apparently approached Robert Goulding with the ultimate request.  He wanted Robert to help him take his own life.  They began planning.

On the weekend before Thanksgiving in 2008, Allen wrote a suicide note and left it on his dresser.  Robert and Allen then drove from Redfield out the Black Hills.  They arrived on the quiet, pine shores of Sheridan Lake.  They headed to the picnic area.  Nobody else was in sight.

After some initial preparations, and presumably after the friends said goodbye, Robert withdrew a gun from his pocket and held it to Allen's ear.  When Allen was finally ready, Robert pulled the trigger.  Allen died instantly.

A fisherman found his body the next day.  Police found no weapon near the body, so they began investigating the case as a homicide.

One of their first stops was to the Goulding residence.  Robert led investigators to the suicide note. 

The investigators became suspicious when Robert refused a polygraph.   When he realized he was a suspect, Robert cooperated and told them everything. 

Robert was arrested and brought back to Pennington County for trial.   

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The law has always had an unusual relationship with the "crime" of suicide.  The act itself was outlawed for centuries on religious grounds, namely that God must decide when a life should end. 

These laws were mostly a moral statement, because they were obviously unenforceable against those who succeeded.

On a practical level, however, these laws provided the state with the ability to intervene and investigate attempts.  And they were the avenue for other laws that punished those who aided and abetted a suicide.

Thus, although we think of assisted suicide as a modern phenomenon, it was enough of a problem long ago that laws were passed against it.

It was against these allegedly "antiquated" laws that Dr. Kevorkian waged a counter-cultural battle for twenty years.  For better or worse, as one journalist noted, Dr. Kevorkian and his suicide machines "forced us to pay attention to one of the biggest elephants in society's living room: the fact that today vast numbers of people are alive who would rather be dead."

Some states, like Oregon, responded by passing new "Death With Dignity" legislation that legalized the practice (if performed by licensed physicians).  Other states, including South Dakota, beefed up their existing laws to prohibit it. 

Yet we still find some incongruity in our law books.  For example, it is fully legal to withhold or withdraw life-saving medical treatment for someone who is terminally ill. 

The distinctions are buried in the details, namely, whether the treatments merely "postpone" their death, and whether the patient had the foresight to draft a living will.  Yet one of the very next statutes explains that our State "does not condone, authorize, or approve mercy-killing or euthanasia, suicide or assisted suicide," which are low-grade felonies.

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Robert Goulding arrived for his murder trial on crutches and with an oxygen tank in tow.  The same story was told, using the same admissions he had made to investigators.

The jurors were not allowed to  hear about South Dakota's assisted suicide statutes.  Instead, they were told that "suicide is the intentional taking of one's own life" and that as a matter of law, it is not suicide when another person actually performs it.

The jury deliberated for thirty minutes before convicting him. 

At his sentencing, the victim's family explained their anguish and sorrow.  Robert apologized. He explained the last year had been a "nightmare", and said, "I was only trying to help a friend."

On appeal, Robert's attorney pointed out several apparent inconsistencies in the suicide statutes.  The Court rejected all of them.  

Legally, it wasn't a "suicide" because Allen didn't take his own life, he merely consented that Robert could take it from him.  Nothing in our current laws could change this result.

Robert will serve a mandatory life sentence. 

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Daniel K. Brendtro is a trial attorney and a partner in the law firm Zimmer, Duncan & Cole, in Sioux Falls.  You can contact him s via the firm's website, www.zdclaw.com.