Kathleen Kane blames everyone but herself for a ruthless prosecution

Decency, or what serves as a modicum of decency in Harrisburg, finally prevailed in the case of a woman accused of the crime of trying to help her dying 93-year-old Pottsville father end his agony.

Pennsylvania Attorney General Kathleen Kane decided this week she will not prolong the agony of that family by appealing the ruling of a Schuylkill County judge, who threw out an assisted suicide charge against Barbara Mancini.

On Feb. 11, Judge Jacqueline Russell did not just throw out the charge. She flayed Kane's case in harsh terms rarely seen in a court decision, saying Kane went after Mancini without a shred of credible evidence.

That ruling came one year, to the day, after Mancini's father, Joseph Yourshaw, died at a Pottsville hospital, where he was taken against his will after consuming the contents of a bottle of morphine to end his suffering. There was ample evidence to show that the morphine had been properly prescribed by a physician and that Yourshaw was entirely capable of opening the bottle and taking the drug by himself.

It also was clear that Yourshaw, in the final stages of various terrible illnesses, had a "do not resuscitate" order and a living will stipulating that no artificial steps be taken to prolong his agony.

Nevertheless, he was forcibly resuscitated by the medical establishment after an outfit called Hospice of Central Pennsylvania intervened by barging into his home and arranging for the police and emergency crews to take him away. It was only after receiving more morphine at the hospital that he died, in a glorious victory for the medical establishment over Yourshaw and his wish to die peacefully at home.

Despite all that, Mancini was charged with giving him morphine in a sinister scheme to end his life.

In a bizarre statement issued to explain why she was not filing an appeal of Russell's ruling, Kane said "prosecutors determined that there was not enough evidence to proceed to court." Not enough? How about no admissible evidence at all?

"Due to the inability of the Commonwealth to reopen the record, a legal determination was made that an appeal would not have a substantial likelihood of success," Kane's statement said.

Actually, that's the part of this case in which I think Kane could have prevailed. An appeal would be up to the state's appellate court system, and I've had plenty to say about that system, nearly all of it bad.

Before I get to other details, a point of clarification.

Last week, her deputy attorney general, Adrian King, took me to task over a previous column about this case. On Feb. 19, I said Kane charged Mancini with two offenses under state law — "causing suicide" (part A of section 2505) and "aiding suicide" (part B). That was based on my layman's reading of Russell's ruling, which began by saying Mancini was "charged with causing or aiding suicide."

"That was not what we charged," King told me, referring to the "causing" part of the law. He said Mancini was charged only with aiding suicide, part B.

In any event, now Mancini is not charged with either offense, although that happy fact may not have come in time to keep her life from being destroyed by Kane and the hospice folks.

Mancini also is part of the medical establishment, and her job as nurse at a Philadelphia area hospital went down the drain because of the criminal charges.

That did not seem to upset Kane, as indicated in this smug final paragraph of her statement this week: "If the citizens of the Commonwealth disagree with an existing statute, it is incumbent upon the people to work with the General Assembly to amend the law. Until amendment occurs, it is the legal responsibility of prosecutors to enforce the law as it currently exists."

So it is the people of Pennsylvania, except for the attorney general, who are to blame for Mancini's difficulties. Prosecuting somebody for a crime without evidence is not the problem; the problem is a law that establishes a crime in the first place.

One problem with Kane's statement is that, usually, individual citizens have about as much power to influence the General Assembly as gnats. In Pennsylvania, most legislators respond only to powerful and/or wealthy special interests.

There are exemptions. When legislators gave themselves and judges a big (and blatantly illegal) pay raise a few years ago, average Pennsylvanians became enraged and let their voices be heard. Politicians got the message and, in a panic, rescinded the pay hikes for themselves. Those aforementioned appellate judges, however, decided that they must be allowed to keep their own illegal pay raises.

The Mancini case illustrates what can happen with laws that let prosecutors go after people for things that should be none of the government's business, and Kane's excellent, albeit smug, point about our archaic law may serve a noble purpose.

Maybe, as happened in the pay raise flap, the ruthless prosecution of Mancini may serve to make voters angry enough to help Pennsylvania join states like Montana, Oregon, Vermont and Washington in allowing humane and legal physician-assisted suicide for people like her father.

paul.carpenter@mcall.com 610-820-6176

Paul Carpenter's commentary appears Sundays, Wednesdays and Fridays

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