A Howard County grand jury refused yesterday to indict a Columbia man suspected of helping his ailing mother commit suicide last year, though officials classified her death as a homicide.

Prosecutors said they presented "all the evidence in the case," while jurors seemed influenced by the heart-wrenching aspects of the death of a 90-year-old woman who had told her son she wanted to die.

"I believe the failure to have an indictment returned focuses on the tragic circumstances of this elderly, very ill woman," said State's Attorney Marna L. McLendon.

"As prosecutors, we're looking at facts and the law," McLendon said. "Grand jurors are making sense of that in terms of criminal culpability and whether to attach criminal charges. They add the more human piece."

William V. Fishback, 69, whom police suspected in the death of his mother, Helen Van Meter Fishback, could not be reached for comment yesterday. His attorneys said he did not play any role in her death Sept. 7.

McLendon was circumspect in speaking about the case and would not term it an assisted suicide. State legislators are debating a bill, passed by the Senate and awaiting House action, that would make assisting suicide a felony.

McLendon said the lack of a law did not stymie her investigation.

"We didn't leave the grand jury room today and say we should have had a law" dealing with assisted suicide, McLendon said.

Prosecutors usually get indictments fairly easily because the defense cannot present evidence or question witnesses before a grand jury, legal experts said. But sometimes, in tough cases where there is no clear-cut case, prosecutors will present evidence in a way that leaves jurors more room to reject charges.

"Most typically, if prosecutors wish to indict, they can successfully do that," said Byron L. Warnken, a professor at the University of Baltimore School of Law. "There are definitely times when a prosecutor believes that a case shouldn't be brought and needs the citizenry to decide that."

The state medical examiner had ruled the death a homicide by "a plastic bag secured over [her] head by another person." That bag was placed over Fishback's mother's head after she took high levels of drugs, including tranquilizers and sedatives, officials said.

When police arrived at the Fishbacks' apartment -- summoned by Fishback -- they found his mother on her bed, dead, with a plastic grocery bag wrapped around her head, officials said.

That scene echoes a section of "Final Exit," a 1991 best seller by Hemlock Society founder Derek Humphry about assisted suicide for the dying.

"There is no evidence that he put the bag over her head," said Gary S. Bernstein, one of Fishback's lawyers. "He did not watch it happen. He came in afterward."

Investigators also found an audio tape recording at the scene, police said, on which Helen Fishback is pleading to die and Fishback could be heard sobbing. Officials said Helen Fishback was legally blind with limited mobility and was suffering from heart disease and emphysema.

Helen Fishback had planned to kill herself for several months and was arguing with "her family about the futility of her life," Bernstein said. "She was in her own little prison courtesy of her own health condition."

Her son, who recently moved out of state, is still mourning her death, said attorney Fredric G. Antenberg, also representing Fishback.

The attorneys' depiction of William Fishback's role and the evidence did not match that of state and local authorities.

"He certainly was present at some point she was attempting suicide to the extent that his involvement led to the categorization of her death as a homicide," McLendon said.

Said Assistant State Medical Examiner Joseph P. Pestaner: "We gave an opinion as to the cause and manner with reasonable medical certainty. It is up to the state's attorney how that case will be prosecuted."

Little is known about Helen Fishback and her son. They lived in Columbia for 11 years, with Fishback caring for his ailing mother. They were rarely seen apart.

Helen Fishback had been a longtime resident of Lexington, Ky., where she was the housemother for football players at the University of Kentucky.

Friends recalled her as a kind and caring woman, known as "Mom Fishback" to ballplayers. She kept many from leaving school while instilling values in young men who often had little social training.

Prosecutors said they were unlikely to seek charges again, and police declined to comment.

"This kind of case is tragic in its circumstances," McLendon said. "We understand that. The grand jury did, too. This had to play out in front of the jury."

Pub Date: 3/05/99