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Putting 'Death' Behind Bars

Andrew Cohen, CBS News Radio's network legal analyst, covered the Kevorkian trial and follows other legal issues across the country. In a special analysis for CBS.com, Cohen considers how Dr. Jack Kevorkian came to be sentenced to at least a decade in prison, and how he might appeal the ruling.

Don't be surprised that Dr. Jack Kevorkian was given a prison sentence Tuesday for his role in the televised death of his critically ill patient, Thomas Youk.

There was no way that Judge Jessica Cooper was going to let the good doctor off the hook after a Michigan jury found him guilty of second-degree murder late last month.

There was no way, you might say, that he was going to walk free on Tuesday given the overwhelming facts and law presented against him at trial.

But the length of Kevorkian's sentence, and the vehemence with which it was imposed by the judge, was surprising. The 70-year-old assisted suicide champion now faces 10 to 25 years in prison, a sentence that is tantamount to a life sentence for a man in his physical condition.

The ruling was made despite the fact that prosecutors - certainly no friends of Kevorkian - asked only for "no less than" a 10-year sentence. And it happened despite the judge's patience with Kevorkian's legal shenanigans during the trial.

My guess is that Judge Cooper felt that she needed to make an example of Kevorkian and his "I-dare-you-to-punish-me" position during the trial. Judges simply don't like it when lawyers or clients mock the justice system, whether that mockery is justified or not.

So when Kevorkian essentially begged the jury to disregard the law during the trial and vote their conscience to acquit him, he apparently was touching a raw nerve with the jurist.

On this point, credit Cooper with keeping a poker face in front of the jury throughout the trial. She certainly did not let on in front of those folks what we now know to be true -- that she found Kevorkian contemptible and what he did inexcusable, despite the political and moral controversy it generated. She did, in effect, what judges are supposed to do: Lay low and let the jury lug the heavy water.

None of this means, however, that Kevorkian and his legal team won't have a few aces up their sleeves when it comes to appealing the decision.

First, they certainly will appeal certain remarks made by prosecutors during closing arguments that suggested Kevorkian was required to testify in his own defense. That is a no-no in the law.

Second, it is likely the Kevorkian team will appeal Cooper's decision to prohibit Youk's family from testifying on Kevorkian's behalf. That decision, more than any other made during the course of the trial, shaped the outcome of the trial because it precluded the jury from hearing the heart of Kevorkian's defense -- that the killing of Youk was a mercy killing, spawned by Youk and his family's repeated requests.

This sort of evidentiary issue typically generates a "harmful" error which appellate courts pay particular attention to when figuring out whether a conviction ought to stand or fall.

Finally, look for Kevorkian to argue on appeal that he was ill-advised by his lawyers long before he took over his own defense. For example, had his lawyers not moved to dismiss the assisted-suicide charge from the indictment, the prosecution might not have come up with the idea to drop it themselves. Dropping that charge, as it turns out, nullified the Youk family as a factor at trial.

I have no idea how successful the Kevorkian appeal will be. It's never smart to bet against a jury verdict and well-respected judge. I am willing to bet, though, that we will be taIking about the Kevorkian verdict for a long time and that the good doctor himself will not go gently into the good night.

Written By Andrew Cohen

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