"Similar to . . . Murder"

"Similar to . . . Murder"

An icy wind whipped around the Hillsborough County Courthouse in the mill city of Manchester, N.H. (pop. 84,000). Inside, more than 100 New England men & women--Yankee, Irish, French Canadian, office manager, millworker, real-estate dealer--thought vaguely but anxiously about a question which men have discussed for centuries: Is there an eternal law that transcends men's best intentions and even men's law, and if there is, how are men to interpret it?

The 100-odd were members of a panel from which the court was trying to select twelve jurors (and an alternate) to try the case of 41-year-old Dr. Hermann Sander for the "mercy killing" last December of his cancer-ridden patient, Mrs. Abbie Borroto.

Before judge and lawyers came prospective juror Mrs. Corrine English, dark, thin Nashua housewife. Mrs. English didn't feel that "I could sit in the jury to give a verdict ... I don't think I believe in mercy killing."

"Mercy killing is an act similar to ..." murder," argued County Solicitor William H. Craig. "In other words," his colleague, State's Attorney General William L. Phinney, added, "simply because the adjective 'mercy' is inserted before 'killing' does not alter the situation. If a prospective juror took the witness stand and said, 'I have a prejudice and opinion against killing,' certainly that is not in and of itself a basis for disqualification." Judge and lawyers questioned Mrs. English further. "You say you do have some prejudice in your mind against the defendant?"

"Well, I have my own feelings, I suppose ... I don't know whether it would go against my religion or something." Mrs. English was excused from the panel by the court as having a disqualifying opinion.

Phinney tried to make it clear to "those jurors of the Catholic faith" that there is no inconsistency between church law and New Hampshire law on the matter of killing. Altogether, 70 veniremen were examined; Justice Harold E. Wescott excused 34 for cause; the defense used 17 peremptory challenges, the prosecution seven. From heavily Roman Catholic (60%) Manchester, justice finally settled on a jury which included nine Catholics.

The Morning of Dec. 4. A powdery snow began to fall outside. Under an old-fashioned tin ceiling, in the steam-heated courtroom, the twelve men and alternate sat down to consider the case. The trial had drawn the attention of half the world. On hand were photographers, newsmen, feature writers (among them, Novelists Fannie Hurst and John O'Hara), reporters from London and Paris newspapers. Dr. Sander, lean-faced, pale and expressionless, his busy and respected career interrupted, sat inside the courtroom rail with his wife, the mother of his three children.

Prosecutor Phinney retold the story of the morning of Dec. 4 when Dr. Sander, bending over the wasted figure of Abbie Borroto, 59, told a nurse to bring him a sterile syringe. "He inserted the needle into the vein." Two or three minutes later --"Dr. Sander handed the needle back to the nurse and indicated that Mrs. Borroto was dead ..." A week later he dictated a notation to the record librarian: "Patient was given 10 cc. of air intravenously repeated four times. Expired within ten minutes after this was started."

No Corpus Delicti. State's witness, Sheriff Thomas O'Brien, took the stand. He testified that Dr. Sander, after being confronted with his notation, had told him that Abbie Borroto's anguished husband, Reginald, had pleaded with the doctor to "do something to eliminate his wife's pain, even, if necessary, to eliminate her life." That "Borroto was smoking and drinking coffee all night--he went home and started drinking--he had a bad heart." That Sander "in a weak moment decided to do it."

Josephine Connor, librarian in Hillsborough County General Hospital where Mrs. Borroto died, testified that she had waited almost two weeks before finally reporting Dr. Sander's final notation in the case because "it kind of slipped my mind." She recalled that the county medical referee had asked Dr. Sander if he didn't realize he had broken the law. Said Miss Connor: Dr. Sander replied that he did but that he had broken the law before, "he had been through stop signs and nothing ever came of it." This was more serious, the medical referee told him, this was murder. Miss Connor recalled: Dr. Sander said that then the law should be changed.

It was apparent from dignified, white-haired Lawyer Louis Wyman's opening statement and later questioning that the defense was going to depend heavily on the medical aspect of the case: that another doctor, Albert Snay, who had examined Abbie Borroto before Dr. Sander saw her that morning, could not feel her pulse; that she might already have been dead when Dr. Sander gave her the injections of air; that the prosecution could not produce a corpus delicti, i.e., proof of death by a criminal act.

This week that aspect got some buttressing. Nurse Elizabeth Rose, who had fetched Dr. Sander the syringe, testified that she had also been with Dr. Snay. A state's witness, she admitted on cross-examination that she had made the statement: "I am certain that Mrs. Borroto was dead before Dr. Sander entered her room. She had death pallor. She was not breathing ... I would say that Mrs. Borroto was dead when Dr. Snay saw her. Dr. Sander did not kill her because she was dead when this injection was made."

"Thou Shalt Not Kill." But that kind of argument was not material to the real case of Dr. Sander. Had he done a good deed or committed a great sin? The state's answer was that Dr. Sander had committed a sin against society, tearing apart some of its moral and legal fabric; that fabric had to be repaired, no matter what the defendant's own interpretation of what was right and what was wrong.

Outside the courtroom, in pulpits and in newspapers, the greater issue was joined. Euthanasiasts, who rushed to Dr. Sander's support, revolted at the notion that life should not be snuffed out when it became an "unbearable" burden to the sufferer, to his relatives, to society. They argued that it was an act of charity to "give release" to the tortured and incurable, to the monstrously imbecilic.

Men who hold the notion that there is no permanence in the moral order, that the basic rules of moral conduct can and should be changed when circumstances seem to dictate change, added their voices. Dr. Sander's own pastor, Congregationalist C. Leslie Curtice, whose mother had also died of cancer, declared from his pulpit : "Our reverence for the inviolable dignity of human personality demands that we permit people to die an honorable and dignified death under conditions that would be deemed proper."

But who was to judge the "proper" conditions for killing a human being--physician, the state, the bereaved relatives? And where would they get the right to end his life?

Against legalized euthanasia, other voices had long been raised. A year ago, the liberal Catholic Commonweal argued: "We do not believe God wills the prolongation of pain because we do not believe He willed its incipience. We ... do believe He wills the prolongation of life, so long as He lends it"--which was to say that human laws and man's best intentions were valid only as they enforced or supplemented natural law, and the natural law was: "Thou shalt not kill."

It was this question which fixed the eyes of the Christian world on the Manchester courtroom.

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