Melchert-Dinkel Defense Attorney is Earning His Pay with Lothenbach Plea

What is The Lothenbach Plea?

Basically, it is where a defendant does not challenge the facts of a case and therefore allows them to be submitted to a judge without contention for adjudication.  Based on said submission the judge will review, and then decide or render a verdict.

Here’s the thing, even if the judge finds the defendant guilty (which is likely in the Melchert-Dinkel case), the defendant can, without objection from the prosecuting attorney, take the case before the Appellate Court to challenge the denial of pre-trial motions which contend that the even with the acknowledgment of said facts, the case should not have come to trial in the first place.

In short, and with regard to Melchert-Dinkel, everything that the prosecution claims I did is true but . . . it doesn’t matter because the pre-trial motion requesting a dismissal of the case based on the violation of my right to Freedom of Speech in encouraging two (and more) people into taking their own lives, should have been granted.

It is the ultimate “I did it . . . so what claim,” that can only be accessible through a justice system that allows the technical aspects of the law to outweigh moral considerations.  Or to put it another way, it has created yet another buffer which separates the actions of Melchert-Dinkel from the potential consequences associated with public outrage.

Adding insult to injury of course and, reflecting the sentiments expressed by esteemed law professor Susan Brenner during our December 16th broadcast, who had suggested that by hanging around suicide chat rooms the victims put themselves in harms way, Melchert-Dinkel’s lawyer Terry Watkins has argued that the victims were predisposed to committing suicide and his client didn’t sway them by making statements online.


Melchert-Dinkel Lawyer Terry Watkins

While no one, not even the creative legal mind of Watkins, can honestly say what was or was not going through the minds of the people who ultimately took their lives, just because someone is standing on the ledge of a building does not mean that you have to cheer them on in terms of jumping.

Further to this point, even if someone is on a ledge it may be more of a cry for help than being an actual reflection of an intention to jump.  Yes, both Mark Drybrough and Nadia Kajouji frequented the suicide chat rooms.  It is also true that both talked about taking their own lives.  However, and taking into account the value that we has a nation place on human life, unless you can read the hearts and minds of people with absolute certainty then maliciously encouraging and enticing people to take their lives to satisfy an obsessive “thrill of the chase” desire is morally reprehensible.

However, the law is not based solely on society’s moral sensibilities (although it should reflect them).  Nor for that matter, has Melchert-Dinkel lawyer Watkin’s claimed that his client’s actions were morally honorable.  The issue at hand is whether or not his client had the right to write what he did in the chat rooms, regardless of the consequences.  It is upon this point of law that the Appellate Court will hear the case and ultimately decide Melchert-Dinkel’s future.

So what are these points of law that shadow or perhaps obfuscate social and/or moral responsibility, particularly as it relates to the contested pre-trial motions that were denied in the Melchert-Dinkel case?

Well, besides the right to free speech, one of the more pertinent reasons given for justifying the motion to dismiss is linked to the purported vagueness of Minnesota’s assisted suicide law.

In his May 27th, 2010 post on the Legal Match: Criminal Law blog, Rusty Shackleford writes “without a very clear and rigid definition of what it means to “encourage” suicide, the law under which this former nurse is being charged is almost certainly so vague as to be unconstitutional.”

Shackleford then makes the statement that “the constitution allows certain laws to be “void for vagueness” if they don’t put people on reasonable notice of what is and is not prohibited,” and that “due process requires that laws be written clearly enough that a reasonable person would have a good idea of what the law actually says.”

In the context of the above, here is an interesting question . . . to what degree should Melchert-Dinkel’s admission that he knew what he was doing was wrong and probably against the law be taken into consideration?  Doesn’t this show prior knowledge as well as establishes the pre-requisite intent to find him guilty?

Even taking into account Shackleford’s post which admonishes the State “to choose their words more carefully next time” regarding the vagueness of the current wording of the assisted suicide law, should the accused get off solely on the basis of legislative wording?  After all, isn’t Shackleford’s expressed issues with the apparent vagueness of the law tied to concerns that it doesn’t “put people on reasonable notice of what is and is not prohibited.”

Once again, and keeping in mind that said admission has also been challenged by Watkins via a pre-trial motion, the larger issue is can you or for that matter should you sift out the moral and legal recognition on the part of the defendant that what they were doing was wrong despite the purported vagueness of the law as it is written?

What about taking into account the possibility that in his profession as a nurse, Melchert-Dinkel would have had a greater awareness or sense of the law concerning such matters as assisted suicide?  Shouldn’t his elevated awareness as a result of his being a health care professional also be considered?

Based on a May 15th, 2008 article “Does a therapist have to report me as suicidal if I tell her I self injure?,” in which Dr. Mark Dombeck Ph.D. acknowledged the gray areas regarding the question posed by a reader, he nonetheless emphasized the fact that In most USA jurisdictions, psychotherapists (at least the licensed ones) are mandated by state law to report certain behaviors to responsible authorities (e.g., the police, physicians, etc.).  He went on to write that like homicidal intent, suicidal intent is always a reportable issue.

Not wanting to stray too far off the main focus of today’s post, while some might point to a possible violation of doctor-patient confidentiality, the state’s interest in preserving life and preventing abuse according to Dr. Dombeck, trumps the right to confidentiality. Psychologists, continued Dombeck, who do not report when they are supposed to report can face legal sanctions.

An added dimension to this train of thought relative to vagueness and heightened responsibility, is whether or not Melchert-Dinkel’s encouragement carried more weight based on the fact that although operating under a pseudonym he was in fact presenting himself as a nurse to those he counseled.  This would imply, at least to a certain degree, that he was dispensing advice in his professional capacity as a health care provider.  One would have to ask if his encouragement would have carried as much weight if he had told his victims that he was a truck driver?  It is obvious that Melchert-Dinkel considered his medical background as being important otherwise why even mention it?

For me, this is the critical point of these legal proceedings.  If Melchert-Dinkel was advising people in his capacity as a nurse and the Appellate Court rules that he should not have been charged, does this let health care professionals in general off the hook in terms of reporting suicidal behavior?

While an extreme example, will an Appellate decision to overturn the trial judge’s guilty verdict (if this is in fact the ruling from the bench), open the door to police officers or firefighters having the freedom to join a crowd in cheering on a jumper to step off the ledge versus reaching out to the distraught in an effort to save them?

In the end, and even though the individuals who took their lives ultimately did so by their own hand, if a Melchert-Dinkel walks, what does it say about us as individuals and as a society as a whole?  What does it say about our justice system (note I used the word justice instead of legal), when the technicalities of the very laws that are designed to protect us take precedence over personal responsibility and moral sensibilities?

I guess we will have to wait to see how this plays itself out over the coming weeks to answer these questions?


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