Man Helps Wife in Suicide, Now Faces Murder Charge : Mercy death: Californians thought Michigan law was lenient. They picked wrong state at the wrong time.

Bertram R. Harper says his wife died Aug. 19 exactly the way she wanted, in a motel room, with her husband and daughter holding her hands, comforting her and in a state where she believed they wouldn’t be prosecuted for their assistance in her death.

After she had stopped breathing that stormy night, Harper, 72, called the police. He and his stepdaughter told them exactly what happened--how they had come from Loomis, Calif., near Sacramento; how Virginia Harper, 69, suffering from advanced cancer, had taken sleeping pills and how he had assisted her in slipping a plastic bag over her head.

When the first few attempts failed, he told them, he’d waited until she had fallen asleep and then put the bag on her himself. He secured it around her neck with rubber bands.

“We didn’t expect problems,” said Harper, a retired chemical engineer. “We wanted to come here, my wife wanted to have a suicide very quietly and with no notoriety and that would be the end of it.” His voice cracks when he speaks of it. “That’s why we came to Michigan.”

Instead, Harper was charged with murder.

Wayne County Prosecutor John O’Hara wanted to send a message, two months after a Michigan doctor, Jack Kevorkian, had made headlines by using his so-called “suicide machine” to help an Oregon woman die: The state is no mecca for mercy killing.

Kevorkian has not been charged in Oakland County, where his actions took place, but Harper was put in jail. After a week behind bars, a California bail bondsman posted the $25,000 bail and won his release.

“It is important for people to know,” the prosecutor said in a statement after murder charges were filed and while Harper was incarcerated, “that Michigan is not a state where people can assist in suicides, commit euthanasia or murder and escape criminal responsibility for their acts.”

Now Harper, fighting to stay out of prison, is becoming a cause celebre and a symbol to the growing and increasingly vocal pro-euthanasia movement.

“I think it’s tragic,” said Derek Humphry, national director of the Hemlock Society, an organization that supports euthanasia and to which Harper belongs. The organization is helping to pay for Harper’s attorney and has created a defense fund.

“It’s sort of like innocents abroad,” Humphry said of the family. “These are good, decent people, going all that way to keep from getting into trouble and then getting into more trouble than they imagined.”

In a hearing Friday, a district judge ruled that there is sufficient evidence for Harper to stand trial on charges of open murder--which may be defined at trial as first- or second-degree murder or manslaughter--and of conspiring with his stepdaughter to commit murder.

His stepdaughter, Shanda McGrew, who was in the motel room and who has stood by Harper’s side since then, is not being charged.

“I don’t think any jury is going to convict this man of anything,” Harper’s attorney, Hugh M. Davis, said after the hearing. “This is a case of love and death, and which will prevail. We believe love will.”

The Harpers traveled to Michigan because of a paragraph in one of Humphry’s books that mentions a 1983 case in which the Michigan Court of Appeals threw out murder charges against a man who had obtained a gun and ammunition and left them with a depressed friend who shot himself.

The court ruled that because the Legislature had not defined aiding suicide as a crime, the man’s actions could not be classified as homicide.

Hoping to avoid prosecution, Harper on Aug. 18 bought plane tickets to Detroit. It was two weeks after Virginia had been told by her doctor that she had terminal cancer and one day after she had awakened one morning in excruciating pain and said she was ready to end it.

“We’ve been married 23 years and this is something we’d discussed over the years,” Harper said. “It wasn’t necessarily like a suicide pact or anything like that, but we both considered the quality of life the essential thing, not how long you lived.”

The couple had friends who had died very painful, lingering deaths, Harper said. “We’ve seen people die deaths that you wouldn’t put a dog through,” he said. “If you did, you’d land in jail.”

They agreed that they’d each rather commit suicide than face painful deaths.

They joined the Hemlock Society in the mid-1980s, sometime after Virginia first discovered she had breast cancer in 1983. The lump was removed. Then, in 1989, another tumor was discovered. It, too, was removed.

It wasn’t until early August that she discovered the cancer had spread to her liver. The doctor gave her from “two months to two years” to live, Harper said.

That’s when his wife began getting her affairs in order and when he began preparing himself emotionally to help, Harper said.

Assistant Prosecutor Tim Kenny argued Friday, however, that Harper did more than aid in his wife’s suicide.

“The evidence has indicated that Mr. Harper was motivated by love for his wife and was concerned and moved by his wife’s suffering,” he said. But, noting a coroner’s ruling that Virginia Harper died of asphyxiation caused by the plastic bag and not from an overdose of sleeping pills, Kenny said: “This is in fact a mercy killing.”

Acknowledging what he called “on-going and increasingly loud societal concerns” about euthanasia, Kenny argued that until the Legislature passes a law allowing mercy killing, the government has no choice but to prosecute it.

Pro-euthanasia initiatives are being advanced in four states--Washington, California, Florida and Oregon, Humphry said. Farthest along is Washington. A spokesman for Washington Citizens for Death with Decency, said 145,700 signatures have been gathered on petitions. Only 150,000 are needed to put the issue on the ballot.

“It’s fairly certain that in Washington in November of 1991 there will be the first ever vote on euthanasia,” Humphry said by telephone from his office in Eugene, Ore.

The Hemlock Society director estimated that “many hundreds” of terminally ill people have used the methods described in his books to kill themselves. This is the first time to his knowledge, however, that anyone has gone to Michigan to do it to escape prosecution, he said.

If the Harpers had contacted him first, he said, he would have advised them against it. Both Virginia’s death and the legal aftermath would have gone more smoothly in the calmness of her own home and in a community where the family is known, he said.

Davis argued unsuccessfully Friday that the harshest charge Harper should face is voluntary manslaughter, which carries a possible sentence of 15 years. The judge refused to reduce the charge, however, leaving the issue for a circuit court to decide.

The second count against Harper, conspiracy to commit murder, carries a mandatory life sentence, Davis said.

Harper said that once before his wife attempted suicide alone.

“It happened very suddenly while I was away,” he told authorities in a statement. “I came home and there was a message from a friend to meet Ginger at a Holiday Inn in Sacramento.”

When he inquired about her at the front desk, he was told that she had rented a room. He found the key in the door, he said. When he entered, he said in an interview, he found her sitting on the floor, slumped against a wall.

She had taken sleeping pills, and they had taken effect before she could put the plastic bag in place, he said.

She resolved after that never to attempt it again without her family near, Harper said.

Even now, Harper’s eyes light up remembering her, and he can laugh.

Not remembering the last part. Remembering her .

Here, in a lawyer’s office, with her gone and him in a mess of trouble--more trouble than either of them had bargained for--Harper’s belly shakes and his eyes twinkle.

Virginia can still make him laugh.

She was irrepressible. How else to say it?

Harper was wearing a shirt Virginia had made for him, a beige and brown nature print that matches one of her outfits. She would do that, have shirts made from the material left over from the dresses she sewed. The two of them would walk around in matching outfits.

“It was Ginger’s way of saying I belonged to her,” said Harper.

She liked bright colors. In 1967, when they were married, she owned a chartreuse ’56 T-bird with floral interior. That was the kind of person she was.

Both had been married previously. They met through a personal ad she ran in Fact magazine, a national publication, in 1963.

“It was very daring of her to do that,” McGrew said of her mother.

A long-distance relationship developed over the years. Shortly before they were married in 1967, Harper flew from Vermont to Denver on a business trip and decided to detour to California to pay her a visit. It was his birthday, and, “somewhere over Kansas,” he was startled to see a flight attendant, who had been tipped off by Virginia, walking toward down the aisle with a birthday cake with candles.

He laughs now thinking about it.