‘Good Faith Is Not a Defense’ : Mercy Killer’s Conviction Upheld by Florida Court

MIAMI —  Roswell Gilbert, the 76-year-old self-proclaimed mercy killer of his terminally ill wife, lost an important fight to gain freedom Wednesday when a Florida appeals court upheld his murder conviction.

“Good faith is not a defense for first-degree murder,” read the unanimous opinion of the 4th District Court of Appeal in West Palm Beach.

In a separate statement, one member of the three-judge panel, Judge Hugh Glickstein, added: “My thoughts lie with the victim who was silenced forever . . . . She would be no more dead if a hired gangland killer pulled the trigger.”

For Gilbert, the decision was a severe setback, upholding a 25-year mandatory minimum sentence that would keep him in prison beyond his 100th birthday.

Married 51 Years

In March, 1985, the retired engineer twice shot his wife, Emily, as she lay on the living room couch of their Fort Lauderdale condominium. They had been married 51 years.

Emily Gilbert, 73, suffered from Alzheimer’s disease, a brain disorder that made her forgetful, confused and often irrational. She also had osteoporosis, which made her softened bones prone to fractures.

“Sure, I knew I was breaking the law, but there seems to be things more important than the law,” Gilbert told the jury at his trial. “So it’s murder. So what?”

Gilbert contended that he was entitled to make a loving husband’s decision to end the misery of his pained and helpless wife.

But jurors felt that Gilbert had no such right. Nor did they believe Emily Gilbert to be that ill.

After the trial, several recalled photos of the murder scene that showed the woman’s face meticulously highlighted with makeup. They also recalled that she had walked to lunch with her husband just hours before the shooting.

“One doesn’t go to lunch at 12 o’clock with her husband and then at 2 o’clock be ready to be terminated,” jury foreman Sylvia Firestone said.

In his appeal, Gilbert insisted that the jury should have been instructed to consider his good intentions. He cited Emily’s frequent statements that she wished she were dead.

‘Sanction Open Season’

But the judges ruled: “Such a holding would judicially sanction open season on people who, although sick, are also chronic complainers.”

Florida law demands a minimum 25-year sentence for first-degree murder. As in every state, there is no provision for a mercy-killing defense.

In practice, however, prosecutors, judges and juries often go outside the law to show leniency to people who kill terminally ill relatives.

In this latest decision, the Florida appeals court acknowledged that “no one has suggested that (Gilbert) will kill again” and that the law may appear unduly harsh. But the judges agreed that they had no power to change that law.

“Whether such sentences should somehow be moderated so as to allow a modicum of discretion . . . in sentencing between a hired gangster killer and one, however misguided, who kills for love or mercy, are all questions which, under our system, must be decided by the Legislature and not by the judicial branch,” they wrote.

Can Ask for Rehearing

Gilbert, imprisoned in the Avon Park Correctional Institution in south-central Florida, can ask the court to rehear the matter. Or, he can appeal to the state supreme court.

“All this time I expected some fairly new results and was shocked to hear they affirmed the conviction,” Joseph Varon, Gilbert’s attorney, told the Associated Press.

In any event, the controversial murder of Emily Gilbert is not likely to soon leave the public eye. Last week, it was announced that her husband had sold the movie rights to his case for an undisclosed sum of money.