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Judge Rules Inmate Didn’t Die; Has To Serve Sentence

June 24, 1988

AUBURN, N.Y. (AP) _ A 49-year-old convict who claims he died two years ago and should be freed from his life sentence lost his case Thursday when a judge ruled he never legally died.

Jerry Rosenberg hoped to convince Cayuga County Judge Peter Corning that he ″died″ during open heart surgery, was brought bac to life by doctors and therefore had fulfilled his sentence of life in prison.

Corning ruled instead that Rosenberg failed to meet the definition of death set forth in 1984 by the Court of Appeals, the state’s highest court; it said death occurs when there is no brain activity or the heart and lungs irreversibly stop functioning.

″As his presence in this courtroom indicates ... he did not die,″ Corning said.

Rosenberg, who was returned to the Auburn Correctional Facility after the ruling, said he planned to appeal.

During the hourlong hearing, Rosenberg maintained that the definition of death was ambiguous and that two kinds of death existed, irreversible and reversible.

He argued that he died a natural death when his heart stopped during surgery and was revived by artificial means.

″The higher courts, the Supreme Court has never defined death. They’ve defined life,″ Rosenberg said in a crowded courtroom. ″Reversible death, which is a medical term, means they bring you back from death to life, not life to life.″

Ken Goldman, an assistant attorney general, presented affidavits from doctors that countered Rosenberg’s claim.

″Thousands of people undergo bypass surgery, recover, and are, therefore, not pronounced dead,″ wrote Dr. Erik Mitchell, Onondaga County medical examiner.

And the cardiac surgeon who performed the operation on Rosenberg, Dr. Leslie Kohman, wrote that having a patient’s heart stop during heart bypass does not ″represent any untoward occurrence.″

Corning asked Rosenberg, who was convicted for the 1963 murder of two policemen, if he believed that everyone whose heart stopped during heart surgery should be considered legally dead. Rosenberg said yes.

That would mean, Corning surmised, that under Rosenberg’s theory everyone who has heart surgery could collect on life insurance policies or be legally divorced, among other things.

″Yes, yes,″ said Rosenberg, who has earned several law degrees from correspondence schools during his 25 years in prison. ″I know this is far- reaching and I’m opening up a can of ... not worms, but boa constrictors.″

Goldman said he suspects Rosenberg is just trying to get publicity for his planned second book and made-for-television movie called ″Afta Death.″ Rosenberg’s life already has been the subject of a book and TV movie.