Merciless Jury

While the clemency issue in Illinois was being settled last week, Governor Bob Graham of Florida was pondering the possibility of having to make an equally knotty decision: What to do about the life sentence imposed on Roswell Gilbert? The 75-year-old retired electronics engineer had been convicted of first-degree murder in the mercy killing of his wife Emily, 73. "It's awful," said Gilbert after the sentence was handed down two weeks ago. "It's the end of my life." Declared Martha Moran, 50, the Gilberts' only child: "I don't want to see my daddy in jail; he'll die in jail."

Gilbert's conviction and draconian sentence -- he will not be eligible for parole for 25 years -- caused outrage across Florida. Pressure has been building on Governor Graham to commute Gilbert's sentence, and he has instructed his legal staff to begin researching the case.

Emily Gilbert was afflicted with Alzheimer's disease, which causes severe mental deterioration. She also suffered from osteoporosis, a bone disease that frequently leads to fractures and pain. On March 4 her husband fulfilled what he said were his wife's wishes when he pumped two bullets from his 9-mm Luger into her temple as she lay on the sofa in their Fort Lauderdale condominium. Then he turned himself in.

Convinced that his action was justified, Gilbert refused to plea-bargain and left his fate in the hands of a ten-woman, two-man Broward County jury. No one was more surprised than he when it returned after four hours of deliberation with a first- degree murder verdict. "I still don't feel like I committed a crime," Gilbert said afterward. "This just shows that the laws have to be changed."

Gilbert's treatment was especially surprising in light of other recent mercy- killing cases. Two years ago, a grand jury in the same Fort Lauderdale courthouse refused to indict a man facing similar charges. Hans Florian, 79, had wheeled his 62-year-old wife Johanna from her room in a Hollywood hospital into a nearby stairwell and shot her in the brain. The woman, who also suffered from Alzheimer's disease, had screamed continually, stopping only when she was heavily sedated. In San Antonio three years ago, Woodrow Wilson Collums, 69, got ten years' probation after pleading guilty in the shooting death of his 72-year-old brother, who lay helpless in a nursing home.

Trial observers said that Gilbert hurt himself with his stoic manner and his calm description of the shooting while on the witness stand. His emotionless testimony made it easier for prosecutors to charge that the killing was a cold-blooded act that had nothing to do with mercy. Said one observer: "He didn't cry, didn't pour out his feelings in soap-opera fashion." The jurors also seemed to be affected adversely by Gilbert's decision to put two bullets into his wife. "We gave him charity on the first shot," said Juror Rosalyn Brodsky. "He was upset and overcome psychologically. But it was the second bullet that did it. That was premeditated." Added Juror Susan Mason: "The law does not allow for sympathy. We had to do it." Not true, said Gilbert's lawyers, pointing out that the jury had the option of a second-degree murder or a manslaughter conviction.

Gilbert is now an inmate at the state prison diagnostic center at Lake Butler, Fla., while his lawyers work on both an appeal of his conviction and an application for clemency. The application could be considered as early as June by the executive clemency board, which consists of Graham and three cabinet members. "We're cautiously hopeful and optimistic," says Harry Gulkin, one of Gilbert's lawyers. "But nothing is guaranteed, as we learned with the jury's verdict."