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Visco Faces Grand Jury in Wife's Death

Over the years, Florida Grand Jurors Have Been Fickle when Deciding Whether to Charge Suspects in Mercy-Killing Cases

DELAND -- As a veteran of two wars, Leo Visco knows what it's like to fight for his life. Today could prove to be his biggest battle yet.

Visco, an 80-year-old Deltona man accused of putting a .22- caliber gun to his wife's head to end her years of suffering, will go before a grand jury today that will decide if he should be charged with first-degree murder, a lesser charge or no charge at all.

While it's common for a grand jury to hand down an indictment in a clear-cut case of first-degree murder, the Visco case may pose a more- complex set of challenges for jurors. It's not as straightforward as most capital-murder cases. Leo Visco admits he killed his wife but said he did it out of love and compassion.

Over the years, Florida grand jurors have been fickle when deciding on charges in mercy-killing cases. In some cases, jurors have followed the strict letter of the law, while in others they have decided that a first-degree murder charge was much too harsh.

What will the grand jury do today? That's anyone's guess.

" I think it's too hard to generalize in this case," said Charles Ehrhardt, a Florida State University law professor. "It's not unheard of for a defendant to talk the grand jury into not charging him. It works sometimes. In some ways, a grand jury is the conscience of the community."

Visco is accused in the Dec. 26 shooting death of his wife, Eva Visco. Leo Visco said she begged to be killed for about a year because she was in severe pain from a slate of ailments. In an interview Monday, Leo Visco said he was supposed to turn the gun on himself but couldn't once he realized she was still breathing after the first shot. Instead, he called 911 for help.

In Florida, grand juries are always convened to decide whether a first-degree murder suspect should be given the stiffest penalty or a lesser charge. The State Attorney's Office essentially runs the show. Behind closed doors, prosecutors call witnesses and detail the charges to 21 grand jurors. Additionally, jurors ask questions, call their own witnesses and ask for other information they need.

It's not commonplace, but it's also not unusual that the accused and their attorneys are allowed in the room.

Assistant State Attorney Raul Zambrano agreed to let Visco's Orlando attorney Mark NeJame, in the courtroom and will call Visco as a witness. Zambrano could also call neighbors, along with Visco's son, Leonard, and his stepson, Mike Bono.

While they will tell touching stories about Visco and his love for his wife, NeJame acknowledges the prosecutors really hold the purse strings today. They have the gun, and they have a confession.

" It takes nothing for them to get an indictment. It's very easy for them," he said. "I think they're going to try to push this down the grand jury's throat. The grand jury typically does what the prosecutors want."

The State Attorney's Office will present the county medical examiner, Dr. Thomas Beaver, and a Volusia County deputy sheriff who arrested Visco, NeJame said. State Attorney John Tanner couldn't be reached for comment.

Once all the witnesses are heard, jurors meet privately to make a decision. It could take minutes, hours or days. And just because a grand jury doesn't indict doesn't mean the decision is final.

Prosecutors unhappy with the outcome could convene another slate of jurors, said Chris Slobogin, a University of Florida criminal- law professor.

" If [the prosecutor] is very irrational, he may decide to go ahead and indict with a different grand jury," he said. "It's not done very often."

Looking back at the history of grand-jury decisions about mercy killing isn't very helpful in predicting what may happen today. It depends on the circumstances of the case and the people hearing them.

Two cases in the mid-1980s underscore the indecisiveness of grand jurors -- similar cases with different outcomes.

In 1985, a grand jury handed down a first-degree murder charge against Roswell Gilbert, who fatally shot his wife. Gilbert, then 75, maintained that he killed his wife of 51 years out of mercy because she was suffering from Alzheimer's disease and a painful bone condition. After firing the first shot and not killing her, he reloaded his gun and shot again.

Gilbert did not testify before the grand jury. Gilbert stood trial and was convicted on the charge, although the governor later granted clemency. There was speculation at the time of the trial that Gilbert hurt his defense by not seeming apologetic to trial jurors, but he insisted until his death in 1994 that he did nothing wrong in the shooting.

In a 1987 case, a grand jury took a different turn. It decided a first-degree murder charge against Broward County-resident Philip Tiger was too stiff.

Tiger, who said he ended his wife's life because she suffered from diabetes and a thyroid disorder, was charged with manslaughter and given no jail time.

A turning point, said Tiger's attorney David Vinikoor, was that Tiger turned a kitchen knife on himself after he stabbed his wife to death. He would have died if neighbors had not found him. Visco, meanwhile, said he had a suicide pact with his wife. He didn't follow through.

Tiger took the stand during the grand-jury proceedings. It was a risky proposition, considering he admitted killing his wife. In the end, jurors were sympathetic with his wife's illness and the fact that he tried to kill himself.

"I think every grand jury is different," Vinikoor said Wednesday. "Most jurors are able to sift through the facts and tell if somebody is really a criminal or if it is something that is less than a criminal act."

Copyright © 2001, Orlando Sentinel

Source: Orlando Sentinel

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