Printed for personal use only

The Angel of Death Asks for Mercy

ON APRIL 6, 1987, CINCINNATI POLICE charged Donald Harvey, a 35-year-old orderly at Daniel Drake Memorial Hospital, with the murder of John Powell. Powell was a patient in the Hamilton County–owned convalescent hospital, a 44-year-old who had sustained severe brain injuries in a motorcycle accident the preceding summer. Because of his condition, his death was not unexpected. But during a routine autopsy, forensic pathologist Dr. Lee D. Lehman caught a whiff—literally—of cyanide. Questioned by police, Harvey confessed to poisoning Powell. When attorney William Whalen was appointed as Harvey’s public defender, the press was already buzzing about the idea of a “mercy killing:’ But soon Whalen learned the truth: He was representing a serial killer of stunning scope. In this chapter of Defending Donald Harvey, co-authored by Whalen and Bruce Martin, the attorney details the role he played in the television news investigation that brought the crimes to light, and the risky strategy he pursued to keep his diabolical client from getting the death penalty.

After police charged Donald Harvey with aggravated murder—the murder of John Powell—the story competed for space on the front page of The Cincinnati Enquirer with an account of the Reds’ Opening Day, and Harvey’s arraignment rated coverage on the local evening news. Dr. Lehman’s discovery that Powell had been poisoned with cyanide had already aroused public interest, and the suggestion that Powell’s death might be a mercy killing had reinforced that interest. Pat Minarcin, anchor for WCPO-TV evening news (Channel 9), sensed that the story might be even bigger.

During the evening news on April 6, after a reporter had given an account of the arraignment, Minarcin asked whether the police were investigating the possibility that Harvey had been responsible for any other deaths at Drake Hospital. The reporter answered no; they had told her it would be futile. Cyanide could not be detected after embalming.

Although Minarcin didn’t question that answer on the air, his instincts as an investigative reporter were alerted. Did law enforcement officials think a killer who had used cyanide once was limited to that one poison? Couldn’t he have killed others by a completely different method? What was unique about John Powell that caused Harvey to decide to end the suffering for him and not others?

In his 10 years with the Associated Press, Minarcin had learned that digging into the background of a news story could yield unexpected rewards. When he was editor of Pennsylvania Illustrated magazine in Harrisburg, his in-depth coverage of the Three Mile Island nuclear power plant disaster had earned the magazine a Distinguished Service Award from the Society of Professional Journalists. He considered it a reporter’s duty to look behind the surface of a news story for the more significant story that might be overlooked.

His instincts about John Powell’s death were confirmed four days after the broadcast when he received an anonymous telephone call from a nurse at Drake Hospital. She said he was right to ask the reporter if the police were investigating the possibility that Harvey was involved in other deaths at Drake. “There is something going on here, and our supervisors won’t do anything about it,” she told him. She gave him a list of 13 other patients she thought Harvey might have killed. She refused to give her name, but she did agree to call him again the following night and provide more information.

The next time she called, she had another nurse on the line. The two nurses told Minarcin that they had gone to their nursing supervisor several times before Harvey’s arrest to tell her of their suspicions about him. At first, the supervisor had ignored them, they said, then she ordered them to keep quiet. The nurses added three more names to the list of suspected victims. Minarcin asked for some proof, but his callers said they were unable to do more. They again refused to give their names, but agreed to keep talking.

A day passed with no contact. Minarcin waited anxiously, hesitating to take any action that might alert the hospital supervisors and further frighten his sources. Meanwhile, he obtained the death certificates of the 16 patients on his list. The records seemed to be in order, and none indicated any suspicion that the deaths were not natural.

The following evening, Minarcin was at the WCPO studio preparing to go on the air when he received a call. This time, five of the hospital staff were on the line, supporting the accusation that Harvey had been responsible for multiple deaths at Drake. Still, they refused to identify themselves or to provide any more information. They were seriously concerned about the situation, but they had done all they dared to do.

Minarcin sensed an opportunity that might be gone forever if he lost contact now. “Look, what if I just dropped everything right now and came out there and saw the five of you alone?” he asked. He held his breath while they discussed the offer among themselves, then heaved a sigh of relief when they agreed. But now he had another problem. He was due on the air in 20 minutes in a format that called for two anchors. With no time to find a replacement, his co-anchor would have to fly solo, and the camera crew would need to scrap their plan and improvise. Jack Cahalan, news director for the station, reluctantly agreed.

Minarcin rushed to meet them. Perhaps his action in skipping his newscast earned their trust, because they opened up. He learned right away that their fears about their jobs were not paranoia. The day after Harvey’s arrest, Jan Taylor, the chief administrator of Drake Hospital, had called a meeting of the staff members who worked on Ward C, where Harvey had worked and where Powell had died. He told them that the hospital had conducted an internal investigation and found no indication that Harvey had killed anyone else. What’s more, he said the police investigation had been thorough and confirmed the findings of the internal investigation. He asked the staff to refrain from discussing the matter among themselves and ordered them not to talk to reporters.

The five described for Minarcin the occasions that had aroused their suspicions of Harvey. They provided names and dates and told of rebuffs by their supervisors when they reported his behavior. And they gave him more names, increasing his list of suspicious deaths to 33.

Armed with this information, Minarcin launched his own intensive probe of deaths at Drake Hospital. Because Drake was a public institution, he was able to obtain official records, and he gradually developed additional sources at Drake who provided more documents. Minarcin became convinced that Donald Harvey had been systematically killing patients at the hospital and getting away with it, but he lacked proof. He couldn’t go on the air with what he had.

Eventually, Minarcin’s activities came to the attention of Jan Taylor, and hospital officials mounted their own internal campaign to discredit him. At staff meetings, they denounced him as a “sensationalist,” claiming that he was blatantly trying to improve his program’s ratings at the expense of the hospital. Minarcin’s inside sources reported these efforts to him, which only stoked his conviction that the hospital had something to hide.

A breakthrough came one Sunday afternoon as Minarcin sifted and sorted the documents spread over his dining room table. He was making charts of death rates on each ward, arranged by dates. When he added another dimension, Harvey’s work schedule, a pattern emerged. And when he compared that pattern with the anecdotal data supplied by his inside sources, the correspondence could not be attributed to chance or coincidence. Now he knew he had a story.

But could he put it on the air? Harvey had confessed to the aggravated murder of John Powell and had been charged with the crime; but he had yet to come to trial. There was at least a reasonable chance that he might be found not guilty, or guilty of a lesser crime, because of characterization of his act as a “mercy killing.” A TV news story might prejudice Harvey’s case, with legal repercussions for Minarcin and WCPO—the hospital and its administrators were sure to challenge the report and perhaps file a lawsuit.

It was in late May that Minarcin told me he was working on a story suggesting that Harvey had been responsible for multiple deaths at Drake. He asked for a comment. I responded with an irritated, “No comment,” thinking that Minarcin was trying to manufacture a sensation and increase the program’s ratings at the expense of my client. It had never occurred to me as I prepared Harvey’s defense to ask him if he had killed anyone else at the hospital.

Haunted by the call, I walked the two blocks to the Hamilton County Justice Center to warn my client that the story would likely appear on the local news. Believing that John Powell had been his only victim, I felt obligated to warn Harvey of the upcoming broadcast. But I also wanted to put the matter to rest in my own mind. Harvey was pleased to see me, and we engaged first in light conversation. I could warm more to Harvey than to my usual clients because he was more intelligent and articulate than the petty criminals whose cases were more often assigned to me as a public defender. I gave Harvey a little lecture, explaining that I could not completely protect his interests if he were not truthful with me. I told him what I had learned from Minarcin. Explaining the privacy of the attorney/client privilege, I ended with the question, “Have you killed more than just John Powel!?”

Without hesitation, but almost inaudibly, Harvey replied, “Yes.”

Alarm bells began sounding in my head; I had just fallen into uncharted territory. Moments before, I was representing a confessed mercy killer. With one simple word, I realized that I was looking into the eyes of a serial killer.

I shifted to the edge of my chair. “How many people have you killed?” I asked him.

“I can’t tell you,” Harvey said.

I raised my voice. “I just told you, I can’t help you if you don’t cooperate with me.”

My outburst evoked a defensive response. “It’s not that I don’t want to tell you,” he said, “but I can only estimate.”

For whatever reason, I assumed we were talking about two or three deaths. The word “estimate” came like a jolt. People do not estimate two or three deaths.

“Five?” I asked. “Ten?”

Harvey hung his head and shook it. “More,” he said.

Chilled, I groped for words to elicit an answer I knew I’d rather not hear. I recalled a technique once used by Common Pleas Judge Thomas Crush when he was trying to determine whether a defendant had stolen enough trinkets for his crime to be classified as a felony. The defendant said he couldn’t remember the number of items, so the judge asked him to state a number that he was certain was the top limit.

“OK, Donald,” I said, employing Judge Crush’s technique, “pick a number in your mind that you know the number of deaths could not go beyond.”

Harvey’s dark eyes never left mine, and the silence enveloped both of us. Finally, after what felt like an hour had passed, I asked if he had a figure.

Harvey’s only response was a slight nod of his head. I asked for the number. “Seventy,” he whispered.

Although the conversation continued for 45 minutes more I have no recollection of what was said. The number 70 blinked on and off in my mind like a neon sign.

Leaving the Justice Center, I walked for blocks trying to clear my head and gain some grasp of the situation. I tried to convince myself that it was a lie and a bad joke on me. But how could I explain Minarcin’s phone call that he believed there had been more than one death at Drake Hospital? If Harvey were lying, then why such an outrageous figure as 70? The entire situation was now surreal.

The question was, what should I do with the information, even if the number were two? In the state of Ohio, two or more deaths qualify a person for the death penalty. If authorities could prove it, the actual number would be of little consequence. And if the number really was 70, how would one deal with that? The simple answer was to keep my mouth shut and hope it would go away. But what about Minarcin?

I was in a unique—and unenviable—situation. Most times, the police have already investigated the crime, interrogated witnesses, gathered evidence, and probably talked with the accused. Harvey’s case was the opposite. I knew of the crimes, and the law enforcement personnel were completely in the dark.

As a public defender, my primary responsibility had to be to my client; our system of criminal justice is structured on that basis. The prosecution presents the case against an accused, and the defense seeks to avoid or minimize punishment. In any combat, fairness requires comparable weapons. In a criminal case, those weapons are attorneys. Protection of the public is not the defense attorney’s responsibility. But 70 deaths?

The next day, as soon as I finished my court cases, I went to the public library and reviewed F. Lee Bailey’s book about his handling of the Boston Strangler case. Bailey had gone to the police and asked for information about the crime that only the killer would have known. Armed with that information, he interrogated his client and found he had that guilty knowledge. Then Bailey informed the police. I did not appreciate the method used, because I felt Bailey had violated his responsibility to his client, and I had already decided that I was not going to sacrifice Harvey.

There had to be a way to resolve this satisfactorily—but what was satisfactory? From the library, I returned to my client’s unit at the Justice Center. A smiling, affable Harvey greeted me but made no mention of the devastating news he’d given me the day before.

Without realizing it, I had begun to form a plan. First, I had to begin protecting my client. I gave a series of instructions to Harvey, the most important being that he was not to discuss anything about the case with any of the inmates or guards. (All too often an inmate becomes privy to information and immediately seeks to inform the authorities in an attempt to obtain a more favorable outcome of his own case.) I also explained the provisions of the law with regard to the death penalty. Together, Harvey and I reached the conclusion that it was highly improbable the police would not discover at least one more victim, now that the question had been raised.

Harvey fixed me with a wide-eyed stare. “I don’t want to die,” he said.

“A claim of mercy killing is not going to stand up for multiple deaths,” I told him.

“But I was relieving them of their misery,” he said.

“All of them?”

“Well...no.” He was silent for a moment. “I don’t like it, but what about a plea of insanity?”

“That’s already been ruled out,” I said.

“Then what?”

“Our only hope is to get the jump on the prosecutor—to use the leverage that only you know who the victims are and negotiate a plea.”

“Would I still go to prison?” he asked.

I sighed. “Probably for the rest of your life.”

“That’s better than the electric chair,” he said. Then, after a long pause, he added,“Do what you have to do.”

“I need to put the pressure of public opinion on the prosecutor for him to bargain,” I told Harvey. “It’s risky, and timing will be critical, but I think I need to encourage Pat Minarcin to air his story. I’ve been stonewalling him, but I think we have a better chance if we get more active make things happen instead of trying to react to what happens.”

Harvey thought a moment. “OK,” he said. “So what do I do now?”

“Don’t tell anybody anything. Refer everything to me.” I sounded more confident than I felt.

IT HAD BEEN A WEEK since Harvey told me of the possibility of 70 more deaths. Seventy? How does one comprehend that number? I needed to talk to someone. But who? If I talked to the wrong person and the story leaked, Harvey could die. And I could not live with that possibility.

I’d been raised a Roman Catholic but had not practiced for some time. Nevertheless, the seal of confession appealed to me now. In search of some kind of wisdom, I went to St. Xavier Church. It was a weekday, and the door was locked, so I went to the undercroft. There, a woman told me to go up to the church by the inside stairway and the priest would be right up. The beautiful interior of the sanctuary calmed me. When the priest arrived, I was reassured to find he was elderly. I entered the confessional and began the prayer. Then I stopped. “Father, I am not confessing,” I said. “I am seeking advice.”

“Yes?”

“Does the seal of secrecy still apply?”

He assured me that it did. The protection of the seal of secrecy gave me a sense of safety. I outlined the situation, giving no names or numbers. I felt relief at just having the opportunity to talk. When 1 finished, he spoke softly. “My son,” he said, “these items are outside my area of knowledge.” I could feel disaster coming. “God has put the answers in your soul, and you need to search there for the answers,” he continued. “God will give you the direction that you need.” Then he gave me his blessing.

I left feeling cheated and disillusioned; I had turned to the Church for help, and the priest rejected me. Later of course, I realized how prophetic his words had been.

Day followed day, and I avidly watched the six o’clock news. Harvey was never mentioned. By the end of the second week the tension of waiting for the story to drop led me to call Minarcin. He was jovial and friendly until I asked about the story, then his mood immediately changed to depression. He explained that the nurses were not willing to waive their demand of anonymity. He could find no other evidence that would permit him to go any further with this story.

There were too many people who were aware of this situation, and I could not leave it to fate. We needed to use public pressure for action to force the prosecutor to bargain. After a moment’s hesitation I responded, “Pat, you need to go forward with this story.”

“What are you saying?” Minarcin blurted. “You know what he’s done don’t you? How many has he killed?”

The barrage of questions and the changed attitude caught me by surprise. I told Minarcin that I could not discuss the matter any further but urged him to go forward with the story, then hung up. Minarcin called the next day. Excitement had returned to his voice. “Are you telling me that I’ll find that Harvey was responsible for more deaths at Drake if I just keep digging?” he asked.

“I’m saying that there is more to the story.”

“What? What do you know?”

“I can’t give you any specifics.”

“I need something to go on. Give me a lead. What’s your source?”

“I can’t tell you.”

“Then the source is Harvey, himself, isn’t it?”

I didn’t reply.

Minarcin tried another tack. “OK,” he said. “I understand about privileged communication. But can’t you give me a hint, off the record? What do I look for?”

“Just the fact that you are looking will force it out,” I told him.

“How many people has he killed?”

“He has confessed to killing John Powell.”

“Look,” Minarcin said, “you don’t want to return a killer to the streets to kill again, do you?”

“My job is to defend Harvey against the one charge of murder,” I said.

“You know more than you’re telling me. What is it?”

“I’ve said all I can.”

“If there are people out there whose loved one’s death was murder, they deserve to know it.”

Homicide detectives are familiar with the innate desire in a suspect to “spill his guts.” That same desire overwhelmed me, and I was caught in a current leading me in a direction I was not sure I wanted to go. Finally, in an attempt to end the conversation, and yet ensure that Minarcin would follow through with the story, I said, “Yes, Harvey has admitted to killing more than one person.... That’s all I can tell you now.” Then I hung up.

I sank into a chair, only to hear the phone ring, and my wife inform me it was Pat Minarcin again. He had one more question: “Were there more hospitals involved than just Drake?” When I replied in the affirmative, the floodgates opened again. I explained to Pat the client/attorney relationship and declared that I didn’t know what I could or should do. Minarcin was understanding and got off the telephone.

The case haunted me. There had been some articles in the paper about Harvey, but nothing sensational. I knew that the whole story would eventually come out and that when it did, sensationalism would be a mild term for what followed. My wife, Diane, had many contacts in the community. My 20-year-old son Bill was in school at Cincinnati Art Academy, and my 17-year-old daughter Kelly was a senior at Seton High School. I was concerned about the consequences for them if I were included in the public castigation of my client. The trauma might be unbearable.

At this point, only Harvey, Minarcin, and I were aware of the whole horrible story. I could go to the Public Defender’s office and request to be removed as counsel, without having to reveal my reasons. I struggled with the problem for two days before deciding what to do. I had to offer my family the option of my removing myself from the case. I wanted the professional and personal challenge, but if my family were not willing to face it, I could abide by their decision.

The mood at dinner that night seemed light, but my stomach was churning. I had intended to wait until after dinner to broach the subject, but I couldn’t eat. I laid down my knife and fork. They sensed the change and were silent.

“I have a case that is nothing like the ones I have told you about before,” I said. “I have a client who is guilty of horrible crimes. When this comes to light, and it will, there is going to be a lot of publicity—most of it bad. The media will rip into my client, and probably me for defending him. You will get some of the fallout.”

I saw concern on their faces, but no one said anything. I continued. “I can ask to be relieved of the case. If you feel it will be too much stress for you, I will.”

Kelly spoke first. “Did he do any of these crimes to little kids?”

“No.”

“Then it won’t bother me.”

Bill shrugged. “I’m cool,” he said

I looked to Diane. “I trust your judgment,” she said. “Do what you need to do.”

THE PHONE CALLS between Minarcin and me increased, sometimes to five or six a day. I was meeting with Harvey every day, delving into the thinking and actions of one of the most prolific serial killers in the United States. At the same time, Minarcin was calling me, and I began to feed some of the information to him. During our conversations, we reached a pact: Minarcin would use none of the information I gave him without my specific agreement, unless he found a second source to confirm it. If he did find a second source, he would inform me of his intention to use the material before putting it on the air.

Early in our discussions, 1 shared with Minarcin an item from Harvey’s confession. Jim Lawson, the police officer to whom Harvey had confessed, had asked Harvey if he had killed any other people—a reasonable inquiry by a homicide detective. When Harvey indicated that he didn’t want to talk about it, Lawson had moved on to another subject. This was the portal to the entire matter: Harvey was talking, admitting a heinous crime, and now the investigator had opened the door, asking “Were there any other crimes?”, and Harvey hesitated. If Lawson had pushed him, Harvey would almost certainly have admitted to other murders. But Lawson had moved on and the door was closed.

I made a copy of the confession and turned it over to Minarcin. The reporter was in disbelief. One more question by Lawson, and Minarcin’s news story and my defense work for Harvey would have been for naught. Why didn’t Lawson ask the question? We were perplexed. Was Lawson, an excellent homicide detective, just having a bad day? Did he deliberately not go down that road to protect the city from lawsuits? Did they already know the answer?

Many years later, I had the opportunity to ask Lawson. He explained that Harvey’s answers suggested he was laying the foundation for making a claim of mental incompetence. Lawson did not want to pursue the subject and have Harvey expound on his mental difficulties and perhaps ruin all the cases, including the John Powell case. A police interrogator must concentrate upon obtaining answers that will stand up in court; Lawson opted for staying with the issues at hand. The outcome would almost certainly have been different had the question been asked.

Broadcasting the story was an act of journalistic courage. Minarcin convinced his news director Cahalan and WCPO’s general manager, Terry Connelly, that he had the documentation to support the story. The decision to put it on the air was ultimately made by Donald L. Perris, president of Scripps-Howard Broadcasting, the station’s parent. The company’s attorneys, the law firm of Baker & Hostetler, reviewed the script and documentation before the broadcast. On June 23, 1987, WCPO-TV presented a half-hour special report in the time slot normally reserved for the six o’clock newscast.

With his dignified mien, Minarcin avoided sensationalizing his presentation, letting the story speak for itself. He reviewed the account of the discovery that Powell’s death was a homicide, as well as Harvey’s subsequent confession, and he indicated that staff members at Drake Hospital had begun to raise questions as early as seven months before about the high incidence of deaths on Ward C-300. Minarcin then presented charts showing the numbers of deaths on each of five comparable wards from April 1986 to April 1987:

WARD C-300: 34

WARD D-300: 14

WARD A-300: 12

WARD D-200: 10

WARD C-200: 7

He added for comparison that the deaths on C-300 during the previous 12-month period had been 13.

The program included interviews of hospital staff with their identities disguised and their voices altered. The staff members told of their suspicions of Donald Harvey and of their unsuccessful attempts to induce their supervisors to take action. The steps taken to protect the anonymity of those who consented to be interviewed heightened the drama. The station was meticulous in reporting that although Harvey had confessed to the murder of Powell and was in custody, he had not yet been convicted of any murder. Minarcin also stated three times that the station was not accusing Harvey of being a serial killer; they were just raising a question.

The broadcast lit a fuse. A front-page article in the the next day’s Enquirer, headed “Review of Drake deaths urged,” reported on Minarcin’s program and added that the allegations would be discussed by Hamilton County Commissioners in a closed-door meeting. Radio and TV personalities were on the phone constantly seeking information from me. My consistent answer to the press was, “No comment.”

During the broadcast, Minarcin had displayed the copy of Harvey’s confession to Lawson. Questions from the police and prosecutors abounded immediately as they tried to find who had leaked that piece of internal information. The police assured the prosecutor they had not divulged it, and the prosecutor assured the police it did not come from his office. From that day on, I was sure the police and the prosecutor suspected me of providing information to Minarcin.

I heard rumors that Art Ney, the Hamilton County Prosecutor, was going to subpoena Pat Minarcin to appear before the grand jury in order to force him to reveal the sources of his information. I called Minarcin, and we arranged to meet for lunch. Minarcin told me that there was no possibility of his complying. Although Ohio law does not provide adequate immunity for reporters to protect their sources, he knew that he would be finished as an investigative reporter if he answered the prosecutor’s questions. He indicated he was willing to serve a jail term if that were necessary.

As it turned out, Ney had other, more pressing concerns. The sources of Minarcin’s information were much less important than the horror he implied. Minarcin had raised the question publicly: Was Powell’s death an isolated murder, or did the police have in custody a serial killer?

IN AUGUST 1987, Art Ney agreed to the plea bargain proposed by William Whalen; in exchange for detailing all of his murders, Donald Harvey would escape the death penalty. The murders sparked massive changes at Drake Hospital. In 1989, it became an independent, nonprofit, rehabilitation and long-term care facility affiliated with the University of Cincinnati College of Medicine. Ultimately, Harvey’s litany of killings stretched back two decades and included victims in Ohio and Kentucky. To date, he has been convicted of committing 36 murders, and has admitted to as many as 59 deaths, making him one of the most prolific serial killers in United States history. He remains in Warren Correctional Institution in Lebanon, Ohio and he maintains that his acts were mercy killings. In Defending Donald Harvey*, Whalen recounts that his client once asked to see a copy of* Guinness World Records. He was disappointed to find his name was not in the book.

From Defending Donald Harvey, by William Whalen and Bruce Martill (Emmis Books). Copyright 2005. This excerpt originally appeared in the May 2005 issue. Published by arrangement with the authors and publisher. Emmis Books and Cincinnati Magazine are owned by Emmis Communications.