Abstract Appeal -- by Matt Conigliaro

Welcome. The following is a compilation of Abstract Appeal's posts from 2003 regarding the Terri Schiavo saga.

The left column contains links to other Abstract Appeal pages, including the blog's main page and Schiavo post compilation pages for 2004 and 2005.

For those looking for "highlights" of a sort, I've also created this page, which contains links to some of my more popular Schiavo posts.

Note that the Abstract Appeal web log began in July 2003.

Saturday, August 23, 2003

Schiavo case. The Supreme Court of Florida has dismissed an appeal by Terri Schiavo's parents. This story today from the St. Pete Times explains that Schiavo has reportedly been in a "persistent vegetative state" for 13 years and that her parents have been fighting to prevent her husband from removing her feeding tube.

...posted by ⊥ 9:23 AM ⊥ #

Wednesday, August 27, 2003

Terri Schiavo News. Yesterday, Governor Bush sent a letter to the judge presiding over the Schiavo case, Judge Greer, asking the court to delay setting a date to remove Terri Schiavo's feeding tube, appoint a new guardian for her, and consider any new evidence of her wishes. In response, Judge Greer has commented that he believes he's operating under a mandate from the Second District -- specifically, this decision -- and that he's not likely to delay the tube's removal. You can read about the letter and Judge Greer's response in today's St. Pete Times, the Orlando Sentinel, the Miami Herald, the Sun-Sentinel, and the Tallahassee Democrat.

...posted by ⊥ 6:03 AM ⊥ #

Wednesday, September 03, 2003

Schiavo News. Today's St. Pete Times has this story on how Terri Schiavo's parents have now turned to a federal court for assistance in their battle against Terri's husband, and how Judge Lazzara yesterday questioned whether federal courts have any jurisdiction in the matter. The story quotes Judge Lazzara as stating that the complaint in the parents' new federal lawsuit is "a 'quintessential shotgun pleading' designed to delay proceedings." The court apparently gave the parents leave to amend their complaint.

...posted by ⊥ 7:47 AM ⊥ #

Wednesday, September 10, 2003

Schiavo Update. This story from the Tampa Tribune has the latest news on the Terri Shiavo situation -- which apparently includes a pending motion for the trial judge to recuse himself, more harsh words exchanged by the attorneys in the case about each other, and what appears to be a motion filed by the husband with the Second District asking the court to enforce its mandate that his wife's feeding tube be removed.

...posted by ⊥ 6:59 AM ⊥ #

Thursday, September 11, 2003

Schiavo Case. The latest update, available here from the Tampa Tribune, is that Terri Shiavo's parents' motion asking Judge Greer to recuse himself has been denied. The motion alleged that the judge was biased in favor of Terri's husband.

...posted by ⊥ 10:14 AM ⊥ #

Tuesday, September 16, 2003

Schiavo News. No substantive changes in the Terri Schiavo saga, but this story from today's St. Pete Times provides an update on the situation and some indications on when various rulings may be made.

...posted by ⊥ 7:26 AM ⊥ #

Thursday, September 18, 2003

Schiavo News. The trial court in the Terri Schiavo case has now set a new date to remove Terri's feeding tube: October 15. You can read about that decision, and Terri's parents' resolve to keep trying to keep her alive, in the St. Pete Times, the Orlando Sentinel, and the Tampa Tribune.

...posted by ⊥ 8:08 AM ⊥ #

Tuesday, September 23, 2003

Schiavo News. The latest update in this saga is that yesterday Terri Schiavo's parents filed an amended complaint in federal court. In the complaint, the parents allege a conspiracy between Terri Schiavo's husband and Judge Greer to deprive Terri of her constitutional rights. As you may recall, Judge Greer has currenty scheduled Terri's feeding tube to be removed on October 15. You can read about the latest developments in this story in today's Tampa Tribune.

...posted by ⊥ 6:54 AM ⊥ #

Schiavo News. October 10. According to the AP, that's the date that Judge Lazzara is going to hold a hearing on Terri Schiavo's parents' efforts to stop Terri's feeding tube from being removed. As noted in this post below, Terri's parents are claiming that Terri's husband and Judge Greer (the state court judge) have conspired to deprive Terri of her constitutional rights. You can read the latest here.

...posted by ⊥ 9:16 PM ⊥ #

Thursday, September 25, 2003

Schiavo News. Well, not news -- a column. St. Pete Times columnist Mary Jo Melone's thoughts today on the Terri Shiavo saga are worth reading. Check out her column here.

...posted by ⊥ 8:15 AM ⊥ #

Monday, September 29, 2003

Schiavo News. More today on the Terri Schiavo saga from the St. Pete Times, which has this story. It highlights how some people have misdirected their feelings over the case.

...posted by ⊥ 7:24 AM ⊥ #

More Schiavo. Mary Jo Melone's weekend column covered the case as well.

...posted by ⊥ 7:36 AM ⊥ #

Saturday, October 04, 2003

Schiavo News. Florida's Attorney General, Charlie Crist, has decided that his office will not take part in the federal litigation between Terri Schiavo's parents and Terri Schiavo's husband, according to this story from the Tampa Tribune. However, Crist did take the position that Florida's Health Care Advance Directives laws are constitutional. In the recently-filed federal case, Terri's parents are claiming that the Florida laws that permit a court to order Terri's feeding tube removed violate her constitutional rights.

...posted by ⊥ 10:39 AM ⊥ #

Sunday, October 05, 2003

Schiavo News. Steve Otto, columnist for the Tampa Tribune has these thoughts on the Terri Schiavo saga.

...posted by ⊥ 10:01 AM ⊥ #

Tuesday, October 07, 2003

Schiavo News. The latest is here, where the AP reports on Terri's husband's motion to dismiss his in-laws' federal case and on the hearing scheduled for October 10.

...posted by ⊥ 6:52 AM ⊥ #

Wednesday, October 08, 2003

Schiavo News. Governor Bush's office has filed a brief in the federal case between Terri Schiavo's parents and her husband, according to this story from the Tampa Tribune. The Governor's position appears to be that Terri should be given therapy to determine if she can eat or drink on her own and that her decision not to remain alive through artificial sustenance is not the same as a wish not to be fed at all.

...posted by ⊥ 7:10 AM ⊥ #

Saturday, October 11, 2003

Schiavo News. The big news on the Terri Schiavo saga is that Judge Lazzara has dismissed Terri's parents' federal suit due to a lack of federal trial court jurisdiction over the matter. As the judge ruled, Terri's parents have been attempting to use the federal district court to make an end-run around the state court decisions in the case, rather than appealing those decisions to the United States Supreme Court. You can read the latest updates in today's St. Pete Times and Tampa Tribune.

...posted by ⊥ 11:51 AM ⊥ #

Tuesday, October 14, 2003

Schiavo News. A round-the-clock vigil has begun at the hospice where Terri stays, according to this story today from the Tampa Tribune. The story also notes that Terri's parents have filed some sort of new request for relief from the Second District. It's not clear from the story exactly what was filed, but given the history of the case it seems unlikely that the court has jurisdiction to reconsider the matter, which has already been decided. You can read the appellate court's last published decision on the Schiavo case here.

...posted by ⊥ 7:19 AM ⊥ #

Wednesday, October 15, 2003

Schiavo News. The big legal news of the moment in Florida concerns the Terri Schiavo case. The feeding tube for this brain damaged woman, who has been in a persistent vegetative state for 13 1/2 years, is scheduled to be removed at 2 p.m. today. Yesterday the Second District rejected Terri's parents' latest efforts to have the removal stopped, and reports suggest that the parents may feel they are now out of judicial options. That certainly appears to be the case. Also, Terri's parents yesterday released a segment of a videotape they made of Terri years ago in violation of a court order; as a result, and apparently out of concern the parents will attempt to videotape her after the tube is removed, Terri's husband (who is her legal guardian) has limited their access to Terri to times when he or his representative is present.

You can read the latest stories on this saga in the St. Pete Times, the Tampa Tribune, and the Orlando Sentinel.

...posted by ⊥ 7:47 AM ⊥ #

Schiavo Questions. In the last few weeks, I've had many conversations with people who were disturbed by the Terri Schiavo situation but who misunderstood -- or had little to no idea about -- the facts or history of the case. Inevitably, these folks express disappointment to one degree or another with the legal process and even the trial judge in particular. I've also noticed that a good number of people have stumbled onto this web log while looking for information on the Terri Schiavo case.

I'd like to try to clarify things and offer some resources to those looking for more (or just better) information on this saga. I have no stake in the case -- I'm just interested in helping people help themselves understand the situation and explaining why I believe the legal system is sound.

I'll be spending all day in that Tampa trial where I've been providing appellate support for the last two weeks, but in the off-moments and tonight I'm going to try to put together a Q&A page that offers short, understandable explanations of what's going on and what the law is. Hopefully it will be of use to some folks. Feel free to email me today with any questions you think ought to be covered.

...posted by ⊥ 8:01 AM ⊥ #

Thursday, October 16, 2003

Schiavo News. At 2 p.m. yesterday, health care providers at the Pinellas Park Hospice where Terri is staying disconnected her feeding tube. Terri's parents, backed by a strong number of supporters, are still hoping something or someone will intervene to change the fate that Terri now imminently faces. Reports are that Governor Bush has asked his legal staff to consider every possible legal avenue to aid the Schindlers. You can read about it all in today's St. Pete Times, Tampa Tribune, Tallahassee Democrat, and Orlando Sentinel.

...posted by ⊥ 7:15 AM ⊥ #

Announcing The Terri Schiavo Information Page. As mentioned in a post yesterday, I have begun an information page intended to provide information about the Terri Schiavo case, with an emphasis on Florida law and the legal procedures that have gotten things where they are today. The format at this point is Question & Answer. I will be adding to the page over the next day or two -- I've only had a brief amount of time to devote to this recently because of my workload, including an ongoing trial for which I'm providing appellate support all week.

Hopefully the Information Page will help debunk some of the severe misstatements I've heard about the case, many of which have been aired in very public formats.

You'll find The Terri Schiavo Information Page HERE.

...posted by ⊥ 7:27 AM ⊥ #

Monday, October 20, 2003

Schiavo News. I made some significant updates to the Terri Schiavo Information Page over the weekend. Hopefully the page is now fairly informative, at least with respect to the legal procedures that have been followed thus far. You can access the info page here.

Also, the morning television news in the Tampa Bay area is reporting that a watchdog group has filed a complaint regarding Terri Schiavo in federal court in Tampa. The group apparently claims that depriving Terri of a feeding tube constitutes abuse and that her tube's removal should be enjoined. The news also reports that a hearing -- perhaps a preliminary injunction hearing -- is scheduled for noon today.

...posted by ⊥ 8:19 AM ⊥ #

Schiavo News. The Terri Schindler-Schiavo Foundation's site, Terri's Fight!, has posted a notice saying that Florida's Speaker of the House, Johnnie Byrd, will introduce "Terri's Bill" today during the Legislature's special session regarding the Scripps Research Institute facility planned for Florida. Apparently, the bill would put an immediate moratorium on dehydration and starvation deaths in this state. Note that, where, as here, the Governor has called a special session, then under Article I, § 3(c)(1) of the Florida Constitution, the Legislature cannot take up a matter other than the subject of the special session except by a 2/3 vote of each house.

This is a fascinating development.

...posted by ⊥ 10:14 AM ⊥ #

Schiavo News… on three fronts. First, the "watchdog group" mentioned in a post from this morning is the Advocacy Center for Persons with Disabilities. That group has brought a claim in federal court alleging that removal of Terri's feeding tube constitutes abuse. I'm not sure how the group asserts that the federal court has jurisdiction, but the group is pushing forward and has requested a 10-day injunction on the tube's removal to permit an investigation. Judge Merryday has been assigned the case and heard argument on that request. He is expected to issue a ruling today.

Second, the new law being advanced in Tallahassee by Speaker Johnnie Byrd would apparently prohibit removal of hydration and nutrition from persons who lack a written directive on life-prolonging procedures where the family cannot agree on a course.

Third, Governor Bush has apparently been advised that all legal remedies that he might pursue have been exhausted.

All this from this afternoon update from the AP.

...posted by ⊥ 4:42 PM ⊥ #

Tuesday, October 21, 2003

Schiavo News. I called it a "fascinating development" yesterday for a reason. It looks like Terri's feeding tube will be reinserted soon -- probably today -- based on events going on in the Capitol. Yesterday evening, the Florida House of Representatives passed a bill that reportedly will allow the Governor to intervene in cases, like Terri's, where no written directive exists regarding the cessation of hydration and nutrition and the family cannot agree on how to proceed. At the moment, the bill's text is not available online, but I'll be watching for it. For now, the Legislature has what's probably the bill's title online, and it states that the bill:

authorizes the Governor to issue a one-time stay to prevent the withholding of nutrition and hydration from a patient under certain circumstances; provides for expiration of the stay; authorizes the Governor to lift the stay under certain circumstances; provides that a person is not civilly liable and is not subject to regulatory or disciplinary sanctions for taking action in compliance with any such stay.

According to the Florida Senate's web site, a Senate committee will be taking up the bill at 8 a.m. If the Senate passes the bill today, all indications are the Governor will immediately sign it and invoke the stay it permits.

Bottom line: Assuming a favorable Senate vote, Terri's feeding tube will likely be reinserted later today based on a stay issued by the Governor. That will not, however, be the end of this saga. The stay is apparently not indefinite, so even under the new law's terms (which I've not yet seen), there are issues ahead. Also, based on comments from Michael's attorney in today's news reports, Michael is likely to challenge the constitutionality of the new law on grounds it violates Terri's right to privacy. (Yes, I said that right.) There may be other constitutional challenges as well. So, in all likelihood, the court battle is about to resume.

You can read about the latest developments everywhere, such as today's St. Pete Times, Tampa Tribune, and Orlando Sentinel.

...posted by ⊥ 6:13 AM ⊥ #

Schiavo News. The AP reports in this story that a Senate committee has approved the bill passed yesterday by the House. But a quick look at the Senate's website (here) indicates that the committee passed the bill as amended, which should mean that even if the full Senate approves the amended bill tonight, then the House will have to pass the amended version as well before the bill can be sent to the Governor for approval.

For more details, scroll down just a bit to this Schiavo News post from earlier this morning.

Also, don't forget that Abstract Appeal's Terri Schiavo Information Page has a good deal of information about the legal proceedings thus far.

...posted by ⊥ 11:29 AM ⊥ #

Schiavo News. Whoa! I commented this morning that news reports and the bill title made it seem that the stay authorized by the bill under consideration would not be indefinite. Not so. Well, maybe. The House of Representatives web site now has up the text of the bill the House passed last night -- you can read it yourself here. You'll see that the bill would create only a 15-day window during which the Governor could issue a stay in cases such as Terri's; once the 15-day window expires, the Governor could no longer issue such stays, but any stay already issued would remain in effect except upon a finding that a change in the person's condition warrants revocation of the stay.

Bear in mind that amendments to the bill have been proposed and possibly accepted by one or both chambers, and the text of those proposals is not yet on the Internet. So it's not clear how the bill may now read, and of course everything is subject to change.

This bill is fascinating, though. It's probably fair to say that some ground-breaking constitutional battles and procedural issues lie just past the horizon.

...posted by ⊥ 3:04 PM ⊥ #

More Schiavo News. Judge Merryday has denied the request for injunctive relief filed by the Advocacy Center for Persons with Disabilities. The group sought to enjoin the removal of Terri's feeding tube on grounds that the removal constituted abuse and neglect. The federal court found the group's allegations legally insufficient and further found that a federal district court has no jurisdiction over this matter, which has already been litigated in Florida's state courts. You can read Judge Merryday's order here.

A footnote in Judge Merryday's order is worth a note here. He stated in footnote 2:

At the October 20, 2003, hearing, The Center argued that withholding nutrition and hydration from the ward may constitute "abuse and neglect." However, The Center admitted that had the ward left explicit written directions under Chapter 765 to terminate her nutrition and hydration, The Center would not have filed this action. In other words, this action represents The Center's disagreement with the fact finding in Florida's courts that the ward actually consented to the present course.

That pretty much sums up the controversy in this case.

...posted by ⊥ 3:49 PM ⊥ #

Schiavo News. Don't blink, or you'll miss things. This recent report from the AP confirms that the Senate has passed an amended version of the bill, which is now on its way back to the House. The House will likely pass the amended bill, sending it on to Governor Bush for his signature tonight. But wait. The AP story also indicates that Michael Schiavo has filed a motion with the trial court overseeing this case -- most likely a request that any stay imposed by the Governor be ineffective. Finally, the story indicates that the trial judge will hold a hearing today on the matter.

...posted by ⊥ 5:05 PM ⊥ #

Schiavo News. The House has now passed the amended bill, which appears to be available here. From my quick read, the only apparent difference from the earlier version is that the bill now provides that the chief judge of the circuit court is to appoint a guardian ad litem to advise the Governor once a stay is issued.

In the Sixth Circuit, where Terri's case is pending, the chief judge is Judge David A. Demers.

...posted by ⊥ 5:18 PM ⊥ #

Schiavo News. Local TV in the Tampa Bay area reports that Terri has been taken to a hospital, where she will receive fluids intravenously and, later, a feeding tube once again. That ends two days of heavy political involvement in the case. The next round, if that's an appropriate term in such a sensitive situation, will take place in the courts.

Thinking abstractly here -- in keeping with this site's name -- I can imagine at least two potential series of issues that may be litigated in the courts: whether the stay that Governor Bush has ordered and the underlying new law are constitutional and, if so, whether and how the Governor's authority to revoke the stay (something he can do based on a "change in circumstances") should be exercised and reviewed. Stay tuned.

...posted by ⊥ 6:44 PM ⊥ #

Wednesday, October 22, 2003

Schiavo News. Let's try to wrap up what happened yesterday. The House and Senate passed a law that gives the Governor the ability to stay the removal of a person's feeding tube in cases where the court system has found that person to be in a persistent vegetative state, the person has no written advance directive, and the person has had nutrition and hydration withheld. The power to issue such stays ends 15 days from yesterday, but the effect of a stay is perpetual unless the Governor finds revoking the stay to be warranted by a change in circumstances. Once a stay is issued, the chief judge of the local circuit court is to appoint a guardian ad litem to advise the Governor.

Armed with this new law, which you can read here, the Governor last night ordered Terri's feeding tube reinserted. She was taken to a Clearwater hospital where that process was begun.

Meanwhile, Michael Schiavo attempted to have the local circuit court enjoin the new law's effect -- which would leave the feeding tube removed -- based on arguments that the new law is unconstitutional. Not surprisingly, the circuit court rejected that effort and said that the law would be effective until the court can have a full opportunity to review the constitutional arguments.

So where are we headed? Assuming Michael can and wishes to continue his battle with the Schindlers, the constitutionality of the new law will be litigated, perhaps all the way to the Florida Supreme Court. I note that the constitutional dimensions of these arguments will give the Florida Supreme Court an opportunity to hear the case, whereas that court had no legal authority to review the earlier appellate decisions in the case. More on this later.

What are the constitutional challenges? At this point, it seems there will be two: First, that the law violates Terri's constitutional right to privacy, since the courts have determined that she would choose not to continue with life-prolonging measures under these circumstances. Second, that the law violates the constitutional principle of separation of powers (which in essence leaves each of the three branches of government to its own sphere of power) by appointing the Governor to overrule the courts on a fact issue with fundamental right implications. I am not going to predict whether these arguments will succeed or fail, but as an appellate lawyer I will say that they will make for very interesting legal discussions.

What's the bottom line? Terri's feeding tube will likely be left in place until the courts finish sorting out issues regarding the new law. That could easily be a year or two.

What's the reaction to what just happened? The families' reactions are the obvious ones. Less foreseeable have been the comments of newspaper editorial staffs, law professors, and even Florida's legislators themselves. Some of these folks are making cries of political opportunism -- that the Legislature acted as it did to court the Republican party's conservative base and to further the upcoming U.S. Senate campaign of Florida's Speaker of the House, Johnnie Byrd, who spearheaded the legislative move.

You can read the local papers' roundups of the situation at these links to the St. Pete Times, the Tampa Tribune, the Palm Beach Post, and the Orlando Sentinel, with the Sentinel having the heaviest coverage of legislators' views. You can read heavy criticism of the legislative action from the editorial staffs of the St. Pete Times and the Orlando Sentinel (registration required), and from St. Pete Times columnist Howard Troxler. You can also read the somewhat guarded support for the move given by the editorial staff at the Tampa Tribune.

...posted by ⊥ 7:25 AM ⊥ #

Schiavo News. The AP has this update, which not only notes that Michael is not allowing Terri's family to see her in the hospital where she is being treated but includes some interesting quotes from well known constitutional scholar Lawrence Tribe.

...posted by ⊥ 1:52 PM ⊥ #

More Schiavo News. Keep in mind, I'm not taking sides -- just working at shedding some light on the law and the legal process here -- but I have to point out the oddity of this story tonight from the Associated Press. The story, titled "Doctors Say Suffering Unlikely for Brain-Damaged Woman," is about how physicians reject Michael Schiavo's attorney's claim that reintroducing Terri's feeding tube would bring her more suffering before she dies. The basis for their refutation? "Since the woman, Terri Schiavo, is in a persistent vegetative state, she will not feel discomfort. . . . 'She is not aware of her environment or what is happening.'" Guess how many such stories were run with respect to claims about Terri's suffering when the tube was removed?

...posted by ⊥ 7:26 PM ⊥ #

Schiavo News. There has been a discernible change in the reporting concerning the new law passed this week to allow the Governor to intervene in the Terri Schiavo case. I noticed yesterday in the local television and radio coverage that the media have begun qualifying their comments on the law by discussing its potential unconstitutionality as a bona fide possibility, rather than simply a claim by Michael Schiavo's attorney. This morning's papers likewise include numerous quotes from "legal experts" who declare that the law is simply unconstitutional.

Check out the local coverage in today's St. Pete Times, which has articles here and here; Tampa Tribune, which has articles here and here; and Orlando Sentinel.

Personally, I find the constitutional issues (discussed briefly in this post yesterday) to be fascinating, not only as legal issues but as means to educate the general public about some very important constitutional principles.

To provide a brief update on events, Michael has announced that he intends to sue any doctor providing assistance to his wife, as explained in the second Tampa Trib story linked above. If you recall the new law's language, though, it provides immunity to doctors who act pursuant to a stay issued by the Governor. Presumably, Michael's position is based on his view the law is unconstitutional for the reasons mentioned earlier, but there may be an additional constitutional arrow in his quiver: he may assert that the immunity portion of the new law also violates Terri's constitutional right of access to courts, since in the absence of the new law Terri would have a common law cause of action for battery against doctors treating her against her will (recall that the courts have determined that Terri would not wish to live under these circumstances), and Florida's courts are traditionally reluctant to permit the Legislature to eliminate claims that could be brought under the common law. This explains why, as the Trib story mentions, Terri's treating physician resigned from her care Tuesday evening -- likely in an effort to avoid a battery suit.

Finally, I'll note that the first St. Pete Times article linked above explains something I had not appreciated about Tuesday's events: Late Tuesday, Michael Schiavo filed an action separate from the guardianship proceedings to declare the new law unconstitutional. That case has been assigned to Judge Baird. It's not clear at this point whether the two proceedings will continue as separate cases, but it seems unlikely.

...posted by ⊥ 7:57 AM ⊥ #

Thursday, October 23, 2003

Schiavo News. Michael Schiavo has considered, and rejected, giving up his efforts to allow his wife to die, according to this story tonight from the AP. He's going to pursue a declaration that the law enacted earlier this week to permit Governor Bush to stay the withdrawal of Terri's feeding tube is unconstitutional.

...posted by ⊥ 10:26 PM ⊥ #

Friday, October 24, 2003

Schiavo News. Today's St. Pete Times has this update on the the coming constitutional challenge to the new law that allowed Governor Bush to stay the removal of Terri's feeding tube. The story includes some financial information that has not recently been published, such as that only $50,000 remains of Terri's trust fund and that rumors that Michael Schiavo will collect an insurance award when Terri dies are false -- there is no policy.

The Sun-Sentinel has this story about how the ACLU intends to aid Michael Schiavo in his constitutional challenge to the new law and how other groups, such as the AARP, are considering doing so as well.

The Palm Beach Post has this story about the resignation of Terri's treating physician.

The Tampa Tribune has this story on how publicity from the Terri Schiavo case has prompted a surge of interest in setting up living wills. (I don't give out personal legal advice on Abstract Appeal, but I will say that, as a general matter of prudence, we all should have clearly expressed living wills. I'll have more on this subject in a lengthy piece to be posted over the weekend.)

Finally, for now, the Tallahassee Democrat has this story about how calls to "save Terri" have been pouring into Tallahassee, including the office of Craig Waters, the Florida Supreme Court's spokesperson.

...posted by ⊥ 7:39 AM ⊥ #

Saturday, October 25, 2003

Schiavo News. The St. Pete Times has this update on the Schiavo case. The story discusses both the ACLU's entry into the case to challenge the constitutionality of the law passed earlier this week and renewed claims from the Schindler family and their doctors that Terri is responsive and alert.

In the interest of full disclosure regarding the procedural history of this case, I will point out that the doctors quoted in the story are the same doctors who testified for the Schindlers before Judge Greer at the last trial in this case. Their testimony was contrary to that of the doctors hired by Michael Schiavo and the independent doctor hired by the trial court. You can read Judge Greer's order rejecting the Schindlers' doctors' testimony here, and you can read the appellate court decision affirming Judge Greer's order here.

Also, the Sun-Sentinel has this story about how Governor Bush has gained support from the "religious right" as a result of his intervention in the Schiavo case.

...posted by ⊥ 9:42 AM ⊥ #

Sunday, October 26, 2003

Schiavo News. The AP has this report on Judge Greer, who for years has presided over the Schiavo case at the trial level.

...posted by ⊥ 2:35 AM ⊥ #

Schiavo News. I'm a lawyer, not a doctor, so while I can help debunk misperceptions about how the judicial system has handled the Terri Schiavo case, I'm as clueless as the next person about the medical aspects of the case. That's why I find this article from today's St. Pete Times so interesting -- it explains that, contrary to popular perception, medical science uniformly believes that removing a feeding tube from a patient does not cause a painful death.

...posted by ⊥ 10:42 AM ⊥ #

Schiavo News: Michael Breaks His Silence. Terri Schiavo's husband, who has been silent in the media through much of this saga, will appear on Larry King Live at 9 p.m. Monday night.

...posted by ⊥ 10:45 AM ⊥ #

Monday, October 27, 2003

Schiavo News. First up, some stories from today's papers. This story from the Orlando Sentinel attempts to explain the differences between the popular perception of Terri's consciousness and the opinions of medical experts and the courts that Terri's movements are reflexive only.

Also, the Sun-Sentinel has this story, entitled, "Schiavo Case Rekindles Debate On Reviving People With Severe Brain Damage." The story examines medical views of Terri's case from all sides.

...posted by ⊥ 7:24 AM ⊥ #

More Schiavo News. The Tampa Tribune ran a column yesterday by Gary D. Fox, the attorney who represented Terri and Michael Schiavo in their 1992 medical malpractice suit. The column is interesting because it covers a point not discussed in the media lately: the reason Terri suffered the heart attack that led to her current condition.

I was unable to find a link to the column online, but here's an excerpt:

By all accounts, Terri was a fine young woman. She had a good job, a good marriage and many friends. Most who knew Terri, however, were unaware that she was sick. Terri suffered from an eating disorder known as bulimia nervosa, commonly called bulimia. The disease causes its victims to overeat ("binge") and soon thereafter vomit ("purge"). The cycle of binging and purging is extremely dangerous. The human heart, to work properly, requires a balance of the body's electrolytes. Vomiting can upset the electrolyte balance and cause abnormal heart rhythms that can lead to heart attack. That is what happened to Terri. One night, Terri purged, which caused her potassium level to drop low enough to cause a heart attack. Before fire rescue arrived and took her to the hospital, Terri's brain had been deprived of oxygen long enough to produce catastrophic brain damage.

The trial of the medical malpractice case established that the health care providers who treated Terri should have figured out that she had an eating disorder and referred her to the appropriate specialists for treatment.

The column also explains that a jury assessed the Schiavos' damages at over $6.8 million but found Terri to be at fault, too, leaving the Schiavos with about a $2 million award. The column does not mention but other reports indicate that the case later settled for half that amount.

Update: The St. Pete Times ran Fox's column as well, and you can access it online here. Many thanks to the reader who forwarded this link.

...posted by ⊥ 7:40 AM ⊥ #

Still More Schiavo News. This is just a reminder that Michael Schiavo, who has been silent in the media throughout this saga, will appear on Larry King Live tonight at 9 p.m.

...posted by ⊥ 7:45 AM ⊥ #

Slated! Greetings to all those who've found this blog through links on Mickey Kaus's kausfiles blog, over at Slate.

The Slate piece is extremely refreshing because it credits Abstract Appeal's Terri Schiavo Information Page with helping clear up what I view to be a popular misconception about this case: that Michael made the decision and the courts have simply allowed him to do it. As the Info Page explains, that's not what happened. Helping clear up misunderstandings about Florida's legal system and the events of this case is exactly why I've created that page.

...posted by ⊥ 10:04 AM ⊥ #

Schiavo News. According to this update from the AP, Judge Baird -- the trial judge hearing the constitutional challenges to the new law that permitted Governor Bush to order Terri's feeding tube reinserted -- has clarified that legal memoranda may be filed through Wednesday challenging the new law. Opposing memoranda (from the Schindlers, the Governor, and, presumably, Florida's Attorney General) are due one week later.

...posted by ⊥ 4:43 PM ⊥ #

Tuesday, October 28, 2003

Schiavo News. After Michael's appearance on Larry King Live and the Schindlers' attorney then appearing on Greta Van Susteren's show, there are plenty of new quotes and comments to absorb.

Read the local coverage about it all at these links to today's St. Pete Times, Tampa Tribune, and Orlando Sentinel. For a glimpse of the national coverage, check out this story at cnn.com.

...posted by ⊥ 6:55 AM ⊥ #

Schiavo News. President Bush commented at a press conference today that he believes his brother "made the right decision." The Associated Press reports on the comment here. You can also read a transcript of the entire press conference here.

I'm going to take issue with one aspect of the AP story, and it has nothing to do with the President or Florida's Governor. The story concludes with these words:

Terri Schiavo suffered severe brain damage in 1990 when her heart stopped. Some medical experts have testified she is in a persistent vegetative state with no hope of recovery; others disagree. Her parents have argued their daughter could improve with therapy.

Reporting like this has no doubt contributed to many people misunderstanding that the issue of whether Terri has any likelihood of regaining some cognitive functioning has been litigated -- Michael Schiavo, the Schindlers, and others, including experts for both sides and a court-appointed independent medical expert, have already fought this battle in the courts at a trial and on appeal. The trial judge heard all of the evidence from all sides and concluded that Terri is in a persistent vegetative state and that there is no treatment option that could significantly improve her quality of life. Yet this AP story describes the situation as if two groups simply disagree on an issue that no court has resolved, as if justice and a day in court were still a day away. That's just not true. Check the Terri Schiavo Information Page if you'd like more details.

...posted by ⊥ 4:29 PM ⊥ #

Wednesday, October 29, 2003

Schiavo News: Another Law? Today's roundup of local coverage on the Terri Schiavo case can be found in the St. Pete Times, the Tampa Tribune, and the Orlando Sentinel.

Perhaps the most significant item from these stories is that Florida Senator Bill Nelson has announced a proposed bill that would expand Medicare coverage to include a single doctor's visit to discuss end-of-life treatment issues. Don't expect any immediate constitutional challenges to that law. Meanwhile, though, back in St. Pete, briefs are due today from Michael Schiavo on arguments against the new Florida law's constitutionality.

...posted by ⊥ 12:05 PM ⊥ #

Schiavo News. Today, in the case before Judge Baird, Michael Schiavo filed a legal memorandum challenging the constitutionality of the new law that permitted Governor Bush to order Terri's feeding tube reinserted. Read about the legal arguments contained in the memo in this update from the AP.

...posted by ⊥ 6:24 PM ⊥ #

Thursday, October 30, 2003

Schiavo News. Yesterday, Michael Schiavo filed a legal memorandum in the trial court (Judge Baird's court) detailing his arguments against the constitutionality of the new law that permitted Governor Bush to order Terri's feeding tube reinserted. Read more about it all in today's St. Pete Times and Orlando Sentinel. Memoranda in opposition to Michael's position -- presumably from the Schindlers, the Governor, and the Attorney General -- are due next Wednesday.

...posted by ⊥ 8:37 AM ⊥ #

Schiavo News. You can read a copy of Michael's legal brief, described in the preceding post, here.

...posted by ⊥ 4:47 PM ⊥ #

Friday, October 31, 2003

Schiavo News. The Schindlers have asked Judge Baird for permission to intervene in Michael Schiavo's case against the Governor, which would allow them to file a brief in opposition to the one Michael filed on Wednesday. The Schindlers have also been joined by the American Center for Law and Justice. Read about it all in this story from today's St. Pete Times.

Also, Miami Herald columnist Jim DeFede has this piece today on the ethics surrounding Terri's case.

...posted by ⊥ 7:24 AM ⊥ #

More Schiavo News. So what exactly did Michael Schiavo argue in the brief he filed Wednesday to support his constitutional challenge to the new law that permitted Governor Bush to order Terri's feeding tube reinserted? He made the following arguments, though the brief devoted the most attention to the first two:

-- the law violates Terri's right to privacy
-- the law violates the constitutional principle of separation of powers
-- the law violates Terri's right to equal protection
-- the law is an impermissible bill of attainder
-- the law is an invalid special law
-- the law is unconstitutionally vague

You can read Michael's brief here. I encourage everyone to read this brief and to read the opposition briefs that will be filed next week. I'll link to them after someone posts them on the Internet.

This is a great opportunity for people who rarely or never get an opportunity to see written legal arguments in an appellate brief-style format. Unfortunately, most people never see such things, which is why when I tell non-lawyers that I'm an appellate lawyer, they usually look at me and just say, "Oh. Okay."

Appellate lawyers basically write legal arguments in the form of briefs and present them to appellate courts at what's called an oral argument. The Schiavo case is not presently on appeal, but the parties and the judge are treating it as an appellate case even at the trial level -- in the sense that they're referring to the parties' legal memos as briefs and in the sense that Michael's attorneys wrote his "brief" in the format of a formal appellate brief. Why are they doing this? Probably because the issues at this point are purely legal ones -- there are likely not going to be factual issues that will require a trial. The trial judge will probably read the parties' briefs, hear argument from the attorneys, research the law on his own, and decide which side is correct on the various issues.

Since I'm encouraging folks to read legal briefs, I'll add this caveat: Remember that a brief is legal argument by only one side. Always read the briefs from all sides if you want to gain a full understanding of the arguments and the issues. Most importantly, to understand which side is actually correct, read the decision by the court that resolves the arguments and decides the issues.

...posted by ⊥ 7:51 AM ⊥ #

Sunday, November 02, 2003

Shiavo News. In case you missed it, today's St. Pete Times has this story on how the new law known as Terri's Law came to be.

...posted by ⊥ 11:54 PM ⊥ #

Monday, November 03, 2003

Schiavo News. Today's St. Pete Times has this profile of Judge Baird, the trial judge hearing Michael Schiavo's constitutional challenge to the new law that permitted Governor Bush to order Terri's feeding tube reinserted.

Also, today's Sun-Sentinel has this story about how some folks in Tallahassee pay little attention to the constitutionality of laws they pass or enforce.

...posted by ⊥ 7:09 AM ⊥ #

Tuesday, November 04, 2003

Schiavo News. Michael Schiavo is taking the position that the Schindlers do not meet the legal requirements necessary to intervene in his suit on the constitutionality of the new law that permitted Governor Bush to order Terri's feeding tube reinserted. Read about it here in today's St. Pete Times.

To help clarify this a bit, Michael's new lawsuit is against Governor Bush and Attorney General Charlie Crist. The Schindlers are not parties to this suit, but they have requested that they be permitted to intervene as parties so they can defend the law's constitutionality. Florida law is fairly specific about who can intervene in a lawsuit between other parties. Though I'm not going to predict how Judge Baird will rule, I will note that even if the Schindlers' motion to intervene is denied, Judge Baird would be free to permit the Schindlers to file legal arguments as amici curiae -- "friends of the court" -- so there is probably little chance that the Schindlers will not be heard in this case.

...posted by ⊥ 7:37 AM ⊥ #

Wednesday, November 05, 2003

Schiavo News. Judge Baird has denied the Schindlers' motion to intervene in the lawsuit between Michael Schiavo and state officials, as reported in this story from today's St. Pete Times. Yesterday, I mentioned in this post that even if the Schindlers' motion was denied, they would likely be permitted to file legal arguments as amici curiae ("friends of the court"), and that's apparently what happened. So the Schindlers will have an opportunity to be heard; they will just not be parties to the suit.

The Times story also mentions that legal briefs defending the constitutionality of the new law are due tomorrow. Earlier reports indicated they were due today.

Finally, the Miami Herald has this story on presidential candidate Howard Dean's criticism of Florida's Legislature and Governor for entering the Schiavo case as they did.

...posted by ⊥ 7:05 AM ⊥ #

Thursday, November 06, 2003

Schiavo News. The St. Pete Times today has this story on how attorneys for Governor Bush yesterday filed a motion with Judge Baird to dismiss the case testing the new law's constitutionality. From the story, it sounds as if the motion is based on procedural concerns -- proper service of notice of the lawsuit and whether the case should be pending in Pinellas County (where Terri is) or Leon County (where the capitol is).

Times columnist Mary Jo Melone has this column about the guardian ad litem who advised Judge Greer on Terri's condition and fate in 1998-99. According to the column, the former guardian ad litem changed his mind about Terri's wishes after the last trial, based on the medical testimony.

Elsewhere, nationally syndicated columnist Ellen Goodman has these thoughts today on the Schiavo case.

Finally, the Schindlers are scheduled to be on Larry King Live this Friday at 9 p.m. EST.

...posted by ⊥ 5:49 AM ⊥ #

Friday, November 07, 2003

Schiavo News. The St. Pete Times reports here that, on Wednesday, the Schindlers filed an amicus brief with Judge Baird in which they defend the constitutionality of the law that permitted Governor Bush to order Terri's feeding tube reinserted.

...posted by ⊥ 7:06 AM ⊥ #

Saturday, November 08, 2003

Schiavo News. Yesterday, Judge Baird denied Governor Bush's motion to dismiss Michael Schiavo's challenge to the constitutionality of the new law that allowed the Governor to order Terri's feeding tube reinserted. You can read about it in this story from the AP.

The story indicates that Judge Baird has now given the Governor until Monday to respond to Michael's constitutional arguments on their merits.

...posted by ⊥ 11:31 AM ⊥ #

More Schiavo News. The folks from the St. Pete Times have culled through the trial transcripts from this case and put together this story on the evidence of Terri's wishes. It's a good story, and it brings up pieces of testimony that have been ignored by many in this now very public controversy.

I should add one thing to the Times story: The story can be read to suggest that the words attributed to Terri were the only evidence the trial court relied upon to find that Terri would not wish to continue life-prolonging procedures in her current condition. That's not the case. In making that decision, the trial court was required to consider many factors, including Terri's current medical condition and the likelihood of any significant recovery.

...posted by ⊥ 11:44 AM ⊥ #

And Still More Schiavo News. The AP has this interesting story on the medical aspects of the Schiavo case, comparing them to those of the case of Terry Wallis.

The St. Pete Times has this story about the investigation to be conducted by the new court-appointed guardian ad litem for Terri, Dr. Jay Wolfson. According to the story, Wolfson has been appointed to examine whether Terri can benefit from therapy that might allow her to swallow food and water, but Governor Bush wants Wolfson also to investigate whether Terri would want to "die by starvation."

Finally, I've found the answer to my question below about what happened to the Schindlers' scheduled appearance on Larry King Live. The print version of today's St. Pete Times contains the following in a box alongside the main Schiavo story linked below: "Bob and Mary Schindler, the parents of Terri Schiavo, canceled an appearance on Larry King Live scheduled for Friday night because of exhaustion. A family spokeswoman said the family was trying to reschedule." That note is not found on the Times's web site.

...posted by ⊥ 12:05 PM ⊥ #

Monday, November 10, 2003

Schiavo News. The folks at the St. Pete Times have gone through four hours of video introduced as evidence during the trial court proceedings in the Sc