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Welcome. The following is a compilation of Abstract Appeal's posts from 2005 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 2003 and 2004.

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.






Friday, January 07, 2005

 
Schiavo News
There are a couple of updates to note regarding the Schiavo saga. I'll give them in only basic detail now, with some longer explanations to follow late today.

First, the U.S. Supreme Court is currently scheduled to consider Governor Bush's certiorari petition later this month. We may have a decision on whether the court will take the case soon.

Second, the Schindlers yesterday filed a new motion for relief from the original judgment regarding Terri's wishes, asserting the judgment is void. You can read the motion here, thanks to the folks at Terri's Fight.



Saturday, January 08, 2005

 
Schiavo Thoughts
Ok, getting back to the post I should have added last night (but didn't due to the arrival and setup demands of a new dvr...)

First, some thoughts on the status of things at the U.S. Supreme Court. The court's docket shows that Governor Bush's petition for writ of certiorari is scheduled for conference on January 21, which means that date is when the justices should vote on whether to accept review of the case, with the result being released with the court's order list on the following Monday.

Realistically, though, there are three possibilities. The court could deny the petition and refuse to hear the case. Also, the court could defer ruling on the petition until another conference date. Finally, the court could defer ruling and request a response from Michael Schiavo, who chose to waive his response. That's it. I know I didn't include that the court could grant the petition -- that is a possibility, but it is not likely to happen on January 21, since the court traditionally does not grant petitions without receiving or at least requesting a response from the respondent. The court could request a response, reschedule the case for another conference date, and then decide to grant the petition and hear the case.

Now I'll turn to the Schindlers' latest motion for relief from the original judgment, a motion that is available here. It presents three arguments as to why the original judgment should be declared void, and thus a nullity: (1) Terri was not represented by counsel during the proceeding to determine her wishes; (2) the trial court applied the wrong law to the case, depriving Terri of due process; and (3) the trial court's role as judge of Terri's wishes violated the constitutional principle of separation of powers.

I am not going to comment on the merits of these arguments, but I will try to add context to them with a few observations.

I will begin with an overarching observation: there is a significant difference between whether an error exists in a case and whether an alleged error amounts to a defect that renders the ultimate judgment a nullity. So each of the three arguments here can be examined in two ways: (1) whether the asserted defect is of the sort that would void the judgment, and (2) whether the asserted defect actually exists.

As to the first argument, keep in mind that an attorney is only half of an attorney-client relationship. Attorneys do not -- or at least cannot, without the client's consent -- simply make significant decisions affecting their clients' interests. Attorneys are counselors. They advise, and after giving advice and consulting with their clients, they take legally meaningful action on their clients' behalf. So an argument that Terri should have been represented by counsel is not the same as an argument that Terri should have had a guardian or a guardian ad litem. (I'll note, parenthetically, that Terri has had a guardian, and the Schindlers previously raised the guardian ad litem argument before the Second District, which rejected it in this decision.)

Regarding the second point, a reader emailed me yesterday to remind me of an Abstract Appeal post from November 2003 -- this one. There, I answered a reader's question that concerned similar issues but not the issue actually raised here. I'll refer folks to that old post for discussion about this area, but I emphasize that the analysis there does not address the specific issue now being raised.

Finally, on the third argument, I note that this point is rather similar to the first point raised in the Governor's cert petition. Both stem from an underlying notion that a judge cannot constitutionally serve (under Florida's constitution) as a decisionmaker in cases where a ward's close family members and/or the surrogate cannot agree on the ward's wishes. I have seen no press coverage of this concept, which strikes me as odd because its implications are fascinating. Who is a constitutionally permissible decisionmaker? I note that conflicts such as the one in Terri's case can arise even if a living will exists. Very interesting.



Wednesday, January 12, 2005

 
Schiavo News
The Schindlers continue their efforts to remove Michael Schiavo as Terri's guardian with this amended motion.

A couple of astute readers have asked me whether this effort is meaningful, since the decision to remove Terri's feeding tube was not made by the guardian -- it was made by the court based on what Terri would choose to do.

Yes and no.

It's true that the decision on the feeding tube was made by the court and constitutes a formal judicial finding of Terri's wishes, and in this sense a change in guardian could not directly change the decision on Terri's wishes. But if a guardian who shared the Schindlers' point of view were appointed, that person could change the saga's dynamic. The guardian could attempt to look for evidence Terri might recover with some treatment or another or that she is no longer in a persistent vegetative state. Or the guardian could appear in any of the ongoing appellate proceedings (as a party or an amicus) and agree with the Schindlers or the Governor, as the case may be. Or...



Friday, January 14, 2005

 
Friday Florida Law Trivia!
In lieu of a normal Friday Florida Law Trivia question, and in Hunter's absence, I'll combine trivia and the ongoing Schiavo saga to ask this question:

What's wrong with this story in today's St. Pete Times?

I'll post the answer late tonight.



Saturday, January 15, 2005

 
Friday Florida Law Trivia Answer
I was glad to see many folks write in with correct answers to the trivia question. Some of the opinions offered by the expert in the story are debatable, but there is one chief problem with the story itself, and it is found in the following set of statments: The story says that courts have consistently ruled that loved ones can act as surrogates to say what a person who can't respond would have wanted. "In other words, Terri Schiavo's husband, Michael Schiavo, who says she would want the tube removed, takes precedence over her parents, who want it to stay." That may be the result in some hypothetical world, but it has nothing to do with what happened in the Schiavo case.

In the Schiavo case, Terri's husband and parents disagreed over what they believed Terri would want. Michael went to court and asked the court to act as Terri's surrogate and determine who was correct about what she would have wanted. In essence, he asked the court to do what courts often do -- resolve factual disputes between parties by hearing from each side and determining which side's evidence is more persuasive. The court held a trial, heard the evidence the parties wished to present, and determined that the evidence clearly and convincingly showed that Terri would not choose to continue receiving nurishment through a feeding tube in her present condition. That decision was upheld on appeal.

In my personal view, the misunderstanding that Terri's husband made the decision to remove Terri's feeding tube has been an ongoing source of undeserved scorn for Florida's judiciary. A great number of people have reacted to this misbelief by questioning the wisdom and even the legitimacy of a court system that would simply do whatever a spouse says, even if it means to end the other spouse's life. Add in accusations that the spouse seeking to pull the proverbial plug is driven by a desire to control the couple's assets or obtain life insurance proceeds, or that the other's medical condition is the result of spousal abuse, and suddenly the judiciary looks like a gaggle of puppets.

The Florida judiciary is no assemblage of dolts. It is an honorable branch of our state government, operated by talented and often extremely wise people who attempt to promote the ends of justice in every case they encounter. Terri's wishes were explored in a full trial, with evidence on all sides, and a court weighed that evidence and reached a decision on what she would do. That decision was appealed and affirmed. It was also questioned in a second trial on a new issue raised by Terri's parents, but the result remained the same, and that too was affirmed on appeal.

I understand that people disagree with the court's decision. Some believe the court made the wrong choice. Others don't know but believe that if there's any question at all then the error should be on the side of continuing the medical treatment that's keeping Terri alive. I was not at the trial, and if my experience as an attorney has taught me anything about trials it's that they're very difficult to second guess unless you were there. Even reading the entire transcript and examining the evidentiary exhibits is often not enough to give you the perspective of the factfinder, be it a judge or a jury. So I have no opinion on whether the court "got it right."

I also appreciate that Florida law requires the person's wishes to be determined only by clear and convincing evidence, not a simple preponderance of the evidence or by uncontested evidence. The trial judge determined that Terri's wishes were shown by clear and convincing evidence, and the appellate court agreed that such a high level of evidence existed.

I will conclude this post with a poignant excerpt by Judge (now Chief Judge) Altenbernd, who four years ago this month wrote the appellate court decision affirming Judge Greer's decision regarding Terri's wishes:

[T]he Schindlers argue that the testimony, which was conflicting, was insufficient to support the trial court's decision by clear and convincing evidence. We have reviewed that testimony and conclude that the trial court had sufficient evidence to make this decision. The clear and convincing standard of proof, while very high, permits a decision in the face of inconsistent or conflicting evidence. See In re Guardianship of Browning, 543 So.2d at 273.

In Browning, we stated:

In making this difficult decision, a surrogate decisionmaker should err on the side of life.... In cases of doubt, we must assume that a patient would choose to defend life in exercising his or her right of privacy.
In re Guardianship of Browning, 543 So.2d at 273. We reconfirm today that a court's default position must favor life.

The testimony in this case establishes that Theresa was very young and very healthy when this tragedy struck. Like many young people without children, she had not prepared a will, much less a living will. She had been raised in the Catholic faith, but did not regularly attend mass or have a religious advisor who could assist the court in weighing her religious attitudes about life-support methods. Her statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her.

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.
You can read the Second District's full opinion from January 2001 here.



Monday, January 24, 2005

 
Schiavo News
Today, the United States Supreme Court denied Governor Bush's petition for a writ of certiorari in the Terri Schiavo saga.

The petition was the Governor's request to have the nation's high court review the Florida Supreme Court's decision declaring "Terri's Law" unconstitutional.



Tuesday, January 25, 2005

 
Schiavo News
Well, "cert denied" pretty much sums it up, but those looking for more details on the most recent event in the Terri Schaivo saga may wish to check out the stories in today's St. Pete Times, Tampa Tribune, and Palm Beach Post.


Friday, January 28, 2005

 
Schiavo News
Today's Bradenton Herald has this update.


Thursday, February 03, 2005

 
Schiavo Opinion
Those interested in the Terri Schiavo saga may wish to check out the views and suggestions made in this guest column published yesterday by the Times-Union.


Monday, February 07, 2005

 
Schiavo News
Two updates in the Terri Schiavo saga:

First, on Friday, the Second District denied the Schindlers' various motions asking the court to rehear or issue an opinion in their latest appeal. You may recall that the Schindlers appealed Judge Greer's order denying their motion for relief from judgment -- a motion based on statements the Pope made last year. For more on the appeal, check out this earlier post and the first post linked therein.

Second, and also on Friday, Representative Baxley filed House Bill 701, which may soon become dubbed Terri's Bill II. Oh my. (Thanks to Janice Sanford for the info.)

I'll have some thoughts on both events later.



Wednesday, February 09, 2005

 
Schiavo News
Apparently the Schindlers plan to appeal last week's PCA by the Second District to the United States Supreme Court. See this story for details.


Thursday, February 10, 2005

 
Schiavo News
Today's St. Pete Times has some predictions in this report.


Saturday, February 12, 2005

 
Schiavo News
Yesterday, Judge Greer entered an order denying the Schindlers' most recent motion to vacate the original judgment regarding Terri's wishes. The motion, available here, alleged that Terri had improperly been denied her own attorney in the proceedings, that the court had improperly applied Florida's statutory law retroactively to Terri's case, and that the court violated separation of powers principles by determining Terri's wishes (rather than allowing them to be determined by, say, an administrative agency).

Judge Greer's order rejects all three arguments as legally unfounded. You can read the order here. You can read coverage of the order in today's St. Pete Times and Sun-Sentinel.


Monday, February 14, 2005

 
Schiavo Thoughts
I received an email yesterday that prompted me to write a lengthy response about the Terri Schiavo saga. Here's the email:

Hi Matt,

I stumbled across your site and quickly became immersed. I have been an avid follower of Terri Schiavo as I feel quite passionately about the case as explained in the letter I wrote to the Rocky Mountain News which was recently published (see below). So far, no amount of legal jargon has been able to quench my desperate desire to understand this case. I have been searching for answers for so very long, that I felt some sense of relief when finding your site. I would really love to hear your opinion as to whether or not there is any hope whatsoever to save Terri at this point, or is this it? Thank you so much in advance for your time and for listening. And also, for this site. Have a great day!
I left the attached letter out. Here's my response, which tries to sum up all sides here:

Thanks for the kind words and the sincere thoughts.

This is a very tough situation for all involved -- and mind you I'm not at all involved. I just discuss the case as part of what seems to be my running commentary on Florida law.

I appreciate that you wish to understand more. Ultimately, Terri's case is understandable, though painfully so. If you take away the "evil" allegations that have been leveled against everyone, it's easy to see what you're left with.

You're left with a woman who suffered a heart attack 15 years ago, who essentially died but was resuscitated, though not entirely. Her brain had suffered enormous damage from the heart attack. As time passed, her brain further deteriorated -- to the point where much if not most of her cerebral cortex (the portion of the brain that controls conscious thought, among other things) was literally gone, replaced by spinal fluid. Doctors hired by Terri's husband say the deterioration of Terri's brain left her without thoughts or feelings, that the damage is irreversible, and that Terri's life-like appearance is merely the result of brain stem activity -- basically involuntary reflexes we all have. An independent doctor hired by the court reached the same conclusions. Doctors hired by Terri's parents did not dispute the physical damage done to Terri, but they claim there are new therapies that could improve her condition. In two separate trials, the trial court found such claims of potential improvement to be without merit. Terri's body continues to function without her cerebral cortex. She is sustained by a feeding tube surgically inserted into her stomach. She cannot eat through her mouth without a strong likelihood of choking to death.

You're left with a husband who lived with his in-laws following Terri's heart attack, who apparently provided care and therapy for years but who later came to believe Terri would never recover. He believes she would not have wanted to be kept alive in this brain-degenerated condition by a surgically implanted tube. He is apparently willing to continue his fight to achieve what he believes Terri would want despite ridicule, hatred, expense, and threats.

You're left with parents who were once allied with Terri's husband in an effort to care for Terri and restore her but, unlike Terri's husband, they never lost hope. They believe Terri reacts to them and has conscious thoughts. They believe Terri would not want, and does not want, her feeding tube removed, and that some cognitive function could be restored through new therapies. Terri's parents are willing to continue their fight to achieve what they believe Terri would want despite ridicule, hatred, expense, and threats.

You're left with judges who have been placed in the utterly thankless position of applying Florida law to this impassioned situation. Florida law calls for the trial court to determine what Terri would chose to do in this situation, and after a trial hard fought by Terri's husband and her family, where each side was given the opportunity to present its best case about what Terri would do, the court determined the evidence was clear and convincing that Terri would chose not to continue living by the affirmative intervention of modern medicine -- that she would chose to have her feeding tube disconnected. In a second trial, brought about by Terri's family's claims new therapies could restore her and that the existence of such a therapy would make her "change her mind," the trial court again heard evidence from all sides and determined that no new therapy presented any reasonable chance of restoring Terri's brain function. The propriety of these decisions -- from the sufficiency of the evidence to the appropriateness of the procedures used -- has been unanimously upheld on appeal each time.

You're left with a public that is much confused. Some see video clips of Terri moving, appearing to make eye contact, and making sounds, and they assume such are the product of conscious thought -- that Terri's "in there." Some believe Terri's husband has been motivated by money. Some believe that no heart attack occurred -- instead, Terri's husband beat her nearly to death and has been trying to end her life ever since. Some believe he is a bad person because he has taken up with another woman and has children with her. Some believe Florida's judiciary is corrupt or inept, to the point where death threats have been made against the trial judge. Some are sad that families would fight like this. Some believe that removing Terri's feeding tube would cause her pain and is inhumane (I'm no doctor, but the medical information I've seen on this subject uniformly says the opposite.) Some are disappointed that the law does not allow someone in Terri's condition to be kept alive perpetually if a family member is willing to care for him or her. Some believe no life should be permitted to reach an unnecessary end unless irrefutable proof, or at least written proof, shows the person wanted things that way.

All of these positions are understandable in some sense, though if you've read my posts over the years you know I am particularly sensitive to the judiciary's position of following the law correctly and yet being so horrifically misunderstood by many.

Is there hope? Well, if you mean hope to keep Terri alive any longer, there is some. Terri's family continues to launch new legal battles, and to appeal old ones, in hopes a court somewhere will give them another chance to prove Terri would not want to discontinue her feeding tube, or in hopes they can win the authority to care for Terri themselves. There is a new legislative measure under consideration that could prove to be a repeat of 2003's "Terri's Law." How long can these efforts forestall the tube's removal? Can they stop it altogether? I can't say. But I don't think anyone with knowledge of how the legal system works would have foreseen several years ago that Terri would be with us in 2005, yet here she is.

I continue to hope that when this saga ends it will be the ending that Terri would have wanted.



Friday, February 18, 2005

 
Schiavo News: Media/Political Blitz Coming
This story from the St. Pete Times describes how the Schindlers have once again hired Randall Terry to coordinate a massive public relations campaign aimed at stopping the removal of Terri's feeding tube. Fox News ran a similar story here.

You might recall that Randall Terry is credited with organizing the wave of press, email, and political activity that accompanied the removal of Terri's tube in 2003. Those efforts culminated in the Governor's decision to add Terri's situation to 2003's special legislative session "E," which was originally called to help lure a Scripps plant to South Florida, and ultimately the ill-fated "Terri's Law."

Finally, today's Tampa Tribune reports that the Schindlers intend to file a new motion for relief from judgment, this one asking the court to subject Terri to new medical tests. You can read the latest story here.


Monday, February 21, 2005

 
Schiavo News
Yesterday's Tampa Tribune ran this cover story on the Terri Schiavo saga, focusing on whether it has strained Florida's court system.

 
Schiavo Update -- Questions Wanted
I started this site to be informative about Florida law. I started blogging the Schiavo events because I saw a need for accurate legal information about that particular case. I also saw an awful lot of misinformation about the case being spread by the media and the public -- especially on the Internet, where it's sometimes hard to tell those two apart.

With the latest stay on the removal of Terri's feeding tube about to expire, I think it would be helpful to rewrite my own information page on the Schiavo saga. I'm going to tackle the legal events, and because I keep getting an enormous amount of email about the facts in the case, I'm even going to address some of the more popular factual issues.

So for all of you who ever wanted to ask anything about the case, here's your chance to help me. Send me your thoughts. Right away. After nearly 18 months of doing this I think I have a pretty good idea what the common concerns are, but send questions anyway. They'll help me make sure I hit the right points.

I'm going to work on the page tonight and tomorrow, and hopefully it'll be posted by Wednesday. Hopefully.


 
Schiavo News
The Orlando Sentinel reports here that the Second District has rejected a last-minute effort by the Schindlers to have the court withhold its mandate in the most recent appeal. The mandate is scheduled to be issued tomorrow, and with it the current stay on the removal of Terri's feeding tube will expire.

UPDATE: Today, Judge Greer reportedly extended the stay through Wednesday to permit a court hearing.



Tuesday, February 22, 2005

 
Schiavo News
A kind reader sent me a copy of the Second District's order from yesterday, denying a motion by the Schindlers to stay issuance of the court's mandate. The order, available here, indicates that the court's mandate will issue at 1 pm today.

The St. Pete Times has an update here.

Most interesting, the reporter indicates that a "court spokesman" erroneously informed the media yesterday that the stay on the feeding tube's removal had been extended to Wednesday. I suppose we'll find out for sure today, since Michael's attorney has made clear Terri's tube will be removed at the earliest opportunity and, barring an extension of the last stay order, that would seem to be after the Second District issues its mandate today.

To catch folks up on where things are at the moment, in 2004, the Schindlers asked the trial court to vacate the original ruling regarding Terri's wishes based on what they characterized as new evidence concerning Terri's religious beliefs. The new evidence was this speech given by Pope John Paul II. You can read the motion for relief here. Judge Greer denied that motion in this order. He ruled that the same considerations regarding the Catholic Church's beliefs were already taken into account in the original trial and that the Schindlers had still not presented him with a religious person who had advised Terri and could speak to her beliefs.

Judge Greer also entered this order that stayed the tube's removal until Terri's parents had a chance to appeal his decision to the Second District. By its terms, the stay expires when the Second District issues its mandate. Well, the Second District heard the Schindlers' appeal, rejected it, and as mentioned above, the mandate returning the case to Judge Greer is scheduled to be issued at 1 pm today.


 
Schiavo News
As you've probably heard, and not unexpectedly, Judge Greer entered an extended stay today that keeps Terri's tube from being removed until a hearing is held Wednesday.


Wednesday, February 23, 2005

 
Schiavo Thoughts
I had an oral argument in an appeal this morning, and on my drive back from court I spent over an hour listening to a popular national talk radio show, one I often enjoy and which I used to listen to daily (back when my schedule would permit).

The topic was Terri Schiavo.

Unfortunately, the host was completely uninformed about the actual procedural history of this case, including how the decisions were made, by whom, that Terri did receive therapy for years, that the Schindlers had doctors examine Terri for each of the two trials in this case, that two trials were even held, and that the court had appointed its own independent doctor to examine Terri and who agreed with the conclusions reached by Michael Schiavo's doctors.

People who know nothing about the case but heard that show were totally misled. I can't blame folks for thinking Florida's judiciary has lost its collective mind if you believe the things being said on that show.

It's one thing to disagree with the law, or to disagree with a decision reached after a trial. That's perfectly acceptable and gives rise to healthy debate. But it's another thing altogether to distort the procedural history of how things got where they are in this case, especially when the misinformation is used to condemn people involved.

I'm still revising my own information page on the saga. I'm hoping to be done tonight...


 
Schiavo News
Word is coming out that the hearing before Judge Greer today resulted in the judge taking matters under advisement, at least until Friday. So the stay on the feeding tube's removal has been extended until then.

Apparently, the Department of Children and Families has also asked for leave to intervene in the case. It's not clear yet what the asserted basis for intervention is. This would appear to be action taken at the Governor's request.

Links to follow.



Thursday, February 24, 2005

 
Schiavo News
Well, I've continued to work on the Info Page. I still have much more to finalize on the Q&A section, but I've gone ahead and posted an updated page. It contains some new thoughts from me and an updated timeline with links to most of the judicial decisions. At a reader's request, I've even located and posted on my site a copy of Judge Greer's original February 2000 order regarding the trial on Terri's wishes. Only a few of the Q&A's are updated. The remainder will be updated as soon as possible.

As for news, the reports were correct yesterday about the Department of Children and Families seeking to intervene in the case. According to reports, Judge Greer refused to consider the motion yesterday.

Meanwhile, the stay on the tube's removal remains in effect, at least through Friday. Judge Greer is considering whether a longer stay should be entered to permit additional appeals.

Read the local coverage in today's St. Pete Times, Tampa Tribune, and Orlando Sentinel.

Also, Howard Troxler of the St. Pete Times has this column today on the subject, Tom Lyons of the Sarasota Herald-Tribune has this column, and Mike Thomas of the Orlando Sentinel has this column.



Friday, February 25, 2005

 
Schiavo Thought
My thanks to a reader who pointed out that Judge Greer entered a November 2002 order on the bone scan issue, wherein he concluded that the Schindlers, through their attorneys, had the scan in their possession prior to 2002. Apparently there was no argument by the Schindlers that the bone scan had been secreted or intentionally withheld from them. Judge Greer also determined that the bone scan was not relevant to the issue of Terri's wishes. I've modified the Info Page Q&A and Timeline accordingly.

 
Schiavo News
Terri's collapse occurred 15 years ago today.

Here's today's local roundup:

The Orlando Sentinel has this story, and columnist Mike Thomas has this piece on the views of the guardian ad litem who advised the Governor.

The St. Pete Times has this story on Terri's medical outlook, this story on the legislature's potential involvement, this story on a business located near the Hospice caring for Terri, and this editorial on the case's future.

Today's Bradenton Herald has this story on DCF's involvement and this rather rare story on Terri's eating disorder.

Finally, stepping outside Florida for a second, Philadelphia Inquirer columnist John Grogan has this piece.


 
Schiavo News
Word is circulating that Judge Greer has ordered the stay extended until March 18, at which point Terri's feeding tube is to be removed. I'll have more to say when I see the judge's order.

 
Schiavo News
Well, Judge Greer's latest order is being distributed, and I've posted a copy here.

In short, the order explains that no further stays will be granted. It directs Michael Schiavo to remove Terri's feeding tube at 1 pm on March 18, 2005. The time between now and then will permit the Schindlers to appeal this order and obtain a stay in any of the other appeals they are currently pursuing. It will also permit the family time to arrange for sacramental steps, such as last rites.

To those who may be surprised by the order's directive, keep in mind that the directive to remove the tube (as opposed to allowing the husband to do what he wants) is consistent with the notion that the court has determined how Terri would exercise her privacy rights and that she would choose not to continue receiving life-prolonging measures in the form of her feeding tube. Removing the tube is not a decision by the guardian. It is a decision by the court.



Saturday, February 26, 2005

 
Hmmph
I've been flattered, and even honored, that numerous folks have linked to the Info Page on the Schiavo saga. The "Dossier over Terri Schiavo" link at this site, though, really caught my eye -- is that a Dutch news agency?

 
Schiavo News
Today's local Schiavo news roundup includes stories from the Sun-Sentinel, St. Pete Times, and Palm Beach Post.

Without picking, I'll note that one of these stories contains a quote so off base, legally speaking, that printing it seems irresponsible.



Monday, February 28, 2005

 
Schiavo News
Well, I took yesterday off from this controversy, which has left me behind in answering email. I'll get there. Also, if you're still curious, the St. Pete Times did have this story yesterday on the saga, and Daniel Ruth from the Tampa Tribune had this opinion piece.

 
Schiavo News
Terri's parents have apparently filed a petition for Terri's divorce from Michael Schiavo -- so reports today's news. I'm waiting for more details before I comment.


Tuesday, March 01, 2005

 
Schiavo News
It took a ton of time to catch up on email relating to this case, and I'm just about there. Unfortunately, that's kept me from reviewing the slew of eleventh-hour motions filed yesterday by the Schindlers.

You can read local coverage of yesterday's filings in these stories in the St. Pete Times, Tampa Tribune, and Orlando Sentinel.

I'll comment at length when I've had a chance to go over yesterday's filings.



Thursday, March 03, 2005

 
Schiavo Thoughts
Between a heavy workload at the moment, personal commitments, and lots of Schiavo-related email, I'm having a hard time getting material up here on the blog. To those who've been waiting on some thoughts from me regarding recent developments, I appreciate your patience.

I spent some time early this morning writing an email in response to a common question, and rather than keep answering it, I'm going to post my response here, and in the future I'll just refer folks to this post.

The question was essentially this: Michael only mentioned Terri's supposed wish not to be kept alive this way only after the medical malpractice trial was over, so doesn't that show he just made it all up after he got the money? My original answer was rather short. I mentioned the "realities of litigation" and how it didn't surprise me that the issue never came up in the earlier trial. The reader then asked me to explain what realities I was talking about. Here's my response:

Hmmm. "Realities of litigation." It means a lot of things. We have an adversarial system of justice. The way it works is that we pit two sides (or more) against each other, each charged with presenting its best case on the law and the facts to the court and, sometimes, the jury. Decisions are then made based on what's presented, and the decisions bind everyone involved. Ethical lawyers don't lie and don't permit anyone to be defrauded, but they also aren't neutral. They have clients who require advocacy. So if I am Michael's attorney in the malpractice case, there is no way I am going to ask him at a deposition or at trial about whether Terri expressed any desire not to remain in a state like she's in. I would ask privately, but not when the answers are being transcribed. That's something for the other side to talk about, if they choose to do that.

But would the other side ever choose to talk about it? If the doctors' attorneys had asked him about it in deposition, then you and I would not be having this conversation. But they apparently didn't ask, and that's not illogical, because the answer either way was probably never going to come up at trial. Think about it. Imagine you're on a jury in a medical malpractice case. The plaintiff is a woman who's in horrible shape, the defendants are blamed for having caused her injuries by failing to diagnose and treat her properly, and the husband is seeking money to care for her for the rest of her life. How will you react to a defense by the doctors that says we didn't do anything wrong here, sure we treated her but there was no way for us to know she was bulimic, we were treating her for pregnancy problems not eating disorders... You may disagree with the defense and find the doctors liable but you probably won't be mad at them. Now, how will you react if the doctors also defend by saying and by the way this woman's really, really hurt, so hurt that she's never going to recover, and she told him she wouldn't want to live this way, so at some point he's going to let her die and jury you shouldn't give him money for her lifelong care even if we were negligent because there's never going to be any lifelong care... How would you react to that defense? You and your fellow jurors would probably be furious with the doctors for saying such things, and the verdict might reflect that furor with a ridiculous sum of money.

So I can't believe any lawyer representing the doctors would bring the matter up, either. The result: this issue is not coming up at the malpractice trial. I'd be surprised if any lawyer disagreed.

In the end, Michael's testimony that he wanted to care for Terri for her and his whole lives can be viewed in multiple ways. On one hand, it's consistent with someone who believed he wanted to care for his wife to bring her back, but who later lost hope when doctors convinced him they'd done all they could do. Keep in mind, the malpractice lawsuit was filed very early on, as you would expect to happen. Trial didn't happen for years, and Terri received tremendous care, attention, and therapy through 1994 -- read the GAL's report and the court decisions for that chronology. The view she would never recover developed slowly, over time, and the degeneration of her cerebral cortex apparently wasn't seen for years. Perhaps Michael's view of that outlook changed slowly, too. Then again, perhaps he lied then or is lying now. Perhaps he knew she wasn't coming back, or either way he didn't want her to come back -- he just wanted to get through the malpractice trial, collect as much money as possible, and let her go. Perhaps. I don't know. I think people just see here what they want to see.

Let me be clear: I'm not saying I have any idea what was really going on in Michael Schiavo's head. I'm not defending him. I'm reacting to numerous statements being made that "he never mentioned her wishes during that trial so he must have just made it all up after the lawsuit." In my view, people saying that don't understand how litigation works. Whether Terri's wishes came up in that trial has nothing to do with whether Michael's been honest in this case about Terri's wishes.



Friday, March 04, 2005

 
Schiavo News
My workload has been keeping me from calling out the stops as this train continues to roll, but I'm going to try right now to summarize where things are on a few levels.

Here goes.


 
Schiavo News: DCF
First, let's mention the petition to intervene filed by the Department of Children and Families. You may recall that DCF filed that petition on February 23, asking for a 60-day delay in the case so that recently made abuse allegations could be investigated. Judge Greer has not had a hearing on the matter yet, but one is apparently scheduled for Wednesday, according to this story from the St. Pete Times. The Tampa Tribune has a story here.

The media have wanted to see a copy of DCF's petition, and they challenged the agency's efforts to keep it from the public. Yesterday, Judge Greer ruled that it should be made available, and its contents are discussed in the stories linked above.

Apparently, the petition names no source for the allegations, and the allegations themselves are related only in general detail. They seem to mirror what those following the case have heard said for years: Michael Schiavo failed to file guardianship reports and plans, lack of therapy, etc. I have not yet seen the petition, but nothing mentioned in the news reports sounded new.

Wednesday's hearing should be interesting. I suspect the judge will want to know why delaying the feeding tube's withdrawal is necessary for whatever investigation is taking place.


 
Schiavo News: Federal Legislation
Rolling, rolling, rolling. This train continues to roll. It never stops, but somehow it keeps picking up passengers.

For instance, from this press release by Jacksonville's Justice Coalition, it seems Representative Dave Weldon intends to propose federal legislation that would grant federal courts jurisdiction to review Terri's case. The constitutional hook for such legislation would appear to be Congress's right to provide for habeas corpus review. Habeas corpus is, in essence, a judicial proceeding to test the legality of someone's confinement. Federal habeas corpus proceedings test the legality of confinement under federal principles.

I am really looking forward to seeing this proposed legislation. How will it work? I noticed in the St. Pete Times story linked in the preceding post that Rep. Weldon intends the proposed legislation to "give Terri Schiavo, and others in her position, her own legal representation and other protections." So is Terri going to get an attorney?

This brings up a world of questions. Who would be the attorney's client? Terri? I don't think anyone is going to suggest Terri can provide an attorney directions, so is the legislation simply going to direct an attorney to advocate that she would not want life-prolonging measures stopped, despite the state court's judgment following trial that she would want her feeding tube removed? Will her guardian have a say in her representation?

Who would pay the attorney? The government, whether Terri's indigent or not? Terri, if she's not indigent?

Would the procedure simply ensure that due process was followed? Or will the law set forth any required procedures and attempt to make them retroactively applicable? Will there be some substantive aspect to the law?

The bill may be introduced as early as next week. As for its chances to pass, I'll leave that to the poli blogs.


 
Schiavo News: The Appeals
As best I can tell, this saga involves only one active appellate proceeding at the moment. It could involve two, if the Schindlers do as their counsel has indicated they will do and appeal the Second District's most recent affirmance of Judge Greer's rulings to the United States Supreme Court. But no such appeal has been taken -- yet. (Read more about that ruling in this prior post and the post linked therein.)

So there's only one appeal out there. Right now.

The existing appeal is being taken from Judge Greer's February 11, 2005 order denying what was then the most recent motion for relief from the original judgment. The motion, available here, alleged that the original judgment should be vacated for three reasons: Terri had improperly been denied her own attorney in the original proceedings, the court had improperly applied Florida's statutory law retroactively to Terri's case, and the court violated separation of powers principles by determining Terri's wishes (rather than allowing them to be determined by, say, an administrative agency). Judge Greer rejected all three arguments as without merit.

The Second District has already entered a scheduling order in the appeal. You can read the order here. It expedites the case, requiring the Schindlers to file their initial brief by this coming Monday and for Michael to file any answer brief by next Friday. The order indicates that the court intends to rule by March 17 and that the Schindlers' motion to stay remains pending before the court.


 
Schiavo News: Motion Blitz
Those last three posts were the easy parts. The hard part of this case is following the blitzkrieg of motions filed in this last week by the Schindlers.

Many of the motions, but not all of them, are available here on the Terri's Fight site.

You can divide the motions into two sets. Most of them are related to the procedures to be followed if Terri's wishes (as determined by the court) are to be carried out. They concern issues like whether the tube must be physically removed or merely disconnected, whether Terri can be fed orally once the tube is no longer functioning, and how and when the family, the media, and religious persons can access Terri. Those motions are being heard by Judge Greer today at 1:30 pm.

The remainder of the motions are the ones you have probably heard about. They are the latest efforts to attack Michael and undo the original judgment. They include the motion for divorce, objections to Michael's guardianship plan, and a request for an evidentiary hearing on the Schindlers' effort to remove Michael as guardian. (On a related note, there is a good amount of back-and-forth going on before the trial court concerning the ongoing effort to remove Michael as guardian, but I'm not going to get into that now, considering the current order to remove the feeding tube on March 18.)

It appears Judge Greer is not going to address these motions at today's hearing. Whether he will deny them outright or simply refuse to hear them is not clear. Either way, it looks like his thought process is probably along the lines expressed in this order entered February 25. There, the trial court found that there has been no end to the Schindlers' motions to attack the original judgment and that going forward whether such motions have merit and should be the basis for a stay is going to be a decision for the appellate courts.

After today's hearing, we'll know more on exactly what's being considered and what's just being denied. For now, I will offer some comments on the tension being seen here. It's a classic tension, discussed for centuries by legal scholars, between finality and justice. Our judicial system seeks justice, first and foremost, but a component of justice is the finality that comes when a matter reviewed by the court system concludes. You either win or lose. Litigation ends.

The importance of finality can be seen in many aspects of the law. Issues may be litigated only once. Judgments may be appealed only once. Defendants may be tried for criminal offenses only once. Post-conviction (criminal) or post-judgment (civil) motions are usually available to attack a judgment collaterally, but the issues that can be raised in such proceedings are rather few, and the law is usually consistent that such attacks must be brought at one time, not piecemeal. So if you have 10 reasons to attack a judgment, you are required to bring all ten at the same time, not one at a time.

Anyone can see that the Schiavo case has consisted of a series of piecemeal attacks. Some of these were permitted by the system -- for instance, the post-judgment motion alleging that new medical procedures offered hope for Terri to recover was something new that the courts were willing to entertain. Judge Greer held a trial on that issue, hearing all the evidence, and the court ruled that there was no medical basis to believe the therapies suggested by the Schindlers' doctors would improve Terri's cognitive abilities. Other motions have raised issues that could have been raised immediately after the original trial. So far, the courts have been very lenient in allowing such matters to be heard. Now, though, it appears that leniency may have come to an end. We'll see.


 
Schiavo News
Thanks to the reader who sent me a copy of the now unsealed DCF petition. I've posted it here.


Tuesday, March 08, 2005

 
Schiavo News
I haven't posted anything on it, but I did read this story from the St. Pete Times this weekend. It's a short biography on Judge Greer. I had no idea he roomed with Jim Morrison in college.

This week, Judge Greer is holding a series of hearings in the Schiavo case to address the numerous motions filed recently by the Schindlers. According to this story in today's St. Pete Times, the judge rejected several motions yesterday, took one under advisement, and granted one.

The granted motion requires Michael Schiavo to provide a videographer to record Terri's parents' time with her after the feeding tube is discontinued.

The rejected motions include those asking for Terri to be relocated to the Schindlers' home after nourishment is discontinued, to allow the Schindlers to be accompanied by select media when visiting Terri, and to bury Terri's body in Florida. (Michael wishes her body to be cremated and her ashes returned to her native Pennsylvania.)

None of those rulings was a surprise. More interesting, and less predictable, is how Judge Greer will rule on the motion he took under advisement: a motion to allow Terri to be fed orally once the feeding tube is discontinued.

That's a puzzling question. I am not aware of any Florida law that speaks directly to the issue, so I am not sure that Judge Greer is obligated to rule one way or the other.

Delving deeper into the merits of the question, it is true that the issue regarding Terri's wishes concerns whether she would permit medical treatment, and the use of a feeding tube to feed someone is considered medical treatment under Florida law. The issue is not whether Terri would starve herself to death, it is whether Terri would chose to allow science and medicine to prolong her life. So, on one hand, it seems logical to say that a decision not to utilize a feeding tube is not the same as a decision not to receive food.

On the other hand, the inability to ingest food and water and the desire to discontinue medical treatment in the face of death are significant factors in the ultimate decision regarding Terri's wishes. The December 1, 2003 guardian ad litem report details that Terri was previously given three sets of swallowing tests, and all three concluded that she cannot safely swallow. If she is given food or water orally, there is apparently a significant risk she will aspirate it -- sending it down her lungs. In a large quantity, it seems she would choke to death. In small quantities, food particles in the lungs will lead to infection and pneumonia, and then death. As everyone knows, I'm no doctor, but that's my understanding of what's going on.

So getting back to the question, would a person who is medically determined to be unable to swallow and who has chosen not to utilize a medically necessary feeding tube also chose to take in food and water orally, leading to death not by dehydration but by choking or infection? Can those two positions be reconciled?

I suppose we'll see.



Sunday, March 13, 2005

 
Schiavo Thoughts
Well, I've finally responded to all of last week's emails regarding the Schiavo saga. After nearly two years discussing this case, I thought I'd seen and heard everything. But this week I got an email that ended with a new twist:

Do you have the mental power to entertain the possibility that Michael Schiavo choked his wife and caused her to suffer hypoxia long enough to experience an arrythmia necessitating cardioversion by the paramedics? Do you not realize that life-threatening arrythmias may starve the brain of adequate perfusion of cerbral tissue with oxygenated blood, causing brain damage but not immediate death? Do you not have the mental capacity to entertain the idea that the Teresa Shiavo case has been selected as a means to bring about global population reduction?

Do you not realize that the current global population threatens to destabilize and wreak havoc on the environment? Do you not realize that the current global population is not sustainable? That is the truth, and we should all admit it and adopt the two-child Chinese policy globally. Violation of the policy would constitute implied consent to have the third child placed into adoption, and the violator to be sterilized immediately. This would reduce the barbarian act of abortion and would promote glasnost between the rulers and the governed. It's time to wake up, come out of a vegetative state, and smell the global coffee.
I think those two paragraphs go together, but I'm not sure. I am rather sure that the Schiavo case is best viewed as a family struggle over a loved one, not an international campaign for anything.


 
Schiavo Thoughts: Mail Call
Sometimes I'm tempted to just reproduce my email answers here, which might save me a bit of typing. Usually that won't work, but occasionally there's one that covers a lot of ground and might be interesting to folks in general. Here's one I received yesterday, a bit condensed:

Matt,

I have been following your commentary on the legal aspects of this case and find it informative to a degree, but lately you do not seem to be as focused on the law as you have been in the past, and are letting personal opinion slip through. You have not clearly analyzed the points of law in Greer's latest rulings but just sidestepped with comments like "I am not aware of any Florida law that speaks directly to the issue, so I am not sure that Judge Greer is obligated to rule one way or the other."

This case seems to have several elements of fraud in it, including actions by Felos, who has interests in the hospice, and the doctor who certified her pvs. What real recourse do members of the general public, like me, have to see a criminal investigation opened into this matter, and to possibly have Greer impeached?

I am also interested in whether the DCF could legally take Terri into protective custody to protect her from further abuse.
And my response:

I apologize if my focus has seemed less legal of late. The truth is that this case takes hours upon hours of time to follow and I work about 60-80 hours per week anyway. Also, the volume of email I've been getting has been astounding, and I try to respond to everyone. That's left less time for blogging about it all.

I hope I haven't appeared to give my personal opinion of what I think Terri would have wanted -- I don't have one.

My comment on not being aware of any controlling law was not an effort to sidestep a point of law in a ruling. It was an effort to help people understand that there is no controlling authority here either way. If you disagree, please send me the citation to a controlling legal decision or controlling statutory authority. I'm very curious about what it is you thought I was sidestepping.

Now, to answer your questions as best I can:

I don't see fraud in this case. Whether an attorney has a connection to a hospice sounds like tabloid fodder. What's the significance? Are you saying that anything would be different in the last few years if Terri had been residing somewhere else, with the same orders in place from the court and the guardian? This sounds like an effort to smear Michael's attorney with no connection to the real issues. If federal monies have been misspent on Terri's care, then appropriate punishments should be meted out, but that has nothing to do with Terri's wishes and whether her feeding tube should remain in place.

As for doctors certifying her as PVS, please understand that the judge has held two trials, heard from numerous experts, and twice found her to be in a persistent vegetative state. People saying she is not in a PVS are simply disagreeing with the results of the trials. In the eyes of the law, Terri is in a persistent vegetative state. The debate was resolved at a trial -- two, actually -- and affirmed on appeal each time.

A criminal investigation? Well, the general public always has the right to ask local police and sheriff's officials to investigate the violation of any laws. I can tell you, though, that folks have been asking for investigations into this case for years. So far as I know, the official conclusion is that there's nothing there. I can't vouch for that conclusion, but I can say that no guardianship case has received more attention from reviewing authorities in the history of this state, if not the country, than this one. I like to think our officials are honest and that if there was something there, we would all know about it by now. I know there are theories that say every official in Florida is conspiring to hide the truth here, but my experience with Florida's officials is that they are noble, hardworking, and honest. If they say there's nothing here, I'm inclined to believe them.

As for DCF taking Terri into protective custody, that would require removing her from the authority of the guardianship court. I'm not aware of that ever having been done before, and while I've never studied the issue in depth, I'm not aware of any existing law that would permit it to be done. It's one thing to say that Mr. Smith may be abusing someone and the executive branch needs to remove that person from his custody to prevent abuse; it's another thing entirely to suggest that the Florida judiciary may be abusing a ward under its supervision and that the executive branch needs to remove the ward from another branch of government's watchful eye. Talk about a constitutional crisis -- you'd have one there.

As for impeachment, you are mistaken. Impeachment is a tool for removing public officials who have lost the public's trust through actions other than their judicial decisions. The route for correcting erroneous judicial decisions is the judicial appellate process.The Schindlers have availed themselves of that process time and again, and thus far the appellate courts have agreed that the law has been correctly followed here. So the trial judge's judicial decisions are not cause for impeachment, and I'm not aware of anything concerning other actions in his life that would merit even disapproval, let alone impeachment. Ultimately, there is a reason impeachment talk persists only at the outer fringes of this saga.

Thanks for your interest and taking the time to write. And by the way, the twenty minutes it took me to respond to your email is twenty less minutes I can devote to the blog. Now imagine responding to 100s of emails.



Tuesday, March 15, 2005

 
Schiavo Thoughts
I've posted below a bevy of thoughts on some recent cases, and I've done my best to ignore the 800-pound gorilla standing next to me. Until now. Since a lot of people are checking this web log for updates and thoughts about the Schiavo saga, I'm going to describe the order in which I'm about to tackle the pending issues.

My next post, later today, will discuss Judge Greer's rulings from last week. The following post will discuss the pending appeals by DCF and the Schindlers. The following post will discuss the bill that's now advancing through the Florida Legislature, and, finally, I will discuss the proposed federal legislation.

At the moment, I'd like to offer some thoughts on a recent decision that is unrelated to the Schiavo case and yet has so much in common with that saga. The case involved a Jewish man from New York who recently died. In 1992, he supposedly executed a will that, among other things, declared he would like to be buried in his family's plot in a Jewish cemetery in New York. He had been married to his wife for approximately 30 years. She was not Jewish, and if he was buried at the family site, she would not be buried with him.

Around 1999, the man and his wife moved to Florida. The man later grew ill and apparently began to suffer from dementia and Parkinson's disease. Around this time, he told his wife he would like to be buried with her in Florida. He told his daughter this, too. Then, while visiting his sister in New York, the man executed a durable power of attorney, naming his brother as his agent. The wife subsequently instituted guardianship proceedings in Florida. So did the man's brother. The wife and brother each sought to be named guardian. The man knew his family was feuding over him. During a physical exam associated with the guardianship proceedings, he told the physician that he wished to be buried in Florida, with his wife.

Before the man's death, his brother produced the 1992 will. Asked about it by his wife, the man said he had never executed a will.

After the man died, his wife wished to bury him in a plot in Florida, based on his expressed wishes. The brother and sister wished to bury him in the family plot in New York, based on the will. The matter was brought before a court. After a trial, the court found, by clear and convincing evidence, that the man had changed his mind after executing the will, and that he wished to be buried in Florida.

On appeal, the appellate court affirmed the trial court's decision, concluding there was sufficient evidence for the trial court to have found, by clear and convincing evidence, that the man changed his mind. Regarding the law on whether the man's oral statements could change the effect of his 1992 will, the appellate court explained:

In Florida, as in New York, a will is construed to pass all property that the testator owns at death. See § 732.6005(2), Fla. Stat. As set forth above, the testator’s body is not considered property. Therefore, just as in New York, a directive in a will regarding the disposition of a body does not have the same force and effect as do provisions directing the disposition of property. We therefore conclude that a testamentary disposition is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body.

To hold otherwise could cause untoward results. Nelson v. Schoonover is an example. There, the wife had resided in Ohio when her will was made but subsequently moved to Kansas with her husband. Obviously, burial in Ohio would have taken her away from her family. A more common occurrence might be the execution of a will during marriage indicating a burial location with the spouse. A subsequent divorce would make following such a direction impractical and not in accordance with the testator’s intent.

Our current society is exceedingly mobile. One might live in several states during a lifetime. A provision made in a will that is not revisited for many years may not reflect the intent of the testator as to the disposition of his or her remains. A direction for the disposition of one's body should not be conclusive when contrary and convincing oral or written evidence of a change in intent is present.
Many seem to think that oral expressions of intent or desire should be without legal significance, at least if the issue concerns whether one would wish to continue life-prolonging medical treatment in the face of a terminal illness or a permanent vegetative state. I wonder if people who think that way also think the law announced in this case is unwise, too, and that what's best for us all is a society where the written word is supremely binding in such situations.

I'm well aware of the bill pending in the legislature and what it says. I'll get to that later.

If you'd like to read more about the case I mentioned, it's a Fourth District decision released last Wednesday, and it's available here.



Wednesday, March 16, 2005

 
Schiavo Thoughts: Recent Rulings and Events
So much for getting this post up yesterday...

The last couple of weeks have seen some tabloid-quality turns of events. Most significantly, we had the now famous $1 million and $10 million offers to Michael to walk away -- offers I don't understand. I'm not aware if they were made in writing (if they were, someone please send!), but I can't imagine that the money would not have been conditioned on Terri being allowed to maintain her feeding tube, and that would seem to make the offers rather empty. After all, the court ruled that Terri would exercise her constitutional right to privacy by not continuing to receive nourishment and hydration through a feeding tube. That decision was not simply the guardian's choice.

Bottom line: Michael may be Terri's guardian, but this has been out of his hands for many years. The court decided in 2000 how Terri would exercise her privacy right and the court continues to direct that her wishes be followed, no matter who serves as Terri's guardian. This isn't something that Michael, or any guardian, can undo.

Now, I don't mean to suggest that nothing would change if Michael was not the guardian. For instance, if, say, one of Terri's parents became her guardian, some things could be different. Access to her could change. Her location might change. New grounds for new motions might be produced.

Speaking of motions, Judge Greer ruled on several last week. I've been meaning to go through some.

First, the Department of Children and Families petition. You may recall that DCF petitioned to intervene in this case. You can read the petition here. DCF asserted that it had received complaints of abuse concerning Terri and that it needed to intervene to request that Terri's feeding tube not be removed until after the agency's 60-day investigation period concludes. Judge Greer denied the petition to intervene, and you can read his order here.

Why the denial? In short, the court found no legal basis or even authority to permit DCF to intervene. DCF apparently remains free to conduct whatever investigation it wishes. The court essentially said that it will not interefere with DCF's investigation and DCF should not interfere with the court's role in determining and carrying out Terri's wishes. (I'll note that the petition alleges the recent round of complaints were received on or about February 18 -- nearly 30 days ago, so you might expect that the investigation is well underway at this point. The 60-day period is a maximum investigatory period, not a minimum.)

Another motion resolved last week was the Schindlers' motion to permit Terri to be given food and water orally once the feeding tube is discontinued. You can read that motion here from the Terri's Fight site. The motion included the following lines:

Discontinuing her "artificial life support" in the form of assisted feeding should not also automatically sentence her to death. Instead, Terri should be permitted to attempt to eat and drink by natural means. Ill people often get well, or at least get better. The opportunity to attempt to feed Terri by natural means may demonstrate Terri is able to swallow and to eat and drink naturally.
In denying this motion, Judge Greer stated wrote that the motion appeared to ask for an experimental procedure and that the documents provided in support of this motion were the same ones provided with another motion based on new medical evidence. The court ruled that this motion was thus duplicative and that whether new tests should be conducted will stand or fall with the other pending motion. You can read the order here.

Frankly, that ruling surprised me. I had read the motion as a request that she be given food, as any person in a medical care setting might, even if her feeding tube is removed. The language quoted above, though, does make the motion seem as if the request is actually for a form of therapy, rather than as a basic human right.

Judge Greer also addressed the most recent motion for relief from judgment based on new medical evidence. In that motion, which you can read here, the Schindlers asked Judge Greer to permit new testing on Terri. Denying that request, the court explained that this controlling decision from the Second District previously outlined the circumstances under which additional testing would be appropriate: essentially, when it can be alleged that new medical technologies offer Terri a reasonable chance of significantly improving her quality of life, such that Terri would choose not to discontinue her feeding tube. Judge Greer examined the allegations in this new motion and determined that none of them met this standard. You can read his order here.

Finally, the court addressed the motion I've found most interesting of this recent set: the motion for relief from judgment based on an error in the court's February 2000 decision. The motion, which you can read here, explained that the court rejected the testimony of a witness in the original trial based on a misunderstood fact. Specifically, the witness testified to statements made by Terri in 1982 suggesting that, like Karen Ann Quinlan was being kept alive, she would want to be kept alive by medical means even if in a persistent vegetative state. In the final order, Judge Greer found that testimony not credible partly because the statements about Quinlan were made in the present tense and Quinlan had already died by 1982. But, in fact, Karen Ann Quinlan died in 1985. The Schindlers asserted that this undermined the original judgment and a new trial should be held.

Judge Greer acknowledged the factual inaccuracy but he ruled it had no material impact on his decision. He stated that he reviewed the witness's testimony and his order, and he previously found the testimony less than credible based on additional reasons not impacted by the date of Karen Ann Quinlan's death. He also ruled that under Florida's procedural rules this motion was not timely made. So the motion was denied. You can read the order here. You can also read the original February 2000 judgment here.

Timeliness issues aside, I'm intrigued by the circumstances surrounding this order. Keep in mind that, in a jury trial, jurors are never asked to give written reasons for why they believe one witness and not another, or why they found for one side, or why they awarded a certain amount of money. So this sort of thing can only happen with a bench trial. Here we had a bench trial (appropriately so), and the court memorialized its findings and conclusions in a written order. It is interesting, and perhaps unique, that five years later a factual mistake could be spotted in the order, the matter could be raised with the original trial judge, and the judge could rule -- in essence, clarify -- his original decision. In an ordinary case, one might wonder whether the judge could accurately make such determinations at such a late date. But this is no ordinary case. This case has been constantly in front of this judge for years. Very interesting.

That's the wrap up for now. More to come...


 
Schiavo News: New Appellate Orders Out
The Second District has just released two items.

First, in this decision, the court rejected the Schindlers' latest appeal. The court found no merit in the Schindlers' arguments and issued its mandate with the decision. The Schindlers will not be permitted to request a rehearing.

Separately, in this order, the court is permitting DCF to proceed with its appeal in an expedited fashion. The court refuses, however, to stay the proceedings in the trial court.

Bottom line: the Second District has found no ground to halt the planned removal of the feeding tube on Friday. More on this later.



Thursday, March 17, 2005

 
Schiavo News: Appealing Higher, Congress In Motion
Today's St. Pete Times reports here that the U.S. House has approved a bill that would open the doors of our federal courts to review the Schiavo guardianship case for due process violations.

The Times clearly knows a news magnet when it sees one. The paper also has stories today on protests at the hospice, the Florida legislature's efforts to craft a new bill to save Terri, and how the money's just about exhausted in this case.
Also, the folks over at Terri's Fight have posted this copy of a motion by the Schindlers requesting the U.S. Supreme Court to stay the removal of Terri's feeding tube while they appeal yesterday's decision (this one) from the Second District.

At the moment, the scheduled date for the feeding tube's removal remains tomorrow.



Friday, March 18, 2005

 
Schiavo News: Legislation, Orders, Subpoenas???
I'm going to try to cover the latest events in an efficient fashion.

First, you can find extensive local coverage at these links in today's St. Pete Times, Tampa Tribune, Sun-Sentinel, Sarasota Herald-Tribune, and Orlando Sentinel.

The short of it in Florida: yesterday, the House passed a bill that, by its text, would seem to prohibit the removal of Terri's feeding tube, but the Senate voted the measure down.

You can read the text of the bill the House passed here. On a political level, the issues seem to boil down to a couple of points. Many legislators want to pass a bill that will stop Terri's feeding tube from being removed. The only way that can even be attempted, though, is to pass a law that changes the circumstances under which all persons may or may not have feeding tubes removed, and a number of senators sufficient to block the overall effort do not wish to change the existing law in this area.

And therein lies so much of where this case stands now: Many people, right or wrong, have convinced themselves not that the law is poorly designed but that, on the facts of the case, the wrong result has been reached here. Yet the legislature can only pass general laws, meaning that what they do will affect everyone, not just Terri. Not everyone agrees that the law in general should be changed.

It may be worth keeping another angle in mind: for the proposed law to affect Terri at all, it will have to be retroactive, and there is considerable debate about whether such retroactivity would be constitutional. If it is not, we could be left with a changed law that did nothing for Terri -- a fine result if the purpose was to change the law, but a poor result if the purpose was simply to keep Terri Schiavo alive.

Meanwhile, up in Washington, a parallel series of events occurred yesterday. A bill passed in the House but was not successful in the Senate. The significant difference between the bill(s) being considered in Florida and the bill(s) being considered in Washington is that whereas the Florida legislature is considering changing the law regarding feeding tubes, Congress is considering simply allowing the federal court system to review cases involving feeding tube removal to ensure that due process has been followed.

While passage of the proposed federal legislation would be rather extraordinary, and political folks will surely enjoy debating whether there's a federal role here or not, the potential impact is comparably low. The Schindlers have raised a number of due process issues in this litigation, and the Florida courts (and the federal high court) have consistently found no due process problems here. It's possible a federal court would disagree, but that's merely a possibility, and the result would at most be a new trial on the issues. By comparison, the proposed Florida bill would block the removal altogether.

Whether Congress knows what it's doing is another matter. Consider this excerpt from the St. Pete Times article linked above:

Members in both chambers were clearly not familiar with all details of the case. They mispronounced her name. They proclaimed she was not in a vegetative state, even though experts say she is and a court agreed. They claimed she did not receive certain brain scans when she had. They wrongly claimed no judge had even granted a family member removal of a feeding tube.
On the judicial side, the Schindlers and the Department of Children and Families made requests for stays from various courts. The U.S. Supreme Court said no to the Schindlers in this order. The Florida Supreme Court said no to DCF in this order, and Judge Greer reportedly said no to DCF in an order I haven't actually seen. As you know, the Second District said no on Wednesday to the Schindlers in this decision and to DCF in this order.

Also on the judicial side, the Schindlers have filed a federal action this morning, seeking to halt the feeding tube's removal. This appears to be a request for a habeas corpus proceeding -- the same proceeding that would be authorized by the bill under consideration in Congress. The folks at Terri's Fight have posted the habeas petition here. From my quick review, it appears to raise the same arguments that were made in the Second District appeal that was lost Wednesday and the same arguments raised in this week's motion for a stay from the U.S. Supreme Court, which was denied yesterday. Expect a quick response of some kind from whichever judge is assigned the case.

Finally, in a move I could not possibly have predicted, word is circulating that a congressional committee -- the House Government Reform Committee -- has issued or will issue subpoenas to various doctors and hospice workers involved in the case, with the intent of forestalling the removal of the feeding tube during an investigation. Read about it in this story from USA Today.

So far as I know, removal of Terri's feeding tube remains scheduled for 1 pm today.


 
Schiavo News: STAYED
The St. Pete Times reports here that Chief Judge David Demers, of the local circuit court here in St. Pete/Clearwater, has entered an order staying the removal of Terri's feeding tube. Apparently, a congressional committee has subpoenaed Michael, Terri, and Terri's caregivers to appear at hearings on March 25 and 28.

Yes, Terri.


 
Schiavo News: STAY LIFTED
The story linked in the preceding post has changed. It now indicates that Judge Greer has ordered the feeding tube removed. Previously, it indicated that Chief Judge Demers ordered a stay.

Though it makes me uncomfortable, I'm going to speculate that congressional officials either directly or indirectly requested a stay from Judge Greer, and Chief Judge Demers may have been acting to ensure Judge Greer had time to consider the request. Judge Greer has apparently determined that no grounds for a stay have been shown.


 
Schiavo News: Congress Petitions The Florida Supreme Court
The Committee on Government Reform has just petitioned the Florida Supreme Court, asking that court to stay Judge Greer's order to remove Terri's feeding tube.

You can review the petition here.

I wonder whether the Florida Supreme Court will agree that it has jurisdiction to act here, merits of the request aside. Florida is somewhat unique in that its supreme court does not have general review authority over all decisions rendered by Florida's lower courts.

Looking over the petition, it states in a footnote that the Committee has filed another petition with the Second District. I assume we'll hear from one or both courts soon.


 
Schiavo News: Florida Supreme Court Rejects Congressional Petition
I wondered in that prior post about whether the Florida Supreme Court would find that it had jurisdiction even to consider the congressional petition to stay the removal of Terri's feeding tube. Well, we know the answer now: no.

 
Schiavo News: Feeding Tube Removed
The feeding tube was removed earlier this afternoon.

 
Schiavo News: Federal Habeas Petition Denied
Several posts ago, I mentioned the habeas petition that the Schindlers filed this morning in federal court. I suggested we'd hear something quickly from the federal judge assigned the case. It turns out that Judge Moody was the assigned judge, and he denied the petition today.

You can read Judge Moody's decision here.

If you read the order, you'll see that Judge Moody did not reach the merits of the Schindlers' due process arguments. Instead, he determined that the Rooker-Feldman doctrine directs the court to dismiss the case. The Rooker-Feldman doctrine is one of several abstention doctrines that federal courts follow. This one holds that federal courts should not hear claims that essentially ask the court to review the decisionmaking in a state case. The rationale is, basically, that the U.S. Supreme Court is available to review state court decisions that involve federal issues (like due process), and there is no need to turn the lower federal courts into a review system for state decisions.

Now, in the case of those in state or federal custody, Congress has enacted statutes that expressly require federal courts to hear claims that ask for state proceedings to be reviewed. In those cases, Rooker-Feldman does not apply.

As you probably know, Congress has recently been debating whether to adopt a law that would extend the review capacity of lower federal courts to include persons in Terri's circumstances. If that law passed, Rooker-Feldman would not apply, and the court would be able to review the state court proceedings for due process violations. So far, that law has not passed.



Sunday, March 20, 2005

 
Schiavo News: Local Roundup
Checking out today's local coverage of the Schiavo saga:

The St. Pete Times has a story here on the extraordinary events taking place in Washington, a story here on the Republicans in Tallahassee who refused to change Florida's law for everyone because of public perception regarding one case, and a story here about Michael Schiavo's invitation to President Bush: "Come talk to me. Meet my wife. Talk to my wife and see if you get an answer. Ask her to lift her arm to shake your hand. She won't do it."
Today's Tampa Tribune has this story on events up in Washington as Congress tries to craft a new law to keep Terri's feeding tube in place, and this story on how the video snippets of Terri being played around the world are misleading regarding Terri's condition.

Finally, while this isn't local, KnightRidder on Friday published this interesting inteview with Dr. Jay Wolfson, who was appointed as Terri's guardian ad litem at the end of 2003 and who in December 2003 authored this report to Governor Bush on Terri's condition.


 
Schiavo News: Terri's Law II? Terri's Other Law?
I'm aware of reports, like this one from MSNBC, on the compromise being negotiated in Washington.

I'm very curious about the language that will be used if something actually passes. I'm going to hold off on commenting until we have something certain.

At the moment, though, this is looking a bit like a repeat of October 2003, when the Florida legislature acted after Terri's tube was removed for the second time.


 
Abstract Video
I can't believe how many of you saw me on MSNBC the other night. Their folks contacted me Friday and asked if I would speak about blogging the case and the law involved. I said sure, so long as I did not need to take a side.

Amazingly, The Political Teen has the segment's video available here. Thanks, Ian.


 
Email Out
I had no idea my host for Abstract Appeal has a limit on how many emails I can send per day, but apparently I've just reached the limit. No more responses from me today, folks.


Monday, March 21, 2005

 
Schiavo News: CONGRESS PASSES TERRI'S LAW
Tonight I watched the House debate passing the federal version of Terri's Law. It passed. The Senate previously approved it, and the President is expected to sign it during the night tonight.

Two thoughts come to mind. One, this is truly historic. Representatives, senators, and our President all returned to Washington for this specific event. Two, we have more fascinating steps ahead.

The new law's text -- available here -- provides that a particular federal district court in Florida has jurisdiction to review any claimed violation of Terri's rights under federal law. Parties to the state court proceedings have standing to initiate the challenge. That means the Schindlers.

Throughout this saga, I've tried to provide insights into the legal process at work. That's going to continue. Here are my initial thoughts on what's about to happen, though for the moment I'm not going to address arguments the new law is itself unconstitutional.

First, a case is about to be opened in the Middle District of Florida. But wait -- there's already a case opened. The Schindlers filed a petition in federal court on Friday. Judge Moody dismissed it immediately for lack of jurisdiction. You can read the petition here, and you can read Judge Moody's dismissal order here. My understanding is that the Schindlers have appealed that ruling to the Eleventh Circuit, keeping the case alive. It's possible that the Schindlers will immediately notify the Eleventh Circuit of the new law and that the appellate court will immediately return the case to Judge Moody for further proceedings.

In any event, some judge in the Middle District is going to get this case in the morning. If necessary, the Schindlers could just re-file the petition they filed on Friday, or something rather close to it.

Will the feeding tube be reinserted? Most likely the federal judge assigned the case will order the Florida court's termination of support order stayed and the tube reinserted, pending resolution of the federal case.

An important consideration at this point is exactly what is going to be litigated in the federal forum. There is not going to be a simple re-trial of the issues of Terri's wishes or her condition. The Schindlers will be able to argue only that the proceedings in the state courts violated Terri's federal rights.

Based on the habeas petition filed Friday, it seems the Schindlers are going to raise three principal issues:

(1) That the trial judge denied Terri due process by making the decision regarding what she would wish to do in these circumstances. I'm not sure I've read this correctly, but it seems the Schindlers are arguing that someone else -- a "neutral" person -- should have been appointed Terri's surrogate and been allowed to decide what Terri would do.

(2) That the trial judge violated Terri's right to due process by not appointing an attorney and/or a guardian ad litem for Terri for the original trial on Terri's wishes.

(3) That the trial judge violated Terri's right to equal protection by not permitting her parents to subject her to new medical tests to show her condition. The Schindlers compare Terri's situation to a convicted criminal who's been allowed to utilize DNA tests that were not available at the time of trial.

It is possible that the federal judge will be inclined to rule on these issues as a matter of law. It is also possible that the judge will hold an evidentiary hearing and perhaps will allow the Schindlers to conduct some factual discovery beforehand. Expect the judge to hold a conference or hearing immediately that addresses the feeding tube, whether standard or accelerated proceedings will be utilized, and due dates for initial written submissions.


 
Schiavo Thoughts: Terri's Law II, Constitutional Concerns
The preceding post discussed what I'm going to call Terri's Law II, which is probably being signed into law by President Bush right about now.

This post discusses the constitutionality of the law. I'm not going to come out and call it either way, but I will talk about the issues. They're interesting.

Let's start with how strongly the law's constitutionality will be challenged. It's possible that Michael Schiavo will bring a constitutional challenge immediately and ask the court not to proceed with the merits of the action until the challenge to the law itself is resolved. It's also possible that Michael will ask the court to consider a constitutional challenge and allow the merits issues to go forward as well.

The first option is more likely to be recommended by Michael's counsel. The second option is more directed at the court of public opinion and may be favored by Michael.

So what are the possible constitutional challenges? I'm going to focus on two.

I've already seen much talk of the law being an unconstitional bill of attainder. Bills of attainder are prohibited by Article I, Section 9 of the federal constitution. A bill of attainder is generally a law that punishes a person (or a class of persons) without a trial. The classic form of a bill of attainder sentenced a person to prison or death.

Is Terri's Law II an unlawful bill of attainder? Well, the one person angle is easy to spot, bringing this challenge quickly to mind, but the other aspects are less clear. Is Terri being punished? It's arguable that her constitutional right to privacy is being negatively impacted by forcing her to receive medical care that a court has determined she would not want. But then the "punishment" here is to have a court review that very determination to ensure her rights have been protected.

The argument likely to get a lot of attention is an equal protection challenge. Simply put, the government is required to treat similarly situated people in the same manner unless a good enough reason exists not to do so. What constitutes a good enough reason in a given case depends on the type of discrimination involved.

If the discrimination implicates a fundamental right, then the only reasons good enough to permit the difference in treatment are the very few that advance compelling government interests by the least intrusive means possible. Racial and religious discrimination, for instance, require this sort of strict scrutiny.

Where no fundamental right is involved, courts generally use what's called rational basis scrutiny, meaning that a good enough reason is anything reasonable, not arbitrary.

Here, it is arguable that Terri's constitutional right to privacy -- specifically, the right to reject unwanted medical treatment -- is implicated. If so, that could be found to trigger the strict scrutiny analysis.

Whether it's strict or rational basis scrutiny that's utilized, the question will be if Congress had a good enough reason to pass this law affecting only Terri and her parents, and not anyone else similarly situated. If this challenge is raised, I look forward to seeing the arguments.


 
Schiavo News
What I've heard is that the Schindlers filed a new petition overnight, along with a request that the feeding tube be restored.

The judge assigned the case is Judge Whittemore in Tampa. Judge Whittemore has scheduled a hearing for 3PM today to discuss the issues presented by the case, including the request for injunctive relief regarding the feeding tube.

The AP is reporting here that the Schindlers also filed a civil suit over the weekend, alleging civil rights violations by Michael Schiavo, Judge Greer, and the hospice where Terri has stayed.

UPDATE: It appears the suit "also filed" over the weekend is not a separate suit and that there is just one new federal district court case.


 
Chatting
I have been asked by Court TV to participate in an online chat on the Schiavo case at 5:30 pm. It'll be here if you're interested in joining the session.


Tuesday, March 22, 2005

 
Schiavo News: REQUEST DENIED
Local news in the Tampa Bay area is reporting that Judge Whittemore has denied the request to reinsert Terri's feeding tube. As you might expect, the legal basis for the ruling is not yet clear.

Further news reports say the order will be available around 9, and indications are it is a final order -- that the judge may have ruled not only on the injunction issue regarding the feeding tube but the merits of the Schindlers' case. We'll see.

More to follow...


 
Schiavo Thoughts
Many folks are already asking me about appellate options. I have not seen Judge Whittemore's order yet, but I feel fairly safe in concluding that, whatever it says, if the result is that the tube will not be reinserted, Terri's parents will be able to appeal immediately to the Eleventh Circuit. If the Eleventh Circuit denies relief, the Schindlers could seek immediate relief from the U.S. Supreme Court.

We'll know more soon.


 
Schiavo News: Judge Whittemore's Order
I've posted Judge Whittemore's order here.

 
Schiavo Thoughts: Judge Whittemore's Order Explained
I previously posted Judge Whittemore's order, and it's here.

In short, the order concludes that the Schindlers have identified no violation of Terri's constitutional rights. For those looking for more information, here's my extended summary:

Judge Whittemore observed that the Schindlers are seeking a temporary injunction -- one mandating the reinsertion of the feeding tube. There are several requirements that must be met to obtain a temporary injunction. The court found the requirements applicable here to be met except the most important one: a showing of a substantial case on the merits of the Schindlers' claims. In other words, this comes down to whether the Schindlers' arguments have any merit.

Judge Whittemore individually examined the five claims asserted in the complaint the Schindlers filed yesterday. You can read that complaint here.

Count I of the complaint alleges that Terri was denied due process when Judge Greer made the decision, following a trial, on what Terri would want. Judge Whittemore found no due process violation. He ruled:

Plaintiffs' argument effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme. By fulfilling his statutory judicial responsibilities, the judge was not transformed into an advocate merely because his rulings are unfavorable to a litigant. Plaintiffs' contention that the statutory scheme followed by Judge Greer deprived Theresa Schiavo of an impartial trial is accordingly without merit. Defendant is correct that no federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow.

Count II of the complaint alleges that Terri was denied due process when Judge Greer failed to appoint a guardian ad litem or an "independent" attorney for Terri and failed to meet Terri in person. Judge Whittemore found due process (including Florida's statutes) did not require the trial judge to meet Terri and that a guardian ad litem was appointed and testified at the trial on Terri's wishes. Regarding the lack of an attorney just for Terri, Judge Whittemore found:

Throughout the proceedings, the parties, represented by able counsel, advanced what they believed to be Theresa Schiavo's intentions concerning artificial life support. In Florida, counsel for Michael Schiavo as Theresa Schiavo's guardian owed a duty of care to Theresa Schiavo in his representation. Finally, with respect to presenting the opposing perspective on Theresa Schiavo's wishes, the Court cannot envision more effective advocates than her parents and their able counsel. Plaintiffs have not shown how an additional lawyer appointed by the court could have reduced the risk of erroneous rulings....

[T]he court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts. Defendant Michael Schiavo and Plaintiffs, assisted by counsel, thoroughly advocated their competing perspectives on Theresa Schiavo's wishes. Another lawyer appointed by the court could not have offered more protection of Theresa Schiavo's interests.
Count III of the complaint alleged that Terri was denied her right to equal protection because only incapacitated persons have their rights determined by someone else, whereas different procedures are utilized where a competent person can make a decision for himself or herself. Judge Whittemore found this claim to be without merit for the same reasons discussed regarding count I and based on the U.S. Supreme Court's decision in Cruzan v. Missouri, where the supreme court explained that these situations are different and states can treat them differently.

Counts IV and V of the complaint alleged that Terri's rights to religious freedom were denied because the removal of a feeding tube is supposedly contrary to the teachings of the Catholic Church, and Terri is Catholic. Judge Whittemore concluded that a state court judge's adjudication of a person's wishes is not a burden by the government on the person's religious beliefs, and that Michael Schiavo and the hospice cannot be sued here because they are not government actors. The law in this area addresses religious burdens imposed by governments.

These rulings appear to be decisions on the merits of the Schindlers' complaint, not just preliminary views that the Schindlers may not be able to prove their claims.

Once again, Judge Greer's decisions -- and the procedures required by Florida's statutes and Florida's judiciary -- have been upheld. Once again.

Expect a lightning fast appeal to the Eleventh Circuit. And a very quick response.



Wednesday, March 23, 2005

 
Eleventh Circuit: AFFIRMED
Early this morning, the Eleventh Circuit affirmed Judge Whittemore's decision not to restore Terri's feeding tube. The decision was not unanimous. Judge Wilson dissented.

You can read the decision here.

I'll have extended thoughts on this later this morning.


 
Schiavo Thoughts: Feeding Tubes
Before I post about this morning's ruling from the Eleventh Circuit, which you can read here, I'm going to offer some thoughts on an issue that has been the subject of countless emails I've received: feeding tubes.

Some people believe that feeding tubes are different from ventilators and other machines that keep us breathing, or machines that make our hearts beat. Some people just seem uncomfortable that removing those other devices leads to an expeditious death, whereas removing or declining to insert a feeding tube -- when a patient cannot otherwise ingest food and water -- leads to a slow death. Some assume that death is painful.

I don't want to comment on the morality surrounding feeding tubes and their use or nonuse. This is a legal blog, so I'm going to offer a few legal observations in this area.

First, a Florida law enacted in 1999 makes it clear that the "life-prolonging procedures" a person may refuse include "artifically provided sustenance and hydration." This point is made on the Info Page I created to help explain the law at issue here.

But numerous people have pointed out that this law was passed by the Florida Legislature and signed by Governor Bush only in 1999 -- years after Terri's collapse and even longer after Terri made whatever statements she made about such things. They contend that this 1999 law shouldn't apply to Terri.

Let's take a step back. Statutes are one form of law in Florida, but there is another form of law that's higher: the Florida Constitution. In 1980, Florida's citizens amended Florida's constitution to add a right of privacy to Floridians' fundamental rights. The Florida Supreme Court addressed this right in the 1990 case In re Browning. Florida's high court determined that the constitutional right of privacy includes the right to decline any medical treatment, including the use of a feeding tube. The court said:

Recognizing that one has the inherent right to make choices about medical treatment, we necessarily conclude that this right encompasses all medical choices. A competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition. The issue involves a patient's right of self-determination and does not involve what is thought to be in the patient's best interests.
* * *

We see no reason to qualify that right on the basis of the denomination of a medical procedure as major or minor, ordinary or extraordinary, life-prolonging, life-maintaining, life-sustaining, or otherwise.
* * *

Courts overwhelmingly have held that a person may refuse or remove artificial life-support, whether supplying oxygen by a mechanical respirator or supplying food and water through a feeding tube. We agree and find no significant legal distinction between these artificial means of life-support.
(emphasis added) (citations omitted).

So, as explained by the Florida Supreme Court in 1990, the right to decline medical treatment -- including use of a feeding tube -- has been the law of Florida since no later than 1980. Under the Florida Constitution, feeding tubes are medical treatment that may be refused. What the statutes say on this point cannot overcome the rights conferred by the Constitution.

As many know, the federal constitution does not have an express right of privacy, but the federal courts have found many privacy-like interests to be liberty and due process interests protected by the federal constitution. When the U.S. Supreme Court decided Cruzan v. Missouri in 1990, Justice Sandra Day O'Connor authored a concurring opinion discussing Nancy Cruzan's federal right to decline use of a feeding tube. Justice O'Connor explained:

Artificial feeding cannot readily be distinguished from other forms of medical treatment. Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed "medical treatment," it is clear they all involve some degree of intrusion and restraint. Feeding a patient by means of a nasogastric tube requires a physician to pass a long flexible tube through the patient's nose, throat and esophagus and into the stomach. Because of the discomfort such a tube causes, "[m]any patients need to be restrained forcibly, and their hands put into large mittens to prevent them from removing the tube." A gastrostomy tube (as was used to provide food and water to Nancy Cruzan) or jejunostomy tube must be surgically implanted into the stomach or small intestine. Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.
(emphasis added).

I hope this helps clear up what the law is in this area.


 
Eleventh Circuit: Rehearing En Banc DENIED
The Eleventh Circuit has denied the Schindlers' request to have all judges of the court rehear their appeal. The circuit court's site seems to be a bit busy, so perhaps I can take two or three hits off their hands by posting the order here.

As usual, the order does not reveal the result of the court's internal poll, but Judge Tjoflat and Judge Wilson authored written dissents.


 
Schiavo News
A few quick updates.

First, word is circulating that the executive branch is considering taking Terri into protective custody based on a Florida statute that authorizes the Department of Children and Families to do so where "a vulnerable adult is being abused, neglected, or exploited and is in need of protective services." The Palm Beach Post has a report on this consideration here.

Were that to happen -- were the executive to take a ward of the court into custody on grounds the ward is being abused at the court's direction -- it would be utterly, amazingly extraordinary.

In other news, apparently the Florida Senate is considering and close to passing a new law. Terri's Law III, I suppose.

Finally, just an appellate procedure note. ABC News has a story here stating that the Eleventh Circuit voted 10-2 against granting rehearing en banc. That's not necessarily true. We know a majority did not vote to grant full review, and two judges authored written dissents from that decision. We do not know the actual vote. It could have been 10-2, or 6-6, or anything inbetween.


 
Schiavo News
21-18. That's the vote by which the Florida Senate just voted down the latest effort to change the law and cause Terri's feeding tube to be reinserted.

 
Still Chatty
I've been asked to chat online again with Court TV at 5:30, to talk about today's events. Tune in if you'd like.

 
DCF Motion Denied... ?
Word is out that the Department of Children and Families filed an emergency motion with Judge Greer, asking for permission to take Terri into protective custody. Word is also out that Judge Greer has held a hearing and denied the motion.

(and for those paying attention, yes, I'm chatting right now...)

UPDATE: DCF has posted its motion here and the supporting affidavit here.

SECOND UPDATE: While it appears Judge Greer rejected DCF's effort to intervene and seize Terri, that remains a bit unclear. Some news agencies are reporting that Judge Greer will issue a written order by noon tomorrow.



Thursday, March 24, 2005

 
Judging Courage
I'm disturbed. I've just finished watching a round of television programs where Judge Greer was once again assailed as lawless, power-grabbing, and out of control. On a mission to kill, it's said.

This is horribly difficult to watch. I cannot help but think that well meaning, honest Americans are home watching these programs, thinking there must be some truth behind the repeated assertions that a single judge or two have turned the justice system upside down. The public deserves better.

Florida law told Judge Greer what he had to do here. Once fate chose him as the judge in the case, he was responsible for following the law laid out by both the Florida Supreme Court and the Florida Legislature, all of which said that where those close to the incapacitated person cannot agree on what the ward would choose to do, then the court should resolve the matter.

Judge Greer is a Republican and a Southern Baptist. No doubt he has his own views about what he thinks he would do, or what he thinks might be in Terri's best interests. But he was charged with deciding only what Terri would do. He found the evidence presented at trial clear and convincing that Terri would choose not to have her life prolonged by the affirmative intervention of modern medicine. Three appellate judges unanimously affirmed that decision.

I receive email after email telling me that no judge has the authority to end someone's life. That life must be preserved where there is even unreasonable hope, or where there is any uncertainty regarding the person's wishes. That oral evidence can never be clear and convincing. That removing "life support" is okay, but removing a feeding tube is barbaric and unacceptable. Perhaps those sentiments are noble, but they are not the law, and it was not within Judge Greer's power to make them the law. It is perfectly acceptable to disagree with the law on these points, but to condemn the judge for following the law as it exists is irresponsible and contrary to the basic principles on which our government, with its separate branches, was created.

I continue to emphasize that I have no opinion on whether the trial judge reached the result Terri would truly want. I did not attend the trial, and having not seen the witnesses and heard them testify, experience has taught me that I am insufficiently informed to second-guess the decision -- no matter how many facts I learn about the case. I do know that a decision was made. I also know that the judicial system offers the checks necessary to ensure that the law has been properly followed. Judge Greer is part of that system, and he operated within it to perform his required role. Those who condemn him, and the judiciary that has thus far upheld his decisions, do not know what they do.


 
Schiavo News: Stay Request, Amended Complaint
We know the U.S. Supreme Court is considering an appeal to overrule Judge Whittemore's denial of an injunction that would require Terri's feeding tube to be reinserted. You can read that request here.

If the high court denies relief, will that be the end of the injunction issue?

Perhaps not. The injunction motion was denied based on conclusions the Schindlers failed to show a substantial likelihood of success on their five federal claims. But now the Schindlers have filed an amended complaint, with four additional claims. I've posted the amended complaint here.

No word yet on whether another motion for injunctive relief has been filed with Judge Whittemore.


 
Schiavo News: U.S. Supreme Court Denies Relief
The very short, very typical denial is available here.

 
Schiavo News: DCF Renewed Motion Denied... ?
Word is out that Judge Greer may have denied the renewed effort by the Department of Children and Families to intervene in the case and take Terri into protective custody.

I'll post the written order when I get a copy.

You can read the motion here and the supporting affidavit here.


 
Schiavo News: Another Hearing
It seems the Schindlers have now filed a Second Amended Complaint in federal court. It's available here. The new complaint adds five claims to those that were originally raised. Count X is the truly interesting one. It alleges that Terri is being denied her right to life in violation of the Fourteenth Amendment because removing her feeding tube is contrary to her wish to live. That claim essentially says that the original trial reached the wrong result.

Based on the newly pled claims, the Schindlers have also filed a new motion for injunctive relief, asking the court to require the feeding tube reinserted while the claims are litigated.

Judge Whittemore entered an order today setting an aggressive briefing and hearing schedule. You can read the order here. He asked the parties to file legal memoranda addressing the injunction request with respect to count X -- for the Schindlers to do so by 3 pm and for Michael to respond by 5 pm. The hearing will be tonight at 6 pm.

This latest effort to have Terri's feeding tube reinserted is once again rocketing through the system. Count X, though, presents a host of issues. It appears to ask the federal court to decide anew Terri's wishes, and that opens the door to the issue of exactly what "Terri's Law II" requires the federal courts to do.

The pertinent portion of the new law reads as follows:

[T]he District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.
I've seen a lot of news folks and talk show hosts over the last couple of days wondering what it means for the court to make a "de novo" determination. I did not come away with a firm conviction they have much experience with this term, though it is a rather common term in appellate practice.

De novo review is a common type of review in which the lower court's decision is reexamined in its entirety. No deference is paid to the lower court's conclusion, and the appellate court decides for itself whether it reaches the same conclusion the lower court reached. Importantly, though, in a de novo review, the appellate court looks only to the record produced below to make its decision. The appellate court does not accept new evidence. The court can review transcripts, exhibits, and whatever else was before the lower court.

Not accepting new evidence is what distinguishes de novo review from a de novo trial. A de novo trial is essentially a do-over. Whatever the issue was, it is relitigated entirely. Witnesses can testify, new evidence can be offered.

With that background, let's look at the statute. The key language of the new law allows the federal district court to hear "de novo any claim of a violation of any right" Terri has under federal law. So there has to be a claim someone has violated Terri's federal rights. Count X -- the count Judge Whittemore is focusing on tonight -- alleges that the defendants are violating Terri's rights by depriving her of life when she wishes to remain alive.

At this point, if I have followed things correctly, there is a disagreement over how the district court is supposed to go about determining whether Terri's right to life has been violated. One argument is that the court is required to hold a new trial on the whole issue of Terri's wishes. That would be a de novo trial. Another argument is that the district court is simply required to review the record and ensure that sufficient evidence exists that Terri would wish the tube removed, precluding a Fourteenth Amendment violation. That would be de novo review.

So which is it? I do not think the new law is clear. I will suggest one reason that favors the result being a de novo review: Throughout the congressional debates, and right through last night's talk show circuit, leaders supporting the Schindlers' cause have maintained that what they intended to do with this law is to make sure Terri has the same right of review in the federal courts that mass murderers have before they are executed. Mass murderers, or any criminal in state custody, do not get a whole new trial in federal court. Instead, they get a fresh review of whether the state trial proceedings complied with federal law. If the new law gives the Schindlers the right to a whole new trial -- with new testimony from experts and witnesses -- then it will not be anything like the review that criminals in state prison receive.

Now, keep in mind that the federal case here is not at the point of having the full de novo hearing called for by the new law, whatever kind of hearing that is. At this point, the Schindlers are seeking injunctive relief to require Terri's feeding tube to be restored. Their burden is, at this point, to demonstrate a substantial likelihood of success when the de novo hearing is actually held. No matter how Judge Wittemore views the de novo hearing that the law requires, meeting this burden will be a complicated task for the Schindlers.

One thing is fairly certain: if the media folks covering this story have had trouble understanding or explaining the issues thus far in the case, they are going to be in a bit more trouble now.



Friday, March 25, 2005

 
Schiavo News: Renewed Motion Denied
Word is out that Judge Whittemore has denied the Schindlers' renewed request to reinsert Terri's feeding tube while their federal claims are litigated. You can read the order here.

Given the history of this litigation, it seems inevitable there will be a nearly instantaneous appeal to the Eleventh Circuit and, if that is unsuccessful, to the U.S. Supreme Court. If this route fails for the Schindlers, it appears to me that every possible legal option will have been exhausted.



Saturday, March 26, 2005

 
Schiavo News: Updates
A quick recap of legal events in the past 24 hours:

When we last left this saga (i.e. the preceeding post), Judge Whittemore had denied the Schindlers' second request to require Terri's feeding tube to be reinserted. In his order, available here, Judge Whittemore concluded that the Schindlers failed to show a substantial likelihood of success on the five new claims they have added to their federal case.

Yesterday, the Schindlers immediately appealed that decision to the Eleventh Circuit, which in turn immediately affirmed the ruling in a 3-0 decision. You can read that decision here. I'll post about some of its interesting aspects at a later time. I have heard news reports that the Schindlers have announced an intent to ask for en banc (full court) review of the three-judge panel's decision.

The BIG news from yesterday concerned a new motion by the Schindlers filed with the trial court to vacate the original decision on Terri's wishes. According to news reports, the motion alleges that Barbara Weller, one of the Schindlers' attorneys, witnessed Terri last Friday trying to say that she wanted to live.

Now, this story first emerged last week when some Internet sites reported on an exchange between Barbara Weller and Terri. For an example, see this story from World Net Daily. The story reports Ms. Weller's account that, just before Terri's feeding tube was removed last Friday, Ms. Weller said to Terri, "You had better say you want to live or they will kill you. Just say you want to live." Reportedly, Terri responded by vocalizing a drawn out "IIIIIIIIII" and then "WAAAAAAAAAA," and this was witnessed by Terri's sister Suzanne and a third person.

So that story made it into some Internet-based news last Friday. What apparently did not happen, however, was an attempt to bring this incident to the attention of the trial judge before Terri's feeding tube was actually removed. Instead, it seems folks waited until yesterday to raise this incident -- seven days after Terri's feeding tube was disconnected, and by all accounts rather close to her death.

Judge Greer held an emergency hearing on the motion last night, and he reportedly stated he would rule by noon today.

I have looked online for a copy of the motion but have not found one. That's unusual, given the Schindlers' supporters' history of making the parents' filings available online. The Terri's Fight site does have the text, but not copies, of Barbara Weller's and Suzanne Vitadamo's affidavits. You can read those texts, respectively, here and here. The text of Ms. Weller's affidavit says she promised Terri she would tell the world Terri tried to say, "I want to live."

Now, keeping in mind that I have not seen the motion or the actual affidavits, I suggest that this is a very troubling turn of events. We've all learned about persisent vegetative states, and it seems at least possible that Terri simply vocalized the sort of random, empty vocalizations that physicians agree PVS people make, and that persons can interpret those vocalizations to represent things they want to hear. Is it also possible that this was speech?

This strikes me as heart-wrenching. I will confess, my own principles regarding candor to the judiciary make me very inclined to believe any attorney who approaches a court and says, as an officer of the court, I witnessed such and such event. Lawyers are just supposed to tell courts the truth. But can persons untrained in this area be qualified to interpret such vocalizations? What meaning should be given to the seven-day delay in bringing this to the court's attention? Perhaps most significantly, is there any medically acceptable way to accept such vocalizations as what they are alleged to be in light of the CT scans that both sides acknowledge show Terri's cerebral cortex was entirely or almost entirely degenerated nearly 10 years ago? Keep in mind that, as best I know, even the neurologists who have observed videos of Terri and recently concluded there is a possibility she is not PVS have not addressed the documented cerebral degeneration.

I suppose we'll know soon.


 
Schiavo News: Federal Appeals Over
Local news in the Tampa Bay area has just reported the Schindlers will no longer seek relief in the federal appellate courts. I take that to mean they will not file a motion for rehearing en banc in the Eleventh Circuit. Nor will they turn again to the U.S. Supreme Court.

It would seem yesterday's motion filed with the state trial court is the last legal effort to restore Terri's feeding tube that is still pending in the courts.


 
Schiavo News: Final Motion Denied
Word is out that Judge Greer has denied the Schindlers' latest motion to vacate the judgment on Terri's wishes. I will post a copy of the order when I receive one.

 
Schiavo Thoughts: More On Independent Attorneys
It's halftime in the men's basketball game and I'm watching a national news channel discuss the Schiavo case with two guests -- a criminal defense attorney and a prosecutor. The host just asked, or really just said, that the reason Terri did not need a lawyer is because her husband served as guardian and he had a lawyer. One guest essentially agreed, pointing out that Florida law does not require the ward to have her own lawyer and suggesting the Florida legislature may want to reconsider this point.

I disagree. Michael's lawyer represented Michael, who took a very hard position regarding Terri's wishes. The Schindlers, on the other hand, took the opposite position, and they too had counsel. It was this dynamic -- adversaries with drastically different positions, each represented by counsel, and certainly one of them taking the position that Terri herself would take -- that eliminated the need for Terri to be represented by counsel.

As for the legislature considering the appointment of counsel, I will suggest that appointed counsel would be nothing but problematic. This is not a criminal case. In a criminal case, the defendant has a clear goal: avoid punishment. The state has the opposite goal: punish. There is nothing similar in a case like this. Imagine you are appointed counsel for Terri. What do you advocate? You cannot ask her what she would like to do, so you are forced to choose a side. How would you do that? If you choose the side she would not (or did not) support, then you are not at all advocating your client's interests. If you automatically advocate that she should be given all possible medical treatment, then you are really an advocate for the state, with its unceasing interest in prolonging life, and not an advocate for your client, who might not share that view under the circumstances.

When you factor in that the case already involves counsel who are taking opposite views on what the ward would want, it becomes apparent that a third attorney or set of attorneys would not only add nothing, it would likely distort the process. The whole purpose of the trial is to make the very determination that the ward's attorney would have to make before proceeding with the litigation.



Sunday, March 27, 2005

 
Schiavo Thoughts: Final Round
I finally got to read copies of the Schindlers' final motion for relief and the order denying that motion. You can read the motion here, courtesy of The Empire Journal, and you can read the order here, thanks to the folks at Terri's Fight.

I heard a national news network host yesterday say that, in his view, the judge just did not believe Ms. Weller. It's a shame the major media allow such commentary. The order says a number of things, and it does imply a credibility issue exists, but the order relied on two grounds to deny the motion, and neither had anything to do with credibility.

The order presented two bases for denying the motion. The first was waiver -- which essentially means the ground was forfeited by not raising it earlier. In this case, the "earlier" was just two days earlier, when the Schindlers argued that Dr. Cheshire had seen Terri and observed that she may not be in a PVS state. Apparently no one involved in that hearing said anything about this "new" evidence.

It helps to know that, just as the trial court said in this order, and as the Second District said in this order, the courts in this case have repeatedly allowed the Schindlers to violate the well established rule that all grounds to attack a judgment must be brought at a single time, not piecemeal. While the significance of Terri's life or death situation has led to this lapse in rule enforcement, the trial court found the violation here to be particularly troublesome, given all the circumstances. Still, the trial court said it would not deny the motion on this basis alone.

The actual reason the court denied the motion is that the evidence presented was consistent with the court's earlier findings regarding Terri's state. The vocalizations were single syllables and apparently were produced at the same time Ms. Weller took Terri's arms in her hands. The court found this to be consistent with the prior evidence and findings regarding the behavior of persons in a persistent vegetative state. Because of that consistency, the evidence was not sufficient to undermine the final judgment, assuming the affidavit is entirely credible.

So the host's comment was completely off the mark.



Monday, March 28, 2005

 
Schiavo Thoughts: Mail Call
Some snippets from my incoming and outgoing email yesterday:

Comment/Question: "I'm not advocating for anything here, but I'm curious on an academic level if there has been any talk locally of prosecuting Michael Schiavo and the woman with whom he cohabits under Florida's 'Living in Open Adultery' statute?"

Response: Serious talk? No. That statute remains codified as Florida law, but I'm not aware of when it was last enforced, and the U.S. Supreme Court's decision in Lawrence v. Texas seems to signal that such laws are unconstitutional. Lawrence held unconstitutional a Texas sodomy law.


Comment/Question: "New state law: A mother or father are allowed to nourish their children. Simple to the point and constitutional."

Response: Constitutional? That's doubtful, at least in Florida. Florida's constitution contains an express right of privacy that empowers each person to choose his or her own medical fate, including whether to be kept alive by a feeding tube. A person's parents' desire to nourish cannot override that right. If Terri indeed expressed that she would not want to be kept alive in circumstances such as now exist, then what's happening here is that her wishes are being followed.


Comment/Question: "Was the issue ever raised on appeal that the judge had erroneously admitted the hearsay evidence? "

Response: It was never raised at trial, nor on appeal, nor in any proceeding ever in the case of which I'm aware. I suspect that's because every lawyer involved knew it was a frivolous argument. (See this prior post for a detailed explanation why that's true.)


Comment/Question: "If Florida law does place a burial arrangement decision with a spouse, do you know what FL law controls? Does it provide for a challenge based on estrangement?"

Response: Hmmm. Bunch of questions there. The Schindlers challenged Michael's plan to have her cremated, and the court rejected that challenge. For a great set of lessons on the current state of Florida law regarding how someone's body should be handled, check out this very recent decision from a Florida appellate court. The case involves a man whose will said he wished to be buried in a family plot in New York, but his wife was able to prove that after the will was executed he orally expressed different wishes about where he wanted to be buried. Lots of analogies to the situation here.


Comment/Question: "Is polygamy legal in Florida? Michael has a common law wife and Terri. Is that legal? How many years living together constitutes a common law wife by Florida law?"

Response: It's generally a third degree felony in Florida for someone married to one person to marry another. But marriages aren't entered in Florida by living with someone for some amount of time. There must be a ceremony and intent to marry.


Comment/Question: "If Michael can claim Terri wouldn't want to live like this and get her feeding tubes disconnected, why can't her parents, or someone, file for DIVORCE testifying there is no way she would remain married to an adulterer with 2 illegitimate children???"

Response: Divorce would not change Terri's wishes, which the court determined clearly indicated that she would not wish to be kept alive by medical treatment when there's no hope of recovery. Also, it wasn't just Michael who testified to Terri's statements about her wishes. Michael's brother testified to hearing her speak of them, too, and so did Michael's sister-in-law, who was also Terri's best friend.


Comment/Question: "Has an MRI or equivalent ever been done on Ms Schiavo’s head. I have heard that one was done and that the frontal lobes were 'Missing in action.' Then I read another columnist and it is stated that there have never been MRI”s or similar procedures performed on the Head. I should think this would be critical to understanding her condition."

Response: I believe one was done very early, but it wouldn't be very meaningful now since the degeneration took place afterwards. Later, when therapy was being aggressively pursued, Terri received an experimental brain implant. It didn't work, and it was never removed. If you've seen the famous CT scan picture, the implant is the shiny spot in the middle. Terri could not have an MRI without the implant first being removed. I suspect that's why no MRI was done when the issue of her condition was tried again in 2002 -- why put her through that surgery, when nothing suggested the CT scan was not accurate? I don't know that's why no one did an MRI in 2002, but it would make sense.


Comment/Question: "This May it will be sixty years since we liberated Germany from the tyranny of NAZI-ism. Nazis made the Nuremberg Laws so that NAZI judges made the decisions of who would live and who would die....they began with people who were incapacitated, then the old and infirm, then Gypsies and finally Jews. They said we are following the word of the Law and Germany is land of Laws...is this what America is now becoming? I never dreamed I would live to see our Country and our Judges emulate NAZI Germany!"

Response: Comparing the law applied here to the law in Nazi Germany is atrocious. If Terri said what the witnesses at the January 2000 trial said she said, then the result here is exactly what she wanted. In any event, unlike Nazi Germany, if you are unhappy with the law here, you can understand it and then work to improve it. The great experiment lives on.


Comment/Question: "Michael has been wanting Terri dead for years... He wants her put in the ground and forgot about to cover up his crime. Terri didnt have an eating disorder. Terri was slowly poisoned. He does not want that exposed, so get rid of the evidence."

Response: [I didn't respond. After two years of following this case, this is the first time someone tossed out poison.]


 
Unwinding
For those who are curious, I'm going to start getting back to other Florida law topics aside from the Schiavo case. I've done what I can to help people understand the law concerning that case. I do still have a couple more substantive posts that some folks may find insightful, but it's also time to pick up with interesting new case law and other developments.

 
What's Left?
A few people have just asked me what's left to be said about all this. Well, there are a couple of rather important things.

One concerns living wills. I've heard a certain "powerful" television host say repeatedly that he's written his wishes down and that's the end of it for him, and had Terri done so it would have been the end of it for her, too. I'm going to explain why he's wrong. Someone should. May as well be little ol' me.

Another concerns what's become the biggest piece of misinformation concerning this case. I used to think that title was held by the myth Michael simply made the decision to pull the feeding tube. Now, after years of being in the headlines and weeks of dominating the nation's attention, this case has a new leading myth. I'll make my small effort to debunk it.

Finally, I intend to say a giant thanks to the thousands of you who had interesting discussions with me over the last two years, many in the last few weeks. I'm going to try to sum up the views I've heard and lay out what seems to be the prevailing points of view among people civil enough to engage in conversations about it all.



Thursday, March 31, 2005

 
Schiavo News: Double Denials
Ok. A very quick break from the cert petition to give a summary of yesterday's decision by the entire Eleventh Circuit. In short, not just a three-judge panel but the entire court considered the Schindlers' appeal from Judge Whittemore's second decision rejecting their request to have Terri's feeding tube inserted. The court has 12 judges in active service, but a medical emergency forced Judge Pryor to be absent, so 11 judges voted.

Stepping back a second, recall that the Schindlers have been attempting to have Terri's feeding tube reinserted while the federal trial court considers their claims under the new law Congress passed last week. Judge Whittemore -- the trial judge -- appeared willing to do that, if the Schindlers could show they had a substantial likelihood of succeeding on any of those claims. He examined the amended counts of their complaint and found, in essence, that the claims were going to fail, and at a minimum a substantial likelihood of success could not be seen.

On appeal, eleven judges from the Eleventh Circuit issued this order, which affirmed Judge Whittemore's decision. We don't know exactly how the breakdown went, but we know a majority did not favor reversing the trial court.

We also know that Judge Birch believes Terri's Law II is unconstitutional. He wrote a concurrence stating the law violates the U.S. Constitution's separation of powers principles by undermining various long-standing judicial decision-making doctrines.

Two judges -- Judge Hull and Judge Carnes -- joined in a concurrence that may interest many people. They wrote that if the purpose of Terri's Law II was to require the federal courts to review the original trial proceedings to ensure sufficient evidence of Terri's wishes was presented, then the Florida decision will stand because such evidence was presented.

Finally, two judges -- Judge Tjoflat and Judge Wilson -- joined in a dissent. They did not argue that the Schindlers' claims had merit. Instead, they argued that the tube should be reinserted while the process of sorting out the ultimate merits of the Schindlers' claims is undertaken.


One last item: you may have heard that this decision was immediately brought to the attention of the U.S. Supreme Court, which again rejected a motion to stay all proceedings while a full appeal in the Supreme Court is pursued. The high court's order, typically terse, can be found here.


 
Time of Sorrow
This is a legal blog, but it most certainly, and sadly, is legal news to note that Terri has now passed. She is surely in a more peaceful place.


Friday, April 01, 2005

 
Schiavo Thoughts: Written Wishes
I'm back on the cyberspace wagon, if that's the right way to think of things. I haven't answered email in a few days but I've tried to monitor it coming in, and I'm a bit surprised that, even with Terri's death yesterday, there are still so many questions about this case and the law involved.

For as long as people keep asking questions, I'll do my best to provide some answers. And I still have a good deal of commentary to offer.

Let's go back to an issue I raised the other day but unfortunately could not follow up on until now. How binding is a living will? Or any other written form of someone's wishes? I've been disappointed to hear a number of public figures speak of living wills as being sacrosanct, and I have heard one high profile nighttime television host state numerous times that, unlike Terri's wishes, his wishes are in writing and there will never be an issue for him. Softly put, that's a reasonable expectation, but the host hammered the point repeatedly, saying his written statements were beyond assail.

That's not true, at least in Florida. It may not be easy to overcome a living will, but it can be done by clear and convincing proof that the person subsequently made contrary oral statements.

Let's go back to a few basic principles. Florida's constitution expressly includes a right of privacy, and the Florida Supreme Court held in In re Browning that the right of privacy includes the right to refuse medical care, particularly life-sustaining medical care. Including a feeding tube. That's every Florida citizen's right.

Because this right is considered fundamental, by virtue of its inclusion in the constitution, it is not very difficult to exercise. Indeed, In re Browning decided that, for Floridians, the right could be exercised by a written or oral statement. If the right could be exercised only in writing, then it would be a weaker right, requiring you to jump through procedural hoops to exercise it. By comparison, a decision-making right that allows you to make a decision by announcing it is a stronger right. At least, that's the logic.

Now, if you can exercise this right orally, can an oral statement negate a prior written wish? Yes. In fact, if you read the facts of the Browning case, you will see that Estelle Browning had executed a document in which she declared she did not wish to be maintained by a feeding tube under certain circumstances, and the state government intervened in her case and argued that her written wishes should not be followed because it was possible that, later, she orally made a decision to the contrary.

Think about that. She said no to a feeding tube. The state embraced the notion she could have revoked that wish through oral statements and argued that because she may have done that, her written wishes should not be followed.

That didn't work -- the court made it clear that it would not indulge presumptions someone did or did not say something. But had such oral statements been made, and been proved, they could have controlled the outcome.

So, yes, written wishes regarding end-of-life care can be orally revoked. At least in Florida. They just need to be proved by clear and convincing evidence.

For those who would rather look at a statute than dwell on constitutional principles, take a look at the Florida statute that governs this area. Section 765.104(1)(c) explains that an advance directive -- including a living will -- or the designation of a health care surrogate decisionmaker may be revoked "[b]y means of an oral expression of intent to amend or revoke." Now, keep in mind that the statutes enacted by the legislature cannot conflict with the rights provided in the state constitution, but it is certainly meaningful to see that the legislature has affirmatively recognized the signicance of oral declarations.

This post is getting a bit long, so let me wrap it up with some final thoughts.

First, for those who wonder why anyone should bother with a living will, here's the answer: a properly executed living will is, standing alone, clear and convincing evidence of a person's wishes. In Florida. Oral statements do not necessarily rise to that level, depending on the circumstances, and proving them involves the credibility of the witness.

Second, for those who wonder if this means a living will can be challenged if someone comes forward and asserts he or she heard the incapacitated person revoke the living will by oral statements, the answer is yes. It can. And if those involved cannot agree on the person's wishes, the result could well be a trial in court to resolve the dispute. Just like in Terri's case.

Third, for those who live in states other than Florida and are wondering if the law is the same in their states, I'm not qualified to say. Other states' constitutions may speak to these issues, and many states have statutes that apply here, too. I will note that it is possible courts will read the liberty interests protected by the federal constitution to include a right to refuse medical treatment that may be exercised through oral statements that can overcome previously written wishes. If that occurs, such a right would trump any state laws to the contrary.

One final comment. It seems obvious to me that living wills are an important but not complete solution for preparing for end-of-life situations. Perhaps equally important is that persons actually tell their wishes to family and friends, particularly in group situations. The more a person's wishes are understood by those close to the person, the more likely it is that those wishes will ultimately be known, and honored.



Saturday, April 02, 2005

 
Schiavo Thoughts: Myths, Inexcusable Myths
For years now, the most popular myth regarding the Schiavo case was that Michael Schiavo decided what should happen to Terri, and the court system simply enforced his right to make that decision. If you're reading this post, you hopefully know that nothing of the sort happened. (Otherwise, please review this site's Terri Schiavo Information Page, particularly the Q&A section.)

Over time, most of the major media figured out that a trial was actually held between Michael Schiavo and the Schindlers. Most. Not all.

Yet even as much of the country learned that a trial had been held and the judge found the evidence clear and convincing that Terri wished not to receive life-prolonging medical care in this sort of situation, another myth began to emerge. And this one never went away. It did not overtake everyone, but host after host, national news channel after national news channel, editorial board after editorial board -- an astounding number of media figures -- seized on, criticized, lamented, praised, or otherwise discussed something that never, ever happened:

That the clear and convincing evidence of Terri's wishes was just Michael Schiavo's word.

There was talk of how a spouse could be expected to know these things, but then how this spouse could not be trusted. There was talk of how spouses should be believed, but then how "hearsay" testimony from someone with something to gain should be ignored. There was talk of, well, lots of talk. About Michael.

How is it possible that none of these people -- or at least the folks who feed them information -- ever read what the trial judge actually said about the evidence he relied on?

Look back at Judge Greer's February 2000 order. He explained that the clear and convincing evidence did not come from Michael's testimony alone. In fact, the judge acknowledged, without necessarily accepting, a guardian ad litem's position that Michael's testimony could not amount to clear and convincing evidence.

Looking at the trial judge's ruling, he did rely on Michael's testimony, but he also placed tremendous weight on Michael's brother and sister-in-law, Scott Schiavo and Joan Schiavo. The trial judge found their testimony and that of one of the Schindlers' witnesses to be so significant that he had their trial testimony transcribed after the trial so he could review it again. The trial judge explained:

As with the witness called by the Respondents [the Schindlers], the court had the testimony of the brother and sister-in-law transcribed so that the court would not be hamstrung by relying on its notes. The court has reviewed the testimony of Scott Schiavo and Joan Schiavo and finds nothing contained therein to be unreliable. The court notes that neither of these witnesses appeared to have shaded his or her testimony or even attempt to exclude unfavorable comments or points regarding those discussions. They were not impeached on cross-examination. Argument is made as to why they waited so long to step forward but their explanations are worthy of belief.
The court also pointed to an expert witness who testified that the oral statements reported by Scott and Joan were consistent with statements of a person Terri's age:

The testimony of Ms. Beverly Tyler, Executive Director of Georgia Health Discoveries, clearly establishes that the expressions made by Terri Schiavo to these witnesses are those type of expressions made in those types of situations as would be expected by people in this country in that age group at that time. They (statements) reflect underlying values of independence, quality of life, not to be a burden and so forth. "Hooked to a machine" means they do not want life artificially extended when there is not hope of improvement.
Later in the decision, the court explained that Terri made different types of statements during her life, including statements where she spoke of what she would want for other people, and statements where she spoke of what she would want for herself. The court said:

There are some comments or statement[s] made by Terri Schiavo which the court does not feel are germane to this decision. The court does not feel that statements made by her at the age of 11 or 12 years truly reflect upon her intention regarding the situation at hand. Additionally, the court does not feel that her statements directed toward others and situations involving others would have the same weight as comments or statements regarding herself if personally placed in those same situations. Into the former category the court places statements regarding Karen Ann Quinlan and the infant child of the friend of Joan Schiavo. The court finds that those statements are more reflective of what Terri Schiavo would do in a similar situation for someone else.
Finally, Judge Greer's order discussed the testimony on which he ultimately relied. He said:

The court does find that Terri Schiavo did make statements which are creditable and reliable with regard to her intention given the situation at hand. Initially, there is no question that Terri Schiavo does not pose a burden financially to anyone and this would appear to be a safe assumption for the foreseeable future. However, the court notes that the term "burden" is not restricted solely to dollars and cents since one can also be a burden to others emotionally and physically. Statements which Terri Schiavo made which do support the relief sought by her surrogate (Petitioner/Guardian) include statements to him prompted by her grandmother being in intensive care that if she was ever a burden she would not want to live like that. Additionally, statements made to Michael Schiavo which were prompted by something on television regarding people on life support that she would not want [a] life like that also reflect her intention in this particular situation. Also the statements she made in the presence of Scott Schiavo at the funeral luncheon for his grandmother that "if I ever go like that just let me go. Don't leave me there. I don't want to be kept alive on a machine" and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise reflective of this intent. The court specifically finds that these statements are Terri Schiavo's oral declarations concerning her intention as to what she would want done under the present circumstances and the testimony regarding such oral declarations is reliable, is creditable and rises to the level of clear and convincing evidence to this court.
(emphasis added).

These findings show that Michael's testimony was not the clear and convincing evidence the court relied upon -- Michael's testimony was only part of that evidence. Two other witnesses who were not impeached gave what the court found to be specific, reliable, and creditable statements about her wishes. One of them was, as I understand it, Terri's best friend in the years before her collapse.

It is unfortunate, to say the least, that so many people -- particularly media figures -- who have publicly doubted the result of the trial do not appear even to have been aware of these other witnesses' testimony, let alone viewed it live or even reviewed it in transcripts.

I'll repeat now what I've said before regarding my own views. I did not attend the trial, and I do not know whether the trial judge reached the decision that Terri herself would have made. I hope he did, but I'm not willing to second-guess the result either way. We have trials to make decisions, and whether the factfinder is a judge or jury, the result is reached based on the evidence presented there.

I'll offer one final thought in this area. I remain befuddled that while hundreds of documents and other items concerning Terri and Michael have been replicated time and again across the Internet, prompting people around the world to second-guess the trial's result, the transcripts of the trial itself are not among the items in circulation. How can that be? Surely the parties have copies of the trial transcript. Shouldn't it be the one thing everyone should want to see before attempting to cast judgment on the propriety of the trial's result?



Monday, April 04, 2005

 
Schiavo News
Those who've followed this web log for a while know that I used to link various articles on the Schiavo case, especially local coverage. That pretty much stopped in the last month or two when the coverage became ubiquitous.

Well, yesterday's St. Pete Times included this noteworthy column by the last reporter to visit Terri. The visit came just after the January 2000 trial, and the piece's title -- "Before The Circus" -- is very well put.


 
Schiavo Thoughts: The Iyer Ire
While I'll no doubt mention things in short form, there is only one Schiavo-related topic left that I intend to address in a longer post. It's gone from being an issue I largely ignored to something I now believe deserves attention from the bar, the media, and the public.

It's the issue of post-trial evidence -- evidence that someone brings forward only after a trial is over for the purpose of asking for a new trial in whole or in part.

I bring this up because I probably received 80 emails in the last week asking why I haven't discussed the Carla Iyer affidavit.

For those who don't know, Carla Iyer was a nurse at a Largo nursing home from April 1995 until July 1996. Terri was there during that time. In a September 2003 affidavit, Iyer made numerous assertions. She claimed that she heard Michael say some rather terrible things about wanting Terri to die and that rehabilitation had been ordered for Terri but never done. Iyer said Terri was "alert and oriented" and "spoke on a regular basis in my presence." Iyer said she made numerous entries in Terri's chart regarding what Terri said and her behaviors, and about the things Michael said, but by the next shift, those notes were always deleted. Iyer said she saw Terri's blood sugar drop after Michael visited and that she suspected he'd been injecting her with insulin. Iyer stated the nurses were instructed not to talk to Terri's parents, "but I would call them, anyway," Iyer said, "because I thought they should know about their daughter." Iyer seemed to say she called the police because of statements Michael and a nurse made about Terri being worth more dead than alive, and that she was terminated the next day for making that call.

Selected portions of these allegations made their way onto almost every radio and television talk show that covered this saga. Apparently, many believe her statements were accurate and only a corrupt judge would ignore them, while others suppose the judge must have found her a few cards short of a deck and ignored her. Neither is true, and I've become concerned about how little the public seems to know about how the courts review evidence brought forth after a trial is over.

Start with this scenario in mind. Imagine a trial takes place. Both sides are free to present whatever evidence they wish, subject to the rules of evidence. One side wins, while the other loses. The losing side appeals and the appellate court finds no error in the trial proceedings. At this point, the losing side returns to the trial court and offers to present evidence it did not previously present.

Post-trial offers of "new evidence" are nothing new. The legal system has some rather well defined ways of dealing with such things. Keeping in mind that I'm oversimplifying to a degree, there are generally four requirements for obtaining a new trial based on evidence offered for the first time only after a trial is over:

- the evidence must be newly discovered - it must not be evidence that due diligennnnce could have uncovered in time for the trial,
- it must be brought to the court's attenttttion within one year after the judgment, and
- granting a new trial in whole or part muuuust be just.

That's from rule 1.540(b) of Florida's rules of civil procedure. In most cases, the second requirement is dispositive: trials are held only after extensive opportunities are given to discover evidence, and it is extremely difficult to show that, for instance, you had no way to learn of a particular witness's testimony in time for trial.

In 2001, the Second District concluded in this decision that, because of the nature of this case, a new trial could also be granted in part if it was shown that enforcement of the original decision was no longer equitable because new technology might offer Terri a reasonable hope of recovering some cognitive function. If she could do that, then she could make and communicate her own decision regarding her feeding tube.

So let's go back to the Iyer affidavit and see if it meets any of these tests.

Was her testimony newly discovered? Iyer herself said in her affidavit that she called the Schindlers to tell them what was happening with Terri, and so Iyer's own story is that the Schindlers knew about her information. So, no, Iyer's testimony was not newly discovered.

Could Iyer's testimony have been discovered through due diligence? Putting aside that Iyer says she told the Schindlers about these events at the time, nothing seems to suggest that the Schindlers could not have spoken with every nurse who cared for Terri over the years to learn what they had to say, especially the nurse who once called the police on Michael and was supposedly fired for it.

Was it brought to the court within a year? No. The trial was in 2000. The 2002 trial was just under a year before the affidavit's execution, but that trial concerned whether experts believed new medical science could restore Terri's function level. Iyer's affidavit didn't involve that subject.

Finally, was granting a new trial based on this evidence just? I'll leave that unanswered since the other factors are dispositive. It may well be that it is always just to reconsider decisions such as the one here, if new evidence explains why prior testing or evidence reached the wrong conclusion. It may also be worth noting, though, that the most critical issues in this case concerned Terri's previously stated wishes and whether she had any hope of recovering the ability to make and communicate her own decision, and Iyer's affidavit did not speak to either of those issues.

If you read Judge Greer's order that addressed the Iyer affidavit (and others), you'll see he discussed all of these concerns. You'll also see that the affidavit was not presented in an effort to obtain a new trial -- it was presented in an effort to justify giving Terri new therapy. The judge did note that Iyer's claims seemed fantastic and required a cover-up by a number of people, but that was not the reason a new trial or new therapies were not allowed. The motion failed because the legal standards for reopening the case were not met. That's not taking a side, or being biased or corrupt. It's just following the law as it applies to every case.



Thursday, April 07, 2005

 
Schiavo News: Memo Had Author
A bit of a maelstrom seems to have developed with the revelation of who authored the "talking points" congressional memo circulated in connection with Terri's Law II. Read about it in this story from today's Orlando Sentinel.


Friday, April 08, 2005

 
Friday Florida Law Trivia!
Late morning. I'm just turning my attention to the blog and, whaddaya know, it's Friday. Time for Friday Florida Law Trivia. At some point between the Schiavo case becoming all-consuming and our pal Hunter getting way too deep in some litigation, we lost track of the weekly trivia question.

Well, it's time to bring the weekly question back, although I'll do things a little different today. I'm going to post the question, then around midday I'm going to post a number of substantive posts and re-post the question along with a hint. Then, around 5 pm eastern, I'll post the correct answer.

This week's question is not confined to Florida law, and it concerns a concept that nonlawyers and even many lawyers continue to misunderstand: hearsay. (You may recall this post, where I did my best to explain why "hearsay" was properly admitted in the Schiavo case.)

Here's the question:

Something must be wrong with hearsay, since there's a rule in probably every state and in federal court saying hearsay is generally not admissible. But what exactly is wrong with it?

The answer is probably not what you think, and if that's the case, you'll enjoy and hopefully learn a bit by reading the answer later today.


 
More Trivia...
Well, the day wound up being too busy to get substantive posts up. I may as well just post the answer to the trivia question soon.

While I'm getting it ready, I'll mention the wrong answer I had in mind: contrary to popular belief, hearsay's not undesirable because the person may not have said what the witness says was said...


 
Friday Florida Law Trivia Answer (Schiavo Related)
Here's the answer to the question I posed this morning...

Hearsay. It's defined in popular culture as something you heard someone else say. The legal definition is a bit different, but let's stick with the popular definition for now.

Lots of people believe that what you heard someone else say isn't admissible in court. That's not true. In the federal court system and Florida's courts (and probably every other state's courts), there is a general rule prohibiting hearsay but dozens of rather broad exceptions to the rule.

The fact that there are exceptions to a rule barring hearsay suggests that some hearsay must be okay, while other hearsay is not. What's the difference? Before considering that, it helps to understand what the problem is with hearsay in the first place.

The common assumption seems to be that hearsay is unreliable -- and should be kept out of court -- because the witness might be lying about what someone else said. Let's put this in Michael/Terri terms. I've heard innumerable people say Michael Schiavo should never have been allowed to testify to what Terri told him because he may have been making it up.

That a witness might be lying about what someone else said is a valid concern, but it's no reason to keep such testimony out of court. After all, what's the difference between Michael testifying that he heard Terri say "don't let me live like that" and Michael testifying that he saw Terri run a red light, or that he saw Terri eat broccoli one night? Nothing, in the sense of Michael's truthfulness. Theoretically, a witness could lie about what someone did just as easily as about what someone said. So, no, we don't make a special case out of hearsay because the witness might not be telling the truth.

We make a special case out of hearsay because, even if the witness really heard the statement, the witness might not reliably convey what the original speaker really meant -- either by mistake or because the original speaker wasn't clear.

A well known example of the problem here can be found in the modern classic My Cousin Vinny. When the officer accuses Billy of shooting the convenience store clerk, Billy responds in disbelief, "I shot the clerk?" Later, when the officer takes the stand and is asked to repeat what Billy said when confronted with the charge, the officer testifies, "He said, 'I shot the clerk.'" Subtle difference, but a huge one. The officer got the words right but the meaning wrong. You'd want to talk to Billy to be sure you understood what he really meant.

So the trouble with hearsay isn't that the witness might not be telling the truth about what someone else said. The witness's truthfulness can be an issue no matter what the witness claims to have heard or seen or done. The trouble with hearsay is that without the "someone else" there to examine, it can be very difficult to determine the reliability of the witness's interpretation of the other person's words.

If you look at the exceptions to the hearsay rule -- and there are dozens -- you'll notice that lots of them concern situations where we can be fairly sure of what the speaker meant. I may discuss this in more detail at a later time.

The next time you hear someone say Michael shouldn't have been allowed to testify to what Terri told him, ask if the person is being critical of Michael's ability to convey what Terri really meant or if the person just doubts Michael told the truth. If the answer is that we can't be sure what Terri's words meant, then at least the person's in the ballpark with the problems of hearsay (though it was still admissible...). If the answer is that Michael may have been lying, then the person doesn't really understand hearsay in the first place.


Saturday, April 09, 2005

 
Unprecedented Redux
Perhaps you recall how some rather high level officials declared the removal of Terri's feeding tube to be without precedent. I could try to say something witty here, but I won't. The whole scenario is just too somber, whether or not this would be just the second time.

I note that the situation in the linked story involves a woman who memorialized her wishes in writing. That hasn't stopped the court battle. People who believe a living will eliminates all controversy are just kidding themselves, no matter what prime time hour they occupy on weeknights. As I explained here, making sure family and friends understand your wishes is no less important.



Tuesday, April 12, 2005

 
Abstract Mention
Some of you may have noticed that this story in today's Tallahassee Democrat mentions this web log and quotes me. It's an interesting story about how living wills are very helpful but do not preclude all litigation over a person's end-of-life wishes.

The story also contains a brief quote from a rather extensive April 1 post I authored regarding living wills. At the moment, that post hasn't yet fallen off the bottom of this page, so if you'd like to read that discussion on living wills, you can scroll down to April 1's posts and find it. Or you can jump directly to that post by clicking here.



Thursday, April 14, 2005

 
Schiavo Numbers
This story from today's St. Pete Times has some interesting data on the public's reaction to both the media's coverage of the Schiavo saga and politicians' intervention in the matter.

The most interesting part of the story to me is that 81 percent of those surveyed reported they have made their end-of-life wishes clear to their families.

Nineteen percent to go.



Friday, April 22, 2005
 
Email Note
To those who've emailed me in the last few days -- travel and workload have kept me from responding so far. I'll get back to you later today.

Oh, and there's a group of about 342 emails that I received one afteroon during the Schiavo saga to which I've still not responded -- yet. I managed to keep up before and after that group, but that set just hasn't been addressed. Responses may not be timely anymore, but I will get to each of them.


Tuesday, April 26, 2005
 
Suggestions Wanted
After taking a few weeks off from the saga, I've started to update the Schiavo materials on this site. You may have noticed some new links in the top left column.

For those still looking for reference materials, I've created a page of my 2005 Schiavo-related posts. More important for purposes of this post, I've started a new page that will contain links to some of my better Schiavo posts. It occurred to me that some sort of "popular posts" index might be helpful, but I'm not sure which ones to include. The posts on hearsay and clear and convincing evidence seem like good candidates, and I got a great deal of positive feedback for the "Judging Courage" post on Judge Greer. So that'll be listed, too. Anything else? Longtime readers, was anything I said years ago about Terri's Law or the earlier proceedings helpful?

Let me know. I'm going to compile that list and fix up that page tomorrow night. Then I can update the timeline and add a few posts regarding DCF, the Congressional subpoenas, and, finally, the autopsy.


Thursday, April 28, 2005
 
Schiavo Updates
Last night, I put together the list of links to my more "popular" Schiavo posts. The Pop Posts page is available here. Many thanks to those who gave suggestions on what to include.

Two additional Schiavo-related thoughts.

First, I should have the timeline on the InfoPage updated by tomorrow morning.

Second, for those of you who live in Tallahassee, I will be visiting your way tomorrow. The Capital Tiger Bay Club has asked me to be the guest speaker at tomorrow's meeting and discuss the Schiavo case. I can't imagine those folks will have any questions...


Monday, May 02, 2005
 
Abstract News
I received a kind welcome Friday when I spoke at the Capital Tiger Bay Club regarding the Schiavo case. I was a bit surprised to see the talk merit mention in this story in the St. Pete Times.

The story notes my suggestion for greater use of the Internet to provide public access to court materials in high-profile cases. I'll elaborate on that suggestion later this week.


Tuesday, May 03, 2005
 
Schiavo Trial Judge Honored
The Tampa Tribune reports here that the West Pasco Bar Association will be honoring Judge George Greer this week with its Special Justice Award.


Wednesday, May 04, 2005
 
My View: Accessing Judicial Records In High Profile Cases
Twice recently I made suggestions about increased public access to Florida court materials in very high profile cases. When the St. Pete Times covered my talk at the Capital Tiger Bay Club last week, the story included that suggestion. I'd like to take this opportunity to explain my thoughts in some detail.

At the outset, I emphasize that the Florida court system has done an incredible job of making materials available to the public. In the spirit of government in the sunshine, the Florida Supreme Court and the district courts of appeal make their final decisions freely available through the Internet. The supreme court has also created a "high profile cases" designation for cases that merit having all of their supreme court filings freely available on the Internet, and I know of at least one circuit court clerk -- Bob Inzer, Clerk of the Circuit Court in Leon County -- who has established a similar program for high profile trial court cases.

These are marvelous efforts by forward thinking persons and institutions that provide great resources to the public. The Florida courts have been national leaders in providing public access to court materials. In the end, all I am doing is suggesting a tweak to an already impressive system.

Part of my concern lies with the public's ability to use the currently available resources. Unfortunately, most of our citizens do not understand the structure of the court system. A case starts in one court, and then goes to another, and then back to the first, and then on to another. If you do not understand where the case has been, you will have a difficult time collecting information on it. Also, even if you know which courts have been involved in a case, locating that case's decisions in that court can be quite a challenge. Some courts post none of their decisions. Others post final decisions, but that is usually done in a chronological fashion, not by case. The process of identifying courts, then searching dockets to learn of decision dates, and then hunting down those decisions is, at best, cumbersome.

Another part of my concern lies with the information that is being made available. I am not addressing the issue of total Internet access for all court records -- that is a complicated concern currently being considered by the Florida Supreme Court. I am speaking of only the highest profile cases -- cases like Terri Schiavo's, where the public's interest is high enough, and the potential for scrutiny significant enough, that the independent judiciary's credibility as an institution is at stake. In such cases, public access to certain materials may be critical to assuring the public that an educated, informed, and thoroughly deliberative judiciary is processing the matter as the law requires. For such cases, final decisions of the appellate courts may well not be enough. Perhaps the public should also be able to see the documents that assert or defend the claims being brought, significant nonfinal orders by the trial court, publicly filed transcripts of important hearings or trials, briefs by the parties on appeal, and so on.

The Schiavo case serves as the best example I can find. From my efforts to provide resources for that case using my own web site, I learned how important access can be to the public. People wanted to read the trial court's decisions on Terri's wishes and her medical condition. They wanted to see the motions Terri's parents filed and the trial court's orders resolving those motions. They wanted access to the transcript where the three witnesses spoke of what Terri said. To the extent I could, I gathered those materials and presented them in one place on my own Internet site, and the positive feedback I received was rewarding, to say the least.

I understand that some persons will second guess nearly any decision, and certainly everyone will not be satisfied no matter how thorough a court explains why the law or the evidence gives rise to a certain result. But a great number of people who may not understand all of the legal or factual complexities a case presents nonetheless find comfort when they see that issues being discussed around the Internet or by the media have been raised with the courts and resolved after due consideration. In cases where public interest is very high, the judiciary should be able to provide at least that level of comfort.

With these things in mind, I have a simple suggestion: the Florida court system should consider creating a centralized Internet site where certain case materials from courts at any level will be available once a case generates a high level of mass public interest. Very few cases would meet such a standard, and someone would have to be given discretion to decide which ones do. Once a case is chosen, publicly available materials on the case from any Florida court could be selected, again with discretion, for easily accessed and well organized placement on this single Internet site. The people of Florida, and from elsewhere, could view these materials and see that the state judiciary as a whole has handled the matter with care, attention, and competence.

No one should expect to agree with or even understand every judicial decision, particularly where the law and facts involved are complex, and there is of course room for judgment in the business of judging. But people rightly expect those who serve as judicial officers to make their decisions based on knowledge of the law and careful deliberation of how it applies to a case's facts. Judicial independence is ultimately founded on such trust, and that independence will remain only so long as that trust continues.

The marvels of electronic communication have allowed criticism of the judiciary to spread widely and with incredible speed, with the merits of the impugnment being, in my view, inversely proportionate to the rate of dissemination. Ultimately, my suggestion is aimed at electronically empowering those who wish to know more about a high profile case to gain that knowledge from the most reliable source possible: the Florida judiciary.


Monday, May 09, 2005
 
Schiavo News: Autopsy Report Still In Works
Today's St. Pete Times has this update on the medical examiner's progress with the Terri Schiavo autopsy report.


Monday, May 16, 2005
 
Blogging News
Yesterday's Daytona Beach News-Journal featured this interesting editorial on the rising influence of blogs. I was happily surprised to see Abstract Appeal mentioned in connection with the Schiavo saga as an example of blogs' positive contributions:

Abstract Appeal, a legal blog run by St. Petersburg attorney Matt Conigliaro, won national attention for providing near-instant analysis of the legal fight to disconnect Schiavo from feeding tubes. It was a perspective that was too often missing from news stories that focused on the emotional appeals of Schiavo's warring family members.
I'm very much appreciative of the kind mention. I also appreciate the reader who alerted me to it.


Tuesday, May 24, 2005
 
Schiavo News
Today's Palm Beach Post has this story on some of some email exchanged by government officials during the most recent chapters of the Schiavo saga.

 
More Schiavo News
Corporate Counsel has this piece spotlighting the role of hospitals' in-house counsel in end-of-care decisions and the impact of the Schiavo case.


Monday, June 06, 2005
 
Schiavo News
This weekend, the St. Pete Times published this story on the last-minute abuse allegations made in the Schiavo case. It seems many of those "new" claims had previously been investigated and found to be without merit.


Monday, June 13, 2005
 
Schiavo Thoughts
I've been listening to the press conference held by the jurors in the Michael Jackson case and to the pundits talking about the verdict. The saddest comment I can make is that the most outrageous and unfounded commentary seems to be coming from television analysts who have legal backgrounds.

The most insightful comment I can make is based on the jurors' statements about the accuser's mother. The jurors were impressively circumspect in minding their comments about the case, but several of them did explain how they did not like the mother's body language, her finger-snapping, her pointing, her tone of voice, and her eye contact. The significance of these observations is that not a single one of them will be borne out by the trial transcript. I'm making this up for purposes of an example, but suppose the mother testified to how her son described an abusive incident to her at the same time the mother looked, sounded, or acted not credible -- the transcript will contain only the simple text of her words.

We saw something very similar with the jury in the Scott Peterson case. In their statements following the verdict, they chastised Peterson not for his words but for his body language throughout the trial. The jury found great meaning in how he held himself while seated at the defense table, how he looked, how he made facial expressions. None of those things will ever appear in a transcript.

I understand the very human tendency each of us has to believe we have the sensibility and intuition to hear a series of facts, or read a piece of testimony, and perceive who is right and who is wrong. People do it every day. It's somewhat of a survival mechanism in an impatient world. But in a legal setting, reliance on such instincts can be severely misplaced, which is why appellate courts do not attempt to reweigh decisions made concerning evidence. The appellate courts appreciate the unique perspective of the persons who actually viewed the presentation of evidence in the trial court.

I point all of this out as a way of harkening back to the saga of Terri Schiavo and the discord over the trial judge's original decision regarding Terri's wishes. If I've heard one person suggest that Michael's brother and sister-in-law should not have been believed merely because of their relationship to Michael, I've heard hundreds of people say it. Yet whether their testimony was credible is something that can only be judged by the persons who were in the courtroom and saw their testimony. That was true in the Schiavo case, and we've just seen proof of how true it was in the Jackson case.


Tuesday, June 14, 2005
 
Schiavo News
Are the autopsy results to be released tomorrow? Perhaps, according to this story at News4Jax.com.


Wednesday, June 15, 2005
 
Schiavo News
Like many, I'll be waiting for this morning's release of the autopsy report. I'll post it as soon as I get a copy. Please feel free to send it if you get it....

Meanwhile, today's St. Pete Times has this prelude to the report's release.

 
Schiavo News
You can find a copy of Terri Schiavo's autopsy report here. To the extent I can, I'll try to offer some insights on the legal implications of the report later today.

Thursday, June 16, 2005
 
Schiavo Thoughts: The Autopsy Report
The release of the Sixth Circuit medical examiner's report on Terri Schiavo's autopsy answered many questions. It also left some significant questions unanswered, and it offered one surprise. After taking some time to examine the report closely, here are my thoughts.

1. Persistent Vegetative State. In the second trial regarding Terri's medical condition, medical doctors offered by Michael, an independent specialist appointed by the court, and the trial court itself found that Terri was in a persistent vegetative state with no reasonable hope of recovery. Evidence to the contrary was rejected as not credible. The medical examiner's report explains that whether someone is in a persistent vegetative state is a clinical diagnosis that his office cannot evaluate after her death. However, the report does offer findings that are relevant to the PVS diagnosis.

a. The medical examiner from the Tenth Circuit served as a consultant neuropathologist. He found that Terri's brain was very much atrophied. It weighed half of what a normal brain would weigh and approximately 75% of what Karen Ann Quinlan's brain weighed at her death. Karen Ann Quinlan spent 10 years in a persistent vegetative state.

b. The surprise I mentioned at the start of this post concerns Terri's vision. The consultant neurologist's report finds the tissue volume loss in Terri's brain to have been worst in the bilateral occipital lobes, and the Sixth Circuit medical examiner concluded Terri suffered from cortical blindness. If I understand this correctly, she was not blind in the sense her eyes could not see, but the portion of her brain that would receive information from her retinas did not exist. I'll leave it to the physicians out there to say for sure, but it would seem that these results support the court's finding that any eye tracking Terri performed was at best reflexive and not the product of conscious thought. Her eyes could perceive light, but the portion of her brain that would process those perceptions did not exist.

2. Ability To Recover. I don't read the report as directly addressing whether Terri had the ability to recover, but in the press conference given by the medical examiner with the report's release, the medical examiner succinctly said that Terri could not recover. The damage to her brain was extensive and irreparable. This supports the trial court's decision that there was no reasonable medical probability that Terri's condition could improve to the point where she might change her mind about withdrawing the feeding tube.

3. Trauma. Of the high profile issues in the Schiavo saga, the one addressed with the greatest certainty seems to be the trauma issue. The report finds the evidence inconsistent with the notion physical trauma caused Terri's collapse or had been inflicted at the time of the collapse. The report relies on medical examinations conducted at the time, as well as observations of Terri's body at her death. The examiner's conclusion was not based on a mere lack of evidence of trauma but on evidence that was affirmatively inconsistent with trauma.

These findings provide a medical complement to what we have already seen from both the court system and law enforcement. Those who have suspected or accused Michael of abusing Terri and causing her collapse would seem to be without support.

4. Ability To Eat. The trial court concluded that Terri could not be fed orally. The medical examiner's report agreed, concluding that Terri was dependent on her feeding tube, and had she been fed sufficient food to sustain her, she certainly would have aspirated it. Without naming anyone, the report mentions caregivers' claims they had fed Terri orally at times, saying such feedings were "potentially harmful or, at least, extremely dangerous" to Terri.

5. Cause Of Collapse. A sizeable portion of the medical examiner's report is appropriately devoted to what may have caused Terri's collapse. The medical examiner rejected bulimia because the best evidence to support that theory -- very low potassium levels observed after her collapse -- could have been explained by the treatment she received to revive her. The medical examiner also rejected strangling and physical abuse, as discussed above, and found no evidence of cardiac anomalies.

People have already written me to ask whether these findings undermine the results of the 1992 malpractice trial. Recall that Michael brought malpractice claims against Terri's physicians. Terri had been trying to become pregnant, but her monthly cycles had stopped, and supposedly proper tests by those treating her could have brought the bulimic situation to light and avoided her collapse. One doctor settled and another went to trial. A jury agreed with Michael's theory and awarded damages, finding Terri partly responsible, and the case then settled for a lesser amount while it was on appeal.

I do not think the medical examiner's conclusion that insufficient evidence supports a finding of bulimia undermines the trial's result. The medical examiner did not rule out that Terri's dieting habits, such as taking pills with caffeine or drinking substantial amounts of iced tea, could have caused or contributed to her collapse. He found that the evidence that would prove or disprove such a finding had not been collected or maintained, but in the malpractice trial apparently there was little or no challenge that Terri collapsed due to her dieting habits and a low potassium level. The jury agreed Terri's dieting habits caused her collapse based on the evidence and arguments presented.


In the end, the official cause of Terri's collapse remains undetermined. It might be emphasized, though, that the cause of her collapse was not directly at issue in the litigation over whether she would want her feeding tube removed and whether some treatment might help her substantially improve to the point where she would not want the tube removed. Concerns about the cause of her collapse were injected into the feeding tube litigation in 2002 -- twelve years after the fact and after two trials on her wishes and her condition -- through claims that Michael attacked Terri and provoked the collapse. Those claims were intended to discredit Michael and cast a criminal pall over the situation, which to an extent is what happened. But one of the medical examiner's strongest findings was that the evidence is inconsistent with the notion anyone caused her collapse by beating or strangling her.

When everything is said, the medical examiner's report substantiates that the court system did its job well in handling Terri's case.


Friday, June 17, 2005
 
Schiavo News: Timeline Trouble?
Michael Schiavo has recently said that he woke from the thud of Terri collapsing at 4:30 am and that he got up, examined her, and called 911. He said as much in an October 2003 interview on Larry King Live, and he apparently said it very recently to the medical examiner. Emergency services records indicate, though, that Michael called 911 at 5:40 am, not 4:40 am.

That's the story behind the Governor's new effort to investigate Michael Schiavo, an effort discussed in this article in today's St. Pete Times.

I suppose this all harkens back to the "Michael did it" theory, which continues to grow more strange. Did Michael wait 70 minutes to call? Or, over thirteen years later, did he mix up 4:30 and 5:30?

I expect we'll soon be hearing about who testified to what during the earlier trials and in deposition. I also expect we'll hear more about whether Terri could have lived if she collapsed at 4:30 am, since paramedics did not arrive until 5:52 am. The Times has already consulted one expert who says no.


Tuesday, June 21, 2005
 
Schiavo News
Terri's ashes were buried yesterday at a cemetery in Clearwater, the St. Pete Times reports here. The plaque covering the site reads:

SCHIAVO
THERESA MARIE
BELOVED WIFE

BORN DECEMBER 3, 1963
DEPARTED THIS EARTH
FEBRUARY 25, 1990
AT PEACE MARCH 31, 2005

[image of a dove]

I KEPT MY PROMISE

The Times has a picture and further details.


Wednesday, June 22, 2005
 
Schiavo News
Today's St. Pete Times has the latest here.


Friday, July 08, 2005
 
Schiavo News: No Proof of Criminal Activity -- Case Closed
Today's St. Pete Times has a round-up of what may mark the conclusion of the Terri Schiavo saga. Or at least the part involving state officials.

Here you can find a reprint of an internal memo from State Attorney Bernie McCabe's office that extensively discusses, from a law enforcement perspective, why various theories of Terri's collapse are either inconsistent with known facts or pure speculation. This is the most thorough treatment of its kind that I have seen. Ultimately, the memo concludes that no proof of criminal activity exists.

No doubt this memo will spark some interesting discussions.

You can also read Bernie McCabe's recent letter to the Governor regarding the inquiry. The State Attorney agrees with his investigator's conclusions as expressed in the memo linked above and informs the Governor that discrepancies in Michael Schiavo's recollection about what time he discovered Terri collapsed on the floor "are not indicative of criminal activity and thus not material to any potential investigation."

Here you can read the Governor's letter in response. The Governor expresses his thanks for the State Attorney's work and explains that the state's inquiry will be closed.

Finally, the Times has a story summing it all up here.


Thursday, August 11, 2005
 
Schiavo News
It's been a while, huh? Well, today's St. Pete Times has this story about Michael's investigation of a potential medical malpractice claim against some of Terri's care givers. Interesting.


Thursday, September 22, 2005
 
Schiavo News: DCF Rejection Affirmed
It's been a while since I posted anything regarding the Terri Schiavo saga. At some point, I should update the information on this site. I'll get there.

Meanwhile, I can comment a bit on this opinion, which will likely be the final judicial opinion directly concerning Terri Schiavo. In short, the Second District explained why it affirmed Judge Greer's order preventing the Department of Children and Families from taking Terri into protective custody to reinsert her feeding tube and investigate last-minute "abuse" allegations.

DCF is the state agency charged with protecting children, the disabled, and other vulnerable Floridians. Recall that in Terri's final weeks, DCF attempted to intervene in Terri's case. The agency claimed it had received numerous tips or complaints that Terri had been abused by Michael and that it needed to protect Terri while investigating the abuse allegations.

Judge Greer denied DCF's requests to intervene, and DCF immediately appealed that ruling to the Second District. After expedited briefing, the appellate court issued a brief order affirming Judge Greer's decision and explaining that a written opinion would follow.

The latest opinion is the court's explanation for its decision.

The court essentially reached two conclusions. First, the court determined that compliance with a lawfully entered guardianship court order regarding Terri cannot constitute neglect or abuse. So, to the extent Michael was allegedly abusing Terri by complying with Judge Greer's directives, Michael was not neglecting or abusing Terri.

Second, to the extent other "abuse" was at issue and DCF claimed it needed to take Terri into custody to investigate those claims, the court ruled that DCF never provided any reasonable explanation for why it supposedly needed Terri alive to conduct that investigation. Therefore, Judge Greer properly rejected DCF's intervention efforts.

Sunday, October 09, 2005

 
Schiavo News: Judicial Speech
Tampa's chapter of the Federalist Society held its fall luncheon this past Thursday, and its guest speaker was Florida Supreme Court Justice Raoul Cantero. His topic, as you can see from this promotional piece, was "Is Judicial Activism A Concept In Need Of Restraint?: Lessons From The Schiavo Case."

The title is somewhat a play on concepts, with judicial activism and judicial restraint lying at opposite ends of one philosophical spectrum. After discussing both, Justice Cantero proceeded to criticize the critics who declared the court decisions in the Terri Schiavo case to be the work of activist judges. From Judge Greer's initial weighing of the evidence on Terri's condition and her wishes, to the appellate courts' review of the trial and post-trial proceedings, to the federal courts' application of traditional principles governing injunctive relief, Justice Cantero explained that the state and federal judiciary exercised restraint, not activism.

In a particularly interesting observation, Justice Cantero remarked that Judge Greer's decision regarding Terri's medical status was more empowering to doctors than to the judiciary. No doubt that is true: judges and juries charged with making factual determinations do not set out on an independent quest for the truth; rather, they passively observe the evidence brought to them and then favor the side that presented its case with more credibility and persuasion.

Justice Cantero also observed that, to whatever extent persons criticize the legal principles applied in the Schiavo case, their comments are best summed as a critique of Florida's statutory scheme for handling cases like Terri's. The route to altering that scheme lies not through the judiciary (or at least not a restrained judiciary) but through the legislature.

Justice Cantero's speech was well delivered and well received. He avoided making judgments about the Schiavo case or even whether judicial activism is an inherently proper or improper approach to judicial decisionmaking. He focused narrowly on whether the term "judicial activism" can be saved from the fate of mere epithet and how, if it can, it has no application to the events in Terri's case.

An interesting post-script to the speech came during the question-and-answer session that followed. An attorney for Terri's family who said she heard Terri try to say "I want to live" -- Barbara Weller, I believe -- commented that, in her view, the case suffered not from too much but too little activism. She wished the judiciary had intervened more to prevent the removal of Terri's feeding tube.

That speaks volumes.




 
Discussions On Abstract Appeal Are (At Best) Academic and Are Not Legal Advice. Consult an Attorney in Your Jurisdiction if You Require Legal Advice.
 
 

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