Appeals court ruling favors Terri Schiavo's parents

Boston Glob ^ | 1/13/04 | staff

[CFW]

Appeals court ruling favors Terri Schiavo's parents

The Associated Press Published on: 02/13/04

TAMPA, Fla. -- Gov. Jeb Bush and the parents of a severely brain-damaged woman won two appellate court victories Friday in their quest to keep her alive against her husband's wishes.

The 2nd District Court of Appeal ruled that Bush's attorneys will be allowed to question witnesses in the court battle over a law that gave the governor authority to reinsert Terri Schiavo's feeding tube after her husband had it removed in October.

The appeals court also ruled that Pinellas Circuit Court Judge W. Douglas Baird did not follow judicial rules when he denied her parents, Robert and Mary Schindler, the ability to intervene in the constitutional challenge to the law.

The appeals court ordered Baird to hold further proceedings on the issue.

Schiavo's husband, Michael, has been battling the Schindlers in court for years to remove Terri's feeding tube so she can die. He says she would not have wanted to be kept alive artificially.

The Schindlers doubt their 40-year-old daughter, who lives in a Clearwater nursing home, had any such end-of-life wishes and believe her condition could improve with therapy. Their daughter has been in a persistent vegetative state for more than 13 years after collapsing from a chemical imbalance.

[ClintonBeGone]

Great News FL! You're a hero for Terry and for all of us who read these updates.

[FR_addict]

I emailed Greta and told her how much I enjoyed the show. I received this note back.

i would like to go to florida and interview her parents..greta

Anyone here know the Schindler's? We need to make sure Greta follows through and interviews them for her show.

[redgolum]

GREAT NEWS! I will keep the family and Terri in my prayers.

[T'wit]

>> You're referring to attorney Deborah Bushnell

Do you know that independently? I'm confused. For some reason, I thought it was a person who barely shows up in the billings, whereas I would surely have recognized Bushnell's name.

>> She looks like a member of Hitler's army from Nazi Germany.

"The B*tch of Buchenwald" wasn't so far off, eh? :-) The power of law does that to evil people.

[Theodore R.]

No, I saw a news report that Gephardt did want the feeding tube removed. Gephardt used the case as a way to attack Jeb Bush while he was in FL. What did you see otherwise?

[mickie]

WOW......not one but two wins in a day!

God Bless You Terri.....hang in there, help is on the way.

[Theodore R.]

The only thing that might restrain the corrupt FL judiciary is the FEAR that the legislature and the governor might move against the judicial branch and strip it of much of its power and prestige. It is POWER and PRESTIGE that such "judges" covet. Such rascals want the "last word" on everything, for they consider themselves infallible.

[TaxRelief]

Greta used to work for Court TV, maybe she has connections.

[Theodore R.]

Judges in FL who have worked long and hard to murder Terri Schiavo remind one of the broken-down old English politicians sent over in the 18th century to serve as "colonial governors" on the Atlantic seaboard. Their main motivation was POWER. The British sent them to the colonies to get them out of London.

[stanz]

Thank you!

[LibKill]

Good. I favor life.

[T'wit]

One is struck by the cruelty shown to Terri. They take away her greeting cards and religious medallions. They won't let her sit up -- the first step in therapy, and one that makes the patient feel better. They wouldn't let her take communion in her last rites while they were killing her. They won't let her go outside to be in the sunshine. They won't allow any therapy to improve her condition. This is inhuman. It's sadistic. That's why I thought of Ilse Koch... Text and photo below from a holocaust site:

"Ilse Koch, the Bitch of Buchenwald

"The sadistic wife of SS Karl Koch, Commandant of Buchenwald, she accompanied her husband to his work in 1939. A powerful woman, she struck fear into the prisoners daily. She was fond of riding her horse around the camp, brutally whipping any prisoner who attracted her attention. A riding hall was especially constructed for her at the camp, costing a quarter million marks and the lives of many prisoners.

"Ilse Koch was an infamous person in the camp. She would specially select prisoners with distinctive tattoos on her rides around the camp. These prisoners would be killed and their skin tanned and stored for later use by the SS guards. Frau Koch would then have the skin made into lampshades and other household articles."

[syriacus]

Thanks for the ping to this good news, FL_engineer.

[phenn]

"I don't think that legislatures and governors ought to be inserting themselves in these questions," Gephardt told reporters at the convention. "I think the court has a made a ruling in this case and it's a matter that courts ought to decide."

[tutstar]

You know? From what we've learned about Felos believing he has tremendous mental powers. I think that he says what he wants to happen believing that saying it will make it come to pass. I also think that he is confident that his 'reputation' and his 'power' will cause the media to follow his spin and not Terri's side. I think he truly believes that he is going to convince everyone that Terri and anyone in a situation similar to hers should die. The Hemlock society is all about death. They have packaged it in a deceptive manner. I mean how else could you explain some of the things that have happened?

[Theodore R.]

So, then, Gephardt favored death for Terri. Or otherwise, the cagy St. Louis liberal would have said that the legislature and governor had a proper role to protect the innocent.

[phenn]

Pretty much. I think the only candidate that took a positive stance was Joe Leiberman. He said that the Governor acted properly and that lawmakers should honor someone's life.

[Future Useless Eater]

Greta scheduled Terri's news this Friday as her LEADOFF story!

---

From FoxNews Channel Feb 13,2004 - On the Record with Greta


Greta: Tonight, there's been a victory for Florida Governor Jeb Bush and the parents of a Florida woman whose husband is fighting to remove her feeding tube. Terri Schiavo's case has polarized the nation.

Greta: Lawyers for both Governor Bush and Terri's husband will join us in a moment. But first, let's get the details from reporter Sharon Parker of WFLA radio in Tampa Florida. Sharon, exactly what did the court rule today?

Parker: Well the 2nd District Court of Appeal in Lakeland Florida essentially opened the door for Terri Schiavo's parents to not only become involved in the constitutionality question surrounding Terri's law, but more importantly, possibly opening the door for Governor Jeb Bush and his attorneys to depose Michael Schiavo, Terri's husband, his fiancee, several caregivers associated with Terri, and relatives of Michael Schiavo. So this is a pretty significant development, I would say in this case.

Greta: Sharon, were people surprised by that decision, that Governor Bush and Terri Schiavo's family WON this decision today, so that they can depose witnesses?

Parker: I think that there WAS quite a bit of surprise. Michael Schiavo's attorney saying that he found it unfortunate that the 2nd DCA would issue this type of ruling. I believe that even Ken Connor, who represents Governor Bush, was a bit surprised too.

Parker: There was a feeling throughout, that Judge Douglas Baird, the trial judge in this case, had essentially determined that Terri's law, the law that allowed the reinsertion of Terri Schiavo's feeding tube, was unconstitutional. He was prepared to issue a ruling but he was going to wait until the 2nd DCA resolved some of these pending matters.

                    [this post will be repeated a 2nd time in larger type upon request]

Greta: Where IS Terri now?

Parker: As I understand it, Terri was moved from her hospice, here a couple of months ago, because they were remodeling the hospice. She was moved to a nearby facility, and I'm not quite sure, right at this point, if she's BACK at the hospice? But she remains in the Tampa Bay area, on her feeding tube. She remains alive, as she has been, since October, when Terri's law went into effect.

Greta: There's an awful lot who talk about this case all around the country. I assume, is there a lot of interest in your area Sharon?

Parker: Oh, a TREMENDOUS amount of interest. And over the past several years, many, many people supporting Terri's right to life. But also, a lot of people supporting her right to die. Her right to make the decision to... protect her own end of life wishes. It's generated such an emotionally charged issue that has just gone on for SO many years. And it's generated now of course, a lot of NATIONAL interest as well.

Greta: Sharon, thank you. Let's bring in the attorneys on the case. Joining us by phone from Florida, is Michael Schiavo's attorney George Felos, and in Tampa, an attorney for Governor Jeb Bush, Nicole Kerr.

Greta: George, since the decision went against YOUR client today, what's the plan? Or what's your thought about today's decision?

Felos: Well Greta, I'd like to clarify it a bit. The Court of Appeal did NOT say that the Governor is entitled to take depositions or discovery, and the court did not rule that the Schindlers MUST become part of the legal action. What the court said, is that the trial judge's orders were insufficient, because the trial judge didn't explain the legal basis and rationale of his decisions. And basically, they sent it back to the trial judge, and where we're going to have the trial judge revisit those issues, and we hope the trial judge will issue the same protective order he did before, but this time explain it to the appellate court's satisfaction.

Greta: Is this the kind of situation George, where it can simply go back to the lower court judge because he didn't WRITE the decision right? And it could simply go RIGHT back up to the Court of Appeals without ANY other evidence being taken?

Felos: I think that's probably what IS going to happen. In fact, the appellate court said, when we review, ahh... if the lower court enters another protective order, ummm, they specifically instructed the trial judge to list his findings of fact, and conclusions of law. So, I see this more as a procedural decision, and unfortunately it's going to delay the case, another few months.

Greta: Nicole, you represent Governor Bush. Is THAT the way you interpret today's ruling?

Kerr: (with a big grin) No it's NOT Greta. We think this is a TREMENDOUS victory for Terri Schiavo, AND for the State of Florida. The Governor is VERY pleased with this decision. That this case basically says that we're ENTITLED to take depositions, we're entitled to discovery, just like ANY other litigant.

Kerr: And we think that's very important, that the GOVERNOR of the State of Florida is entitled to the EXACT same due process rights as ANY other litigant. So you can count on the fact that we're going to move with great haste to take depositions in this case.

Greta: Alright, so who Nicole, are you going to depose? Give me your list of witnesses who you want to put under OATH, in a deposition?

Kerr: Well, we have seven. We'd certainly like to take the deposition of Michael Schiavo. We have a number of questions that we'd like to ask HIM, including questions as to WHY he didn't raise in the malpractice case below, this notion that Terri had NO desire to live.

Kerr: In the malpractice case below, that was never brought up. In fact, he said he took his marriage vows quite SERIOUSLY, that he was with her until death do us part. The jury there, awarded a tremendous verdict, over a MILLION dollars for her rehabilitation. And it was ONLY after that money was in the bank, that he suddenly recalled that she would NOT want to live on feeding tubes. We'd like to depose, umm-

Greta: OK, Let me just stop you one sec, I know that I asked you for the laundry list, But let me just get for one sec, I apologize, get George in here... George, what's your response to that?

Felos: My response to that is the trial court, and the appellate courts have looked at all that evidence. Michael Schiavo, at the malpractice trial believed, as the Schindlers did then, that Terri COULD recover. Every doctor has said... All of Terri's doctors since then have said that she cannot. And the fact is, all of this information is irrelevant to the question of whether the law is constitutional. It's irrelevant to the question of separation of powers. It's irrelevant to the question of whether the legislature and Governor can override a specific judicial decision. And we're hopeful, that judge Baird will again enter a protective order, and specifically give his reasoning to the appellate court, and that will be sustained.

Greta: Alright Nicole, who else, who's next on the list of people your client, Governor Bush, would like to hear from?

Kerr: We'd also like to depose Michael Schiavo's fiancee. This is a woman he's been living with SINCE his brain-damaged wife has been in the hospice care. He's fathered at least ONE child with this woman, maybe another. And all of these witnesses go to the question of WHAT are Terri's WISHES?

Greta: What do you want to ask her?

Kerr: Well the question in this case is, What would Terri want NOW? Her circumstances changed tremendously from way back when, and those are the sorts of questions we'd like to find out. The other people we'd like to depose include Michael Schiavo's family members... there are health care providers we'd like to talk to, So there are a number of witnesses that WE think would be important.

Greta: Nicole, does the fiancee KNOW Terri prior to her... the state that she's in now?

Kerr: Well that's one of the questions that we'd like to find out. We've been denied ALL discovery in this case. We have written discovery that has yet to have be responded to. We have been attempting to take depositions... protective orders have been sought. The Governor's hands have been TIED in this case, and that's why we think this decision by the 2nd District Court of Appeal is so important. It recognizes that he HAS the same rights of discovery as ANY other party.

Greta: Alright, so one last... Go ahead George.

Felos: This is a case where this poor woman, is being force fed against her will. The Governor has violated her constitutional rights, so has the legislature, and I think that it is beyond irony to be talking about the Governor's rights in a case where somebody's end of life wishes have been trampled upon.

Greta: Nicole, George, thank you both very much. I appreciate both of you joining us.

---

[Transcripted for education and discussion purposes only, not guaranteed to be 100% accurate. ]

---

= = = = = = = = = == = = = = = = = = = = = = = = = = = = = =
Recent interviews/excerpts:
= = = = = = = = = == = = = = = = = = = = = = = = = = = = = =
"Hannity and Colmes" - Tuesday 10-14-03 --> (Terri's father) Bob Schindler: "MONEY and FOUL PLAY"

"On the Record with Greta" - Friday 10-24-03 --> Forensic Pathologist, Dr. Michael Baden: "Potassium imbalance UNLIKELY - HEALTHY heart - NECK TRAUMA"

"At Large with Geraldo Rivera" Sunday 10-26-03 --> author Christopher Darden and Harvard Law Professor Alan Dershowitz: "You have eternity to be dead; You only have a limited amount of time to live"

"Hannity and Colmes" - Monday 10-27-03 --> (father) Bob Schindler and (neurologist) Dr. William Hammesfahr: "She absolutely CAN be rehabilitated -clearly NEVER had heart attack -Emergency room: damaged neck"

"On the Record with Greta" - Monday 10-27-03 --> (attorney) Pat Anderson: "BIG FIGHT -attempted STRANGULATION"

"On the Record with Greta" - Tuesday 10-28-03 --> (attorney) Pat Anderson and (brother) Bobby Schindler: "failing marriage -DIVORCE imminent -Potassium explained":

"Hardball with with Chris Matthews" - Wednesday 10-29-03 --> (pro-Terri attorney for ACLJ) Jay Sekulow and (anti-Terri attorney) Joe Tacopina: "Matthews: I think the human issue here is... her eyes flickering... I think she's ALIVE":

"Larry King Live" - Monday 10-27-03 --> (husband) Michael Schiavo[barf alert]: THEY get money from the right wing ACTIVISTS - "Removing somebody's feeding is very painless. It is a very easy way to die" - [later] King: Would you take one[lie detector test]? - No

"The Abrams Report" - Monday 11-03-03 --> (Commentary) almost entirely pro-husband

"O'Reilly Factor" - Wednesday 11-05-03 --> (former "Vegetative State" patient) Kate Adamson: Being starved to death is EXTREMELY painful "It was SHEER torture!" - took her THREE MONTHS of ACUTE REHAB to snap out
Her website says: We stand behind Terri Schindler!

"The Abrams Report" - Thursday 11-06-03 --> (pro-Terri attorney) Pat Anderson and (pro-death attorney) George Felos: "Felos: Michael is a MODEL husband" - Anderson:"Terri got NO REHAB after $award$":

"On the Record with Greta" - Thursday 11-06-03 --> (Gov.Bush's lead attorney) Ken Connor, and followed by a panel discussion:
"Connor: INDEPENDENTLY investigate the circumstances and allegations...
Alred: Perhaps the PARENTS SHOULD care for her

"Radio Interview" --> (Michael Schiavo's so-called 1st girlfriend after Terri's so-called 'collapse')
MS: "[Terri] upsets my WHOLE LIFE with this, and this is ALL her fault."
GIRLFRIEND: "he can be the most INCREDIBLY MEAN person!"

"CBS News Sunday Morning" - Sunday 11-09-03 -->
( Lead-off feature story for this Sunday morning news magazine )

"Hannity and Colmes" - Monday 11-17-03 --> (Terri's parents) Mary and Bob Schindler:
( "ACQUIRED CEREBRAL PALSY" ... "she's been literally in PRISON for FOUR years" )

"On the Record with Greta" - Friday 01-09-04 --> (Gov.Bush's lead attorney) Ken Connor, and (husband's attorney) George Felos:
Connor: "We'll GO to the Florida Supreme Court, and if the Governor isn't afforded an opportunity to try this case before a JURY, we'll try to go to the U.S. Supreme Court".

"On the Record with Greta" - Wednesday 01-21-04 --> (Gov.Bush's lead attorney) Ken Connor, and (husband's attorney) George Felos:
Connor: "...mister Schiavo and mister Felos are TERRIFIED of trying this case before a JURY. ... NO reasonable jury ... would EVER accept this proposition.".

"On the Record with Greta" - Friday 02-13-04 --> (Gov.Bush's lead attorney) Nicole Kerr, (husband's attorney) George Felos, and (WFLA reporter) Sharon Parker:
Kerr: "We think this is a TREMENDOUS victory for Terri Schiavo... this case basically says that we're ENTITLED to take depositions, we're entitled to discovery...".

[JOHN W K]

“I can't stand listening to Felos either. He's sick to the depths of his soul and seems to revel in his own evil.”

Felos continually whines about the “separation of power” between the judicial branch of government and legislature with regard to Terri‘s Law, but he conveniently forgets the separation of powers and duties between judge and jury and that Judge Greer unconstitutionally assumed the duties of a jury and arbitrarily decided what Terri wants.

In Sparf v. United States, 156 U.S. 51, 106, (1895) Justice Harland wrote:

“The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.”

The ultimate decision in this case will very likely be decided, if pressed, in the SCOTUS via the Fourteenth Amendment and the blatant depravation of Terri’s right to due process of law, in that she has not received her guaranteed right to the protection of a jury in a case in which her life and liberty may be determined by the authority of the state.

Judge Green had no authority to act as judge and jury and determine the facts in Terri’s case as related to what she allegedly wants without her knowing and willing consent to waive the protection of a jury in determining such facts.

I know there are many who pretend Florida’s Constitution does not guarantee an individual [translation meaning Terri] the protection of a jury in determining the facts in a case in which their life and liberty is at stake, but as they shall soon learn, this right is a fundamental right, in every state in our union, and cannot be waived without one’s knowing and willing consent, especially in a case in which their life and/or liberty is to be determined by the authority of the state. Terri has never knowingly and willingly waived the protection of a jury.

The right to the protection of a jury is part of America’s due process of law:

In 1794, in the first jury trial held before the U.S. Supreme Court, John Jay, the first Chief Justice instructed jurors thusly: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still both objects are within your power of decision. The jury has a right to judge both the law as well as the fact in controversy."

And, Justice Byron White wrote in Taylor v. Louisiana, 419 US 522 , 530 (1975

"The purpose of a jury is to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the over-zealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge."

-- JWK

American Constitutional Research Service

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."___Thomas Jefferson put it a letter to Tom Paine in 1789

[Future Useless Eater]

the newest Terri Schiavo transcript here, (Post 178) from Greta's show Friday...

"On the Record with Greta" - Friday 02-13-04 --> (Gov.Bush's lead attorney) Nicole Kerr, (husband's attorney) George Felos, and (WFLA reporter) Sharon Parker:
Kerr: "We think this is a TREMENDOUS victory for Terri Schiavo... this case basically says that we're ENTITLED to take depositions, we're entitled to discovery...".