Just got off the phone with Byrds assistant. Seems that Byrd is in favor of such a bill "to save the life of this poor woman" and would support such a bill "because time is running out"... but did not mention such bill in the senate meaning today. He also said "just because it wasnt mentioned today does not mean that it wont be mentioned, we are in senate meetings all week this week, the next one starting tomorrow at 3pm".... I reminded him that Terri hasnt eaten or drank since wednesday at 8 am. To which he replied he understood, and Rep Byrd understands the urgency of the situation.
Doesnt seem as if it was more urgent than airport money and big movie talk in the session today.
I honestly am ashamed of my state right now.
Mee too. Just needed something to diffuse my rage, if only for a moment.
"How long was he supposed to wait. It's been 13 years...."
If he wanted to go on with life with another woman, he could've simply divorced Terri many years ago and given custody of her to her parents. He obviously wants more than to simply move on. What that something is seems to have multiple possibilities, none of which include Terri living.
Maybe I'm in a minority in this country (probably) but I can't imagine shacking up with another guy as long as my husband were still alive. I'm not even sure I would remarry at all because I can't imagine finding anyone that I could trust on the same level I trust him.
It's too bad Terri didn't end up with such a trustworthy husband.
Yes, I think you are in a minority. I think most of us, here, are. That's perhaps the most frightening thing about all of this episode of depravity.
"Oh, of course, Kobe Bryant's fate is so much more important than Terri's fate... NOT!!!"
Well, personally I think his fate is important since he faces life in prison BUT it's not something they should waste the entire radio show on. It deserves some air time but not ALL air time. It definitely doesn't even deserve the majority of the air time.
I have to step away from the computer for a while, but found this to be insightful to see what was filed last year by the Schindlers.
There is no way that I can format it right now, though, and I apologize for that.
This is the html version of the file
http://www.flcourts.org/pubinfo/summaries/briefs/01/01-2678/Filed_03-01-2002_JurisAnswerBrief.pdf. G o o g l e automatically generates html versions of documents as we crawl the web.
To link to or bookmark this page, use the following url:
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IN THE FLORIDA SUPREME COURTCASE NO. SC01-2678In re Guardianship ofTheresa Marie Schiavo,Incapacitated.//Michael Schiavo, as Guardian of the Person of Theresa Marie Schiavo,Petition from the Second DistrictPetitioner,Court of AppealCase No. 2D01-3626v.Robert Schindler and Mary Schindler,Respondents.//RESPONDENTS JURISDICTIONAL BRIEFPatricia Fields Anderson, Esq.Florida Bar No. 352871PATRICIA FIELDS ANDERSON, P.A.447 Third Avenue NorthSuite 405St. Petersburg, FL 33701727 / 895-6505Attorney for Robert and Mary Schindler
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-i-TABLE OF CONTENTSPageTABLE OF AUTHORITIESi thru iiARGUMENT1 - 101.Summary of Argument1 - 32.Argument3 - 10Rule 1.540(b)(2) “Newly Discovered Evidence”31.540(b) Discovery7Burden of Proof7 Intrinsic Fraud8 Quality of Life8 3.Conclusion104.CertificatesxTABLE OF AUTHORITIESCONSTITUTIONAL PROVISIONSFla. Const., Art. 1, § 2..................................................................................8CASESIn re Schiavo, 780 So.2d 176, 179 (Fla. 2d DCA 2001) ...............................9
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-ii-In re Schiavo, 792 So.2d 591 (Fla. 2d DCA 2001) .......................................7In re Schiavo, 800 So.2d 640, 643 n.5. .........................................................8Krischer v. McIver, 697 So.2d 97, 100 (Fla. 1997) ......................................8Paul v. Paul, So.2d , 2002 WL 236966, *2(Fla. 3d DCA, Feb. 20, 2002)(1.540 motion). ...........................................6Seal v. Brown, 801 So.2d 993 (Fla. 1stDCA 2001)(per curiam).....................7(citing Southern Bell Tel. and Tel. Co. v. Welden, 483 So.2d 487 (Fla. 1stDCA 1986)).STATUTESFla. Stat. § 765.305(2) .................................................................................4Fla. Stat. § 765.305(2) .................................................................................6, 9Fla. Stat. § 765.305(2)(a) .............................................................................9RULESFla. R. Civ. P.1.540(b)(2) ............................................................................3Fla. R. Civ. P. 1.540(b)(5) ...........................................................................
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1/ Msr. Malanowski’s affidavit was before the trial court and the SecondDistrict. Mrs. Schindler, Terri’s mother, testified at trial.-1-8OTHER AUTHORITIES“Persistent Vegetative State and the Decision to Withdraw or Withhold LifeSupport,”263(3) JAMA 426-430 (Jan 19, 1990) .......................................... 6“International Working Party Report on the Vegetative State,”www.comarecovery.org/pvs.htm, (1996) .....................................................6SUMMARY OF ARGUMENTThis is Michael Schiavo’s last chance to effect his wife’s death, beforephysicians of the parents’ choosing examine her. Once that happens – as it hasnever happened since she fell ill in 1990 – Terri Schiavo’s true condition will revealthat she is not a candidate for death under Florida’s statutes. This Court should bear in mind that Terri Schiavo is not on a ventilator,merely a feeding tube. She is not brain dead. She is responsive – at a minimum –to her mother and to Monsignor Thaddeus Malanowski, a retired brigadier generalwho has been a priest for 54 years and who began visiting Terri on a weekly basisin October, 2000, after the trial in this case.1/ Monsignor Malanowski confirmsthat Terri is especially attentive to her mother.
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2/ If this were a death penalty case, the parents would be urging an ineffectiveassistance of counsel claim upon this Court. 3/ The medical doctors who submitted affidavits represent a broad cross-section of American medical education. They either attended or taught, or both, at-2-The present posture of the case stems from several facts. First, one ofSchiavo’s expert medical witnesses at trial in January, 2000, testified that TerriSchiavo’s brain had almost completely disappeared. Second, trial counsel for theparents presented no countervailing expert medical witness who could have pointedout that human beings cannot live without a brain, that Terri’s brain is clearly visibleon the lone, 1996 CT scan of her head from which the witness had testified, andthat rendering a diagnosis of persistent vegetative state – which is tantamount to adeath sentence in Florida – without conducting current tests is professionallyirresponsible.2/ Finally, the Second District in its January, 2001 opinion affirmedthe trial court and, perhaps moved by the vivid testimony that Terri is without abrain, overlooked some of the key elements of a carefully-crafted statutory schemedevised by the Legislature to protect persons in Terri’s situation. The net result isthat no one – not a guardian ad litem as the statute requires nor the trial judgewhom the Second District “appointed” her guardian after the fact – spoke for Terriat the trial.However, now that seven reputable physicians3/ have come forward
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the medical schools of the following institutions: University of Alabama, MedicalCollege of South Carolina, University of Florida, University of the Pacific,University of Virginia, Baylor University, Johns Hopkins University, TulaneUniversity, Louisiana State University, Northwestern University, and MedicalCollege of Virginia. In addition, one osteopath and one neuropsychologistsubmitted affidavits, who received training at the College of Osteopathic Medicineat the University for Health Sciences in Kansas City, and Yeshiva University,Boston University and Harvard University, respectively.-3-voluntarily and submitted affidavits questioning whether Terri is in a persistentvegetative state, the Second District has weighed the equities and has permitted theparents to try to prove that fact in an evidentiary hearing conducted by the trialcourt. This Court should not stop this hearing nor permit Terri Schiavo to die thegruesome death of dehydration and starvation.ARGUMENTRule 1.540(b)(2) “Newly Discovered Evidence” Schiavo’s argumenthere rests on the faulty premise that newly discovered evidence is a categorymutually exclusive of evidence that shows it is “no longer equitable that thejudgment or decree should have prospective application.” The illogical nature ofthis analysis is starkly demonstrated by the record in this case. In support of this central premise, Schiavo offers the Court a tautology: TerriSchiavo is now in a persistent vegetative state because she was found to be in apersistent vegetative state at the time of trial two years ago. He makes this assertion
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-4-in the face of no current medical testing or examination; he simply points out thatuntil the parents can prove her current condition is different from January, 2000,they are not entitled to the opportunity to prove it. This circular reasoning islegalistic in the extreme and completely ignores the equitable nature of the parents’position and, also, ignores the reality that Schiavo has veto power over who caneven visit Terri, much less examine her. Schiavo simply does not permit and hasnot permitted any physician except those of his choosing to examine her. He keepsher medically sequestered. The essence of this argument demonstrates anuncommon insensitivity to fundamental notions of due process, where his expertshave unfettered access to her and the parents’ experts have been denied access.As a matter of state and federal constitutional law, Terri Schiavo has a rightto live. This is the “default position” in deciding these kinds of cases. TheLegislature has devised a detailed and comprehensive method of analyzing andresolving the issues in a case such as this. On several key points, the trial courtignored those statutory protections. See Chapters 744 and 765, generally, of theFlorida Statutes.In the absence of a written living will, Terri Schiavo’s life can be terminatedonly under certain narrow conditions. Those conditions are set forth in Fla. Stat.§765.305(2): there is no “reasonable medical probability of recovering capacity”
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-5-and the “patient has an end-stage condition, the patient is in a persistent vegetativestate, or the patient’s physical condition is terminal.” (Emphasis supplied). Theparents contend here, as they contended below, that none of these conditionsapplies to Terri Schiavo. If none of these conditions applies to her, regardless ofher wishes in the matter, Terri may not be put to death without running afoul ofFlorida law. If her death is not imminent, if she is not in a persistent vegetativestate, or if she is not suffering from a terminal illness or injury – in short, if she ismerely a disabled adult – the withdrawal of food and hydration from her is eitherassisted suicide (if one believes she wants to die, as does the trial court) or murder(if one believes she wants to live). Both are unlawful, and neither is acceptable. Thus, her current condition is of crucial importance.The death order of the trial court was entered two years ago. The parentshave now raised a claim that she does not presently fit the statutory requirements tohave her feeding tube withdrawn. This claim is based on the opinions of the sevenphysicians who filed affidavits in support of the parents’ position. For whateverreason, the Second District focused on only one of the physician affidavits, that ofDr. Fred Webber, but the other affidavits are equally persuasive. There is noreason to impugn the integrity of these physicians, as Schiavo repeatedly has done,nor any reason to suspect their motives. The presence of these affidavits in the file,
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4/ The history and misuse of this diagnostic label is discussed in “PersistentVegetative State and the Decision to Withdraw or Withhold Life Support,” 263(3)JAMA 426-430 ( Jan 19, 1990). See also “International Working Party Report onthe Vegetative State” (1996), published privately by the Royal Hospital for Neuro-disability and available on the Internet at www.comarecovery.org/pvs.htm.-6-standing alone, is a sufficiently alarming red flag to warrant further judicialinvestigation, which is all the Second District has done in its latest opinion inordering the limited discovery and evidentiary hearing.Schiavo, however, argues that Dr. Webber’s statements are not relevantbecause he does not purport to have successfully treated patients in a persistentvegetative state.4/ This argument begs the question. Furthermore, regardless of hercondition at the time of trial when the original death order was entered, it is hercurrent medical condition that matters, for she cannot be put to death if she doesnot meet the statutory criteria set out in Fla. Stat. § 765.305(2). Dr. Webber andthe other physicians, as clinicians, are not so much interested in the diagnostic labelas they are the individual’s symptoms and potentialities, regardless of label, as isreadily discernible from their statements. The fact, also, is that counsel for the parents did not present any medicalexpert to rebut Dr. James Barnhill’s testimony that Terri’s brain is gone. If thiswere an ordinary contract dispute, for example, it would be far easier to leave theparents where the Court finds them. However, a life is at stake, and there are at
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-7-least seven physicians who believe strongly enough to have submitted swornstatements that Terri Schiavo is not in a persistent vegetative state. Under theseunusual facts, the Court should not “visit upon the client the sins of counsel.” Paulv. Paul, So.2d , 2002 WL 236966, *2 (Fla. 3d DCA, Feb. 20, 2002)(1.540motion).1.540(b) Discovery Schiavo argues in his jurisdiction brief that the SecondDistrict has permitted discovery on “medical claims that did not raise colorableentitlement to relief.” Juris. Br. at 8. He does not specify to which “medicalclaims” he refers, but from the context it appears he is attacking the entire notion ofinquiry into her current medical condition. If that, indeed, is his contention,Schiavo should have taken an appeal to this Court from the second opinion issuedby the Second District last July, In re Schiavo, 792 So.2d 591 (Fla. 2d DCA 2001),which he did not do. It was in that opinion the Second District remanded the caseto the trial court in order to give the parents the opportunity to file a motionpursuant to Rule 1.540, an idea in keeping with the purpose of the rule and theequities of this circumstance. “A full evidentiary hearing should have been grantedto enable the trial court to determine whether, under the entire circumstances, the
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-8-motion to vacate should have been granted based on any misrepresentation orfraudulent conduct of Appellees, who were parties to the transaction at issue.” Seal v. Brown, 801 So.2d 993 (Fla. 1stDCA 2001)(per curiam)( citing SouthernBell Tel. and Tel. Co. v. Welden, 483 So.2d 487 (Fla. 1stDCA 1986)).Burden of Proof Schiavo argues the Second District erred in ruling that theparents had to prove their claims in any evidentiary hearing by a preponderance ofthe evidence instead of by clear and convincing evidence. However, if, as thisCourt said in Krischer v. McIver, 697 So.2d 97, 100 (Fla. 1997), life is the“default position” in Florida, it would seem contrary to that principle to require anylitigant to meet the higher burden of proof to save someone’s life. This seemsespecially true, given Florida’s express. constitutional protection for the right to“enjoy and defend life.” Fla. Const., Art. 1, § 2, Intrinsic Fraud For some reason, Schiavo takes issue with a footnote inthe most recent Second District opinion that in no way has any impact on hisposition. That footnote reads in full: “We assume without deciding that suchallegation could be sufficient to obtain relief under rule 1.540(b)(5).” In re Schiavo,800 So.2d 640, 643 n.5. The allegations to which the Second District refersconcern the parents second basis for relief under Rule 1.540: the statements oftwo of Schiavo’s former ladyfriends, whom he was dating in the early 1990's,
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-9-around the time of the medical malpractice trial. Those statements were before thetrial court, appended to the Rule 1.540 motion, which rejected them. That rulingwas affirmed by the Second District. Having prevailed on the point, Schiavoinexplicably now invites this Court to resolve the perceived “dicta conflict,” andcites a 1982 case overruled by this Court in the following year. in invitation whichseems at least a waste of judicial resources and at most an advisory opinion.Quality of Life Concern with Terri Schiavo’s cognitive functioning is not aqualify of life concern of the Second District, as Schiavo contends. The SecondDistrict is focused, instead, on the dictates of § 765.305(2). If Terri has cognitivefunctioning – that is, if she regains some capacity, she might be able to express,herself, her wish to live or die. Furthermore, to the extent that therapy results inincreased cognition, she may be said to have regained sufficient capacity to take herout of the reach of § 765.305(2)(a). This focus of the Second District on thestatutes’ requirements is newly-minted, however.The Second District previously had ruled that the trial judge functioned asTerri’s guardian, surely one of the most inventive departures from statutory dictatesever seen in Florida law. See In re Schiavo, 780 So.2d 176, 179 (Fla. 2d DCA
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5/If the trial court was supposed to function as Terri’s guardian during thetrial – thereby obviating the necessity to appoint a guardian ad litem, according tothe Second District’s reasoning – the judge / guardian did a singularly poor job, notcalling or cross-examining any witnesses on her behalf nor making any objectionsnor offering any documentary evidence. Obviously, no person can serve as bothimpartial arbiter and zealous advocate in an adversary proceeding, and this flaw inthe Second District’s very first opinion in large measure has caused the proceduralmorass of today.-10-2001)(“In this context, the trial court essentially serves as the ward's guardian”).5/Had a guardian ad litem been appointed for Terri, the trial court would have heardboth sides of the story of Terri’s medical condition and not just the unrebutted,preposterous testimony that her skull is filled with spinal fluid. The only real qualifyof life issue in this case is Schiavo’s apparent belief today (contrary to his sworntestimony in prior years) that Terri’s life is not worth living because she is“broken,” and so she must die.CONCLUSIONSchiavo’s laments about “interminable legal proceeding” ring hollow, whenhe himself fights so ferociously to prevent Terri’s current medical condition frombeing examined in an even-handed manner. What does he have to fear from twodoctors chosen by the parents examining her? Would not ordinary decency militatein favor of being as certain as possible that the law’s requirements have been met,before taking an innocent life? In this case of first impression – and possibly
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xsingular application – the equities of these facts compel the conclusion that theSecond District, albeit belatedly, has done the right thing in permitting a thoroughand fair hearing about Terri Schiavo’s current medical condition and the possibilitythat new therapies can help her. This Court can hardly overlook the irony that the person who pleaded with a Pinellas County jury back in 1992 to award the moneyhis wife would need for life-long rehabilitative care is the very same person whostands before this Court today, asking to end her life, having used the very moneyawarded by that jury in the effort to kill her. Is it Terri’s wishes on the matter thathave changed over the years, or Mr. Schiavo’s?Respectfully submitted,Patricia Fields AndersonAttorney for Robert and Mary SchindlerCERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing has been furnished by U.S. Mailthis Day of February, 2002, to GEORGE J. FELOS, ESQ., Felos &Felos, 595 Main Street, Dunedin, FL 34698; DEBORAH A. BUSHNELL, ESQ.,204 Scotland Street, Dunedin, FL 24698; LARRY CROW, ESQ., 1247 S. PinellasAvenue, Tarpon Springs, FL 34689.
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xPATRICIA F. ANDERSON, ESQ.Fla. Bar No. 352871/SPN 00239201PATRICIA FIELDS ANDERSON, P.A.447 Third Avenue North, Suite 405St. Petersburg, FL 33701727 / 895-6505727 / 898-4903 telefaxCERTIFICATE OF COMPLIANCEI hereby certify that this brief is in Times New Roman typeface, 14 points,and is otherwise in compliance with Fla. R. App. P. 9.210.Patricia Fields Anderson, Esq.Attorney for Robert and Mary Schindler
WHY is it that I'm getting the distinct impression that these lawmakers would just as soon let Terri DIE before it comes before the house or senate in FL??? You know, like running the clock out in football.
Can we say "PASSING THE BUCK" boys and girls?
WHERE IN HELL IS JEB???
"Senator Byrd fully understands the urgency of the situation, and just because the bill was not mentioned today doesn't mean that it won't be mentioned tomorrow, or maybe the next day, or perhaps in a few days, or maybe even sometime in the next legislative calendar. There are meetings scheduled all week this week, and into the next few weeks and months, so the Senator is right on top of this urgent situation, and he really, really wants to help this poor woman who is dying by the minute. He understands the gravity of this situation, and as I said before, there are many meetings scheduled throughout the year, and I'm sure that he will stand up and speak at one of them. The Senator appreciates your concern, and he is doing all he can to help."
WHY is it that I'm getting the distinct impression that these lawmakers would just as soon let Terri DIE before it comes before the house or senate in FL??? You know, like running the clock out in football.
Can we say "PASSING THE BUCK" boys and girls?
WHERE IN HELL IS JEB???
Boy do I agree w/your sentiments above.
I am so disgusted right now I could just spit. Those b*stards are diddling away while she is suffering unspeakably and being murdered.
as funny as this story is NOT.. that is exactly what I was thinking when he was talking to me... maybe next year............
>>"Senator Byrd fully understands the urgency of the situation<<.... and YADA YADA YADA YADA"
correction: "Speaker" Byrd.
AND WHY DIDN'T HE INTRODUCE THIS BILL???
IS THIS TRUE???
I read on another thread somewhere where he was extremely concerned for Terri's life, and was all set to introduce this bill TODAY!!
WHAT GIVES??
If anybody knows what's going on, tell us.
if Rush was here now he would be talking this thing till he was blue in the face!!!!
You don't know how many times over the last week I have wished Rush was on the air. I do believe he would have done his level best to save this woman. I might be wrong, because she has had relatively few folks from either side of the isle stand up for her; however, I think Rush would have.
You're right Sinkspur.
And sadly, it looks like all our efforts have hit a brick wall. I give up UNLESS I read an official statement from Jeb or Boyd. That means a link. (Back outside now.... sunshine seems to help keep me from crying so much.)
AND BTW, FNC IS DRIVING ME CRAZY WITH KOBE KOBE KOBE!!!
(Hmmmm. Maybe I'm just CRAZY already??)
From Bay News 9(FL)... (According to this, Terri may only have a few days left)... this is just too sad.
Bob and Mary Schindler's fight to save their daughter moves to TallahasseeMonday, October 20th
It's been five days since Terri's feeding tube was removed. There is no doubt that time is running short for Bob and Mary Schindler, the parents of Terri Schiavo.
It’s been five days since the feeding tube was removed from the 39-year-old Pinellas County woman, who has been in what some doctors call a persistent vegetative state for the past 13 years.
The Schindlers say their daughter could die at any time now, so they are making a last ditch effort to keep Terri alive. They are receiving some assistance from the Speaker of the Florida House of Representatives, Johnnie Byrd.
According to the Schindlers, Byrd is expected to introduce ‘Terri’s Bill’ on Monday when the state Legislature gathers for another special session in Tallahassee.
The Schindlers say Byrd will introduce Terri's Bill sometime today. The bill would immediately put a moratorium on all dehydration and starvation cases currently pending in Florida. The proposed legislation could be the last hope for the Schindlers and their many supporters who continue to hold a round-the-clock vigil outside Terri’s hospice in Pinellas Park.
Terri’s husband Michael Schiavo, who has consistently won in his court battles with the Schindlers, the bill is just another delay. He insists that his wife would have wanted to die with dignity.
Doctors say the process of dying has begun and Terri may only have a few days left.
In order for the Legislature to consider Byrd’s proposal, the House must get a two-thirds vote to discuss the issue.
Michael Schiavo has stayed out of the public's eye.
As for Terri, her mother and brother visited her over the weekend and say that she is not as responsive as she usually is. The effect of not having any nutrition fed into her system is obviously taking its toll.
Michael Schiavo is refusing to comment on his wife’s condition.