Replies

This is an editorial in the Palm Beach Post. Below it is
the response I sent them.

Tuesday, November 25
Bush too late on Schiavo
www.palmbeachpost.com/opinion/content/auto/epaper/editions/tuesday/opinion_f32ce84801f302130020.html

Palm Beach Post Editorial
Tuesday, November 25, 2003

In the case of Terri Schiavo, Gov. Bush continues to put the
state where it does not belong and continues to show that
his intervention is more about politics than Ms. Schiavo's welfare.

Three years ago, after seven years of legal dispute and
extensive testimony, a Pinellas County judge ruled that the
best evidence supports Michael Schiavo's claim that his wife
did not want to be kept alive if she became brain-damaged
beyond the reach of any therapy. Doctors have determined
that Ms. Schiavo, who had no living will, is in a persistent
vegetative state. Just weeks ago, a final court ruling allowed
removal of a feeding tube.

Then the Legislature passed an exception to the state's
death and dying law, the governor signed an executive order,
and the tube was reinserted. Mr. Schiavo challenged the
action as unconstitutional. Last week, Gov. Bush's attorney,
Ken Connor, asked the court to take up the case again,
before a jury. The governor also wants a new judge.

He should lose on both counts. Mr. Connor argues that the
governor deserves to be heard because, well, he wasn't three
years ago. At the time, though, the case hadn't drawn
nationwide attention from the social conservatives who make
up the Republican base. If the Legislature and governor had
wanted to violate separation of powers earlier, they had a
chance. Gov. Bush also is peeved because Pinellas County
Circuit Judge Douglas Baird, who is hearing the appeal
of "Terri's Law," has ruled once for Mr. Schiavo. In fact,
judges may issue several rulings in the course of a case.

Gov. Bush claims that the priority is Ms. Schiavo, not politics.
If so, why did he retain Mr. Connor, who until recently led the
Family Research Council? It is a national advocacy group that
opposes abortion and same-sex marriage. Why does Gov.
Bush want to drag out the case, not resolve it? Why does Mr.
Connor argue that state intervention into a personal decision
increases Ms. Schiavo's privacy?

A report in The St. Petersburg Times suggested that Terri
Schiavo's parents, Mary and Bob Schindler, split with their
son-in-law because they wanted $10,000 from the $300,000
that went to him from the malpractice award in their
daughter's case. (Another $700,000 has gone to her care.)
Terri Schiavo's non-life and exploitation linger on.

This is the letter I sent them. It is doubtful
that they will publish it. If they do, I will
revise my opinion of their low calibre
reportage.

Dear Editor,

Your 11-25 editorial “Bush too late on Schiavo”
contains precipitous jumps of logic, misrepresentations
and a general deficit in grasping the issues.

With one such leap, you conclude that Governor
Bush’s intervention is unwarranted and politically
motivated. Your premise is that “seven years
of extensive testimony” led Judge Greer to rule
that Ms Schiavo “did not want to be kept alive if
she became brain-damaged beyond the reach of any
therapy.” A rudimentary investigation by you would
have discovered medical expert statements that
Ms Schiavo is an “excellent candidate” for a
number of delineated therapies. More fastidious
homework efforts would have alerted you to
serious flaws in your premise.

The “seven years of testimony” knew of no wish
of Ms Schiavo’s. The memory of such a wish was
not resurrected in Mr. Schiavo until 1998. What
he finally did recall, was that “sometime in the
mid-1980s” Ms Schiavo had casually commented after
a hospital type TV episode that she would not
want to be kept alive by “anything artificial”.
Apart from evidentiary standards that cannot
endow anecdotal material of this sort with the
force of a living will, the term “anything artificial”
must be interpreted in the conceptual context
of understanding that prevailed during the
“mid-1980s”.

Feeding tubes were not artificial life support
until a 1990 Florida Statute amendment made them
such. During the time of Ms Schiavo’s purported
statement, discontinuing life support meant
turning off a ventilator. Then, and for five
more years, removing a feeding tube to effect
death would have been a felony offense.

Unless one is prepared to attribute remarkable
clairvoyance to Ms Schiavo, she could have no
more envisioned the procedure of death by tube
removal than a Nineteenth Century person could
have referred to air travel when discussing
journeys.

Your “best evidence” paraphrase falls short of
Judge Greer’s finding Mr. Schiavo’s anecdote
“clear and convincing evidence”. It was scant
and the only evidence, remembered thirteen years
after the fact, but not during the malpractice
jury trial six years earlier. Judge Greer’s
retroactive attribution of a feeding tube removal
to Terri’s expressed intent when the concept did
not exist is creative but not sound jurisprudence.

Your thinking Ms Schiavo’s feeding tube removal
prudent is another leap of logic. This time your
premise is that “Doctors have determined that Ms.
Schiavo… is in a persistent vegetative state.”
You omit that other doctors determined differently.
Two neurologists hired by Mr. Schiavo diagnosed
PVS, as was expected of them. Two hired by the
Schindler family predictably dissented. Judge
Greer appointed a fifth expert as independent
tiebreaker, whose opinion made a final 3:2 in
favor of PVS. On the strength of this, Judge
Greer ordered the tube removed.

The court-appointed physician Dr. Peter Bambakidis
lacked qualification for providing an impartial
review of the medical evidence. Mr. Schiavo’s
attorney George Felos had breached protocol by
failing to disclose his relationship with Dr.
Bambakidis, with whose brother Gust he shared
membership in the Greek fraternal organization
AHEPA. This conflict of interest by attorney
Felos calls for disqualifying Dr. Bambakidis as
independent expert witness. The resulting 2:2
medical opinion is insufficient to support
removal of the feeding tube.

Florida Statutes pertaining to the rights of
elderly and disabled persons entitled Ms Schiavo
to counsel and access to the court. She was
wrongly deprived of her rights by the dismissal
of her guardian ad litem at the insistence of
attorney Felos.

Even a liberal assessment makes it clear that
due process failed. Because of these and numerous
other irregularities the proceedings did not meet
the standards of jurisprudence delineated in
Florida Statutes. It is for this reason that
a public outcry prompted the Florida Legislature
to intervene on behalf of Ms Schiavo.

The passage of Terri’s law empowered Governor
Bush to issue an executive order. While Terri’s
Law may eventually be found unconstitutional,
this is not a given departure point for your
conclusion that the Governor “should lose on
both counts”. Taking “up the case again, before
a jury” with “a new judge” does not depend on
defending the constitutionality of Terri’s Law,
but on the need to rectify the miscarriage of
justice that necessitated Terri’s Law as an
eleventh hour measure preventing the
victim’s death.

Your further arguments against Governor Bush’s
involvement have no bearing on the legal issues.
His choice of attorney may not meet your approval,
but is his prerogative. Your question “why does
Mr. Connor argue that state intervention into a
personal decision increases Ms. Schiavo's privacy"
has a simple answer. Since her rights were
violated and due process was denied, the nature
of Ms Schiavo’s private wishes was not discerned
by the court. Her privacy is therefore safeguarded
and supported by the Governor’s intervention.

You quote a “report” in The St. Petersburg Times
that the Schindler’s “split with their son-in-law
because they wanted $10,000 from the $300,000 that
went to him from the malpractice award in their
daughter's case.” I refer you to the letter by
Robert S. Schindler to Michael Schiavo from July
16, 1993, the full text of which is in the record.
Mr. Schindler reminded his son in law of commitments
to use award money to “enhance Terri’s medical and
neurological care.” This was in line with Mr.
Schiavo’s testimony, on the basis of which the
jury awarded the money, with the provision that
$700,000 was to be put in trust for Ms Schiavo.

Your quoting of the St. Petersburg Times fantasy
that “(Another $700,000 has gone to her care.)”,
does not exonerate you. It is a matter of record
that none of the $700,000 went to Terri’s care.
Mr. Schiavos paid $550,000 of it to attorney
Felos for assistance in seeking Ms Schiavo’s
death. Another $90,000 went to attorney Barbara
Bushnell for related services. The remaining
$60,000 of Ms Schiavo’s trust fund are still
in Mr. Schiavo’s possession.

If you want to, you can send them your own comment:
www.palmbeachpost.com/opinion/content/info/mail.html