Posted on 03/22/2005 9:19:02 PM PST by ambrose
Lawyer: Schiavo Ruling Expected Soon
By JILL BARTON Tuesday, March 22, 2005
TAMPA, Fla. - Warning that Terri Schiavo was "fading quickly" and might die at any moment, her parents begged a federal appeals court Tuesday to order the severely brain-damaged woman's feeding tube reinserted.
The appeals court didn't indicate when it might rule, but George Felos, the attorney for Terri's husband, Michael Schiavo, told the Associated Press that he expected a decision before daybreak Wednesday.
An attorney for parents Bob and Mary Schindler said in a court filing that the 41-year-old woman might die before they could get a chance to fully argue their case that her rights are being violated. The appeal came after a federal judge in Tampa rejected the parents' emergency request.
"Where, as here, death is imminent, it is hard to imagine more critical and exigent circumstances," lawyer David Gibbs III said in the appeal filed electronically with the 11th U.S. Circuit Court of Appeals in Atlanta. "Terri is fading quickly and her parents reasonably fear that her death is imminent."
Even before the parents' appeal was filed, Michael Schiavo urged the 11th Circuit not to grant an emergency request to restore nutrition.
"That would be a horrific intrusion upon Mrs. Schiavo's personal liberty," Felos said in the filing. He filed a response to the Schindlers' appeal and said he would go to the U.S. Supreme Court if the tube were ordered reconnected.
The Schindlers have been locked for years in a battle with Schiavo's husband over whether her feeding tube should be disconnected. State courts have sided with Michael Schiavo, who insists his wife told him she would never want to be kept alive artificially.
Late in the afternoon, the Schindlers arrived at the hospice, and Terri's mother again pleaded with state lawmakers to save her daughter's life.
"Please, senators, for the love of God, I'm begging you, don't let my daughter die of thirst," Mary Schindler said.
With that, she broke down and was escorted away.
In court documents, the couple said their daughter began "a significant decline" late Monday. Her eyes were sunken and dark, and her lips and face were dry.
"While she still made eye contact with me when I spoke to her, she was becoming increasingly lethargic," Bob Schindler said in the papers. "Terri no longer attempted to verbalize back to me when I spoke to her."
The feeding tube was disconnected on Friday. Doctors have said Terri Schiavo could survive one to two weeks without water and nutrients.
Louise Cleary, a spokeswoman at Woodside Hospice, said she could not discuss Terri Schiavo's condition for reasons of privacy.
Over the weekend, Republicans in Congress pushed through unprecedented emergency legislation aimed at prolonging Schiavo's life by allowing the case to be reviewed by federal courts.
However, early Tuesday, U.S. District Judge James Whittemore of Tampa rejected the parents' emergency request under that legislation to have the tube reconnected, saying they had not established that they would probably prevail at a trial on their claim that Terri Schiavo's religious and due process rights have been violated.
Bobby Schindler, her brother, said his family was crushed.
"To have to see my parents go through this is absolutely barbaric," he said on ABC's "Good Morning America." "I'd love for these judges to sit in a room and see this happening as well."
By mid-afternoon, about 75 protesters gathered outside the hospice, virtually all of them upset with Whittemore's decision. They carried signs and shouted through bullhorns, and a Catholic Mass was celebrated. One woman was arrested for trespassing after trying to bring Schiavo a cup of water.
Among those supporting the federal judge's decision was Richard Avant, who lives down the street from the hospice and carried a sign reading "Honor her wishes."
"We represent the silent majority, if you look at the polls," Avant said. "We agree that Congress overstepped their bounds."
The Bush administration "would have preferred a different ruling" from the federal judge, White House press secretary Scott McClellan said in Albuquerque, N.M., where the president was visiting a senior center. "We hope that they would be able to have relief through the appeals process."
The Justice Department also filed a court statement, saying an injunction was "plainly warranted" to carry out the wishes of Congress to provide federal court jurisdiction over the case.
Unless the feeding tube is reinserted, the department said, Schiavo may die before the courts can resolve her family's claims. "No comparable harm will be caused" by letting Schiavo live while the case is reviewed, the filing said.
At the same time, Howard Simon, executive director of the American Civil Liberties Union of Florida, praised the ruling. "What this judge did is protect the freedom of people to make their own end-of-life decisions without the intrusion of politicians," he said.
Terri Schiavo suffered brain damage in 1990 when her heart stopped briefly from a chemical imbalance believed to have been brought on by an eating disorder. Court-appointed doctors say she is in a persistent vegetative state with no hope of recovery.
Her parents argue that she could get better and that she would never have wanted to be cut off from food and water.
Wednesday, March 23, 2005 Posted: 3:28 AM EST (0828 GMT)
CNN.com
http://www.cnn.com/2005/LAW/03/23/schiavo/index.html
Appeals panel won't order Schiavo fed.
Parents had sought to restore feeding tube after lower court setback.
ATLANTA, Georgia (CNN) -- A three-judge panel of the 11th U.S. Circuit Court of Appeals early Wednesday declined to order the reinsertion of Terri Schiavo's feeding tube.
The vote was 2 to 1.
The brain-damaged woman's parents, Bob and Mary Schindler, had filed with the appeals court Tuesday, after U.S. District Court Judge James Whittemore in Tampa, Florida, decided not to grant a temporary restraining order that would allow reinstatement of the tube.
The tube has provided the 41-year-old woman with water and nutrients since 1990.
After the appeals court ruling, a lawyer for the Schindlers said they would appeal, The Associated Press reported.
"The Schindlers will be filing an appropriate appeal to save their daughter's life," Rex Sparklin, an attorney with the law firm representing the parents, told the AP.
In issuing their majority opinion, 11th Circuit Judges Ed Carnes and Frank Hull said:
"We agree that the plaintiffs have failed to demonstrate a substantial case on the merits of any of their claims. We also conclude that the district court's carefully thought out decision to deny temporary relief in these circumstances is not an abuse of discretion."
Judge Charles Wilson, who said he "strongly dissented" from the majority opinion, said refusing the parents' appeal "frustrates Congress' intent, which is to maintain the status quo by keeping Theresa Schiavo alive until the federal courts have a new and adequate opportunity to consider the constitutional issues raised by plaintiffs."
Continuing, Wilson said, the whole point of a law passed early Monday by Congress was to "give the federal courts an opportunity to consider the merits of plaintiffs' constitutional claims with a fresh set of eyes."
Schiavo's feeding tube was removed Friday on the order of Pinellas Circuit Judge George Greer, who ruled that he had no jurisdiction in the case. He said judicial doctrine bars losing parties from using federal courts to appeal state court decisions.
Both sides in the case -- the Schindlers, and Schiavo's husband, Michael -- filed documents Tuesday with the appellate court in Atlanta.
"While time is of the essence here, there remains adequate time for this court to conduct an expedited and deliberate review," Michael Schiavo's filing said.
His lawyers also asked that if the appeals court ordered reinsertion, it also grant an automatic stay of eight hours so that Michael Schiavo could seek a review with the U.S. Supreme Court.
Attorney George Felos, representing the husband, told reporters that his client is by his wife's side, saying, "That's where he'll remain until she dies." He said Michael Schiavo also has given the Schindlers the right to visit the hospice in Pinellas Park, Florida.
President Bush has expressed support for the Schindlers' fight, signing legislation allowing the case to be reviewed by federal courts. (Full story)
White House press secretary Scott McClellan said the Bush administration would have preferred a "different ruling" than Whittemore's decision.
McClellan said the administration hoped the Schindlers find relief in the appeals process. (Full story)
The Justice Department late Tuesday filed documents in the appeals court supporting the Schindlers' effort to have the feeding tube reinserted while the legal battle plays out.
"Unless preliminary relief is immediately issued, there will be significant and irreversible injury: Theresa Schiavo will die," the document declared.
The 10-page "statement of interest" that was filed with the appeals court was nearly identical to one rejected by Whittemore.
In the new filing, now rejected by the appeals court panel, the government offered to submit a separate legal brief addressing the constitutionality of the law passed by Congress.
Schindlers 'shocked'
In denying the request for a temporary restraining order to restore the tube, Whittemore on Tuesday wrote that Schiavo's parents didn't have a "substantial likelihood of success" on the merits of their arguments.
"This court concludes that Theresa Schiavo's life and liberty interests were adequately protected by the extensive process provided in the state courts," the judge wrote.
Whittemore acknowledged the "gravity of the consequences of denying injunctive relief."
"Even under these difficult and time strained circumstances, however, and not withstanding Congress' expressed interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it," Whittemore's ruling said.
Bobby Schindler, Terri Schiavo's brother, told CNN in a phone interview from Washington, D.C., that his family was "just shocked" at the decision.
"I don't understand how the judge can predetermine our success," he said, adding that his family remained hopeful.
Schindler spokesman Gary McCullough called the decision "extremely cruel."
"Here's a woman whose life is hanging. She's being slowly starved," he said.
But Howard Simon, the executive director of the American Civil Liberties Union of Florida, defended the decision.
"What Judge Whittemore did in his decision was to defend the 'culture of freedom' that each of us has to exercise control over our lives, and the circumstances of our own death," he said in a written statement.
"There is a lesson for all of us in the tragic Schiavo case," he said. "Express your end-of-life views to your family and loved ones and, better, put it in writing."
Could federal courts spur new law?
If the federal courts decline to intervene in the Terri Schiavo case, Congress and Bush could pass and sign another law to try to keep the brain-damaged woman alive, said CNN legal analyst Kendall Coffey.
There is little precedent for Congress passing a law that would undo several years of court rulings, Coffey said.
The challenge congressional leaders would face, Coffey said, would be crafting legislation that would withstand U.S. Supreme Court scrutiny. Congress would need to be mindful of the constitutional provision of separation of powers, he said.
The law passed by Congress and signed by Bush early Monday gave a federal court the right to consider whether Florida courts had violated Schiavo's rights, Coffey said.
The law did not ask federal courts to "start from scratch," Coffey said, and rule on other medical and legal questions surrounding the case.
Woman's wishes debated
Michael Schiavo insists that his wife would never want to continue to live in her condition -- what Florida courts have deemed a persistent vegetative state.
People in such a condition cannot think, speak or respond to commands and are not aware of their surroundings.
Terri Schiavo collapsed in her home in 1990, suffering from heart failure that led to severe brain damage. Michael Schiavo said his wife suffered from bulimia that resulted in a potassium deficiency, triggering the heart failure.
Schiavo's parents point to the absence of a living will, or written document, clearly spelling out her wishes. They argue that their daughter's due process rights have been violated and that she would not have wanted to die this way due to her faith as a Roman Catholic.
They also contend that their daughter's condition could improve with treatment.
Repeated court rulings have held that Michael Schiavo is his wife's legal guardian and has the right to make decisions regarding her care.
CNN's Bob Franken and Ninette Sosa contributed to this report.
Disagreement with an opinion is one thing, outright contempt and hatred is another. It is unnecessary and downright wrong what some folk are saying on some these threads.
Thank-you.
Terri has never told the courts what she wants. Hearsay is not permitted except in this case and there is conflicting hearsay at that.
Whoa! So personal. I did not come from Berkeley, just passed through. I think, often, that we should cut California off, too (and I live here).
This seems to jibe with your criticism that -- as I understand you -- the Schindler attorney should have ignored the Greer court record and started the litigation from scratch (perhaps with a few declarations attached to his complaint, going to a contention that she's not PVS and wouldn't want to be put down).
With these "evidences" offered - and no weighty record going the other way, or trial court decision helping to shape perceptions -- the federal district court would not have been able to say that the Schindlers hadn't met the substantial probability prong of the injunctive relief test. ? Is that what you're saying?
I will suggest, though, that confusion as to how to draft the federal complaint might be understandable. "De novo" on appellate review doesn't mean, ordinarily, to create a new record or to disregard the existing one. Rather, it means to approach that record with fresh eyes and not be bound by the conclusions that the lower court reached based on that record. In making out arguments on a de novo review, is it really uncommon to criticize how the trial court perceived the record, when suggesting what conclusions the appellate court ought to draw from it?
Nope, de novo means a new trial in the trial court. Gibbs just needed to plead what he pled before Greer. He was offered a second bite of the apple. Any findings Greer made are findings of which the federal court is not to take cognizance.
Would he still be able to do that -- amend the original complaint -- even after the 11th circuit has ruled on the rejection of that complaint?
And if this is so, is anyone with some heft in the (conservative) legal community, trying to communicate this to Gibbs and/or his clients?
Ok, I'm now getting what's going on. Because this case is going to a federal trial court, de novo means a new trial. What confused me is the fact that de novo, in ordinary appellate proceedings, refers to a fresh look at issues already presented to the lower court. Usually, at the appellate court level, de novo is the standard applied when an issue of law is at stake and it is alleged that the lower court mischaracterized the applicable legal standard.
But the key here is that Schindlers are in a trial court - so de novo, as you say, means a new trial.
Still, I can understand where there might have been confusion. Apparently the DOJ lawyers, who put in their own briefs, didn't catch these nuances?
Yes, that is what I have been ranting about.
When I saw that they'd included a RLUIPA count, I started to come around to your sense that some higher-powered legal help might be needed. That law is a hobby horse of religious rights lawyers, but it's not a relevant law to this situation. I can't understand why a case of this prominence wouldn't have drawn some top flight pro-bono assistance from the Federalist Society ranks, if only behind the scenes.
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