The Terri Schiavo Case
Jury trial sought to decide what Schiavo
wanted
Attorneys for the governor want to defend "Terri's Law"
and have witnesses determine Terri Schiavo's wishes.
By WILLIAM R. LEVESQUE, Times Staff Writer
Published November 20, 2003
Gov. Jeb Bush's attorneys want a jury trial to decide if Terri Schiavo really
wanted to die rather than be kept alive by artificial means.
The attorneys also think the judge presiding over the lawsuit filed by Mrs.
Schiavo's husband challenging "Terri's Law" is biased and want him removed
from the case.
In a flurry of legal filings late Wednesday, Bush's office defended the
constitutionality of the state law adopted Oct. 21 that allowed the governor to
force doctors to reinsert Mrs. Schiavo's feeding tube.
Ken Connor, the governor's lead attorney in the case, said the governor has
the right to defend the law at trial and call witnesses to determine Mrs.
Schiavo's wishes.
"Michael Schiavo is going to have to establish (at trial) that he has standing to
represent his wife's interests," Connor said. "He's going to have to establish that
her right to privacy is infringed, that the governor is interfering with her health
care choice.
"You can't just say that. You have to prove it," he said.
Connor said the governor wasn't a party to previous litigation over Mrs.
Schiavo, including the 2000 trial at which witnesses testified about her wishes.
"Simply because the governor is an elected official doesn't mean he is a
second-class citizen," Connor said. "People don't get to just come in and make
these bold assertions without having to prove them at trial."
George Felos, the lawyer representing Mrs. Schiavo's husband, Michael
Schiavo, said the governor is simply seeking to delay the case at any cost.
Felos said Mrs. Schiavo's wishes were determined by a court, and there is no
need to repeat the process.
"To the general public, this is why they hate lawyers and they have disdain for
the legal system," Felos said. "It is the legal system at its worst when one side
just tries to set up smoke screens and tries to file anything to divert attention
from real issues to delay a real reckoning."
Felos also said a jury trial is not required in the case because juries only decide
factual issues. Michael Schiavo's constitutional challenge of "Terri's Law"
involves only legal issues, Felos said.
"There are no factual issues in the case," he said. "It's not disputed that a court
ruled that the feeding tube be removed. It's not disputed the Legislature passed
the law. It's not disputed what the law said."
Mrs. Schiavo, who is severely brain damaged, has been kept alive by a feeding
tube for more than 13 years after her heart stopped from a suspected
potassium imbalance. Many doctors say she is in a persistent vegetative state
and cannot recover. Her parents disagree with that diagnosis.
At a trial in 2000, her husband and two members of his family said Mrs.
Schiavo made statements during her life indicating she would never have
wanted to be kept alive by artificial means.
A judge agreed, ordering her feeding tube removed on Oct. 15. Mrs. Schiavo
went six days without food and water before Bush ordered the tube reinserted.
Wednesday's filings by Connor came just minutes before the deadline set by
Pinellas-Pasco Circuit Judge Douglas Baird for Bush's office to file legal
arguments defending "Terri's Law."
Bush filed the brief, and more.
Connor sought Baird's disqualification from the case, saying a ruling Baird
issued last week lifting a stay in the case showed he has pre-judged the lawsuit
and is ready to rule against Bush.
In that ruling, Baird criticized "Terri's Law" as a violation of Mrs. Schiavo's
constitutional rights. But Baird also said he wanted the state to file legal
arguments before reaching a final decision.
"The court has, in the short time that this case has been pending, made it clear
that the governor cannot be afforded a fair and impartial forum" in the case, the
governor's motion said.
Felos said a judge can't be removed based on a ruling simply because a litigant
disagrees with the decision.
"That motion is so out of line it is arguably frivolous," Felos said.
Connor's brief defending "Terri's Law" discarded arguments that it violates
Mrs. Schiavo's right to privacy, which guarantees citizens the right to make
decisions about their own medical care.
Connor said the law doesn't violate Mrs. Schiavo's constitutional rights.
Instead, it simply provides an extra layer of protection for her, he said.
"Her right to privacy is actually furthered and enhanced," Connor said.
Felos ridiculed the argument, saying, "An extra layer of protection? That's a
nice sounding platitude. Who does Terri need protection from? The courts?"
Tampa Bay headlines
http://www.sptimes.com/2003/11/20/Tampabay/Jury_trial_sought_to_.shtmlLOL... I like this artical better...LOL
Governor requests Schiavo judge out
He took a page from Alice in Wonderland to say the jurist must
be pulled off the case.
By Sean Mussenden | Sentinel Staff Writer
Posted November 20, 2003
Gov. Jeb Bush demanded Wednesday that the
judge handling the constitutional challenge of
"Terri's Law" remove himself from the case,
comparing him to the Queen of Hearts in
Alice's Adventures in Wonderland.
In legal papers, the governor also asked that a
jury reconsider whether Terri Schiavo would
have wanted to be kept alive artificially in what
doctors have described as a persistent
vegetative state.
Terri Schiavo went for six days without food and
water last month after her husband, Michael
Schiavo, won a court order to remove the
feeding tube that has kept her alive for 13
years. Florida lawmakers and Bush intervened,
enacting in two days a law that allowed the
governor to order that the feeding tube be
reinserted.
In their filings Wednesday, Bush's attorneys
accused Pinellas County Circuit Judge W.
Douglas Baird of a "biased" approach to the
case.
Bush's concern
Baird chided Bush last week for failing to file
legal arguments defending his decision to
restore Terri Schiavo's tube, saying that each
day Bush delayed doing so, her constitutional
rights presumably were being violated. Baird
was careful to say that he was not offering a
final judgment in the lawsuit, filed against the
governor by Michael Schiavo.
Nonetheless, conservative activist Ken Connor,
who is Bush's lead attorney in the case, said
Baird needed to be removed because it
appeared he had prejudged the matter before
fully considering the governor's legal
arguments.
Reached Wednesday evening, Baird's
secretary said the judge thought it would be
inappropriate to comment. Conner said the
next step will be for Baird to rule on the motion
of whether to remove himself.
In his filing, Connor said the governor viewed
Baird's comments in the same light as a trial in
the Lewis Carroll story, in which the King and
Queen of Hearts sit in judgment of the Knave of
Hearts, who's accused of stealing tarts.
"Let the jury consider their verdict," the King
said.
"No, no!" said the Queen. "Sentence first --
verdict afterwards." When Alice protests, the
Queen yells, "Off with her head!"
A matter of law
In an order issued last week, the judge
reminded Bush that courts have repeatedly
found that Terri Schiavo made it clear that she
would not have wanted to be kept alive
artificially. The 39-year-old Pinellas County
woman suffered severe brain damage in 1990
after her heart stopped, depriving her brain of
oxygen.
Her wishes have been "finally and conclusively
established as a matter of law," Baird wrote.
Because Bush was not a party to the earlier
lawsuit, Connor argued that what a previous
court determined were her wishes should have
no bearing in this case. So Wednesday, Bush's
attorneys requested a jury be brought into to
redetermine Terri Schiavo's wishes.
Michael Allen, a constitutional law professor at
Stetson University College of Law, said the
request for another examination of her wishes
runs counter to standard legal procedure.
"Their findings may have been right, they may
have been wrong, but they were a final
judgment," he said. "It doesn't matter that the
governor was not involved in the earlier case,
just as it doesn't matter that you and I weren't
involved with the case."
Defending privacy issue
Bush on Wednesday also offered his first
constitutional defense of his intervention in the
nationally watched right-to-die case.
Michael Schiavo's attorneys, the American Civil Liberties Union of Florida
and some constitutional-law experts, argue that Terri's Law violates her
right to privacy, which guarantees the right to refuse unwanted medical
treatment. They also contend that because it effectively allowed Bush to
throw out six years of court proceedings, it also violates the rigid
separation of the legislative, executive and judicial branches of
government.
But Bush's attorneys argued that the law strengthens Schiavo's right to
privacy because it orders an independent guardian to review her case.
And, they argued, while Schiavo has that right, it must be balanced against
other "compelling state interests," including preserving human life,
protecting the rights of disabled people such as herself and protecting the
rights of family members.
Terri Schiavo's parents, Mary and Bob Schindler, have waged an
international campaign against their son-in-law to keep their daughter
alive.
"The disdain the governor has for Florida's privacy right is just astounding,"
said Howard Simon, executive director of the American Civil Liberties
Union of Florida, which has joined Michael Schiavo's lawsuit. "He's saying
that the desire of your family members is more important than what you
would have wanted."
The ACLU and Michael Schiavo's attorney, George Felos, have repeatedly
criticized Bush for what they call attempts to delay this case on technical
points. Simon said the request to remove Baird appeared to be another
attempt at delay, as did the request for a jury.
"The fact is this case is about whether this law is constitutional or not,"
Felos told The Associated Press. "I don't think the trial court is going to
allow them to reopen six years of litigation."
Connor, in a conference call with reporters, dismissed suggestions that
that Terri's Law violated the wall between the branches of government,
saying the Legislature passes laws that affect court decisions regularly.
For example, he cited a law that allows people behind bars to request DNA
testing in closed cases.
"What the Legislature has done here is not novel," Connor said.
But Bruce Winick, who teaches constitutional law at the University of Miami,
said the comparison was invalid. He said the DNA law gave a broad class
of people the right to another court review, while "Terri's Law" was tailored
to overturn a specific court decision.
In a statement, Bush said he was looking forward to proving his case in
court.
"We are confident the Florida law protects rather than diminishes individual
rights as outlined in the Constitution, and welcome the opportunity to prove
that fact in court."
http://www.orlandosentinel.com/news/local/state/orl-asecschiavo20112003nov20,1,234663.story?coll=orl-news-headlinesI think Felos answered his own question. Yes, Terri DOES NEED PROTECTION FROM THE COURTS. Please see my last post. This will probably be documented in the media tomorrow sometime with the Judges' names who were bad boys today.