Judicial And Executive Branches Wrangle Over New Medical Opinion
Mar 25, 2005
By JEROME R. STOCKFISCH
TALLAHASSEE - Terri Schiavo's parents failed Wednesday in three arenas to have her feeding tube reinserted, with Gov. Jeb Bush, the Florida Legislature and the judiciary all involved in the increasingly complicated end-of-life case.
In a late twist, the case prompted a showdown between separate branches of government as a Pinellas County circuit judge forbade law enforcement officers from taking Schiavo into state custody under a Bush directive.
Maintaining there is new evidence suggesting Schiavo ``may have been misdiagnosed,'' Bush and the Department of Children & Families invoked a statutory process that typically allows DCF to intervene in abuse cases.
Schiavo's fifth full day without nutrition or hydration was marked by a flurry of legal, legislative and procedural maneuvers:
* In Atlanta, the 11th Circuit Court of Appeals twice refused to order the tube reinserted. A three-judge panel said Bob and Mary Schindler, Schiavo's parents, ``failed to demonstrate a substantial case.'' Then, under immediate appeal, the full court refused a rehearing.
The Schindlers' attorneys filed an appeal with the U.S. Supreme Court late Wednesday.
The Schindlers' request goes first to Justice Anthony Kennedy. He has the option to act on the petition alone or refer it to the entire court, which he did on the last emergency request involving Schiavo.
The high court has declined three times to get involved in the Schiavo case.
* In Tallahassee, the Legislature jumped back into the debate. Sen. Daniel Webster, R- Winter Garden, introduced a bill he was reluctant to take to the floor after his chamber rejected such legislation last week.
The bill would have required continued sustenance if there was a dispute on end-of-life issues among family members. In the last scheduled Senate session before an Easter recess, the bill failed by a 21-18 vote. Nine Republicans who stunned Capitol observers with their ``no'' votes last week stood firm in their opposition with 12 Democrats.
* Also in Tallahassee, Bush said the DCF had renewed its petition to intervene, citing calls to the department's hot line alleging abuse, neglect and exploitation of Schiavo by her husband, Michael. That petition was dismissed by Greer last week.
In renewing the petition, Bush and DCF Secretary Lucy Hadi cited a provision in state law that allows the department to take a vulnerable person into custody without prior judicial approval.
Preventing `A Donnybrook'
That raised the prospect of law enforcement officers charged with protecting Schiavo at her Pinellas Park hospice encountering law enforcement agents charged with removing her.
At an afternoon news conference, Hadi cautiously stated, ``DCF could take protective custody of Mrs. Schiavo, and I'll leave it at that.'' Later, she stated, ``We have no present plans to take Terri Schiavo into protective custody.''
In Greer's courtroom shortly afterward, George Felos, Michael Schiavo's attorney, told the judge he had been advised by Pinellas Park police that a state police agent was en route to the hospice with a DCF team.
Greer asked DCF attorney Jennifer Lima-Smith whether she could guarantee Schiavo would not be taken into state custody.
``I can't tell you that won't be done. We have that capability. The statute is clear,'' Lima- Smith told Greer.
The judge said he would issue the restraining order to prevent confusion among law enforcement.
In a situation reminiscent of the October 2003 night when Bush sent armed agents of the Florida Department of Law Enforcement to take Schiavo to a hospital to reinsert her feeding tube, Greer ordered Pinellas County Sheriff Jim Coates to back up Pinellas Park police should state agents show up again.
Greer said he was willing to consider the new request by DCF to intervene - he is to rule by noon today - but he said he would not allow the agency to act unilaterally with the aid of state law agents.
``I don't want this thing to turn into a donnybrook. It's been real orderly for seven years,'' Greer said, referring to the protracted legal fight over Terri Schiavo's last wishes.
``The executive and the judicial branches of government are separate but equal. That is indeed true. But the executive is certainly not superior,'' Greer said. ``The executive is unable to go behind the final judgment of this court.''
After a January 2000 nonjury trial, Greer ruled that Terri Schiavo's feeding tube should be removed because ``clear and convincing evidence'' showed she would not want to be kept alive in a persistent vegetative state with no hope of improvement.
That finding was based on testimony by her husband and two of his relatives, who said Terri Schiavo had talked about end-of-life issues prior to suffering severe brain damage caused by heart failure in 1990 at age 26.
Bob and Mary Schindler contend their daughter never made such remarks. They dispute the diagnosis of doctors hired by their son-in-law and say their daughter reacts to them and could improve with therapy.
`Minimally Conscious State'
On Wednesday, Bush and Hadi released an affidavit from William Polk Cheshire Jr., a neurologist from the Mayo Clinic in Jacksonville who volunteers with the state's adult protective services team. He was summoned by DCF to review Schiavo's case.
Cheshire was not allowed to perform a thorough examination of Schiavo but spent an hour to 90 minutes observing her at her bedside. He also reviewed her records and observed videotapes of her behavior.
``Based on this evidence, I believe that, within a reasonable degree of medical certainty, there is a greater likelihood that Terri is in a minimally conscious state than a persistent vegetative state,'' Cheshire wrote.
That analysis contradicts previous court records. In a 2004 brief that quotes from earlier court documents, Felos wrote that since her heart failed briefly in 1990, Schiavo ``has been in a persistent vegetative state, robbed ... of ... all but the most instinctive of neurological functions; most of her cerebrum is simply gone and has been replaced by cerebral spinal fluid.
``Independent medical experts appointed by the Florida circuit court, as well as the independent guardian ad litem ... found that Mrs. Schiavo has lost all cognitive abilities.
``The evidence was, in a word, overwhelming. As the Florida Supreme Court stressed, this is not simply a coma. (Mrs. Schiavo) is not asleep. ... Medicine cannot cure this condition.''
`Pushing The Envelope'
Bush had hoped the issue wouldn't come down to the DCF action or a potential ruling by the U.S. Supreme Court.
The Florida House passed Schiavo legislation last week, and the governor held out hope as the Senate debated the issue.
``If it all works, I will be signing a law by the end of the day,'' he said Wednesday afternoon.
Despite often dramatic testimony on the Senate floor, it was not to be.
``The law may say what's been done is right, and the courts may say what's been done is just, but I'm here today to plead mercy,'' said Webster, a former House speaker who became the senior chamber's point man on end-of-life legislation. ``Have mercy on Theresa Marie Schiavo.''
Opponents said they were leery of upending existing ``Death With Dignity'' legislation.
Sen. Jim King, R-Jacksonville, who championed that law in the 1990s, said the new bill put end-of-life intentions ``on a slippery slope.'' He expressed concern over continued efforts to override the judicial branch.
``I'm frightened that any time in history that any nation has tried to impose its views over the court system it has appointed, there lies the road to ruin,'' King said.
Legal scholars and other observers agreed.
Bush is ``pushing the envelope in a very dangerous way. He is trying to use his executive power to overrule a judicial decision just as he did in this case before,'' said Kathy Cerminara, a professor at Nova Southeastern University who has written extensively on end-of-life decision making.
Howard Simon, executive director of the American Civil Liberties Union of Florida, said the governor ``has to stop, and start respecting the process.''
After news of Greer's injunction prohibiting DCF from taking custody of Schiavo, Bush's communications director, Alia Faraj, said, ``We will continue to review all our legal options. We will do everything we legally can to save and protect Terri Schiavo.''
http://news.tbo.com/news/MGBAFWSIO6E.html
IMHO... this is a threat of violence against State Police, should they try and take Terri.
You've all seen this sort of threat. You take issue with someone about something and they say, "I don't want to fight about it." This, of course, is a threat that if you proceed there WILL be a fight.
Jeb can't -- shouldn't -- allow this maniacal little self-inflated troll to have his way on any of this.