Wednesday, May 12, 2004

Update On Terri Schiavo

The Real Significance of Terri's Law

By now most of you know that last week, Judge Douglas Baird issued a decision ruling "Terri's Law" unconstitutional. Terri's Law is the legislation which gave the governor of Florida, Jeb Bush, the authority to intervene on her behalf and restore her feeding tube. Judge Baird's decision is a setback, but not an unexpected one.

Given the dedication which Judge Baird and his colleague on the Pinellas County bench, George Greer, have shown in making their courtrooms a congenial forum for Michael Schiavo and his attorney, George Felos, it is surprising to no one that Baird ruled the way he did. It is even less surprising, given that Judge Baird revealed that he had already concluded that Terri's Law was unconstitutional before briefs were filed or arguments heard in the case. Normally such clear evidence of judicial prejudice would cause a judge to recuse himself, or be removed from the case. But oddly enough in this case, though Governor Bush sought Baird's removal, it didn't happen. Apparently Pinellas County judges are considered so godlike in their intuitive powers that they don't have to consider things like arguments or evidence when they prejudge cases before they're even heard.

So Judge Baird ruled Terri's Law unconstitutional. I've read Judge Baird's ruling, and while I'm not a lawyer (nor do I play one on TV), it seems to me that Judge Baird's arguments are these (any lawyers out there feel free to jump in and clarify!):

(a) Judge Baird argues that "Terri's Law" is an unwarranted usurpation of the powers of the Legislative Branch, because it grants the governor the power to intervene without any standards or guidelines as to how that intervention should be carried out. Now, this seems to me a fairly weak objection. After all, if the Legislature decides to grant a power to the Governor, and that power is the Legislature's to grant, then who's to complain about it? Legislatures do this all the time. Given that the power to intervene only applies in a very narrowly defined and rarely occurring situation, I don't see how this give the governor the unbridled power that, oh, say, judges routinely exercise.

(b) Judge Baird argues that "Terri's Law" is an invasion of Terri's privacy. As the right to privacy is construed, it includes the right to make decisions about end-of-life issues such as what "extraordinary measures" one will and will not allow. These decisions, generally speaking may not be overruled or obviated by the State. And so, since Judge Greer ruled that Michael's story about Terri not wanting to be kept alive was "clear and convincing", protecting Michael's "right" to end Terri's life is considered a defense of Terri's rights. While this reasoning is perhaps the most perverse in its outcome, it is also, perhaps, legally the strongest. Since the Griswold Supreme Court decision, and it's monster stepchild, Roe v. Wade, a large and increasingly unassailable body of case law has grown up around the "right to privacy", with all its emanations and penumbras.

Of course, this line of reasoning hinges upon Judge Greer's ruling of fact that Terri did tell Michael (and his brother and sister-in-law) that she wouldn't want to go on living if she required anything approaching extraordinary care. As I have discussed before (here and here), this is perhaps Judge Greer's most tendentious and biased ruling. It was based on little more than Michael's assertion, was contradicted by substantial and credible evidence, and was only allowed through Judge Greer's own procedural sleight of hand, in disregarding the usual rules for presenting and deposing witnesses. That Florida is one of the few states where such half-assed legal bootstrapping as Felos' is admissible may, in the end, cost Terri her life. But our judicial system does not like to revisit rulings of fact, no matter how egregiously misbegotten such rulings may be.

And that brings us to argument (c). Here Baird argues that Terri's Law is an unwarranted intrusion into the power of the judiciary. The courts, Baird says, have ruled on Terri. They have ruled that she is in a Persistent Vegetative State. They have ruled that Terri wants to die. They have ruled that Michael may in fact starve her to death. So no one, not even the legislature, certainly not the governor, may gainsay our robed masters. The courts, in effect, are omniscient, omnipotent, and inerrant.

What this ruling is really all about is apparent further on, where Judge Baird once again rules that Governor Bush may not introduce new testimony or new evidence in this case. Above all, Baird does not want his and Judge Greer's dubious deliberations subjected to impartial scrutiny. They do not want the evidence that Greer ignored in previous hearings, and advances in the understanding and treatment of brain-injured patients, to come out into the light of day. They do not want another court to consider facts such as the 43% error rate in diagnosing PVS patients. Because if they were, it might become apparent that they are wrong, and have been culpably wrong all along.

This case is, at the legal level, about more (and less) than Terri Schiavo. It is about judges protecting their power to decide who may live and who may die. They will do almost anything to protect that power.

And if the price of protecting their god-like power is Terri Schiavo's life, that's a price they're willing to pay.

What's Next?

I spoke with the Schindlers the other night, and, as I mentioned above, they were not surprised by Judge Baird's ruling. They and their legal team were expecting it. Governor Bush's attorneys immediately appealed Baird's ruling. What remains to be seen is whether or not George Felos attempts to short-circuit the appeals process and get Judge Greer or Baird to lift the stay brought about by Bush's appeal and issue another order to remove Terri's feeding tube. This is not considered likely, but it is possible. Right now, we're waiting to see what will happen with Gov. Bush's appeal. Bush is hampered by the fact that the appeals are going back up before the very courts that, time and again, have shown themselves to be very protective of Greer and Baird. The governor has tried to get the cases moved to Tallahassee, under a state law granting the governor the right to have cases involving him moved to courts in the state capitol. But those attempts, though a matter of statute, have failed as well.

Schindlers Prevented From Visiting Terri for 44 Days

What is most upsetting to Bob, Mary, and Terri's family is that Michael has successfully prevented them from visitng Terri for six weeks. After the bizarre allegations in March that needle marks had been found on Terri, the Schindlers have been kept from her. Of course, Michael's denial of visitation also happened at about the time that reports of neglect and poor care of Terri came to light.

The Schindlers are being treated as though they were the ones who were responsible for the purported needle marks. Of course there is no evidence to support that supposition, and no one has come right out and claimed that, perhaps because if such a claim were openly made, it would be dismissed as the absurdity it is. In fact, the existence of the purported needle marks is itself dubious. Investigators from the Florida office of civil rights have investigated the claim and examined Terri, and found no evidence of any needle marks. And the Pinellas County Sheriff has also supposedly investigated the allegation, but has so far not made any statement or issued a report, much less named a suspect or brought charges.

But the Schindlers, and Msgr. Malanowski as well, have been prevented from visiting Terri. To add insult to injury, Michael's other lawyer, Deborah Bushnell, has stipulated that the Schindlers may be permitted to visit Terri only if they pay for "additional security" on their visits.

The Schindlers have filed a motion before Judge Greer demanding to be allowed to visit Terri. Judge Greer has declined to hear that motion on an expedited basis. So how long it will be before they are allowed to see Terri again is anybody's guess.