Schindlers File New Challenge Against Florida Court Order; New
Attorney Surprised By Terri Schiavo's Responsiveness
By Dave Reynolds, Inclusion Daily Express
January 7, 2005
TAMPA, FLORIDA--Attorneys for Robert and Mary Schindler asked a Florida court Thursday to withdraw its February 2000 court order which gave Michael Schiavo permission to remove their daughter's feeding tube so she would starve to death. The court order is invalid for at least three reasons, the attorneys claim.
In that 2000 order, Pinellas County Court Judge George Greer agreed with Mr. Schiavo and several doctors that Terri Schiavo has been in a "persistent vegetative state" from which she will not recover since she collapsed and her brain was without oxygen for several minutes in February 1990. Greer based his decision in part on claims by Mr. Schiavo that Terri told him before her brain injury that she would not want to be kept alive on life support.
The order led eventually to Terri's feeding tube being removed in October 2003. The tube was reinstalled six days later after Florida Governor Jeb Bush was given permission by the Legislature under "Terri's Law" to have it reinserted.
Terri's parents have been battling Mr. Schiavo in court to keep Terri alive. They claim that she smiles, laughs, responds to her environment and even tries to talk. They also argue that she is not in a terminal state and that she deserves rehabilitative therapies that might allow her to swallow again. They allege Mr. Schiavo of having a number of conflicts of interest, including the fact that he has been engaged several years to a woman with whom he has fathered two children.
In a motion filed at Pinellas County Court Thursday, the Schindlers' attorney David Gibbs III argued that Greer's February 2000 court order should be considered void because it is not valid for at least three reasons.
First, Gibbs claimed, the court denied Terri her constitutional right to due process ". . . including but not limited to her nondelegable rights to be given notice of the petition for authority to discontinue her assisted feeding, to be represented by independent counsel, to conduct discovery, to appear in court, to present evidence in her own behalf, and to cross-examine adverse witnesses."
Gibbs explained in a press release that, in reviewing many boxes of court papers in the case, "we cannot find a single instance where Terri was afforded the right of every American to have a lawyer who would represent her own interests."
Second, the motion alleged, the court based its decision on the wrong law from the wrong time. If, as Mr. Schiavo insists, Terri told him before her February 1990 brain injury that she would not want to be kept on life support, the judge should not have used a version of the state's Life-Prolonging Procedures Act which was written after 1990.
Prior to Terri's injury, Florida law did not consider assisted feeding to be a form of life support. Therefore, the motion argued, regardless of what Terri may or may not have said about life support, it would have had nothing to do with having her feeding tube removed.
Finally, Gibbs argued that the court violated the separation of powers provisions in the Florida Constitution.
"The Court acted beyond its judicial powers when it encroached upon the Executive Branch by assuming the role of the State Attorney and the role of the Department of Children and Families to ensure the safety and well-being of the disabled, including that of Mrs. Schiavo."
"The Court's attempt to carry out the functions of judge, legislator, and law enforcer violated the constitutional separation of powers and denied Mrs. Schiavo a fair and impartial judicial hearing," Gibbs wrote.
Terri's case has been watched closely by "death with dignity" advocates on one side, and disability rights and "right to life" advocates on the other.
Mr. Schiavo's supporters include attorney George Felos, who has a history of representing "right to die" causes. Felos and the American Civil Liberties Union took Governor Bush to court last year claiming "Terri's Law" violated Terri's privacy rights and the state constitution's separation of powers. Bush lost the case at the local and state Supreme Court levels. The case now awaits review by the U.S. Supreme Court.
Disability rights groups support the Schindlers' efforts to keep Terri alive. Terri's situation is similar to that of thousands of people with significant disabilities across the country who are represented by a guardian. Allowing her to starve to death would further diminish the value society places on people with disabilities considered "not worth living".
In a related story, the Schindlers' new attorney Barbara Weller visited Terri for the first time the day after Christmas. Terri has been in a hospice since April 2000, even though hospices generally only serve those expected to live less than six months.
"I was prepared for the possibility that the Schindlers love their daughter and sister so much that they might imagine behaviors by Terri that aren't actually evident to others," Weller wrote about the visit. "The media and Mr. Schiavo clearly give the impression that Terri is in a coma or comatose state and engages only in non-purposeful and reflexive movements and responses."
"From the moment we entered the room, my impression was that Terri was very purposeful and interactive and she seemed very curious about the presence of obvious strangers in her room."
"I never imagined Terri would be so active, curious, and purposeful. She watched people intently, obviously was attempting to communicate with each one in various ways and with various facial expressions and sounds."
"She was definitely not in a coma, not even close," Weller concluded.
Motion to void Judgment
"A Visit With Terri Schiavo" by Attorney Barbara Weller (Terri Schindler-Schiavo Foundation)
"Terri Schiavo's Right To Live" (Inclusion Daily Express Archives)