Fighting for Dear Life

by David Gibbs

  The Schindlers’ sole desire in making this proposal is that they be permitted to take their daughter and sister home to care for her within their family. The Schindler family members would take on this responsibility at their own expense. In consideration of your client permitting them to take Terri home with them, they would be willing to provide him with any legal guarantees he would desire, including the following:

  1) The Schindlers would never seek any money from Michael. He could retain any monies or other assets that might remain to him, either from their married life together, from the malpractice awards for himself or for Terri, or any other assets he might have received in the past. They would not seek any financial help from him for any care, therapy, or rehabilitation for Terri.

  2) The Schindlers fully understand and appreciate that Michael now has a new life with Jodi and their two children. If he would desire to divorce Terri, the family would sign any necessary legal documents to assure Michael that, upon Terri’s natural death, he would receive any of Terri’s estate that he would inherit were he to remain her husband. Whether or not Michael would choose to pursue a divorce from Terri, the Schindlers would guarantee that he could retain whatever visiting rights he might desire with Terri for the rest of her life.

  3) The Schindlers would agree to forego any and all future legal claims or actions against Michael or against any of his agents in this matter for any reason.

  4) The Schindlers would permit Michael’s attorneys to draft any agreement regarding this matter that Michael would desire, including the above referenced terms and any other terms he and his attorneys would find appropriate, excluding payment of Michael’s previous legal fees or costs.

  Now that Michael is a father himself, the Schindlers are pleading with him to consider their love for their daughter and sister and to permit them to take over Terri’s care, with their blessings on Michael as he continues to live his own life with his new family.

  Please provide a copy of this letter to Michael and respond to us within five days.

  Sincerely,

  Gibbs Law Firm, P.A.

  David C. Gibbs III

  ADMITTED IN FLORIDA, TEXAS, NORTH DAKOTA, COLORADO, MINNESOTA, AND

  THE DISTRICT OF COLUMBIA

  PART TWO

  TERRI’S FIGHT

  FOR LIFE

  CHAPTER TEN

  TERRI’S ONLY CRIME

  If you [starved] condemned criminals, how far would you get? It would take about two seconds for the court to strike it down as cruel and unusual.

  —JACK KEVORKIAN1

  When Alice falls down the rabbit hole in Lewis Carroll’s classic tale Alice in Wonderland, she encounters a twisted reality where nothing makes sense. And when the White Rabbit and the Mad Hatter cross her path, she starts to question her own sanity. Logic and reason are relative concepts in Wonderland. In the bizarre finale, Alice finds herself on trial accused of stealing tarts. Justice, she discovers as the trial unfolds, is dangerously rooted in the whims of the eccentric creatures she has met.

  In some ways Alice and Terri Schiavo shared a similar predicament. Both were ensnared by a court in which the law seemed to be standing on its head to accommodate an illogical and unfounded verdict. While Alice fought for her life in this fable, Terri battled for her life in a real-life case replete with legal problems, misconceptions, and contradictions. You see, Michael Schiavo was confronted with a serious dilemma after he decided (following the 1992 malpractice verdict) that Terri wouldn’t want to live and should therefore be permitted to die. How could she legally be put to death? It’s against the law in Florida to kill either people or pets with the exception of the death penalty in criminal convictions. But Terri wasn’t a convicted felon, and she hadn’t committed any crimes worthy of death, so the death penalty option was off the table. Michael needed help from the Florida legislature and the courts before he could legally carry out his plan to have his wife put to death.

  Likewise, Judge Greer must have known that euthanasia, mercy killing, assisted suicide, and other variations of helping people die are all forbidden by the state of Florida. Furthermore, Florida has a law prohibiting the mistreatment and starvation of disabled persons.

  So how could Michael legally end Terri’s life? That’s where this case and the 2000 trial come in.

  Michael had help in ending his wife’s life from a few sources:

  • his pro-euthanasia attorney, George Felos

  • the Florida legislature, which by 1998 had enacted the law that permitted Michael to take his dilemma to the courts

  • the Florida appellate courts, which upheld the vast majority of lower court rulings in this case.

  In fact, that is why the U.S. Congress in the end tried to have a federal court take another look at the facts and the testimony, in the same way that a federal court would review the decision of a state court in a criminal death penalty case—just to be absolutely sure the state court got it right. By determining that Terri would have wanted to die, state court Judge Greer used two main sources to authorize the withholding of Terri’s food and water so that nature would take its course:

  • a previous Florida right-to-die case, in which George Felos succeeded in having Florida courts authorize the removal of another woman’s feeding tube in 1990 (a woman, in that case, however, who had a written living will asking not to receive artificial feeding)

  • the recent 1997 Florida end-of-life law intended to make it easier to remove feeding tubes from patients no longer able to speak for themselves

  Thus, with the help of George Felos and the new Florida law that for the first time defined a feeding tube as artificial life support (on the same order as heart/lung machines), Michael Schiavo could use the new public policy of the state of Florida to argue that it was lawful to remove his wife’s food and water in order to cause her death. It seemed to me that this argument contradicted other public policy in Florida that required care to be provided for the disabled and prohibited euthanasia. And with a bewildering leap of logic worthy of the Mad Hatter, Terri’s husband, Michael, later told Nightline viewers:

  Terri will not be starved to death. Her nutrition and hydration will be taken away.2

  You might want to read that statement again.

  Whether you call it death by starvation, death by dehydration, cessation of nutrition and water, or give it some other illogical name, this interpretation of the law wouldn’t have worked if Terri had been a prisoner of war; the Geneva Convention prohibits starvation. It wouldn’t have worked if Terri had been a convicted mass murderer on death row anywhere in America, even in Florida, because the Eighth Amendment to the United States Constitution would then have protected her from ‘‘cruel and unusual punishment.’’

  Such as starvation or dehydration.

  What’s more, had Terri been an animal, she also would have been protected under Florida law. It’s a crime to starve or even mistreat pets or other animals in Florida; that is a crime punishable by a fine and up to a year in jail. You see, the Department of Agriculture takes the well-being and treatment of animals very seriously; their protection has generated a complicated set of rules and regulations governing animal welfare that is more than four hundred pages in length—that’s roughly the size of a Tom Clancy novel.

  But with Terri Schiavo we didn’t have an animal, we had a beautiful human being. We didn’t have a convicted mass murderer, we just had an innocent, disabled woman. And we didn’t have an international prisoner or terrorist detainee housed in Guantanamo, we had a law-abiding American citizen and a resident of the state of Florida. How, then, did Terri fall into this unbelievably horrific crack in American law?

  Frankly, I don’t have a good answer for that.

  All I know is that Terri would have had more legal protection if she had been a cow, a horse, a dog, or even a laboratory rat. That’s not an exaggeration. There are laws on the books in Florida prescribing the humane and acceptable methods of euthanizing rodents. What’s more, transfe
rring personal property such as a sofa, a desk, or a refrigerator requires more legal certainty in Florida than killing Terri did.

  REASONABLE DOUBT

  With less due process than it would take to give away a refrigerator in the Sunshine State, Judge Greer determined whether Terri should live or die. Let me illustrate in simple terms what I mean when I say that, despite all the court decisions to the contrary, I still believe Terri was denied ‘‘due process of law’’ as afforded by the Fifth and Fourteenth Amendments.

  Let’s say I went on Oprah or Good Morning America to announce how I wanted my earthly possessions dispersed upon my death. Let’s say I got very specific and said, for example, ‘‘I, David Gibbs III, am of sound mind and do hereby declare my last will and testament. With you as my witnesses, I swear that I want my co-worker Barbara Weller to have my refrigerator when I die.’’

  Do you know what I just did?

  Absolutely nothing.

  If Barbara went to claim my refrigerator upon my death, the probate judge would refuse her request. Why? Because unless I wrote down that my wishes were to bequeath my refrigerator to Barbara, she gets nothing. That’s crazy, you say? What about the millions of people watching TV that day who could attest that they actually heard me express my desire to give Barbara my refrigerator on national TV? What if Oprah herself was willing to fly in and testify?

  Nope, neither action would help.

  Unless I have a will in writing, my comments to the media—or to my spouse while watching TV—are nothing more than hearsay evidence. Florida law clearly states my wishes to dispose of my refrigerator must be written down. That’s ‘‘due process’’ or, if you will, the established legal course of action governing the distribution of my assets at death.

  Barbara won’t get the fridge. Period.

  Consider, then, the insanity of this case. On the one hand, my legal associate would be prevented from receiving a thousand-dollar appliance for lack of a written will, despite anything I said publicly on national TV. But on the other hand, when Terri’s husband wanted to terminate his wife’s life—a woman with no living will, no written document of any kind, and no physical proof spelling out her wishes regarding medical treatment—the judge granted his request, deciding that casual conversations more than a decade earlier while watching TV or having casual conversations with family about heart/lung machines provided the court with ‘‘clear and convincing’’ evidence of Terri’s wishes regarding the removal of her feeding tube.

  Judge Greer decided that Terri must die despite evidence that it seemed to me was just as strong, if not stronger, in the other direction.

  Others and I continue to believe that, in making his decision, Judge Greer violated part of the due-process test for life-and-death cases. Writing for the National Review, attorney Andrew C. McCarthy observed, ‘‘Due process mandates that no person may be deprived of life by state action unless every factual predicate legally necessary to validate the state action has been proved beyond a reasonable doubt.’’3 Reasonable doubt is a higher legal standard of proof than the clear and convincing standard set by the Florida legislature and used by the judge in Terri’s case. But without written instructions, how could the state know for certain what Terri’s wishes really were any more than my oral statements about my refrigerator could legally prove in court that I really wanted Barbara to have it?

  McCarthy concludes, ‘‘An American [was killed] by a court order based on fact-finding so palpably unreliable there cannot even be the pretense that the due-process yardstick our country has long demanded in death cases was used.’’4 Rather than stepping forward in the proud history of our nation to protect Terri’s right to life, the court said, in effect, We don’t think Terri’s life is one worth living. Then, without reviewing any new evidence, other state and federal courts upheld Judge Greer’s civil death order.

  If you think sentencing a person to die without clear evidence of his or her wishes doesn’t really happen in America, let me direct you to Judge Greer’s own admission that Terri never spelled out her wishes in writing. This is taken from his February 11, 2000, authorization to discontinue her life:

  There are no written declarations by Terri Schiavo as to her intention with regard to this issue. Therefore, the court is left with oral declarations allegedly made to parties and non-parties as to her feelings on this subject. (emphasis added)

  The court relied on Michael’s word and on the sudden recollections of his brother and a sister-in-law, made a full nine years after Terri’s collapse, and just one year before the 2000 trial. Let’s set aside the unusual timing of these belated collective family memories. After hearing the testimony of the Schiavo family on which Terri’s fate was to be determined, Judge Greer characterized their statements as ‘‘oral declarations allegedly made’’ by Terri (emphasis added). Another judge just as easily could have dismissed Michael’s and his family’s memories as failing the ‘‘clear and convincing evidence’’ standard.

  What also bothers me is that for nearly ten years both Michael and these members of his family had remained silent about Terri’s alleged wishes. If Terri had really mentioned something about her end-of-life wishes during casual conversations as Michael and his family members claimed, why didn’t Michael’s family remind him that Terri wouldn’t want to ‘‘live that way’’ when she was first injured?

  Why didn’t Michael himself do the honorable thing and step forward to declare Terri’s wishes during the malpractice trial before a jury awarded more than a million dollars for her care if both he and his family believed that Terri wouldn’t want to have that care?

  YOU DECIDE

  Terri Schiavo might still be alive today if she had either had a different husband or a different judge. Terri had no jury at the 2000 trial to weigh the evidence regarding what her end-of-life wishes would have been regarding use of a feeding tube. Florida law requires clear and convincing evidence at trial if a person who can no longer speak for himself does not have a living will or some other written document stating their end-of-life wishes. Since Terri had no such written document, testimony had to be presented and evidence evaluated in court to determine what those wishes might have been in the circumstances in which she found herself.

  Since there was no jury to hear this testimony, the judge himself weighed the evidence presented by Michael Schiavo and his brother and sister-in-law (that Terri would want to die) against the evidence presented by Terri’s parents, her siblings, and friends (that she would want to live). Appellate courts would most likely have upheld the judge’s decision, whichever way he decided the case. The trial court is the only judicial body concerned with weighing evidence and determining facts. Appellate courts only review the procedure used and any legal questions. In Terri’s case, the judge weighed the evidence and erred on the side of death rather than on the side of life. Another judge might just as easily have taken the opposite approach. What would you have done if you were the judge? Let’s see how you would have weighed the evidence. First of all, it is important to point out that Michael never mentioned Terri would not have wanted to live with a feeding tube until several years after her collapse in 1990. In fact, during the medical malpractice trial in 1992, Michael assumed that Terri would live a long life. He told the jury in that trial that he needed millions of dollars so he could take care of Terri for the rest of his life. But after receiving a jury verdict of more than a million dollars, Michael reassessed his situation during the mid-1990s, and by 2000 he testified in Judge George Greer’s courtroom that Terri had told him she would not want to live ‘‘like that.’’

  Michael Schiavo testified before Judge Greer that, in her early twenties, Terri had expressed an oral declaration while watching various nonspecified television programs about disabled people that she would not want to live ‘‘like that’’—i.e., presumably on artificial life support, which prior to 1990, when Terri allegedly made these statements, consisted only of artificial heart and lung machines and did not incl
ude feeding tubes. Michael also testified that Terri had told him she would not want to live ‘‘like that’’ when talking about her uncle who had been injured in a car accident and was semiparalyzed although he lived at home, traveled to the beach, and had a job.

  To back up Michael’s version of Terri’s wishes, his brother and sister-in-law testified that Terri had made similar end-of-life statements in casual conversations with them, including a discussion about ‘‘life-support machines’’ at a family funeral and a discussion about friends who had removed their severely disabled newborn from a breathing machine. Both of Michael’s relatives testified on cross-examination that they had never told Michael about these conversations with Terri and didn’t ‘‘remember’’ them until 1999 when they were preparing for their court testimony.

  This was the entirety of the pro-death testimony regarding Terri’s wishes.

  On the other hand, Terri’s family and friends testified that Terri had great compassion for the sick and disabled, often visited her grandmother at a nursing home, and had never made any end-of-life statements, except to disapprove of the actions of Karen Ann Quinlan’s parents when they removed their daughter from life support (but did not remove her feeding tube).

  Terri’s family and friends always stressed to me that Terri had great compassion for sick animals and elderly people and that her favorite saying was, ‘‘Where there’s life, there’s hope.’’

  Judge George Greer, who conducted the trial in 2000, also heard testimony from a sociologist who stated that most people would not want to live after becoming severely disabled. The court approved payment of Michael’s legal bills for this trial using Terri’s medical malpractice trust fund. The Schindlers, who had no money for legal expenses and who were denied use of Terri’s malpractice funds to defend her life, offered no expert testimony to contradict this evidence.