Fighting for Dear Life

by David Gibbs

  If Judge Greer had determined that the evidence he heard was not clear and convincing in favor of removing Terri’s feeding tube, she might still be alive today, receiving therapy and interacting socially with her family and friends. Would she be able to eat on her own? Could she have recovered? These are questions we can no longer answer. Even Dr. Jon Thogmartin, the medical examiner who conducted Terri’s autopsy, said it is impossible to make such determinations by viewing a corpse. Such a diagnosis can only be made by examining a live patient.

  But there is one thing we can know for sure. If Terri were still alive today, she would be basking in the love and care of her devoted family and her many friends, no matter what her condition or the degree of her recovery. One thing Terri’s family and friends fully agreed with her on was that ‘‘where there’s life, there’s hope.’’

  The lack of a paper trail detailing Terri’s wishes wasn’t missed by ABC News’ Chris Bury. In a Nightline interview, Bury quizzed Michael about this missing link of indisputable evidence:

  BURY: Michael, did Terri, your wife, leave any kind of writ-ten instructions about her wishes?

  SCHIAVO: She didn’t leave any written instructions. She has verbally expressed her wishes to me and other people.

  BURY: She had verbally expressed them in what context exactly?

  SCHIAVO: Through watching some TV program, a conversation that happened regarding her uncle that was very ill.

  BURY: And how long ago was that?

  SCHIAVO: Oh, we’re talking—it’s now been fifteen years. We’re talking a couple of years, three years before this happened to Terri.

  BURY: So there’s no kind of written record at all? It’s basically your recollection and those of other family members?

  SCHIAVO: Yes, it is.5

  Why would Judge Greer permit hearsay testimony, suddenly remembered by Michael and his family years after the fact, as the basis for a life-and-death pronouncement? Since Terri could no longer speak for herself, she had no way to correct or clarify what she was alleged to have said. At the very least, the Schindlers argued, the court should have provided Terri with a lawyer to represent her own interests, since they might not have been the same interests her husband had.

  Unbelievable as it sounded to me, that never happened. Throughout the many years of this intrafamily legal wrestling match, Terri never had any legal representation of her own. The court’s unfortunate assumption apparently was that Michael’s attorney was also representing Terri since Michael was Terri’s legal guardian. (Keep in mind we were representing her parents, Bob and Mary Schindler, while George Felos was representing Michael Schiavo.)

  As it turned out, a probate court judge was able to overrule the will of the governor, the Florida legislature, the U.S. Congress, and the president by ordering Terri to die.

  This is why I maintain that the fate of an ordinary kitchen appliance would have had greater legal protection than did the life of Terri Schiavo.

  THE DEATH PENALTY

  Much like Alice struggling to make sense of Wonderland, I still cannot comprehend how the people who were entrusted with protecting Terri—namely, her guardian/husband and the guardianship court— were so in favor of ending her life. I’m also amazed when I meet people in my travels who fail to grasp the fact that starvation/dehydration is an act of brutality so severe and so heartless that fellow Americans would never permit such a death, even in a case where death was warranted, as with Ted Bundy, the Florida mass murderer.

  Imagine this scenario.

  As of this writing, thirty-eight states permit the execution of men and women who have done horrible crimes against humanity. What do you think would happen if, in one of those states, the legislature were to say, ‘‘Here’s an idea that will save money and take some of the strain off our budgets. Instead of using the electric chair or spending funds on lethal injections, we hereby authorize the wardens to lock all condemned inmates in their cells, with a police guard to make sure no one attempts to feed them, and then let them starve to death ‘naturally’ when their appeals have expired. A couple of weeks later, send in the guards and haul out the corpses.’’

  The lawmakers could contend that these inmates are already sentenced to die, and as reported by the New York Times, ‘‘experts say ending feeding can lead to a gentle death.’’6 Sure, such a proposal sounds farfetched. But why not explore the starvation of death row inmates for efficiency and cost savings? Answer: The Eighth Amendment’s cruel and unusual punishment clause covers all people, including hard-core prisoners.

  The courts have ruled that states must execute their capital punishment sentences as painlessly and as swiftly as possible. Understandably, electric chairs have fallen into disfavor because of their unreliability. For instance, Florida used to use an electric chair that became known as ‘‘Old Sparky’’—it killed the condemned most of the time on the first jolt. But sometimes it didn’t and a second try was attempted. That was completely unacceptable. So given the desire to treat criminals humanely, we’ve gone to lethal injections.

  Clearly, our system of justice bends over backward to minimize pain during the death process of convicts. Which is why Terri’s only crime was that she committed no crime worthy of the death penalty. Think about what I just said. If Terri had broken the law, she never would have been dehydrated and starved to death anywhere in America. How did we get to such a low point in our nation’s history where there are better protections in place for people incarcerated against their will than there were for Terri as a ward of the state?

  I believe what happened to Terri is a reflection of our culture at large. We’re a disposable nation with an insatiable appetite for what’s newer, brighter, bigger, and better. Take mobile communications. What do we do when our cell phones and pagers become out-of-date? We toss them, right? What do we do when a computer is old? We buy a new one and trash the old workhorse. Appliances, clothing, gadgets—you name it, we toss ’em and run to WalMart for a new one at the first signs of wear.

  If we’re not careful, that disposable consumer view will regularly find its way into the courtroom setting. In fact, that’s what happened with Terri. The Pinellas County Probate Court had no problem lumping Terri in the ‘‘damaged goods’’ bin even after many excellent doctors, neurologists, speech therapists, and others gifted with rehabilitation training and skills stepped forward to testify that Terri might be rehabilitated.

  The court said, in effect, that no matter what condition Terri was in or might be in—even if we could teach her to swallow, to drink on her own—nothing the Schindlers might be able to demonstrate to the court could prove that any treatment would raise her quality of life to the level where the judge would believe Terri would want to stay alive.

  Is that difficult to believe?

  Consider Judge Greer’s second order to withdraw Terri’s nutrition and hydration on November 22, 2002 (the first was on February 11, 2000). He wrote, ‘‘The real issue in this case, however, deals with treatment options for Terry [sic] Schiavo and whether or not they will have any positive affect [sic] so as to ‘significantly improve her quality of life.’ ’’ Do you see the dangerous slope we have just stepped onto with that line of reasoning?

  It’s as if we, as a nation, have collectively fallen down the rabbit hole and entered Wonderland. Here we discover that the disabled, the handicapped, the sickly, the elderly, and potentially, people suffering from terminal HIV/AIDS are being told by the courts: Your life is not worth living if it doesn’t meet our own minimal quality standard.

  At least in Lewis Carroll’s fable, Alice awakened to learn that her topsyturvy courtroom drama and her visit to Wonderland was simply a fantastical dream. If only we could do the same. Instead, Terri’s tragic story finished as a nightmare.

  CHAPTER ELEVEN

  TERRI’S LAST MEAL

  ORDERED AND ADJUDGED that absent a stay from the appellate courts, the guardian, MICHAEL SCHIAVO, shall cause the removal of nutrition and hydration from the
ward, THERESA SCHIAVO, at 1:00 P.M. on Friday, March 18, 2005.

  —JUDGE GEORGE W. GREER, FEBRUARY 25, 2005

  For weeks on end our attorneys scaled a mountain of case law searching for any crevice that could be pried open into a legal foothold to save Terri. We prepared briefs by night and presented arguments by day. Press conferences were wedged in between meetings. Sleep was grabbed in meager bundles of adjacent minutes: at the desk, on the couch, or in a parked car before appointments. We squeezed every precious minute out of the day trying to find a reprieve.

  Most of all, we prayed—a lot.

  But as we saw, even the prospect of a million-dollar offer to give Terri back to her parents could not get Michael to budge from his position. As the eyes of the world were glued to the television for the latest minute-by-minute developments, a California businessman upped the ante by depositing $1 million dollars in a trust. The money was Michael’s for the taking—if he would just agree to release the guardianship of Terri to her parents.

  Speaking for Robert Herring Sr., founder of both HERCO Technology and a firm called WEALTHTV, attorney Gloria Allred said Herring ‘‘retained my law firm to convey the following offer to Terri’s husband.

  If Mike Schiavo agrees to transfer the legal right to decide all of Terri’s current and future medical decisions to Terri’s parents, then Mr. Herring will pay Mr. Schiavo the amount of $1 million.’’1 What motivated this most incredible offer?

  Herring said, ‘‘After viewing a video of Terri on television, I came to the belief that there was hope for her.’’ He added, ‘‘I believe very strongly that there are medical advances happening around the globe that very shortly could have a positive impact on Terri’s condition.’’2 We held the same position and wondered why Michael Schiavo and the courts would deny Terri the chance to benefit from such medical treatment. The reaction from Michael’s attorney was as swift as it was abrupt. Calling the offer ‘‘offensive,’’ in a huff Felos said, ‘‘Michael has said over and over again that this case is not about money for him. It’s about carrying out his wife’s wishes. There is no amount of money anyone can offer that will cause him to turn his back on his wife.’’3 The truth is, we could only speculate what Michael’s true reasons were for refusing to settle privately outside of court and for refusing cash offers to save Terri. What we did know was that if an agreement outside of court wasn’t going to materialize, then we had to aggressively advocate every possible appeal that might reverse Terri’s civil death sentence.

  BLACK FRIDAY ARRIVES

  I was up by five-thirty that Friday morning, March 18, 2005, after two hours of rest, and hit the floor running. We had a little more than seven short hours before Terri’s nutrition and water would be cut off at 1:00 PM—the deadline set by the court to begin her ‘‘death process.’’ I held my wife and prayed with her that God would work a miracle. Looking at my sleeping kids, I kissed them each on the forehead with fresh appreciation for their lives, and then I hustled out the door. My first stop would be Woodside Hospice to see Terri. A number of pressing issues were on the table, each with its own set of ramifications.

  Number one, I wanted to encourage her with some wonderful news: The U.S. Congress had now gotten involved. Several lawyers from Congress had flown into town with a subpoena for Terri to appear before a health subcommittee of the House of Representatives. There was a razor thin chance the feeding tube would be allowed to stay in place for her to travel to Washington, D.C. Of course, we also had to be prepared for the possibility that it might still be removed.

  A second issue in the works was the possibility that the Florida Department of Children and Families (DCF) might arrive at the hospice to take Terri into their protective custody. If marshals sent by DCF were dispatched to secure her, a confrontation between the concerned parties would most likely occur. The Schindlers would need us by their side to represent their interests.

  RESTRICTED AREA

  I was about to turn down 102nd Avenue to access the front entrance of the hospice when I hit the brakes.

  For a split second it appeared that I had been somehow transported to a checkpoint at one of the world’s war-torn hotspots. An uninformed pedestrian might think he was about to enter Iraq, Gaza, or Israel. For starters, a newly erected police barricade prevented vehicular traffic to the street. Armed officers patrolled the grounds with dogs as if engaged in a prison lockdown. A number of police sharpshooters were positioned on the hospice rooftop to survey the crowd for any signs of trouble.

  I would later learn that the initial estimates for this Pinellas Park police protection totaled $98,162, a sum that was being paid for by the hospice facility.4 And this wasn’t the first time Woodside had requested and paid for a police presence during Terri Schiavo’s stay. In 2003 the hospice had paid a tab in excess of $125,000 for police security.5 Neither of these figures takes into account the nonovertime use of police officers to direct traffic, or the expenses to the public works department to erect barricades and to remove the daily trash and litter associated with the media and the crowds.

  Granted, I fully expected some level of law enforcement involvement. For many months, and at the request of Michael Schiavo, an armed guard had been posted outside Terri’s room. Typically, off-duty officers from the Clearwater Police Department were hired to provide an around-the-clock presence at a cost of twenty-five dollars an hour.6 With this level of security, you’d think the Secret Service was on hand working to protect the president or a visiting head of state. The no-trespassing perimeter around the hospice was being strictly enforced.

  After stating my business and presenting my ID, I was waved past the first set of police patrol cars. Even this early in the day, the crowd— some of whom had spent the night camped out on the sidewalk—numbered in the hundreds. In addition to those who prayed, sang, or carried protest signs, I noticed a group of teenagers sporting bright red tape over their mouths signifying that Terri couldn’t speak for herself. They’d returned for another day of silent prayer and protest.

  Just beyond them, another group of disability advocates, many of them in wheelchairs, chanted, ‘‘We’re not dead yet!’’ As disabled persons, they had the most to lose if Terri’s death was permitted to be carried out.

  The media encampment across the street buzzed with activity like a hornet’s nest. Members of the press from around the world patrolled the sidewalks waiting for late-breaking news. Would Terri be saved? How was she doing? How was the family holding up? Virtually overnight, an electronic forest of satellite towers had sprouted and now pierced the morning sky. This was, after all, to be Day One of Terri’s death watch. Occasionally, a TV news helicopter hovered overhead, capturing the commotion below for the viewers at home, many of whom were praying fervently for Terri—a woman they had never known except through the round-the-clock press coverage. We thanked God for them.

  I parked alongside a media tower truck, grabbed my cell phone, and worked my way quickly through the sea of people to the second police checkpoint in the hospice driveway. Even though my face was on almost every major network and the guards knew who I was, I still had to present my ID and explain my reason for seeking admittance to the building. My name was compared to an official list of authorized visitors before I was directed to proceed to the main doors.

  At that point all guests were subjected to a physical pat down and wand treatment. Everything had to come out of our pockets no matter how innocuous: breath mints, wallets, gum, combs, paper, pens, cell phones, keys, watches—only the clothing on my back was permitted in. The guard placed these personal effects into a tray and held them until I exited. This would come to be the routine every time I visited Terri during her final days.

  Inside, the mood was extremely tense. The receptionist and staff were on edge; I don’t fault them for being agitated. They were there to provide services and comfort to upward of seventy terminal patients against the backdrop of a circus of activity outside. Adding to the tension was the presence of one of
Michael’s attorneys, who was on hand to enforce her client’s wishes. Like a hawk, every move was watched.

  I made my way down the corridor and was checked again outside of Terri’s room. The officer standing in front of her door had another list of approved visitor names, which was consulted to make sure there hadn’t been a last-minute court order or legal directive preventing me from going inside. The same drill was required of all of Terri’s visitors. In spite of these hassles, I did my best to maintain an upbeat spirit for Terri’s sake and for her family.

  I knew the attorneys from the House of Representatives had flown down from Washington, D.C., to conduct last-minute filings with the court on Terri’s behalf; they’d be arriving at my office shortly. I had to make my morning visit with Terri quick. Thankfully, Barbara Weller, my legal associate, planned to stay by her side while I rushed back to the office to meet with the attorneys from Congress; that is, after I shared the encouraging news with Terri first.

  I WANT TO LIVE

  Terri was in great spirits that morning. Her eyes had a brightness that seemed to complement the light pink glow in her complexion. She sat in her reclining chair clutching her favorite stuffed cat under her arm. Her hair was brushed, she was wearing a pink robe, and a light brown blanket covered her lap. Her feet, poking out from underneath the blanket, sported velveteen ballerina slippers, the kind little girls like my own daughters like to wear around the house.

  Barbara Weller and Terri’s sister, Suzanne Vitadamo, sat on the edge of her bed, visiting and laughing with Terri, along with several other extended family members. I hated to interrupt but I knew time was of the essence. I came alongside Terri and told her that we were working with Congress and even the president to allow her to go to Washington, D.C., to testify before a congressional committee. She seemed pleased that I was there, even though I’m sure she did not totally comprehend that news. Suzanne and Barbara interjected that Michael would finally have to get her wheelchair fixed for the trip, not to mention that they’d be able to take Terri shopping in the mall while they were in the nation’s capital. That news seemed to visibly excite her.