Fighting for Dear Life (26 page)

Terri's DeathIs Again Mandated by the Court: January 24, 2005— The U.S. Supreme Court rejects Governor Jeb Bush's appeal of the Florida Supreme Court's decision in Bush v. Schiavo. Judge Greer then orders not only the removal of Terri's feeding tube but also the withholding of all hydration and nutrition by mouth, to begin on March 18, 2005.

March 16, 2005: Death Order Stands—The Florida Second District Court of Appeals rejects the Schindlers' appeal to stay the removal of the feeding tube, allowing the March 18 date to stand. The Schindlers immediately appeal this decision to the U.S. Supreme Court through Justice Kennedy. The Court declines to get involved.

March 18, morning: Summoned to Washington—The U.S. House of Representatives Committee on Government Reform issues subpoenas for Terri Schiavo, her husband, her doctors, and others from the hospice facility to appear at a March 30 hearing in Washington, D.C. This order should result in the reinsertion of Terri's feeding tube to preserve her life, but Judge Greer denies Congress's motion to intervene and ignores congressional subpoenas.

March 18, 1:45 PM: Feeding Tube Removed, Third and Final Time— Terri's feeding tube is removed in the afternoon while hundreds of news media and protestors begin to gather outside her hospice facility.

March 18, afternoon: To the Highest Levels—Attempts to save Terri's life move into high gear after her feeding tube is removed. During this time attempts to save her life are ongoing in the governor's office, in the Florida legislature, in the United States Congress, and with President George W. Bush.

March 20: U.S. Congress Bill—On Palm Sunday, the U.S. Congress delays its Easter recess and works through the weekend to pass a bill, (S686: An Act for the relief of the parents of Theresa Marie Schiavo, March 20, 2005: 109th Congress, 1st session). President Bush flies back from Texas to sign the bill into law.

March 21: President Signs Bill—At one AM, President Bush is awakened to sign the federal equivalent of a Terri's Law, intended to give Terri access to a rehearing in federal court, just as a criminal death penalty convict would receive.

March 22: DeathOr der Stands—Judge Whittemore rules that there is no state action involved in Terri's death order and that Terri has no federal claims that the congressional legislation entitles her to pursue. He refuses to alter the status quo of Terri's death sentence while appeals are pending.

March 23: EleventhU.S. Circuit Court Appeal—Judge Whittemore's March 22 ruling is immediately appealed to a three-judge panel of the Eleventh Circuit. In a 2–1 decision, the court denies the Schindlers' request to reinsert Terri's feeding tube based on the Palm Sunday Act of Congress. The court also denies the Schindlers' petition in a full court hearing, with only two judges of the full panel siding with the Schindlers.

March 24: U.S. Supreme Court Refuses Involvement—Although clerks at the U.S. Supreme Court, who, with Justice Kennedy, oversee the Eleventh Circuit for the Court, are very gracious and remain open with a clerk on hand to receive petitions for appeals, the U.S. Supreme Court ultimately refuses to become involved. Both decisions of the Eleventh Circuit are appealed to the high Court, but without relief.

March25: Eleventh Circuit Refuses to Hear Appeal—The Schindlers appeal Judge Whittemore's second ruling to the Eleventh Circuit. This time, the court issues a stern warning that it does not wish to consider this matter again.

March25: Terri's Attempt to Speak—The Schindlers file a final pleading with Judge Greer on Good Friday. This final hearing is conducted by telephone, as Judge Greer has apparently left the Clearwater area. The affidavits state that on the morning before Terri's feeding tube was removed on March 18, in their presence and in the presence of other visitors in the room, Terri attempted to say, ‘‘I want to live,'' in response to a plea from Mrs. Weller for her to attempt to speak for herself. Judge Greer denies this final motion and accepts the arguments of Michael's lawyer, George Felos, that since Terri is in a persistent vegetative state, she has no ability to communicate.

March 28: Litigating at Light Speed—In total, the Schindlers file ten petitions in ten days in every possible jurisdiction between March 18 and March 28. It has been noted by legal experts that this flurry of activity set a record in U.S. legal history. Terri's plea for life appears to be the only case in American legal history that went through the federal court system to the Supreme Court and back twice in ten days.

March 18 –30: Desperate Measures—Nearly a dozen people are arrested attempting to bring water to Terri, including three children. Protesters include the disability community, many of whom conduct their vigil in wheelchairs.

March 30: Second Refusal From High Court—The U.S. Supreme Court refuses to hear a petition for appeal from the Schindlers for the last time, a few hours before Terri dies.

March 31: Terri Passes Away—After thirteen days of valiantly fighting for her life, Terri dies—the first victim of a civil death order by a judge in the history of America.

PART THREE

FIGHTING FOR
OUR FUTURE

CHAPTER SEVENTEEN

SUPREME DENIAL

This is a court of law, young man, not a court of justice.

—O
LIVER
W
ENDELL
H
OLMES
J
R., FORMER
U.S. S
UPREME
C
OURT
J
USTICE

I
'm often asked why the U.S. Supreme Court refused to protect Terri's due process rights. Likewise, many people I meet want to know why a series of lower courts failed to give Terri the same protection afforded to convicted killers on death row, especially after both the Congress and the president stepped in. After all, Terri's death seemed to me, as well as to many others, to be a clear miscarriage of justice, despite the fact that Florida law permitted this outcome. How could the courts allow this to happen?

The answer is not comforting.

In a word, we do not have
justice
in this country; we have a
system
of justice.

Tragically, in Terri's case, the system prevailed—justice did not. What I think many people don't understand is that the judicial system is just that—a system. And while the goal behind the American system of justice is to have a ‘‘just'' or ‘‘right'' verdict, even the most experienced judge will acknowledge the fact that the system is flawed. A host of contributing factors can lead to the miscarriage of justice in our courts. Let's consider the top three: the money, the magistrate, and the morality.

THE FINEST JUSTICE MONEY CAN BUY

You're probably aware of a number of high profile cases in which people have done horrible things and have apparently gotten away with them. How? They had enough money to finance a ‘‘dream team.'' The finest lawyers from the leading law firms and a parade of expert witnesses are flown in from around the country to dazzle the jury. As American poet Robert Frost quipped, ‘‘A jury consists of twelve persons charged to decide who has the better lawyer.''

Speaking of assembling a dream team, take for example O. J. Simpson or Michael Jackson. Both were celebrities with deep pockets charged with heinous crimes. I don't know whether or not these men actually committed the offenses that they were accused of; the point is that they were in a financial position to afford an aggressive defense to vindicate them at every possible turn.

By contrast, if a single-parent mom, barely making a living and perhaps on food stamps, were to be accused of similar crimes—murder or molestation—she wouldn't have the resources necessary to hire a first-class lawyer. At best she'd be assigned to an overworked public defender who'd be handling literally hundreds and hundreds of cases simultaneously. Most likely, she'd be convicted and jailed simply because she didn't have strong legal counsel.

Clearly, our system of justice provides an unfair advantage to people of wealth.

HERE COMES THE JUDGE

The second factor affecting the kind of justice you or I might receive in court is the magistrate assigned to the case. You see, there is a terrific difference between judges and how they'll rule. There's a mistaken notion in America that somehow the judges are just upholding ‘‘the law.'' In reality, there is no fixed definition of what ‘‘the law'' is. ‘‘The law'' is subjective—it's whatever the judge says: ‘‘I have interpreted the facts in light of these statutes; here is
the law
.'' Depending on the personality of the judge, the background of the judge, the politics of the judge, the law and the justice meted out can vary markedly from courtroom to courtroom.

In a personal injury case, one of the first questions some attorneys ask is this:
Which judge did you get?
There are judges who tend to be pro-plaintiff (the people who are suing). There are judges who tend to be pro-defendant. Accordingly, some lawyers believe the anticipated outcome of the financial damages awarded can go up or down depending on the judge that they have. So if you're the defendant being sued for, say, $5 million in damages and you were to draw a pro-plaintiff judge, you might be more tempted to settle out of court. And fast. Conversely, if the judge is pro-defendant, you might be more inclined to take your chances at trial.

How is that equal justice?

The facts should speak for themselves.

The outcome shouldn't depend on the personal views of a judge. That's the tension within the American system of justice. From judge to judge, even from location to location (the big city jurists might handle a case completely different than those in rural regions),
justice is relative
. I realize that may be a difficult idea to embrace, especially since we're so accustomed to expect consistency in daily life.

Think about it. If you stay at a Marriott or a Hampton Inn, or if you eat at McDonald's or an Outback Steakhouse, these hotel and food service chains work hard so that you'll experience the same level of customer service, the same quality of product, and the same degree of excellence across the board. Whether the Golden Arches is franchised or corporately owned, or located in London, England, or London, Indiana, when you sink your teeth into a McDonald's hamburger, you'll instantly recognize the famous taste. If the quality of their food were relative or inconsistent, they'd lose customers.

Let's not overlook the human dimension: Judges are still people. They have good and bad days. They fight with their spouse. They get flat tires. It would be a mistake to dismiss mood swings, egos, notoriety, and peer review pressure in the judgments that they may make. This explains why there can be enormous inconsistencies in how rulings are handed down. (In all fairness, a great number of judges are aware of this and strive to be both consistent and impartial.)

We've looked at how money and the choice of a judge impacts justice. The third underlying factor is morality. There is no longer an absolute standard of morality in American law. Without a moral foundation, justice is in the eyes of the beholder; what the judge thinks will ultimately control the outcome.

This wasn't always the case.

COMMON LAW VERSUS CIVILLAW

Back in Duke Law School, one of my earliest civil procedure classes was a real eye-opener. Our professor, who had clerked for two different Supreme Court justices, was a highly respected and successful lawyer. I remember listening to his opening-day speech. Now, as a young law student taking notes, I was much like the others in my class—wet behind the ears. We were just happy to have found the right classroom. We were honored to be there under the teaching of this great man.

In our first class, our professor started off by saying, ‘‘I'm going to tell you something that is very important.'' I thought,
If he thinks it's
important, then it's probably going to be on the test
. With pen in hand, I got ready to write down his great insight on my yellow legal pad. With a wave of his hand, he announced, ‘‘The common law is dead in America.'' I thought,
Wow, this is significant. The common law is dead in America
. I wrote that down. He continued: ‘‘We now live in an era of statutory law.'' So I wrote that down, too, although I didn't initially understand the difference.

He explained that American law was originally based upon English law and that English law had been established upon an absolute standard, written down by William Blackstone in a universally used legal textbook called ‘‘Blackstone's Commentary.'' Evidently, Mr. Blackstone quoted from the Bible 80–90 percent of the time in this legal textbook, the first one used in America. So in a pre-computer, pre-law book era, judges established a consistency in the English and early American courts by saying, ‘‘If you know the Bible, then you have an understanding of the law.''

Even the phrase ‘‘One Nation Under God'' stamped on our money was designed to demonstrate that this was a nation that recognized God as the ultimate authority. Our president is sworn into office by placing a hand on the Bible. Witnesses about to give testimony in court are sworn to tell the truth by placing their hand on the Bible. These and similar actions reveal our nation's religious roots.

Fifteen years before Terri died, my professor said that the common law in America was dead, that the commitment to absolute truth and the notion of absolute right or wrong are gone. I imagine someone in the class might have wondered, What's the big deal? Times change. The needs of a nation change. What could be so bad about living in a time in which courts base their decisions on statutory law?

What is statutory law anyway?

Statutory law is whatever legislators elected by the people decide is legal at any given moment—and that can change from year to year. It's whatever 51 percent of the leaders, politicians, or courts approve, even if it's inconsistent with what's been done in the past. Which is why prostitution is illegal in forty-nine states, with Nevada permitting it in certain counties. The problem with this approach is that there is no longer any controlling moral authority for American law.