This is a partial transcript of "Special Report With Brit Hume," March 23, 2005, that has been edited for clarity.
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JIM ANGLE, GUEST HOST: A bizarre day in the Terri Schiavo (search) case with two court decisions denying the parents' request to reconnect their daughter's feeding tube. Then both the Florida legislature and the governor's office stepped back into the fray, with Governor Bush offering a new doctor's opinion that Terri Schiavo's condition is better than thought. And vaguely suggesting the state might put her under protective custody.
All part of the day of remarkable developments on the eve of what is sure to be an appeal to the highest court in the land.
With us to unravel today's action is Jonathan Turley, professor of law at Georgetown — George Washington University, rather.
Thanks again for joining us.
JONATHAN TURLEY, LAW PROFESSOR, GWU: Thanks.
ANGLE: Now, let's first let's deal with the appeals court. You had the three-judge panel this morning that said no, and essentially reached the same decision as the federal judge in Tampa had. Then they appealed to the entire appeals court. And at the end of the day, it, too, backed up the earlier decision.
TURLEY: Well, this has been a terrible roller coaster, I think, for Terri's parents today. Even with the denial on the 11-Circuit, there was a glimmer of hope. It was a 2 to 1 vote and the dissenting judge essentially took the positions of Terri's parents, and said you should have put the tube back in. We should have had time to look at this. That prompted them to go for the vote of the entire courts, about 13 judges...
ANGLE: Instead of going directly to the Supreme Court.
TURLEY: That's right. And in fact, yesterday we talked about that and I thought it was a mistake to go to the Supreme Court, because you have the opportunity at the 11-Circuit to poll those judges. And so they took that opportunity, but they lost. It was a 10 to 2 vote. And now they will go to the U.S. Supreme Court and probably first to Justice Kennedy (search).
ANGLE: Now, the interesting thing about this is that you have exactly the same decision all along here, looking at very narrow legal grounds. Not getting involved in what Congress anticipated, which was some sort of start from scratch, top to bottom, de novo review of all the evidence in the case.
TURLEY: That's right. And that is a matter of great division between the two branches. And members of Congress are frustrated. They felt that it was understood that the feeding tube would be put in as a matter of course and that there would be a hearing truly on the whole vegetative state business.
This judge read it differently. This judge said — the trial judge said, you know, I looked to see if there is a valuable claim of a federal deprivation, particularly due process. I don't see it, that due process was given over the past 15 year. And the court of appeals judges agreed. And it is a bad sign to see a 10 to 2 vote because this is a very conservative circuit, and it was a very lopsided vote.
ANGLE: Now, speaking of evidence, the governor of Florida, Jeb Bush, seemed to offer some new evidence today. Saying that a neurologist from the Mayo Clinic has looked at her, has not examined her, but saw her and looked at some videotapes. And that he believes that she is not in a permanent vegetative state, but rather in a state of minimal consciousness. And he urged the courts to take a look at that and here's the reasoning he gave.
(BEGIN VIDEO CLIP)
JEB BUSH: With new DNA evidence 20 years after his conviction, suggesting his innocence, there is no doubt that the courts in our state or all across the country, for that matter, would immediately review his case. We should do no less for Terri Schiavo.
(END VIDEO CLIP)
ANGLE: He is talking there about a prisoner who comes up with new DNA evidence 20 years after he is convicted. Does this kind of evidence make any difference at this point in this case?
TURLEY: Well, it could make a difference if it was a true de novo factual review. The problem is that the federal courts are treating this case as if the record were closed. That after 15 years, as long as there was a due process given, it's really up to the state judge; that it's not the federal court, they need to go to state court and say look, this is alarming. This is a new fact.
What is clear is that this judge believes that this case is over. And it will take a lot to convince him that one more doctor's opinion will make a difference.
ANGLE: Now, does a new fact at this stage of this dispute make a difference anywhere along in the court system? Is there room, in what you said is sort of a closed case on the evidence, at least in some of the judge's opinions, is there room for someone to say wait, that is something new and we need to take account of that.
TURLEY: There is room on the state level. I don't believe that the Supreme Court is going to put much importance upon a single affidavit or declaration of this kind. They're not the court that usually opens up records. But it is relevant to that state judge.
If the judge believes that this doctor has compelling evidence that she may indeed not be in a vegetative state, that judge is required to consider it. If they bring it to him and say wow, we have a significant new fact here. But it's the significance of the fact that is going to turn the question. But it will have to be on the state level, not the federal level.
ANGLE: Now, Governor Bush and some of his aides also talked about another possibility today. Let's listen to what they said.
(BEGIN VIDEO CLIP)
RAQUEL RODRIGUEZ, GEN. COUNSEL FOR FL. GOV.: Under Section 415-1051, which is for Emergency Protective Services of Vulnerable Adults, DCF could take protective custody of Mrs. Schiavo. And I'll leave it at that.
(END VIDEO CLIP)
ANGLE: Now, the Department of Children and Families could go in, they are suggesting clearly there, and take protective custody of Terri Schiavo. Which obviously would mean reconnecting the feeding tube.
TURLEY: Right. I mean this case is getting stranger than Brooklyn, as they say. I mean it is — I have never seen anything like this. But that went to the judge apparently in Florida. And he enjoined the state from doing that. They can still show evidence, new evidence to say we really need to stop and look at this doctor from the Mayo Clinic.
But this judge clearly conveyed that he thought that this was a tactic, a dilatory tactic that he was not going to allow it to happen. They can now appeal his decision. And their basis would be that we are the agency that makes a decision whether an individual is at risk. And you can't — you can't enjoin that because you are really intruding upon the state government's prerogative. That can go — that appeal can go forward. But they will have to move quickly obviously.
ANGLE: Just seconds, but that means a new avenue of appeals then.
TURLEY: That would go to the state appellate court.
ANGLE: OK. Great. Jonathan Turley, thanks.
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