Published March 25, 2005
TAMPA, Fla. – In what may prove to be Terri Schiavo's parents' "final shot," their attorney was trying to persuade a judge Friday that the severely brain-damaged woman had expressed her will to live.
According to an emergency motion filed late Friday afternoon, attorney Barbara Weller said that during a hospice visit on March 18, she asked Schiavo pointedly what her wishes were. Weller directed Schiavo to say the words, "I want to live."
In response, Weller claimed Schiavo attempted to speak, and managed to get out the first two vowel sounds, "ahhh" and "waaa." Weller said Schiavo became very agitated and could not finish the sentence. Two other people were in the room and witnessed the exchange, Weller said.
Doctors believe Schiavo is in a persistent vegetative state (search) and is unable to process or respond to stimuli. But a few physicians have come out recently for the Schindlers to dispute that diagnosis.
Pinellas County Circuit Judge George Greer (search) heard the emergency motion in Clearwater, Fla., on Friday. A ruling was expected by noon on Saturday.
Greer also denied a new request by the parents Friday to recuse himself from the case.
Meanwhile, Bob and Mary Schindler, Schiavo's parents, had also taken their case back to the 11th U.S. Circuit Court of Appeals in Atlanta, the same court that refused twice this week to side with them.
The appeal came after U.S. District Judge James Whittemore (search) for a second time ruled against the Schindlers, who had asked him to grant their emergency request to restore her feeding tube while he considers a lawsuit they filed.
The Schindlers argued in that appeal that their daughter's due process and religious rights were being violated.
Click here to read the full ruling (FindLaw pdf).
Attorneys for Michael Schiavo, Terri's husband, responded to the Schindlers' appeal, arguing they had abandoned all pretense of the law and were simply making "a pure emotional appeal."
The parents' latest appeal, which opened with the sentence, "This is a mercy killing case," asked the court to order the Florida hospice where Terri Schiavo was staying to immediately transport her by ambulance to a hospital for medical treatment to sustain her life.
The appeal also asked that the case be returned to district court with orders for an evidentiary hearing.
"The information that was presented last night to the federal judge in Tampa was very strong … and we're encouraging these [appellate] judges when they review the appeal to make a right decision," Bob Schindler told reporters Friday just before noon EST, referring to the latest Whittemore decision.
"We've had some of the best legal minds in the country working on this and it always seems we're losing in court. It's not because we have poor attorneys, all right. They're offering sound, legal motions. But we haven't been very successful.
"But I do think that what was presented last night in the federal court is very, very viable and we're encouraging the appellate court to take a hard look at this thing and do the right thing," Schindler continued.
The tube was removed a week ago on a state judge's order in favor of her husband, who has said she has no hope for recovery and wouldn't want to be kept alive artificially. The Schindlers believe their daughter could improve and wouldn't want to die.
Terri Schiavo, 41, has been without food or water for seven days and was showing signs of dehydration — flaky skin, dry tongue and lips, and sunken eyes, according to attorneys and friends of the Schindlers. Doctors have said she would probably die within a week or two of the tube being pulled.
"Terri is weakening," Bob Schindler said Friday morning after visiting Terri in the hospice. "She's down to her last hours so something has to be done and it has to be done quick." After a later visit, he added: "I told her that we're still fighting for her, and she shouldn't give up because we're not. But I think the people who are anxious to see her die are getting their wish."
Florida Gov. Jeb Bush (search) ordered his legal team to scour state laws for a way to reconnect Schiavo's feeding tube. There were calls from the parents' supporters for him to take further action.
On Thursday, Bush said his powers "are not as expansive as people would want them to be. ... I cannot go beyond what my powers are and I'm not going to do it."
A spokeswoman for the governor, Alia Faraj, said Friday he was "saddened by the decision. ... Judge Whittemore's willingness to take a look at Terri's case gave us a ray of hope."
In his 11-page ruling, Whittemore wrote that the Schindlers couldn't establish "a substantial likelihood of success on the merits" of their case. He also noted "the difficulties and heartbreak the parties have endured throughout this lengthy process" and praised the lawyers' civility, saying it was "a credit to their professionalism ... and Terri."
The Legal Back-and-Forth
On Thursday, both the U.S. Supreme Court and Florida Supreme Court denied attempts to save Schiavo. The Schindlers were also hoping that Gov. Bush would somehow find a way to intervene — but Bush warned that he was running out of options.
"We're minute by minute right now. But it doesn't look like we have much left," Suzanne Vitadamo, Terri Schiavo's sister, told The Associated Press late Thursday.
Whittemore said many of the plaintiffs' motions were redundant after the hearing.
At the hearing's outset, Whittemore asked Schindler lawyer David Gibbs III (search) to focus on the legal issues because he was aware of Schiavo's declining health. Gibbs argued that as she lay dying, her rights to life and privacy were being violated.
The drama wasn't limited to the courtroom. Tampa police called in a bomb squad after a suspicious black backpack was found on the north side of the federal court building. The hearing was not interrupted, and the package was safely detonated by police.
Thursday evening, a man was arrested after he went to a gun store in Seminole and threatened its owner with a box cutter while demanding a weapon to "rescue" Schiavo, the Pinellas County sheriff's office said.
Meanwhile, family members worried that Schiavo was becoming more and more malnourished as the legal battle played itself out.
"It's very frustrating. Every minute that goes by is a minute that Terri is being starved and dehydrated to death," said her brother, Bobby Schindler. He said seeing his sister was like looking at "pictures of prisoners in concentration camps."
Brian Schiavo, brother of Terri Schiavo's husband Michael Schiavo (search), strongly disagreed with that assessment, telling a news network that Terri Schiavo "does look a little withdrawn" but insisting she was not in pain. He added that starvation is simply "part of the death process."
A lawyer for Michael Schiavo said he hoped the woman's parents and the governor would finally give up their fight.
"We believe it's time for that to stop as we approach this Easter weekend and that Mrs. Schiavo be able to die in peace," Felos said.
"Jeb Bush does not own the state of Florida and just cannot impose his will on Terri Schiavo," Felos told CBS' "The Early Show" on Friday.
Schiavo suffered brain damage in 1990 when her heart stopped briefly from a chemical imbalance believed to have been brought on by an eating disorder. She left no living will, but her husband argued that she told him she would not want to be kept alive artificially. Her parents dispute that and contend she could get better.
The dispute has led to what may be the longest, most heavily litigated right-to-die case in U.S. history.
The U.S. Supreme Court refused for the second time Thursday to review the case. Congress passed an extraordinary law over the weekend to let the Schindlers take their case to federal court.
Later Thursday, Greer denied Bush's request to let the state take Schiavo into protective custody and, presumably, restore her feeding tube. Bush appealed that decision to the 2nd District Court of Appeal.
In documents filed in Greer's court, Bush cited new allegations that Schiavo was neglected and abused, and challenged her diagnosis as being in a persistent vegetative state.
"The requested intervention ... appears to be brought for the purpose of circumventing the courts' final judgment and order setting the removal date in violation of the separation of powers doctrine," Greer wrote.
The Florida Supreme Court later declined to take up a separate appeal on another Greer order that blocked the state's social services agency from taking temporary custody of Schiavo while challenges are argued.
State law allows the Department of Children and Families to act in emergency situations of adult abuse.
Late Thursday afternoon, DCF filed another petition before Greer seeking to provide emergency protective services for Schiavo. Greer had not scheduled a hearing by Thursday night but, according to Bush's office, he indicated one could occur Monday.
"For this lockdown to occur without having the ability to have an open mind, and say, 'Well, maybe there are new facts on the table, maybe there are new technologies, maybe, just maybe, we should be cautious about this' ... is very troubling," Bush said.
Even before the state high court's ruling, the governor acknowledged Thursday in an interview with The Associated Press that his hands were increasingly tied.
"It is frustrating for people to think that I have power that I don't, and not be able to act," he said. "I don't have embedded special powers. I wish I did in this particular case."
In his decision, Greer said an affidavit from a neurologist who believes that Schiavo is "minimally conscious" was not enough to set aside his decision to allow the withdrawal of food and water.
"By clear and convincing evidence, it was determined she did not want to live under such burdensome conditions and that she would refuse such medical treatment-assistance," Greer wrote.
Schiavo has now been off the tube longer than she was in 2003, when the tube was removed for six days and five hours. It was reinserted when the Legislature passed a law later thrown out by the courts.
"Bob and Mary are begging Governor Bush to save their daughter on this Good Friday day," Paul O'Donnell, a Franciscan monk, said after Friday's ruling. "Now is the day. Now is the time for the governor to have courage. The governor needs to take action and take action soon. She's dying." He contended the governor still has the power to take her into protective custody.
The Associated Press contributed to this report.