Murder by judicial process

Murder by judicial process - Opinion

July 18, 2005

By Nat Hentoff, Newspaper Enterprise Association

Published by the Canton Repository

Canton, Ohio

http://www.CantonRep.com

To submit a Letter to the Editor: letters@cantonrep.com

The end of the June 15 autopsy report on Terri Schiavo states that it is the policy of the medical examiner’s officer “that no case is ever closed and that all determinations are to be reconsidered upon receipt of credible, new information.” Whatever new information, if any, comes to light, the facts of who she was and how she died will inevitably change the way many of us confront our own deaths.

Pat Anderson, for a long time the attorney for Terri Schiavo’s parents, said the day Terri died of dehydration -- as ordered by the courts and her husband -- “Euthanasia in America now has a name -- and a face.”

Dr. Jon Thogmartin’s autopsy report made clear that Terri Schiavo was not dying, let alone terminal.

As Dr. Carl D’Angio wrote in a June 21 letter in the New York Times, “Her family loved what was left of her and asked only to be permitted to care for her at their own expense. My question is, who or what was better served by her passive execution by water deprivation than by the first alternative?”

Responding to the autopsy report, Terri’s parents said, “Terri’s case was not an end-of-life case. Terri’s case was about ending a disabled person’s life. Terri was brain-injured. This does not mean that she was brain-dead.”

Her parents also noted that “according to the medical examiner, Terri was given morphine for pain as she died ... If Terri could feel no pain, as some would say, why would these drugs be necessary? In our opinion, the treating health care officials understood that Terri felt pain.”

There was a service when Michael Schiavo, her husband, [secretly] buried her cremated remains ["cremains"] on June 20 in Clearwater, Florida, where he lives. However, Terri’s parents were not there -- he did not tell them. That tells me something about Michael Schiavo. Also, on a bronze grave marker [that] he had taken pains to order, he wrote, “I kept my promise.”

Concurring, a headline in the June 16 New York Post exclaimed: “Terri had no hope -- Autopsy supports her husband.”

With few exceptions, this was also the opinion of many editorial writers and columnists around the country.

Another consensus in the media was that her rights had been, indeed laboriously, upheld by the courts, up to and including the Supreme Court.

But the true core of this case, resulting in the extraction of her life, was the decision by Circuit Judge George Greer in Florida that Michael Schiavo had kept his promise by adhering to what he claims Terri told him, before her brain injury, that she would not want to live if she were kept artificially alive.

This alleged statement was just hearsay, confirmed only by Michael Schiavo’s brother and sister-in-law.

But Judge Greer paid no attention to the sworn testimony of a close friend of Terri, who testified Terri had said her wishes would have been to go on living in such a situation.

Moreover, Judge Greer repeatedly refused to take into consideration, with regard to the husband’s credibility, that Michael Schiavo, after Terri became disabled, had for years been living with another woman, with whom he’s had two children, although he had said he would devote his life to caring for his wife.

Also, Michael Schiavo did not mention her alleged wishes for years after her brain damage, at one point saying he didn't know her wishes.

Yet Judge Greer allowed Michael Schiavo to act as her guardian, while not permitting Terri to have her own lawyer representing her. (Her parents had a lawyer, but elementary due process required that an attorney directly represent this disabled woman, whose husband was intent on her interment.)

After the autopsy, there were renewed, scathing attacks on those members of Congress who had tried to have the federal courts intervene to save Terri’s life.

But since a state court judge had sentenced her to death -- ordering her feeding tube removed three times -- elementary due process required a review of the entire case in the federal courts by authority of the Fourteenth Amendment’s “equal protection of the laws.”

Most of the media omitted the fact that in Congress, there were many Democrats as well as Republicans who tried hard to provide Terri the essence of our legal system -- due process -- before it was too late.

But then, the great majority of the federal judges who became involved relied entirely on the state circuit judge’s unyielding death sentence.

I called this judicial murder, the longest public execution in our history.

Despite Michael Schiavo’s bronze marker on her grave, I have not changed my mind.

Michael Schiavo’s literary agent, David Vigliano, is sending proposals for a book by the husband to publishers.

Says Mr. Vigliano, “I think this is the seminal case in the right to die with dignity story.”

No.

This is the seminal case for whether euthanasia for the seriously disabled becomes embedded in the American way of death.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books.

http://www.cantonrep.com/index.php?Category=14&ID=233127&r=0

Please, also read the following:

Terri Schiavo: Judicial Murder - Her crime was being disabled, voiceless, and at the disposal of our media

March 29, 2005

By Nat Hentoff

For all the world to see, a 41-year-old woman, who has committed no crime, will die of dehydration and starvation in the longest public execution in American history.

She is not brain-dead or comatose, and breathes naturally on her own. Although brain-damaged, she is not in a persistent vegetative state, according to an increasing number of radiologists and neurologists.

Among many other violations of her due process rights, Terri Schiavo has never been allowed by the primary judge in her case -- Florida Circuit Judge George Greer, whose conclusions have been robotically upheld by all the courts above him -- to have her own lawyer represent her.

Greer has declared Terri Schiavo to be in a persistent vegetative state, but he has never gone to see her. His eyesight is very poor, but surely he could have visited her along with another member of his staff. Unlike people in a persistent vegetative state, Terri Schiavo is indeed responsive beyond mere reflexes.

While lawyers and judges have engaged in a minuet of death, the American Civil Liberties Union, which would be passionately criticizing state court decisions and demanding due process if Terri were a convict on death row, has shamefully served as co-counsel for her husband, Michael Schiavo, in his insistent desire to have her die.

Months ago, in discussing this case with ACLU executive director Anthony Romero, and later reading ACLU statements, I saw no sign that this bastion of the Bill of Rights has ever examined the facts concerning the egregious conflicts of interest of her husband and guardian Michael Schiavo, who has been living with another woman for years, with whom he has two children, and has violated a long list of his legal responsibilities as her guardian, some of them directly preventing her chances for improvement. Judge Greer has ignored all of them.

In February, Florida's Department of Children and Families presented Judge Greer with a 34-page document listing charges of neglect, abuse, and exploitation of Terri by her husband, with a request for 60 days to fully investigate the charges. Judge Greer, soon to remove Terri's feeding tube for the third time, rejected the 60-day extension. (The media have ignored these charges, and much of what follows in this article.)

Michael Schiavo, who says he loves and continues to be devoted to Terri, has provided no therapy or rehabilitation for his wife (the legal one) since 1993. He did have her tested for a time, but stopped all testing in 1993. He insists she once told him she didn't want to survive by artificial means, but he didn't mention her alleged wishes for years after her brain damage, while saying he would care for her for the rest of his life.

Terri Schiavo has never had an MRI or a PET scan, nor a thorough neurological examination. Republican Senate leader Bill Frist, a specialist in heart-lung transplant surgery, has, as The New York Times reported on March 23, "certified [in his practice] that patients were brain dead so that their organs could be transplanted." He is not just "playing doctor" on this case.

During a speech on the Senate floor on March 17, Frist, speaking of Judge Greer's denial of a request for new testing and examinations of Terri, said reasonably, "I would think you would want a complete neurological exam" before determining she must die.

Frist added: "The attorneys for Terri's parents have submitted 33 affidavits from doctors and other medical professionals,all of whom say that Terri should be re-evaluated."

In death penalty cases, defense counsel for retarded and otherwise mentally disabled clients submit extensive medical tests. Ignoring the absence of complete neurological exams, supporters of the deadly decisions by Judge Greer and the trail of appellate jurists keep reminding us how extensive the litigation in this case has been -- 19 judges in six courts is the mantra. And more have been added. So too in many death penalty cases, but increasingly, close to execution, inmates have been saved by DNA.

As David Gibbs, the lawyer for Terri's parents, has pointed out, there has been a manifest need for a new federal, Fourteenth Amendment review of the case because Terri's death sentence has been based on seven years of "fatally flawed" state court findings -- all based on the invincible neglect of elementary due process by Judge George Greer.

I will be returning to the legacy of Terri Schiavo in the weeks ahead because there will certainly be long-term reverberations from this case and its fracturing of the rule of law in the Florida courts and then the federal courts -- as well as the disgracefully ignorant coverage of the case by the great majority of the media, including such pillars of the trade as The New York Times, The Washington Post, The Miami Herald, and the Los Angeles Times as they copied each other's misinformation, like Terri Schiavo being "in a persistent vegetative state."

Do you know that nearly every major disability rights organization in the country has filed a legal brief in support of Terri's right to live?

But before I go back to other Liberty Beats—the CIA's torture renditions and the whitewashing of the landmark ACLU and Human Rights First's lawsuit against Donald Rumsfeld for his accountability in the widespread abuse of detainees, including evidence of torture -- I must correct the media and various "qualified experts" on how a person dies of dehydration if he or she is sentient, as Terri Schiavo demonstrably is.

On March 15's Nightline, in an appallingly one-sided, distorted account of the Schiavo case, Terri's husband, Michael -- who'd like to marry the woman he's now living with -- said that once Terri's feeding tube is removed at his insistent command, Terri "will drift off into a nice little sleep and eventually pass on and be with God."

As an atheist, I cannot speak to what he describes as his abandoned wife's ultimate destination, but I can tell how Wesley Smith (consultant to the Center for Bioethics and Culture) -- whom I often consult on these bitterly controversial cases because of his carefully researched books and articles -- describes death by dehydration.

In his book Forced Exit (Times Books), Wesley quotes neurologist William Burke: "A conscious person would feel it [dehydration] just as you and I would. ... Their skin cracks, their tongue cracks, their lips crack. They may have nosebleeds because of the drying of the mucous membranes, and heaving and vomiting might ensue because of the drying out of the stomach lining.

"They feel the pangs of hunger and thirst. Imagine going one day without a glass of water! ... It is an extremely agonizing death."

On March 23, outside the hospice where Terri Schiavo was growing steadily weaker, her mother, Mary, said to the courts and to anyone who would listen and maybe somehow save her daughter:

"Please stop this cruelty!"

While this cruelty was going on in the hospice, Michael Schiavo's serpentine lawyer, George Felos, said to one and all: "Terri is stable, peaceful, and calm. ... She looked beautiful."

During the March 21 hearing before Federal Judge James D. Whittemore, who was soon to be another accomplice in the dehydration of Terri, the relentless Mr. Felos, anticipating the end of the deathwatch, said to the judge:

"Yes, life is sacred, but so is liberty, your honor, especially in this country."

It would be useless, but nonetheless, I would like to inform George Felos that, as Supreme Court Justice William O. Douglas said: "The history of liberty is the history of due process" -- fundamental fairness.

Contrary to what you've read and seen in most of the media, due process has been lethally absent in Terri Schiavo's long merciless journey through the American court system.

"As to legal concerns," writes William Anderson -- a senior psychiatrist at Massachusetts General Hospital and a lecturer at Harvard University -- "a guardian may refuse any medical treatment, but drinking water is not such a procedure. It is not within the power of a guardian to withhold, and not in the power of a rational court to prohibit."

Ralph Nader agrees. In a statement on March 24, he and Wesley Smith (author of, among other books, Culture of Death: The Assault of Medical Ethics in America) said: "The court is imposing process over justice. After the first trial [before Judge Greer], much evidence has been produced that should allow for a new trial -- which was the point of the hasty federal legislation.

"If this were a death penalty case, this evidence would demand reconsideration. Yet, an innocent, disabled woman is receiving less justice. ... This case is rife with doubt. Justice demands that Terri be permitted to live." (Emphasis added.)

But the polls around the country cried out that a considerable majority of Americans wanted her to die without Congress butting in.

A March 20 ABC poll showed that 60 percent of the 501 adults consulted opposed the ultimately unsuccessful federal legislation, and only 35 percent approved. Moreover, 70 percent felt strongly that it was wrong for Congress to get into such personal, private matters -- and interfere with what some advocates of euthanasia call "death with dignity." (So much for the Fourteenth Amendment's guarantee of due process and equal protection of the laws.)

But, as Cathy Cleaver Ruse of the Secretariat for Pro-Life Activities of the United States Conference of Catholic Bishops pointed out:

"The poll [questions] say she's 'on life support,' which is not true [since all she needs is water], and that she has 'no consciousness,' which her family and dozens of doctors dispute in sworn affidavits."

Many readers of this column are pro-choice, pro-abortion rights. But what choice did Terri Schiavo have under our vaunted rule of law -- which the president is eagerly trying to export to the rest of the world? She had not left a living will or a durable power of attorney, and so could not speak for herself. But the American system of justice would not slake her thirst as she, on television, was dying in front of us all.

What kind of a nation are we becoming? The CIA outsources torture -- in violation of American and international law -- in the name of the freedoms we are fighting to protect against terrorism. And we have watched as this woman, whose only crime is that she is disabled, is tortured to death by judges, all the way to the Supreme Court.

And keep in mind from the Ralph Nader-Wesley Smith report: "The courts ... have [also] ordered that no attempts be made to provide her water or food by mouth. Terri swallows her own saliva. Spoon feeding is not medical treatment. This outrageous order proves that the courts are not merely permitting medical treatment to be withheld, they have ordered her to be made dead."

In this country, even condemned serial killers are not executed in this way.

http://www.villagevoice.com/news/0513,hentoff,62489,6.html

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