Terri Schiavo: Judicial Murder
Her crime was being disabled, voiceless, and at the disposal of our mediaby Nat Hentoff
March 29th, 2005 10:59 AM
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.