Fighting for Dear Life (4 page)

CHAPTER THREE

LIFE ON TRIAL

ORDERED AND ADJUDGED
that the Guardian, Michael
Schiavo, shall cause the removal of the nutrition and
hydration tube from the Ward, Theresa Marie Schiavo, at
2:00
P.M.
on the 15th day of October, 2003.

—J
UDGE
G
EORGE
W. G
REER, SEPTEMBER 17, 2003

I
t's human nature to speculate about what really happened that winter morning in February 1990 when Terri lost consciousness. If I were to record every accusation, conspiracy theory, or attempted murder theory I was presented by well-meaning folks during the case, I'd fill this book with an abundance of juicy speculation. However, to focus primarily on that aspect of the legal situation would be a mistake.

Why?

Doing so would sidetrack us from understanding the injustice that followed. Whatever really happened in their apartment that night, Terri never should have been put to death by order of an American court. You see, this entire case hinged upon two relatively simple legal questions: First, what was Terri's medical condition?

Was she brain-dead or brain-injured?

Was she comatose or alert?

Was she on life support, or did she just need a little extra help with basic necessities?

As I relayed in the last chapter, what I saw regarding her medical condition told me she was not brain-dead, she was certainly
not
on life support, and she was relatively aware of her surroundings. If I live to be a hundred years old, I'll never forget my time with Terri.

The second legal question the court had to answer was this: What were Terri's wishes about ending her life in the case of a medical emergency? And as I shall relate, Terri was ordered by a judge to die based upon conflicting evidence at best. Never had I witnessed such a tragic disregard for the due process rights, as I understood that concept, of a person, whether disabled or not, by our judicial system. Does that sound harsh? I'm not alone in that assessment.

Among the many famous voices who weighed in on the behavior of the court, actor and producer Mel Gibson got it right according to many who were watching when he described the court's order to starve Terri as a modern day crucifixion and ‘‘nothing more than state-sanctioned murder.'' On national radio while Terri was in the final days of her court-ordered dehydration and starvation, Gibson said, ‘‘I just sit here watching this whole scenario played out in front of me with my mouth hanging wide open. [I can't believe] that our country has come to this. I think it's really a dark, black day.''
1
There was, however, a golden thread running through the dark tapestry of this modern American tragedy. It's a part of the story overlooked by most of the media. I'm referring to the deep, unconditional love of two ordinary, middle-class parents and their unquenchable desire to rescue their innocent daughter from a court-ordered death.

THE THINGS WE DO FOR LOVE

When Bob and Mary Schindler first met with our legal team in mid-October 2003, they were exhausted, weary, and out of options. Terri was still very much alive, but her days were numbered after being rebuffed by the court system for more than a decade. Within days Terri's feeding tube would be removed for the second time.

In 2001, the first time the tube was removed, it was reinserted a few days later when new evidence surfaced questioning Michael's credibility in telling the court during the 2000 trial what Terri would want to do. After further litigation in 2002 to determine Terri's medical condition and prognosis, Judge Greer had again ordered the feeding tube to be removed. The Schindlers were told there was nothing more to be done this time, except to wrangle over where Terri would be buried. That view was unacceptable to this close-knit family.

Our first meeting with Bob and Mary was held at ten o'clock at night in our law firm conference room. Nearly a dozen lawyers from our firm were already assembled around the conference room table when the Schindlers took their seats. Although we had yet to make a commitment about representation, by the expression on their faces you'd think the cavalry had just arrived.

Without notes and for the better part of two hours, Bob recapped his family's all-consuming living nightmare. I remember his voice would occasionally catch as the sheer desperation of his situation bubbled to the surface. As I studied Bob's face, I saw the fear of a parent who knew his child was going to suffer and he was powerless to stop it.

These were parents frightened beyond words. They had already pursued all the legal avenues their previous attorneys thought might help them protect their daughter, but the court system was now insisting that she die—and die now. The date to begin the ‘‘death process,'' as Terri's husband's attorneys euphemistically called it, had been set to begin on October 15, 2003.

None of us had to say the obvious.

The Schindlers were outgunned and outfinanced.

They had nowhere else to turn and they had spent all of their money long ago. By contrast, their son-in-law, Michael Schiavo, had access to hundreds of thousands of dollars for his legal maneuvering— money that had been made available by a malpractice award for Terri's care and rehabilitation. But that's getting ahead of the story.

For her part, with a picture of Terri resting on the table in front of her, Mary's tears did most of her talking. At first she just sat back in her chair, dabbing her eyes with a crumpled tissue. She'd nod and occasion- ally clarify or underscore a point in her husband's narrative. Toward the end of our time together, Mary spoke. ‘‘You know what?'' she said. ‘‘If Terri never improves, if Terri remains exactly as she is today, she is still a life worth saving. That's why Bob and I are praying for a miracle.''

Mary expressed how stunned she was that so many lawyers from our firm had already cared enough to listen for hours while they bared their souls—especially since they were unable to pay us anything.

When Bob and Mary finished their summary of the case as they understood it, several troubling thoughts crossed my mind. If what I had heard was true, it was a bizarre tale of incredible conflicts of interest: a husband who was living with his girlfriend—with whom he had children—and who was trying to have his wife legally put to death . . . malpractice money, a lot of money, not being used for care and rehabilitation as intended but being used to kill the disabled person instead . . . distraught parents begging for the life of their child from a court system standing on the side of death rather than life. This contested civil court–ordered death of an innocent young woman was a story I might expect to find in a John Grisham novel. But if the Schindlers were to be believed, and I had no reason to doubt them, this was fact, not a work of fiction.

I was impressed, too, that the heart's desire of these parents was to save Terri—not to pinpoint blame or speculate about the events leading up to Terri's disability. And contrary to some members of the local press who had portrayed the Schindlers as selfish, delusional parents set on meddling in matters that were none of their business, I knew right then that nothing could be further from the truth. To this day there is no doubt in my mind that Bob and Mary would have traded places with Terri that very night if that would have prevented their daughter from dying.

I am not exaggerating.

After all the legal options had been exhausted, I know what their response would have been to the following offer: ‘‘Here's the deal. We're going to place you in a hospice bed. You'll receive no food or water. You will die slowly over thirteen days with not so much as an ice chip to ease your discomfort. In exchange, Terri gets to live.'' I'm convinced that these parents loved their daughter so much, they would have taken that deal in a heartbeat.

CASE CLOSED

I'm a realist. Even surrounded by a room filled with nearly a dozen very bright lawyers, including my father, my instincts told me that the Schindlers' legal options were close to nil. This was a case that had already been lost before it reached our office. I could see why most lawyers would advise these parents to cut their losses and get on with their lives.

First, the average lawyer wants to win cases and get paid for his work. In that respect, practicing law is no different from any other profession. If you're an accountant, dentist, teacher, or if you flip hamburgers, if you do your job, you'd like to get paid for your efforts. This couple had no cash to continue their fight. That's strike one.

Second, the average lawyer wants to get into a case from the ground floor so that he or she can be the architect of the situation. With the Schindlers, all of the judges that a new lawyer would have to approach had already ruled against them. All of the primary issues had been previously addressed.

In other words, if you were a lawyer about to take this case, you'd have to come before these judges and tell them that they had made a mistake and then ask them to change their minds. Trust me, judges don't like to be second-guessed. Why, I asked myself, would any lawyer in his right mind be willing to do that?

Furthermore, according to Bob, there had been a full trial and a number of appeals championed by hardworking, professional lawyers involved at various stages in the case. There had been a second trial and appeal, and the decision was the same from every single court. The decisions were clear: Bob and Mary Schindler had lost their case.

Their daughter would die in just a few days.

Any lawyer with even a few years of trial experience would have to at least wonder,
Why did all of those judges and so many rulings go against
the Schindlers?

Third, the average lawyer wants to protect his or her reputation; your reputation is what generates future business. Lawyers don't have a product to sell. Rather, they sell themselves, and they provide a service to people. Their reputation could well be ruined for the rest of their lives if attached to a case like this that was already lost.

That was the status of the Schindlers' situation when our office was asked to step into this case. To say yes to the Schindlers' request for help was to inherit all of that prior history. To be clear, there wasn't the slightest hint that maybe down the road the United States Congress, the president, or even the U.S. Supreme Court would get involved. Everybody around the conference table fully expected Terri to die in just a few short days unless something miraculous occurred to stop it.

I sensed that the Schindlers were looking for some sort of direction from my father and me and from our law firm that evening. Would we help with the case? Was there any hope to turn things around? Had they overlooked something? I adjusted my glasses and leaned forward to do one of the most difficult things a lawyer has to do: level with a client. On one hand, I didn't want to douse the last flames of hope that flickered within their hearts. On the other hand, I didn't want to mislead them into thinking we possessed the silver bullet for their defense.

After my father offered some personal counsel to the Schindlers, I said, ‘‘From what you've told us tonight and from the preliminary research we did in preparation for this meeting, we probably would have to concur with what you have already been told.'' I paused, not for effect but because of how difficult it was to actually say the words. ‘‘It appears that this case is over.''

Bob nodded silently, as if he had fully expected this response. I looked at Mary and quickly added, ‘‘Just because rescuing Terri looks difficult and just because your prospects of winning appear impossible, we also acknowledge that we serve a God who can do the impossible.''

With that, our team assured them we'd work through the night to see if there were any unexplored avenues that might be worthy of pursuit. Our offer was to lend a hand behind the scenes—at least for starters.

Just after midnight we held hands, prayed, and committed Terri into God's care. After bidding the Schindlers good-bye, our legal team rolled up their sleeves and headed for their desks. Then something amazing happened: Quite unexpectedly, the idea of taking a legislative approach instead of a direct frontal assault on the court system was planted that night.

Unknown to us, at the same time, others in Florida were also weighing this exact approach.

In the days that followed, our attorneys worked with longtime friends in the legislature to draft what widely became labeled ‘‘Terri's Law''—although she was not mentioned by name in the document. Our original version of Terri's Law called for a broad public policy change toward all patients whose medical wishes were not clearly spelled out in written living wills or advance care directives. Our intent was to craft a law that could withstand a constitutional challenge. I will talk about this incredible event in the next chapter.

WHY DO IT?

From time to time I'm asked why our legal team agreed to work with the Schindlers—especially given the pitfalls and incredible odds against us. In a word, I believe God called me to do this work. As my father taught me, having a servant's heart doesn't always mean you do what's
easy
; rather, you do what's
right
. I also couldn't escape the fact that Terri was in a hospice just six or seven miles from our office. You might say that Terri was a neighbor in need in our own backyard.

Talk about a divine appointment.

What's more, the issues at stake were huge. Every day of the week lawyers will go to court to try to keep people from going to jail, or try to win money in a malpractice suit, or to save people from having to pay money unjustly. But beyond directives, beyond incarceration, beyond money, there are cases that are of preeminent importance because they deal with life and death. Here was a life-and-death issue
not
involving a felon. With Terri, the life of an innocent woman was on the line.