U.S. court allows new Schiavo petition
Lawyer asks federal court to examine evidence, not procedure
Wednesday, March 30, 2005 Posted: 9:31 AM EST (1431 GMT)
ATLANTA, Georgia (CNN) -- A federal appeals court has allowed Terri Schiavo's parents to file another emergency petition with the panel as Bob and Mary Schindler make desperate efforts to save their severely brain-damaged daughter's life.
The petition, submitted by Schindler attorney David Gibbs, said the federal judges who rejected previous efforts to have Terri Schiavo's feeding tube reinserted violated a Supreme Court precedent that requires them to consider the full record of the case, not just the procedural history from the state court.
The appeals court granted Gibbs' request late Tuesday to file the new petition despite having set a deadline of last Saturday morning for any such appeals. Gibbs said in his filing that the new issues were the result of "further research, reflection and consultation" because the same court rejected his petition last week.
"Where a state court order extinguishes a fundamental right, the district court must review the record before the state court to determine whether the factual basis for the order satisfied a heightened Federal standard of proof," the petition said.
However, the court -- which has declined previous petitions three times in the case -- has not agreed to hear it this time.
It has only granted the Schindlers the right to file another petition.
Gibbs argued in the latest attempt to revive the legal battle that the federal judges could not have considered the full record in its review of the case because the full record had not been filed with the federal courts.
"The district court reviewed only the procedural history and the results of the litigation in the state court, not the evidence adduced in the state court proceedings," the petition said.
The attorney argued that he could prove to the federal court that "the 'evidence' supporting Terri's alleged wishes is not credible, and that a reasonable fact finder would hold -- under any standard of proof -- that her wishes were to the contrary."
The petition repeated the Schindlers' contention that the testimony of Terri Schiavo's husband and legal guardian, Michael Schiavo -- that his wife had said she would refuse life support -- was not credible enough for a court to decide such a question of life or death.
"As a matter of constitutional law, the life of Terri Schiavo cannot be ordered to be taken on the kind of oral testimony provided in this case," it said.
George Felos, attorney for Michael Schiavo, said he learned of the filing late Tuesday.
"This is some sort of last-minute desperation move, and we believe the federal courts have spoken on this already," Felos said.
Last week, a three-judge panel of the federal court in Atlanta, Georgia, ruled twice against the Schindlers.
The vote was 2-1 the first time and unanimous the second time. The same judges heard the case each time.
Gibbs had also asked for an expedited rehearing from the full court's 12 judges. That effort was rejected by a 10-2 vote. The latest petition also requests that the motion be heard by all 12 judges.
Terri Schiavo has been without the feeding tube for 13 days, since the afternoon of March 18, and doctors expect her to die at a Florida hospice in the coming days.
Mother pleads: 'Please give my child back'
Earlier Tuesday night, Mary Schindler made an impassioned plea to her daughter's husband, calling on him to "give my child back to me."
Mary Schindler uttered two sentences at a news conference: "Michael and Jodi, you have your own children. Please, please give my child back to me."
The mother was addressing Michael Schiavo and the woman he has been living with since the late 1990s -- Jodi Centonze -- with whom he has two children.
Late Tuesday, Felos issued a written statement saying, "The courts have repeatedly said this case is not about Mrs. Schindler, Mr. Schiavo or any other third party. It's about Mrs. Schiavo and her own wishes not to be kept alive artificially."
Michael Schiavo maintains his wife would not want to be kept alive in her condition, which courts have ruled is a persistent vegetative state. Mary Schindler and her husband claim she could improve with intense therapy.
Felos said Tuesday night he visited Terri Schiavo about 6:30 p.m. He said her lips were moisturized and not cracked, her skin tone was "excellent," and she was being cared for by well-trained workers who are fond of her.
His description differs from that of the Schindlers, who contend she is suffering and that her condition shows in her dry skin and chapped lips.
Bob Schindler said after visiting his daughter that "she's failing" but "doing darn good under the circumstances."
Terri Schiavo collapsed in her home in 1990, suffering from heart failure that led to severe brain damage because of lack of oxygen.
Michael Schiavo said his wife suffered from bulimia, an eating disorder, that resulted in a potassium deficiency, triggering the heart failure.
She has been in the center of a decade-long legal tug-of-war between her husband and her parents.
The Rev. Jesse Jackson, who arrived Tuesday at the hospice, called Terri Schiavo's situation an "injustice," and sought to pressure state lawmakers to pass legislation aimed at keeping her alive.
Such a move seemed unlikely. Last week, in a 21-18 vote, the state Senate narrowly defeated a bill that would have prevented doctors from removing a feeding tube from patients who had not expressed their wishes in writing. The House passed legislation 78-37.
"This is one of the profound moral, ethical issues of our time, the saving of Terri's life," Jackson said. "And today we pray for a miracle."
Jackson said he is "sensitive" to the struggles and pain that both Michael Schiavo and Terri Schiavo's parents and siblings are undergoing.
"While law is important, law must be tempered with mercy to have justice," he said. |
