note: Greer's rulings were so bad that a Bar Member reported that the Chief Judge for Palm Beach County, Florida, ordered Florida lawyers to refrain from criticizing Judge George Greer in public.
'Clear and Convincing Evidence' of Schiavo's Wishes Challenged
By Jeff Johnson
CNSNews.com Senior Staff Writer
March 03, 2005
(CNSNews.com) - The lawyer for the parents of Terri Schindler Schiavo has asked the judge in her case to overturn his legal finding from five years ago, the one in which the judge stated that there was "clear and convincing evidence" that Terri would not have wanted to be kept alive by artificial life support.
Attorney David Gibbs III said Wednesday that an incorrect assumption made by Pinellas-Pasco County Circuit Judge George Greer led the court to disregard relevant, accurate testimony in the case and provided Terri's husband with a critical advantage in trying to have his wife's hydration and feeding tube removed.
"If Judge Greer's 2000 order authorizing Michael Schiavo to end his wife's life were a criminal death sentence, Terri would be entitled to a new trial on the basis of reversible error," Gibbs said.
The alleged error centers on the testimony of Diane Meyer, one of Terri's life-long friends. She told Greer that Terri had expressed her disagreement with the decision of Karen Ann Quinlan's parents to remove their comatose daughter from life support in a highly publicized "right-to-die" case in the 1970s and 1980s.
"There was an incident when I told a poor joke about Karen Ann Quinlan. I remember distinctly because Terri never lost her temper with me. This time she did," Meyer testified in 2002." She told me that she did not approve of what was going on or what happened in the Karen Ann Quinlan case."
Meyer told the court that the conversation had taken place, "in the summer of 1982."
Greer ruled that, because Meyer spoke of the conversation in the present tense, she must have been mistaken about the date. He deduced that the comments must have been made in the mid-1970s, when Terri would have been only 11 or 12 years old.
"The first quote involved a bad joke and used the verb 'is.' The second quote involved the response from Terri Schiavo, which used the word 'are,'" Greer wrote in his decision. "The court is mystified as to how these present tense verbs would have been used some six years after the death of Karen Ann Quinlan."
As a result, Greer ruled that the statement that she "would not want to be kept alive artificially" - which Terri allegedly made in the presence of her husband, brother-in-law and brother-in-law's wife - was Terri's only adult comment on the matter.
But Gibbs' motion argued that it was Greer, not Meyer, who was in error.
"GREER discredited Ms. Meyer's testimony because Greer ASSUMED that Karen Ann Quinlan was dead in 1982. In reality, Ms. Quinlan was very much alive in 1982," Gibbs wrote. "Ms. Quinlan did not die until 1985, some nine years after her court case ended and her respirator was removed."
Greer's refusal to consider Meyer's testimony as equal to that of Terri's husband and in-laws constitutes a reversible error, Gibbs claimed.
"When the adult statement of Mrs. Schiavo to her friend Ms. Meyer is given the credibility it deserves, there is no longer clear and convincing evidence that Mrs. Schiavo had, knowingly and with understanding, waived her right to life," Gibbs contended. "It is therefore no longer equitable that the February 11, 2000 and February 25, 2005, orders to end Mrs. Schiavo's life should have further application."
As a result, Gibbs asked Greer to vacate the orders finding that Terri Schindler Schiavo would not have wanted to be provided with nutrition and hydration through a feeding tube and to recall his most recent order granting Michael Schiavo the power to remove her feeding tube on March 18.
Michael Schiavo's attorney, a prominent "right-to-die" advocate and author, told the St. Petersburg Times that Greer's error was "insignificant.
"I think what the judge meant to say was that her life support was removed in the mid-1970s," George Felos told Times Staff Writer Chris Tisch. "This is so insignificant that the parents chose not to raise the issue in the appellate court."
Gibbs said in a statement that the matter had not been raised earlier, not because it was irrelevant, but because the error was only discovered within the past few days.
"A Florida attorney pointed out the mistake to me last week," Gibbs said. "As an officer of the court, I feel obliged to provide this information to Judge Greer in the form of a motion asking him to declare that, in fact, a mistake in dates had erroneously influenced his decision in 2000."
Karen Ann Quinlan was brain-dead and in a coma when her parents and siblings unanimously decided to remove her from a respirator. The hospital caring for Quinlan refused, but her family petitioned the court for permission and eventually triumphed in 1976 at the state court level. She lived nine years receiving no "artificial" life support, but receiving nutrition and hydration through a feeding tube.
According to a dozen medical professionals who have examined Terri Schindler Schiavo or her medical records, she is neither comatose nor brain-dead. While the court has declared her to be in a "persistent vegetative state," video taken by her family shows her tracking a helium-filled balloon as it floats across the room, smiling and laughing in response to being tickled and trying to respond verbally to prompts from her mother.
Robert and Mary Schindler have more than a dozen other motions pending in an attempt to block the removal of their daughter's feeding tube. Greer refused last week to hear any new motions not directly related to Terri's death process or after-death administrative matters. The Schindlers have appealed the rejected motions to Florida's Second District Court of Appeals.
Terri Schindler Schiavo suffered a brain injury due to oxygen depravation in 1990. Her husband, Michael Schiavo, was awarded nearly $2 million in judgments and settlements in response to a medical malpractice lawsuit claiming that the oxygen depravation was caused by a potassium imbalance created by an undiagnosed eating disorder.
The Schindler family and doctors who have examined the records believe that a 1991 bone scan report indicates that Terri was the victim of an assault and on-going physical abuse. Felos has denied that his client ever abused or assaulted Terri.
If Terri's feeding tube is removed March 18 as ordered by Greer, doctors expect her to die of dehydration within a week to ten days. She could theoretically live as long as two weeks before dying of starvation.
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The Terri Schiavo Case
Quinlan name resurfaces in Schiavo arguments
Parents want the judge's ruling overturned because of an erroneous statement about the earlier case.
By CHRIS TISCH, Times Staff Writer
Published March 3, 2005
Related 10 News video:
Schiavo saga continues with DCF document
CLEARWATER - The name of Karen Ann Quinlan, whose right-to-die case 30 years ago created legal precedent for end-of-life issues, has surfaced again in the case of Terri Schiavo.
Schiavo's parents want Judge George Greer to throw out his ruling to remove her feeding tube because his order includes an error about the Quinlan case. Her husband's lawyer called the request invalid and dismissed the error as insignificant.
Greer's 2000 order to remove the tube was based on trial testimony from Schiavo's husband and others that she would not want to live on life support.
But a friend of Schiavo's, Diane Meyer, testified about a statement Schiavo made to her concerning Quinlan.
Quinlan's parents persuaded the New Jersey Supreme Court to order their daughter off a ventilator in 1976, though she remained on a feeding tube.
Meyer said she joked about Quinlan to Terri Schiavo in the summer of 1982 after seeing a movie about the case on television. Meyer said the joke was in bad taste and upset Schiavo, then 19.
Meyer said Schiavo told her "she did not approve of what happened. What the parents are doing" to Quinlan, transcripts state.
In his 2000 ruling, Greer notes that Meyer used the present tense in her statements, which he said raised serious questions about when they occurred.
His ruling states that they more likely occurred in the 1970s when Schiavo was a child.
"The court is mystified as to how these present tense verbs would have been used some six years after the death of Karen Ann Quinlin (sic)," he wrote.
Quinlan lived until 1985, three years after Schiavo reportedly made the statement.
David Gibbs III, the attorney for Schiavo's parents, filed a motion Wednesday asking Greer to vacate his 2000 ruling and hold a new trial.
He says Greer discounted Meyer's testimony because he wrongly believed Quinlan was dead in 1982.
Gibbs also asked Greer to toss out his recent order to remove Schiavo's feeding tube March 18.
"Critical evidence was discounted by the court," Gibbs said. "If this was a death penalty case, we would have a new sentencing and we would get a new trial. We believe this is huge."
Terri Schiavo suffered severe brain damage in 1990 when, at age 26, she had a heart attack and collapsed in her St. Petersburg home.
Schiavo's husband, Michael, has been fighting for seven years to remove her feeding tube.
Her parents, Bob and Mary Schindler, are fighting to keep her fed.
Though the Schindlers believe she responds to them, Michael Schiavo and most doctors say she is in a vegetative state and has no hope for recovery.
Because Schiavo did not have a living will, Greer had to rely on people's memories of what she said about end of life issues.
His original order has been followed by a long and contentious court battle.
Michael Schiavo's attorney, George Felos, said the Quinlan error in Greer's order is insignificant.
He said the Schindlers' request is invalid because too much time has passed since Greer's 2000 ruling.
"I think what the judge meant to say was that her life support was removed in the mid-1970s," Felos said. "This is so insignificant that the parents chose not to raise the issue in the appellate court."
But Gibbs, who was not the Schindlers' lawyer in 2000, said the error apparently was overlooked.
A lawyer who read the transcripts contacted him by e-mail recently about it. It could all be moot. Greer's 2000 ruling suggests Schiavo's opinion of the Quinlan case didn't weigh heavily in his decision.
The request is one of 16 motions Gibbs has made to keep Schiavo alive.
A status conference on some of those motions is set for Friday.
Greer also will consider a request by the Tampa Tribune and WFLA-Ch. 8 that he release a document in which the state Department of Children and Families seeks to get involved in the case.
Gregg Thomas, an attorney for the newspaper and station, told Greer during a hearing Wednesday that the public has a right to know what prompted the request.
Attorneys have said the agency is has received reports that Terri Schiavo was abused and wants Greer to delay removing the tube for 60 days while it investigates.
"The greater access there is, the more the people can judge the actions of the DCF, judge the actions of the governor and judge your honor's actions," Thomas said.
DCF attorneys opposed making the documents public, citing a need to protect the privacy of witnesses even if they are not named.
Greer said he would rule Thursday.
Before the hearing, DCF Secretary Lucy Hadi was asked whether Gov. Jeb Bush was orchestrating the agency's effort to get involved in the case.
Hadi was speaking Wednesday at the Suncoast Tiger Bay Club in St. Petersburg when former club president Gregory Wilson asked, "Is it possible that the governor is using your agency as a pawn to keep his hand in this tragic event?"
Hadi said no, adding: "I hope you're not suggesting that fulfilling our statutory requirements, investigating abuse and neglect, is being manipulated by someone."
Afterward, Hadi said the DCF investigates only when it receives substantive information.
"It has to be credible, from a standpoint of somebody who is involved and has firsthand knowledge of the circumstances," she said.