'Clear and Convincing Evidence' of Schiavo's Wishes Challenged

By Jeff Johnson | July 7, 2008 | 8:05 PM EDT

(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 adultcomment on the matter.

But Gibbs' motion argued that it was Greer, not Meyer, who was in error.

"The court discredited Ms. Meyer's testimony because of its own mistaken conclusion 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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