Tough Hurdle for Judge in Spotlight

The federal judge in the Terri Schiavo case was presented with a real challenge Monday -- and one that may thwart the wish of congressional Republicans seeking an order that her feeding tube be reinserted.

Before issuing an emergency order, the judge must decide two questions, under standard procedure in law.

First, do the challengers have “a substantial likelihood of success” in winning their claim? In this case, lawyers for the parents of Terri Schiavo say their daughter has been denied her right to due process of law, despite nearly seven years of litigation in the Florida courts.

And second, will she suffer “irreparable injury” if the judge fails to act?

The second question is easy to answer. Terri Schiavo will die soon if the feeding and hydration tube is not reinserted. Her “life literally hangs in the balance,” lawyers from Bob and Mary Schindler said in their appeal to the judge.

But the first question goes to the heart of the dispute, and it appeared to trouble the judge.

“I think you’d be hard-pressed to convince me that you have a substantial likelihood” of succeeding, U.S. District Judge James D. Whittemore commented during the hearing Monday afternoon.

The judge told David C. Gibbs III, the lawyer for the Schindlers, that he had a duty to show how the Florida courts had denied Terri Schiavo’s right to due process of law during the nearly seven years of litigation. And the judge said he had not seen that proof.

When Congress met in an extraordinary session over the weekend, sponsors of the bill assumed that a federal judge would order the feeding tube to be reinserted while the courts consider the issue again.

But that assumption may not prove to be right.

The law signed by President Bush early Monday said the federal district court in Tampa would determine whether there had been “a violation of any right of Theresa Marie Schiavo” in the state system. But the law did not point to any particular right. Moreover, lawmakers stressed that they did not intend to “create [new] substantive rights.” So, what right was violated?

In the brief filed Monday morning, Gibbs made three major claims. He said state Circuit Judge George W. Greer had denied Terri Schiavo “a fair and impartial trial” because he had become “an advocate for Terri’s death.” Second, the brief said she was denied due process of law because Greer had failed to “appoint an independent attorney” to represent her rights.

Third, it said Terri Schiavo’s rights to religious freedom were being denied, because cutting off her feeding tube was “an activity contrary to the tenets of her Roman Catholic faith as established by Pope John Paul II.”

During the many hearings, lawyers for her husband, Michael Schiavo, argued that the brain-damaged woman would have wished to end her life, and lawyers for her parents argued that her condition was not hopeless and that she should be kept alive. However, she did not leave a living will.

Whittemore, a former Florida state judge, was appointed to the federal bench by President Bill Clinton. If Whittemore turns down the parents’ pleas to reinsert the feeding tube, their lawyers can try again before the U.S. Court of Appeals in Atlanta. If they fail there, they can try again with the U.S. Supreme Court.

But if the woman is to be kept alive, there is no time for a prolonged legal battle unless a judge orders her feeding tube reinserted.

Some legal experts questioned whether the Schindlers had a strong claim of a federal violation.

“These are not claims that anyone would have predicted. They are not claims about the right to life. They are procedural due process claims,” said University of Texas law professor Douglas Laycock. “I think it is inconceivable that they will find a federal due process right to an independent guardian.”

Duke University law professor Erwin Chemerinsky said the new law was unconstitutional. “Congress cannot overturn a final state court judgment in a law directed at a single case. There was a full hearing in this case,” he said.

But others said this resembled a new federal hearing in a state death penalty case, a common occurrence.

“I don’t think this is so unusual. We do it all the time in death penalty cases,” said professor John Eastman of Chapman University Law School.

The Habeas Corpus Act allows federal judges to review a state court’s handling of criminal cases, including those that result in death sentences.

Eastman said Terri Schiavo might have been denied due process of law because her husband was given the authority to represent her. Critics of the husband have said he has a conflict of interest because he would inherit money if Terri Schiavo died.

Jon B. Eisenberg, another California lawyer, entered the case on behalf of 55 bioethicists who support Terri Schiavo’s right to end her life. He argued that the federal courts should not re-litigate an issue that has been decided and settled in the Florida courts.

Federal law should not require her “to go through a second level in a federal court to have her right to refuse medical treatment adjudicated. Nobody else in the country has to do that. It denies her the rights that everybody else has,” Eisenberg said.

The U.S. Supreme Court has not spoken clearly on how such disputes should be resolved. In the 1990 case of Nancy Cruzan, the high court said Americans have a right to refuse unwanted medical treatment. However, the justices upheld a Missouri law that said there must be “clear and convincing evidence” that the comatose person would have wished to end her life.

Cruzan was badly injured in an auto accident and lay for years in a coma. Her parents ultimately won the right to remove her feeding tube, and she died a few days later.

The Terri Schiavo case differs because her parents and her husband disagree on her condition and her wishes. However, the Florida courts have applied the same standard of “clear and convincing evidence” in concluding that she would have wished to end her life.

Times staff writer Maura Dolan in San Francisco contributed to this report.