FOX NEWS - HANNITY AND COLMES - Jay Sekulow Discusses Legal Issues in Schiavo Case

FOX NEWS - HANNITY AND COLMES
March 25, 2005

ALAN COLMES: Welcome back to "Hannity & Colmes." I'm Alan Colmes.

We are awaiting a ruling from Florida circuit court Judge George Greer after another appeal this afternoon from the Schindler family. The ruling could come at any time. And when it does, we'll bring it to you live on FOX News.

But beyond that, what legal options are left? Joining us once again tonight, Jay Sekulow, chief counsel for the American Center for Law and Justice, and David Boies, former attorney for Vice President Gore, also author of the book "Courting Justice." Good to see you both once again.

Counselor Boies, let me begin with you. You just heard the father in a news conference we just carried live begging Governor Jeb Bush to do something. Does the governor have any legal option here? What can he do or not do?

DAVID BOIES, FORMER ATTORNEY FOR AL GORE: I don't see any legal option for the governor. I think the governor has done everything he could. He's made a, I think, great effort to do something, but I just think he's run out of legal options. If you believe in the rule of law, when the courts rule, you've got to accept it whether you agree or disagree.

COLMES: Jay Sekulow, do you agree with that...

JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: Yes, David and I said that last night, and I'll say it again. I think the governor has given it a very valiant effort. The problem is you have a court order that's in place that's been approved by the Florida Supreme Court that, in essence, says that he cannot take this extraordinary remedy, even though he has statutory authority.

The courts have construed it. To have him at this point go in and order the Florida state police or DFCS, the Department of Family, Children and Services, to take agents in there to take Terri out, it just -- he could be in contempt of court, probably.

COLMES: What about, Jay, this last minute we are hearing that she said last Friday, "I want to live"? That's what the family is claiming. Is that a credible claim?

SEKULOW: Well, I don't know. You know, I am not there. But if it is credible, then it needs to be brought into the courtroom. And that's not something the governor, unfortunately -- you know, what David said is right. You've got three branches of government here.

I think what Sean was pointing to with the previous guest is the problem. The Florida legislature had the opportunity to prevent this. And they could have done it very easily. You know what they could have said? They could have said, "If a person is having a feeding tube and it might be removed, and the guardian has another family at the same time" -- the husband also has a common-law wife and children -- "in that circumstance, he can't be guardian anymore."

COLMES: All right, David, can you go back and do that in the middle of a case like this, though, and make that statement?

BOIES: No, you could. You could. And you could have a rule that simply says that, if any member of the immediate family wants to give nourishment to a child, they can do that. If it's a grand parent, or if it's parent, any member of the immediate family wants to give...

COLMES: If the legislature had done that, do you think Judge Greer would have struck that down, or would that be law, would she be now being fed?

BOIES: No, I think that would have been law. I don't think Judge Greer would -- Judge Greer, for all the criticism he's taken, is a good judge. He is trying to follow the law as it exists.

COLMES: He is also a conservative Christian, as I understand, who was kicked out of his own church for some of the things that he's...

BOIES: What I am saying is if the Florida legislature had brought this law into effect, I believe he would have followed that law. And if he didn't follow that law, I think the court of appeals would have followed that law.

SEKULOW: And, frankly, I don't think he would have had a choice but to follow that law. Unfortunately, here the Florida legislature didn't act, which then you saw the federal enactment.

What I'm concerned about right now, though, is you've got to look at what are the avenues? Rehearing on bond to the 11th Circuit? Another run up to the Supreme Court of the United States? Look, you've got to try all avenues here. This is clearly -- it's a death case at this point.

Yes, sir.

HANNITY: No, no, I don't mean to interrupt you, Jay.

David, let me go back to you for one second. You are saying that, had the Florida legislature, because I think I agree with what you are saying here, had they passed that law, they would have had to follow that. But you know something? Intellectually, I agree with you. But on the other hand, they have ignored congressional subpoenas, they threw out the other state law that was passed a couple of years ago, and they've ignored a remarkable law that was passed by Congress and signed by the president just last weekend. I mean, can we even say that with certainty?

BOIES: Well, the law that was passed and declared unconstitutional was a special law. It was declared unconstitutional for that reason. You would have to have had a law that says this applies to anybody. It applies to Terri Schiavo, it applies to anybody where you have somebody who can live and a member of the family wants to help that person live by giving nourishment, you've got to let them do that.

HANNITY: You know, David, he's really right there. The problem with the first law -- and I helped defend it at the Supreme Court at the United States -- but it was difficult because it was exactly that, a special law.

What should have happened -- and of course, we're saying what should have, and could have and would have -- it doesn't matter at this point. But what should have happened is, and this is a lesson for everyone, is in a situation like this, the legislature should have closed that gap. That's the problem here.

Now, the federal issue, the federal court action, what I still cannot understand is how a proceeding that is supposed to be according to a federal statute passed by the Congress, signed by the president, requiring a de novo trial took place in an hour and a half, and that has not been reversed, or the trial judge at this point hasn't reopened it after yesterday. I thought what David Boies said last night was right, that with the new evidence submitted, it should have been a hearing today.

HANNITY: And, David, after you represented Al Gore in 2000, I'd never thought I would agree with you. You know that.

But the two points that both of you have raised here -- for example, right after you guys get off the air here, we are going to have a woman on this program. Remember, Michael didn't bring up the issue of Terri's wishes until seven years into this. She, in a signed affidavit that was brought up later in this case, said Michael repeatedly said early on he did not know what Terri's wishes were.

So on these two issues, we have conflicting testimony of whether or not she is in a persistent vegetative state. We have conflicting testimony as to her wishes. David, this has been your point all along...

BOIES: Exactly.

HANNITY: ... that we ought to have had a new review here because we keep using the same finding of facts.

BOIES: Exactly. There should have been a de novo review of those contested issues. And if not the first time, because maybe the lawyers didn't bring those directly to the court's attention the first time, certainly the second time there should have been a de novo review of those critical issues.

SEKULOW: That's the thing that I can't understand, either. And David and I are taking the same posture here. The second time -- the first time that there was, you know, statements that they didn't get that, that evidence wasn't submitted. Well, the second time it was. And the judge at that point, the district court judge, should have said, "We've got to having a hearing."

HANNITY: Ten seconds each. Do you see any hope, either one of you?

Jay, I'll start with you.

SEKULOW: I think it's going to be very difficult. But I would take every option and every appeal, which means back to the Supreme Court of the United States. But I'm not optimistic.

COLMES: David, what's going to happen here?

BOIES: I agree with that. I think the chances are very slim, but you've got to play out every single appeal. I mean, this is a matter literally of life or death.

COLMES: Do they have anything left after this next decision comes down?

BOIES: I don't think so.

COLMES: David, thank you.

Jay, thank you once again for being on our program tonight.