MSNBC - SCARBOROUGH COUNTRY - Jay Sekulow Examines Legal Issues in Schiavo Case

MSNBC - SCARBOROUGH COUNTRY
March 31, 2005

JOE SCARBOROUGH:   You know, there are quite a few people out there, many, many Americans -- in fact, if you see the latest Fox poll, the majority of Americans believe that the death of Terri Schiavo was merciful. Others believe that it was a black eye on our American judicial system.

Of course, Dr. Jack Kevorkian's attorney, Geoffrey Fieger, does believe the death was the result of merciful court decisions. He joins us tonight. And, also, we've got Jay Sekulow of the American Center For Law and Justice.

I appreciate both of you all being here tonight.

JAY SEKULOW, CHIEF COUNSEL, AMERICAN CENTER FOR LAW AND JUSTICE: Thanks, Joe.

SCARBOROUGH: Let's start with you, Geoffrey.

Talk about the events that have unfolded and that have left us here when -- I mean, let's just be blunt about it. Again, regardless of what side you are on, and I think most Americans are on your side, the bottom line is, the courts' actions led to the starvation and dehydration of Terri Schiavo. Is this something we should be happy about?

GEOFFREY FIEGER, DEFENSE ATTORNEY: The courts' actions led to an upholding of the rule of law, the constitutional process.

What is so frightening, Joe, is that, at the behest of religious group, the Republican majority in the Congress...

(CROSSTALK)

SCARBOROUGH: What religious group?

FIEGER: The religious group that believes that Terri Schiavo's life, that they own Terri Schiavo's life, the right to life.

(CROSSTALK)

SCARBOROUGH: What, like Christians, evangelicals? What religious group?

FIEGER: Yes, the evangelical, the religious right in the United States, was able to manipulate the Republican majority in the House and the Senate and the president of the United States to perform what the courts have held was essentially an unconstitutional attempt to usurp the Constitution and the laws of the United States.

Now, I couldn't have said it better. The 11th Circuit, which is one of the most conservative circuits in the entire country, and the judge appointed by President Bush's own father said that essentially what they attempted to do was usurp the laws and the constitutional processes of the United States.

SCARBOROUGH: Geoffrey, let me read that to the American people.

(CROSSTALK)

FIEGER: Sure.

SCARBOROUGH: We have got the 11th Circuit wording right here. And I want to talk about it.

It says -- this is what the 11th Circuit said I believe yesterday afternoon: "Lawmakers have acted in a manner demonstrably at odds with our founding fathers' blueprint for the governance of a free people, our Constitution."

Jay Sekulow, when I saw that, I thought the 11th Circuit tipped their hand. I always believed this wasn't about life or death, Terri Schiavo or Michael Schiavo. I always thought it was about the court protecting their power from a legislative encroachment. What say you?

SEKULOW: Well, I wish you would quote the dissent. That was a President Clinton appointee that said , if anything has happened in the case, that is that Terri Schiavo's due process rights were violated.

Now, look, we have got the death of a woman and a family that is in grief. And we need to respect that. But I think, if you look at it from a legal standpoint, where Geoff and I, I think, vehemently disagree, is on was the right standard applied in the first place.

Now, granted, Geoff's view carried the day in the courts. I agree with the dissent, obviously. And that was that, at a minimum, there should have been another look at this. But that's not what the courts held. But I thought due process demanded it. This was the unique situation here. You had a guardian, and the was the husband, who had in essence a common law wife and another family.

And no disparaging to that other family or the wife, but the fact was, how could he be looking out for Terri's best interest when he had another interest, his family, to look out for? And that was I think what made this case so unique and perhaps is what galvanized the attention here.

And I think, look, I want to answer that religious right question. I can't imagine...

(CROSSTALK)

SCARBOROUGH: It's always the religious right's fault, by the way, Jay.

SEKULOW: Yes, it's always -- and I have never heard of Jesse Jackson as part of the religious right, and he's been one of the most eloquent spokesmen on this issue, and certainly not part of the religious right.

(CROSSTALK)

SCARBOROUGH: Same with Ralph Nader. Same with Ralph Nader. Same with Nat Hentoff with "The Village Voice." Same with Tom Harkin. You can't say, Geoffrey Fieger, that this cuts down political lines right and left. I know a lot of liberals out there that are very disturbed by what's been going on over the past two, three weeks.

FIEGER: Well, they may very well be, but I can assure you that the actions, the political actions, taken in Congress were not taken on behalf of Jesse Jackson or Ralph Nader.

Let me make another point, too. And I think that your last guest, Scott Schiavo, really pointed it out. The coverage has been so tainted because of almost the hysteria, the circus-like atmosphere created by the Schindlers, to make people believe or to let people believe that Michael Schiavo is acting in some other interest, other than the love of his wife.

(CROSSTALK)

SCARBOROUGH: They're fighting for their daughter's life, though. Don't you understand?

FIEGER: Well, excuse me.

SCARBOROUGH: If somebody were trying to force your daughter or your son to be starved to death or dehydrated, you would fight for their life too, wouldn't you?

FIEGER: Let me point out to you what was really going on. That identical situation, as I told you before, happened in the Nancy Cruzan case that set the law of this country in 1990.

However, it wasn't the parents fighting against the husband. It was a nurse who saw the light of God in Nancy Cruzan's eyes and fought against the parents. Wait a second.

SEKULOW: But that's not this case.

(CROSSTALK)

FIEGER: Wait a second. It is this case, because...

SEKULOW: No. This case is...

FIEGER: .You have a disagreement between the family members.

(CROSSTALK)

SEKULOW: You don't have a living will. And you had a husband who has another family. And you have to look at all those factors.

FIEGER: You can't.

SEKULOW: Of course you can.

(CROSSTALK)

SCARBOROUGH: Why can't you? We are talking about a guardianship here. This guy, Michael Schiavo, and I have said all along, it's his business if he wanted to move on. And nobody has faulted him for that.

FIEGER: There's not a scintilla of evidence.

SCARBOROUGH: If he wanted to move on, if he wanted to move on, have a girlfriend, eventually a wife, start a new family, certainly, that was his business.

(CROSSTALK)

SCARBOROUGH: Nobody would fault him for that, but why do you keep that person as Terri's guardian?

SEKULOW: As the guardian.

FIEGER: There's not a scintilla of evidence to suggest that he didn't love his wife, that he didn't care about his wife and that he wasn't carrying out her wishes.

(CROSSTALK)

SCARBOROUGH: That has nothing to do with it.

SEKULOW: Wait a minute. Geoff, Geoff, you are a very good lawyer. Let me ask you this question. If there was a miracle in the case, medically speaking, and Terri would have been in a point where had communicative capability, she could communicate, she was in a much better state, what would Michael Schiavo have done then with his existing family and Terri Schiavo?

(CROSSTALK)

SEKULOW: So, that shows you there's no way that Michael could have been really a guardian looking out for her interests.

(CROSSTALK)

SEKULOW: And you know what? At the end of the day, this case was really a disabilities rights case. It wasn't a right to die case. It wasn't a right to life case.

(CROSSTALK)

FIEGER: Nonsense.

SEKULOW: Sure, it was.

FIEGER: That's a major misrepresentation.

(CROSSTALK)

SCARBOROUGH: Hold on one second.

I have had leaders on this point, Geoffrey Fieger, from disability groups that have actually talked to me, have been on my show, this show and my radio show, saying that they were offended to be grouped in with the religious right. They didn't care about the religious right. They were fighting for their rights as disabled Americans. Doesn't this endanger their legal status?

(CROSSTALK)

FIEGER: Absolutely not. Terri Schiavo is essentially brain-dead.

(CROSSTALK)

FIEGER: She has no electrical activity. Please, let me finish.

(CROSSTALK)

SCARBOROUGH: You have said that before.

(CROSSTALK)

SCARBOROUGH: Hold on a second.

(CROSSTALK)

FIEGER: There's no electrical activity in her brain.

SCARBOROUGH: Let me just get this out here and I will let you respond to you. And I am glad you brought this up.

The court appointed -- in the medical hearing, in the medical hearing, they appointed five neurologists to go in there to examine the condition. Three of those neurologists said that she was in a persistent vegetative state. Two of the neurologists said, no, she wasn't, that she could be rehabilitated. How do you allow -- well, how do you conclude, when it's 3- 2 split, that this lady is in a persistent vegetative state, she is brain- dead, and she should just die?

(CROSSTALK)

FIEGER: It wasn't a 3-2 split. And let me explain to you.

SEKULOW: It was.

FIEGER: The EEG shows no electrical activity. She would be the first person in modern medical science who had no electrical activity and yet could be rehabilitated. Secondly...

SCARBOROUGH: Then why did two court-appointed neurologists say that she could be rehabilitated?

(CROSSTALK)

FIEGER: Let me finish. The CAT scans of the MRI of her brain show that essentially her cerebral cortex has been liquefied. She would be the first person in medical science.

SCARBOROUGH: OK, Geoffrey, I cannot let you continue misrepresenting the facts.

FIEGER: I am not misrepresenting the facts.

SCARBOROUGH: The facts, in the court record, in 1996, they had a scan of Terri's brain.

In 2002, another scan of Terri's brain. A radiologist testified to the court that the 2002 scan showed a normalcy that the 1996 scan did not, and testified in court, and it's part of the court records, that she was improving from '96 to 2002. Now, go ahead and talk about the scans.

FIEGER: She was in a persistent vegetative state for 15 years.

(CROSSTALK)

SCARBOROUGH: According to three of five neurologists.

(CROSSTALK)

FIEGER: She had contractures. She never made any improvement. Every action that they attributed to her perceptive ability, which was blinking of the eyes, making involuntary noises and tracking with her eyes, are capable of people who are only operating out of the brain stem.

(CROSSTALK)

SCARBOROUGH: Jay, Jay, OK, here's my biggest problem with this case, and it all comes down to the medical testimony.

Judge Greer appointed five neurologists to look at this case, to figure out, again, gave her parents another chance to prove that she wasn't in a persistent vegetative state. I don't care what anybody says. The facts are, five were appointed. They looked at her. They examined her. Three of the five said she was in persistent vegetative state. Two of the five neurologists said, no, she wasn't, and she could be rehabilitated.

FIEGER: Rehabilitated to what?

(CROSSTALK)

SCARBOROUGH: That frightens me.

SEKULOW: Those were court-appointed.

(CROSSTALK)

FIEGER: Excuse me. That was 10 years ago. What happened in the last 10 years?

SEKULOW: Nothing. That's the problem, and no due process in the process...

(CROSSTALK)

SCARBOROUGH: Hold on a second, Geoffrey. We have let you talk, Geoffrey.

FIEGER: No, you haven't.

SCARBOROUGH: Now, and we are getting some facts out that you don't want the American people to hear.

SEKULOW: Right.

FIEGER: Excuse me.

SCARBOROUGH: Let Jay -- let Jay have his turn.

SEKULOW: OK.

SCARBOROUGH: Go, Jay.

SEKULOW: Here's the problem with this.

The medical evidence, let's say it's in dispute. You have to, in a situation like that, side on caution. What does caution say? Certainly, it says side on the caution of letting this woman not starve to death. That's No. 1. And, No. 2, look, whether you like the federal statute or not, the court was supposed to take another look, just like in a death penalty case, and the court gave it a wink and nod in an hour and a half hearing and never pursued what they were required to do by Congress.

That's the tragedy of this and that's the due process.

(CROSSTALK)

FIEGER: That's simply not true.

SCARBOROUGH: Geoffrey, respond.

FIEGER: And you had 10 years from that 1996 examination that you claim was a split decision, which it wasn't.

SCARBOROUGH: I don't claim. It's the facts, three out of five.

FIEGER: There has never been any change in her. What you ask the American public to believe is, this woman had absolute -- had perception, was aware of what was going on?

(CROSSTALK)

SCARBOROUGH: I am not asking the American people to believe anything, Geoffrey.

FIEGER: That's not true.

SCARBOROUGH: I am stating the facts of the case. Two of the five neurologists say she could be rehabilitated. You said that was 10 years ago.

FIEGER: What happened?

SCARBOROUGH: In 2002, a radiologist testified before the court that her brain scan showed improvement, marked improvement from a 1996 brain scan.

FIEGER: Now, I will also tell you this.

SCARBOROUGH: These are the facts of the case. They are not in dispute.

(CROSSTALK)

FIEGER: Here are the facts also. And I am not changing the subject. But here are the facts also, that people who want to end their suffering, for instance in Oregon, people who said to Kevorkian...

SEKULOW: Well, you are changing the subject.

FIEGER: Let me -- no, I'm not.

SEKULOW: Except you are.

FIEGER: Let me end my suffering, the religious right also said, no, you can't have an injection. You can't take the pills. You got to take out your the feeding tube. You got to turn off your respirator. And these same people now are saying, what a horrendous thing it is that we took out the tube of Terri Schiavo.

(CROSSTALK)

SEKULOW: Look, if there's a case where you had written declaration or living will, that's one thing. But you have got so many conflicts of interests apparent here.

(CROSSTALK)

FIEGER: Wait. If you had a living will, would you allow her to have an injection, rather than take out her feeding tube? Would you? Answer that question.

(CROSSTALK)

FIEGER: Answer that question.

SCARBOROUGH: That's against the law. That is another issue completely.

(CROSSTALK)

SCARBOROUGH: Jay Sekulow, I want to back again, the most troubling part of this case, again, Jay, I will say it again, the medical testimony is murky at best. We have been trotting people out here. And this is what disturbs me the most.

FIEGER: What is this -- Joe, Joe...

(CROSSTALK)

SCARBOROUGH: Let me finish what I am saying.

People that support Terri Schiavo dying the way she did will come out and say, everybody knows that she was brain-dead. All the medical testimony says that. On the other side, people will come out and say, she was playing hopscotch when we went in to see her. She was clapping her hands. She was raising her hands.

FIEGER: Yes, except, Joe...

(CROSSTALK)

SCARBOROUGH: A lot of ridiculous assertions.

(CROSSTALK)

SCARBOROUGH: Please, let me finish. The fact is, it wasn't clear- cut.

SEKULOW: That's the problem.

SCARBOROUGH: In fact, it was very murky.

And, yet, this is what disturbs me. Both sides are coming out, trying to make a political point here. The bottom line is, it was murky.

And I am just concerned, Jay Sekulow, in a case where the medical testimony was not clear-cut. This woman died because we didn't err on the side of life, my biggest concern.

Jay, respond.

SEKULOW: And I think that is the legitimate concern. That's been my concern with this case from the outset, in that, in a situation where you had conflicting evidence, and if you take all the hysteria on both sides of it and looked at the evidence, it was a 3-2 case, medically speaking.

And even if it was a 4-2, which it wasn't -- it was 3-2 -- but even if it was more, don't you have to be cautious there and shouldn't have the federal courts followed through and taken another look at that? And I think that's the tragedy of this.

I will tell you one other thing, Joe, really quick. And that is, I think one thing the American people have learned about this -- and maybe Geoff will agree with me on this -- federal judges do matter, and it does make a difference who serves on the branch. And it shows that the coequal branch of government, the federal courts, really do have a lot of power.

FIEGER: So the litmus test for judges now would be acquiescence to the legislative.

SCARBOROUGH: Geoffrey, I'll give you the final word.

FIEGER: So, now the litmus test for judges is acquiescence to unconstitutional acts by the legislature? I don't think so. I hope not.

SCARBOROUGH: Well, Geoffrey, you know what? One thing you don't have to ever worry about are men and women in black robes deferring to anybody. We don't have three equal branches of government.

SEKULOW: That's right.

SCARBOROUGH: We have got the judiciary and two subservient branches. That's the bottom line.

Jay Sekulow, Geoffrey Fieger, thanks so much for being with us tonight.

SEKULOW: Thanks, Joe.

FIEGER: Thanks, Joe.