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THE SCHIAVO CASE: THE OVERVIEW

U.S. Judge Hears Tense Testimony in Schiavo's Case

TAMPA, Fla., March 21 - The fate of Terri Schiavo landed in federal court Monday, as a judge in Tampa struggled to weigh the complex facts and assertions amid pleas from Ms. Schiavo's parents to act to resume her feeding before time ran out.

After two hours of tense and often emotional arguments, Judge James D. Whittemore of Federal District Court refused to rule immediately on whether to restore nutrition to Ms. Schiavo, a severely brain-damaged woman whose husband won a state court's permission to remove her feeding tube last Friday. Judge Whittemore also expressed doubts about whether a federal review could change the ultimate outcome and seemed skeptical of the parents' contention that the state courts had violated Ms. Schiavo's right to due process.

The delay disappointed Ms. Schiavo's parents and others who have asked the federal court to swiftly order the tube reinserted and halt Ms. Schiavo's demise.

Judge Whittemore, who was nominated by President Bill Clinton in 1999, was randomly selected by computer to preside over the case after Congress passed an extraordinary law early Monday morning allowing Ms. Schiavo's parents to seek a federal court review of the facts.

While their lawyer said that Ms. Schiavo, who had already gone more than three days without food or water, "may expire as I speak," Judge Whittemore appeared to be taking the calculated risk that she would survive while he deliberated.

Doctors have said that Ms. Schiavo, 41, could live up to two weeks without the feeding tube.

The hearing on Monday was the result of a determined effort by the Republican leadership in Congress to override a series of state court rulings that sided with Ms. Schiavo's husband, Michael.

President Bush returned to the White House from his vacation in Texas solely to sign the law. He later praised Congress for "voting to give Terry Schiavo's parents another opportunity to save their daughter's life."

During the hearing in Tampa, the chief lawyer for Ms. Schiavo's parents, Robert and Mary Schindler, told Judge Whittemore that Ms. Schiavo's due process rights had been violated because she had not had independent legal representation during the seven years the case was in state courts. The lawyer, David Gibbs, also said Ms. Schiavo's religious beliefs as a Roman Catholic were being infringed because Pope John Paul II has deemed it unacceptable for Catholics to refuse food and water.

"We are now in a position where a court has ordered her to disobey her church and even jeopardize her eternal soul," Mr. Gibbs said.

George Felos, who represents Ms. Schiavo's husband, who is also her guardian, said reinserting the feeding tube would "countenance a severe invasion upon the body of Terri Schiavo" and he asked the judge to declare that the law passed by Congress was unconstitutional.

Judge Whittemore at times sighed, paused and buried his face in his hands during the hearing. He wanted details of how long it would take to transport Ms. Schiavo from her hospice to a nearby hospital and replace the tube -- about two hours, the lawyers said -- and what the procedure involved. Both sides said it would require surgery and that Ms. Schiavo would need to be hospitalized for several days while her electrolyte balance was restored.

Ms. Schiavo's husband and parents, once close, have battled over her fate since 1998, when Mr. Schiavo asked a state court's permission to remove life support.

Ms. Schiavo suffered extensive brain damage when her heart stopped beating one night in 1990, due to a potassium deficiency that may have been caused by an eating disorder. She can breathe on her own and has periods of wakefulness, but Judge George Greer of Pinellas-Pasco Circuit Court, who presided over the case, accepted the testimony of doctors who said she was in a "persistent vegetative state" and incapable of thought or emotion.

More important, Judge Greer found credible Mr. Schiavo's testimony that his wife, who left no written directive, had said on several occasions that she would not want life-prolonging measures to be used for her.

Judge Whittemore frequently interjected questions, pressing Mr. Gibbs about his claim that Judge Greer had violated Ms. Schiavo's due process rights that and that he had not given her a fair trial. He pointed out that Judge Greer had held a "lengthy" trial and had appointed several independent "guardians ad litem" to represent Ms. Schiavo's interests, and that her parents had represented her interests, as they saw them, by fighting the tube removal.

Judge Whittemore asked Mr. Gibbs to cite case law that would bolster the claim that Ms. Schiavo's Fourteenth Amendment rights to due process had been violated, adding, "because we haven't found any." Without proof that the state court's handling of the case violated precedent, Judge Whittemore said, "I think you would be hard pressed to convince me that you have substantial likelihood" of succeeding on the merits of the case.

To win a temporary restraining order, a plaintiff must prove such likelihood.

Mr. Gibbs promised to provide case law backing up his claims as soon as possible. But he also said that under the new law passed by Congress, the federal court should "not unduly trouble itself with the history" of the case in state court. Mr. Gibbs is seeking a new trial with a jury, which was lacking in the 2000 trial held by Judge Greer.

But when he said that Judge Greer's findings were irrelevant under the Congressional measure, Judge Whittemore replied, "That's not how I read the act."

Mr. Felos, representing Mr. Schiavo, sought to focus Judge Whittemore on the question of whether the Congressional act passed in the early morning hours was constitutional. He argued that Congress did not have the authority to allow a federal review of the case because the Constitution says it is up to a state to decide whether due process rights have been violated.

"Yes, life is sacred," Mr. Felos said, "but so is liberty, your honor, especially in this country."

Robert Schindler, who attended the hearing without his wife, left the courthouse looking grim. Outside, protesters supporting the Schindlers heckled Mr. Felos as he told reporters he felt optimistic about the case.

Mr. Gibbs, whom Judge Whittemore asked to file a brief responding to Mr. Felos's claim that the new federal law was unconstitutional, told reporters he was not discouraged by the judge's refusal to rule from the bench.

"His reputation is one that is very careful, he is very methodical," he said, though he added, "Every moment is precious."

On Capitol Hill, Republican leaders who had forced Congress into a weekend session and called back vacationing lawmakers for a vote after midnight Sunday were watching the court action carefully. They said they were frustrated the judge was not moving more rapidly.

In Tallahassee, Gov. Jeb Bush said he was grateful to Congress for passing a law but said he still wanted the Florida Legislature to pass a measure tightening the requirements for guardianship. Mr. Schiavo lives with a girlfriend with whom he has had two children, and Mr. Bush said that presented a conflict of interest.

"I think our state ought to change our laws to say in those circumstances, that that guardian needs to be changed," Mr. Bush said.

Carl Hulse contributed reporting from Washington for this article, and Christine Jordan Sexton from Tallahassee.

A version of this article appears in print on  , Section A, Page 1 of the National edition with the headline: THE SCHIAVO CASE: THE OVERVIEW; U.S. JUDGE HEARS TENSE TESTIMONY IN SCHIAVO'S CASE. Order Reprints | Today’s Paper | Subscribe

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