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Business Observer Friday, Jun. 11, 2004 17 years ago

In the Hot Seat

Judge George Greer, who presides over the controversial Terri Schiavo guardianship case, faces his first re-election challenge while fending off conspiracy theories and attacks on his record.

In the Hot Seat

Judge George W. Greer, who presides over the controversial Terri Schiavo guardianship case, faces his first re-election challenge.

By David R. Corder

Associate Editor

Judge George W. Greer laments a bit about the recent oppressive summer-like heat. At 62, the Pinellas-Pasco circuit judge finds the humidity more of a burden when he runs, a practice he considers important for physical health and mental acuity. This is how he manages stress. And these days the two-term jurist is dealing with an inordinate level of stress.

About four years ago, Greer became presiding judge in the guardianship of Teresa Marie Schiavo, who collapsed into a coma-like state in 1990 at 26. He is the latest of about a half dozen judges in the circuit who have presided over her guardianship. Brain damage left Terri, as her family and friends know her, dependent on a tube for nutrition. Medical malpractice allegations produced a trust fund of about $750,000 for her care and possible rehabilitation.

Terri's care and rehabilitation became a source of contention within the first few years as her parents, Bob and Mary Schindler, fought against efforts by her husband, Michael Schiavo, to distance himself. He declined medical treatments for Terri and then signed a do-not-resuscitate request. Almost 10 years from the day Terri collapsed, Greer ordered the feeding tube removed at Michael Schiavo's request.

The judge's decision mobilized right-to-life and right-to-die factions, producing heated national public debate that still today either denigrates or praises Greer's decision, which was upheld by the 2nd District Court of Appeal. The U.S. and Florida supreme courts subsequently denied writs of certiorari.

Last year, Gov. Jeb Bush and the predominantly Republican Florida Legislature enacted "Terri's Law," temporarily staying Greer's action. Just recently one of Greer's colleagues, Circuit Judge W. Douglas Baird, declared the law unconstitutional, creating another round of appellate review.

But now the public debate has risen beyond the media pundits and Internet Web sites that criticize Greer for his strict adherence to the law. A candidate emerged last month to challenge Greer for re-election, and an even more virulent tone has emerged in press advisories circulated by marketing professionals who say they have adopted Terri's cause sans compensation.

This new wave of criticism attacks the characters of Greer and Dunedin attorney George Felos, Michael Schiavo's attorney. They use thinly spun facts to accuse the two of engaging in a conspiracy, especially with the Hospice of the Florida Suncoast, to deny Terri of her basic human rights. They attack Greer's judicial career by focusing on his appellate review record. They attack Felos based on his unconventional personal spiritual beliefs detailed in his book, "Litigation as Spiritual Practice."

Never before, Greer says, has he experienced such virulence, which he comes just short of describing as character assassination - not even during the eight years he spent as a Pinellas County commissioner. It's a tough time for this jurist. He wants to talk publicly, but judicial ethics forbid him from discussing a pending case.

"We had issues in the county that were really contentious," Greer said. "But once they got addressed and resolved everybody seemed to move on."

The challenge

On May 7, Greer and two fellow Pinellas-Pasco circuit judges, Ray E. Ulmer Jr. and John C. Lenderman, traveled to Tallahassee to witness the official closing date for candidates to qualify as circuit judge candidates. Up until that day, all three were unopposed for re-election. They automatically would retain their jobs if no opposition emerged by the day's close. At least that's what transpired for Ulmer and Lenderman.

However, Greer happened by chance that day to meet Jan Govan, a Clearwater attorney who recently appeared in Greer's court over a contentious probate matter. Greer soon would learn Govan had paid $5,330 out of pocket to cover the qualifying fee to oppose him at the November general election. It's Greer's first opposed race since winning the 6th Circuit seat in 1992.

Neither Greer nor Govan spoke about how the debate over Terri's guardianship figures into their candidacies. But each attributed their inability to comment about pending cases to a recent advisory report from the Florida Supreme Court Judicial Ethics Committee.

Although Greer would neither confirm nor deny it, it appears he asked for the clarification that appeared in report No. 2004-18, which the committee published May 27.

"I can't talk about the case," Greer says about Terri's guardianship. "I asked for an ethics opinion on another case that I anticipated I would be disqualified from and was advised as long as it's pending I can't discuss it. My judicial ethics will not allow me to discuss pending cases, whether it's my case or someone else's."

In fact, the advisory opinion contains facts identical to those expressed in Richard MacDonald v. The Estate of Peter Wejanowski (Pinellas Circuit Court case No. 01-4730). Wejanowski died in August 2001 from a self-inflicted gunshot in a murder-suicide that claimed the life of his girlfriend, Karen Stacy. Govan represents MacDonald, who asserts certain claims as the Wejanowski's estate personal representative.

The Wejanowski case is contentious, too, having been appealed four times to the 2nd District Court of Appeal. Govan filed the last appeal around the same time he paid the qualifying fee to oppose Greer. It was also days after Greer rejected Govan's request in the Wejanowski case for partial payment of attorney's fees.

When asked about Govan's motives, Greer replies: "I can't speak for what he's doing or why he's doing it."

When asked if Terri's guardianship figures in his reason to run, Govan replies: "It's not for the reason you think." But he would not talk about the Wejanowski case.

Govan says he is only taking advantage of his constitutional right to offer voters an alternative candidate. "I'm not talking about the Schiavo case," says Govan, a solo practitioner who graduated in 1983 from the Stetson University College of Law. "I'm talking about the right to vote.

"We've got a highly controversial judge," he adds. "We have a very restricted group of people (lawyers) that can qualify to run for this position. So knowing the circumstances are as far as democracy and the court system is concerned, the lawyers and the court system are practicing the politics of exclusion.

"I understand Judge Greer has received unpleasantness because of this," Govan adds. "But the way we resolve it is to give access to people so they can vote. The way we resolve these issue is if you don't like Judge Greer, you don't vote for him."


Although she doesn't know Govan, Pinellas resident Pamela Hennessy says she is happy to see an alternative to Greer. She is among a group volunteering their time to help the Schindler family in their fight to keep Terri alive.

A free-lance marketing professional, Hennessy assists the news media with information and background about Terri's guardianship fight, in addition to maintaining the family's Web site ( Adamantly in support of the Schindlers, Hennessy is quick to raise questions about what she considers discrepancies in Terri's guardianship.

It was by accident Hennessy took interest in Terri's guardianship, mostly through local media coverage. Based on what she saw, she says she contacted the Schindler family on her own initiative and independent of other right-to-life and religious organizations that support the Schindlers' legal battle.

"If the state of Florida gets this through and allows someone to be put to death without their permission, then every elderly and disabled person is at immediate risk," says Hennessey, who describes herself as agnostic and a member of the Green Party. "This is exactly what they want to do."

It's similar circumstances that attracted Justin Oppmann, who operates a small public relations firm out of his home in Washington, D.C. He also volunteers his time to help the Schindlers. Oppmann, operating as the Juggernaut Agency, distributed press releases dated May 24 and June 2 that accused Greer and Felos of conspiring with the hospice through hidden agendas to abuse and neglect Terri.

"Six to eight months ago, I saw a woman who appeared to be in a coma and wondered why they didn't put her out of her misery," Oppmann says. "I didn't have any strong beliefs about it. But to me it looks like there is something rotten in Denmark. I thought the Schindlers were getting the short end of the stick."

Those who support the Schindlers point to the fact that Michael Schiavo is engaged to a woman with whom he has a child. How could he be an advocate for his ailing wife?

Although familiar with Hennessy, St. Petersburg attorney Patricia Fields Anderson, who represents the Schindlers, says she didn't know anything about Oppmann, the Juggernaut Agency or its press releases until GCBR asked about them.

In media releases distributed locally and nationally, Oppmann claims Felos "seems to have a disturbingly close relationship with appellate Judge George Greer." The appellate reference is an inaccuracy.

But there just is no hidden relationship, says Felos and Greer in interviews with GCBR. They claim only an attorney-judge relationship.

Oppmann has also raised issues about Greer's campaign contributions. He's focusing mostly on contributions from current or former hospice board members. He also questions the propriety of a contribution from Deborah Bushnell, a Dunedin attorney who also represents Schiavo.

As for his relationship with the hospice, Greer says the nonprofit group cared for his father, Charles, who died at age 79. "They took care of my father during his last days in 1991," he says. "That's probably the closest I've been with hospice ever."

Greer is reluctant to talk specifics about the hospice as it relates to Terri's guardianship. He fears her parents will seize upon anything he says to disqualify him as Terri's guardianship judge. Anderson has filed four motions seeking to disqualify him.

"The question has to do with the case," he says. "I don't want to get into a situation where I get a fifth petition to disqualify me.

"But I don't know who is on the (hospice) board," Greer adds. "So I can't tell you if I have good friends on the board or not. I have no idea who is in charge of administering the hospice organization."

Felos has served as chairman on the hospice board of directors. He resigned after Terri's husband admitted her to the facility in April 2000. About two months later Greer signed an order to remove the feeding tube.

"Terri was already a hospice patient when I resigned, because an order was signed that her artificial life support would be removed," Felos says. "She would be removed to the hospice No. 1 because she had a terminal illness."

There was another reason, Felos says. Court testimony accused the Schindlers and supporters of creating disturbances at another facility that cared for Terri. "The nursing home administrator said if that pattern continued they would ask us to remove her," Felos says. "We wanted to make a transfer in an orderly fashion rather than doing it under the gun."

That response doesn't sit well with Terri's brother, Bobby Schindler. He questions why Greer allowed his sister's transfer without a required court order. Greer says he cannot discuss the issue because it involves a pending case.

"We learned about it after the fact," Schindler says. "Terri was moved and our attorney was notified and she went to Greer after the fact. It was a moot issue at that point. We would have objected to Terri being moved to hospice."

Schindler holds strong beliefs about the so-called conspiracy to put Terri in the hospice. He says it's all about money - money Terri's husband could receive at her death, Felos' attorney's fees and Medicaid dollars the hospice receives. The organization had revenue in excess of $71 million in 2002, according to its most recent publicly available financial statement.

"Coming from me, it's different," Schindler says. "It's more than appearances, especially when you take into account the rulings that have occurred over the past four years."


Terri's supporters are critical about the attorney fees Felos has received from her medical trust fund. The Oppmann media releases claim he has received about $500,000.

When asked about attorney's fees, Felos acknowledges receiving about $340,000 from Terri's trust fund.

"That was for work from November of 1997 through July 2002," he says. "That was basically for five years work. I haven't been paid for work since July 2002, since basically there are no funds available."

Felos acknowledges Greer has approved other amounts to cover reimbursements for costs such as transcripts, expert witness fees and so on. "It's one of the minor misrepresentations that they use," he adds.

Countering the accusations, Felos argues the Schindlers are not without their resources. He claims Napa Valley, Calif.-based Life Legal Defense Foundation, a pro-family nonprofit group, has contributed $100,000 to pay Anderson's legal expenses.

Felos, too, is guilty of hyperbole, says Dana Cody, a Sacramento, Calif., attorney and executive director of the legal defense fund. The group has contributed about $75,000 to offset Anderson's legal expenses.

"The No. 1 rumor has it Mr. Schindler is getting money from us," Cody says. "He's not gotten a penny from this, because Mr. Felos and his ilk have accused him of taking money for his living expenses, and that is absolutely false. We are supporting Pat Anderson with cost and expenses. We do not pay attorney's fees.

"I would say it's human nature to exaggerate, but it's not human nature to end someone's life who is innocent and helpless," Cody adds. "It's just a continual source of amazement to me that Terri is portrayed as being in a vegetative state. If you look at the videotape, which is public record you can get through the court, she is responding. Who knows what progress could have made if Michael Schiavo, as he testified to her care, would have spent that money on her care."

Cody also says she doesn't understand why Greer has not questioned the actions of Terri's husband. For instance, she wonders why he has not held Schiavo culpable to the state law that requires him to file annual guardianship plans with the court.

"Lastly, I think it's very interesting (Felos') client under penalty of perjury said this money will go toward Terri's care, and instead he used it all to pay his attorneys to end her life," Cody says. "Now the money is gone, and I would say that's Mr. Felos' problem."

"Why isn't the court looking into that?" she adds. "It's not because Mr. Schindler hasn't tried to get the court to look at it."

This is not the only right-to-life case the legal defense fund supports, Cody says. But she says it's one of the most tumultuous.

"Pat Anderson put it best: There is the rule of law and then there's Terri's case," Cody says. "I think it's a shame. We live in a country that is supposed to protect its weak and vulnerable, and clearly Terri's not being protected by her so-called husband or by the court. The Legislature tried to protect her, and we saw what happened there."

Although Greer did not respond to Cody's assertions, he discussed an explanation he gave to Anderson at a Sept. 11, 2003, hearing about the role of the court in Terri's guardianship.

"Is the court to be proactive or is the court to be objective?" Greer recalls asking her. "I think the Legislature would like the court to be a little more proactive in guardianships. We have to maintain the perception of impartiality. If I start wading through the court file and start making accusations, clearly it would appear I've lost my impartiality. That's just a conflict that's out there that I have to deal with situation by situation."

Anderson says Greer referred to a legislative rewrite of the state's guardianship rules in the late 1980s in response to the actions of a St. Petersburg attorney who systematically looted the trust funds of about 100 wards.

"When the Legislature rewrote the statutes, it says we're very concerned that judges are not paying close enough attention to guardianship," Anderson says. "They are to be proactive."

That is why Anderson has urged Greer to allow a rehabilitation specialist to help Terri with her swallow reflex. She cites evidence that such rehabilitation has been helpful in weaning incapacitated individuals from life support.

"Why not let her have the diagnostic tests and find out what is wrong with (Terri's) swallowing reflex?" Anderson says. "That would make removing the tube less of an issue.

"If you accept, as Judge Greer has, the notion that Terri does not want to be kept alive through artificial means, that obviously means - given the public policy of the state, which has been articulated by the 2nd District Court of Appeal and other courts - to err on the side of life," she adds. "The obvious step is to restore totally natural existence, not jump to the conclusion that she wants to die. If she can learn to swallow again so she could be fed by mouth, then why in the world would you not do that?"

While he cannot publicly answer that question, Greer did speak about his role as a trial court judge. He says it's to apply the law to the facts of a particular petition or motion.

"There is not much trial courts can do sui sponte, just on their own," he says. "I can't issue an order and say, 'I've looked through this file and I find that you lose.' You can't do that. That's not our role. Our role is to adjudicate disputes. It's up to litigants to bring those disputes forward and phrase them in a manner they want phrased and present them. That's the role of the trial court."

Appellate record

But Greer's critics question his ability to do that. They cite cases appealed from his court. They claim the 2nd DCA has reversed him almost 50% of the time in a sample of 32 appeals from 1994-2003.

Oppmann cited those statistics in a press release. He says he relied on information from Bobby Schindler, who says he obtained it from Anderson.

Anderson says she compiled the information through WestLaw, an Internet database used by lawyers and judges. She routinely does such research on judges who hear her cases.

Although she offered the research to other interested persons and organizations, Anderson will not comment about its significance. She wants to leave that opinion to others.

"I don't vouch for how anybody else interpreted it," she says. "I was doing it for my own curiosity; just to see what (Greer's) reversal rate was."

Greer expressed surprise at Anderson's research. He thinks her findings are too low.

"I've been appealed hundreds of times," Greer says. "I'm sure I was appealed more than 32 times within that time span. If I was reversed that many times out of that many appeals that's a pretty high percentage. Maybe they're talking over my entire career that I've been reversed 17 times, which is a rather low number I would think. But I know I had to have been appealed more than 32 times. I truly don't keep score."

The number also pales in comparison to the number of active cases Greer says he presides over at any given time. He estimates he oversees 10,000 active cases that date as far back as the 1970s.

"Well, you really can't look at it from that respect," he says about Anderson's research. "No 1, you look at the total number of appeals. Usually, you get appealed more often in the criminal division than you do otherwise. And I did sit in the criminal division. Then you look to see, if you're trying to get some percentage, I guess you have to go find what the average is statewide."

There are no official standards that either govern or analyze reversal rates of trial judges, says Joseph Little, a professor at the University of Florida Levin College of Law.

"I'm not aware of any statistical work being done or attempt to compare judges on the basis of how often they're right or wrong," Little says. "I would not rule such a thing out as being useful in trying evaluate the judges. It would be a thing that would have to be done very carefully so as not to make mistakes."

But that's the problem with such comparisons, Little adds.

"There are so many uncertainties," he says. "One is over the course of time some judges may have the luck of the draw and get a bigger share of more difficult cases than other judges. Quite often you see there will be a very hot dispute between the lawyers on the two sides as to what the rules should be. Then the judge may make a very reasoned decision, but it's possible the appellate court won't agree. They'll say, 'We think it's a reasoned decision but it's wrong.' "

Little says one shouldn't judge a jurist's skills and capabilities based solely on reversals.

"The fact the judge is reversed is not indicative itself that a judge is ill prepared, a poor judge or a poor scholar," he says. "If you did enough work with enough cases, with a particular judge you might come to the conclusion a judge was constantly making bad decisions in easy cases and that's an indication that's not a very good judge. But to come up with that conclusion on a comparison would take a lot of work."

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