Episode 5.5: Per Curiam Affirmed

SPEECH: It is my pleasure and proud honor to introduce the governor of the state of Florida for another four years: Jeb Bush.

BUSH: I thank Almighty God for the opportunity to be here today. We must build a life centered on faith, friends and family. Government is not the answer.

ANNA JOHANSEN BROWN, HOST: It’s a cold, January morning on the steps of the Florida capitol in 2003. American flags wave against the white building as the state’s first ever two-term Republican governor, Jeb Bush, prepares to be sworn in. He stands bundled up before the large crowd of flashing cameras, raising one hand and placing the other on a Bible.

BUSH: Faith is grounded in humility, gratitude, and generosity, and acknowledgement that through life we have been given a gift that is wholly unearned and never fully understood in our darkest hours, it is what sustains us. In our final darkness it will bring us light…

In the crowd is a woman named Raquel Rodriguez. We met her in Episode 5 this season. She’s a rookie on the governor’s general counsel team, having come on only one year before in 2002. But her experience defending the law goes back more than two decades. And her friendship with Governor Bush even longer.

ROCKY: He's a person who really believes in second chances for people, and he believes in redemption.

BUSH: Consider the mathematics of tragedy. Our principles must provide solace and support for the most vulnerable among us. This can be our legacy…

Governor Bush was more right than he knew. Less than a year into his new term, Bush would enter the Terri Schiavo case—a case with ultimate stakes.

From WORLD Radio, and the creative team that brings you The World and Everything in It: This is Lawless.

I’m WORLD Radio Features Editor Anna Johansen Brown.

In Season 2, we’re finishing our investigation of the Terri Schiavo story, a case that in 2005 shocked the world. You might remember from Season 1 a few extra episodes we produced to bring you the stories behind the story. To get you up close and personal with key figures in the case…We called them the Point Fives. And now, we’ve got one for Season 2.

This is Episode 5.5: Per Curiam Affirmed.

SPONSORSHIP SPOT: Lawless is made possible by listeners like you. Additional support comes from Compelled Podcast. Listen to unique and compelling testimonies from people like Laura Perry, a woman who was raised in the church but rejected its teachings and identified as a "man" for 10 years. But then one day, she encountered the love of Christ and was confronted with a life-changing decision. Listen on your favorite podcast app or at CompelledPodcast.com.

Nearly two decades ago, critics across America excoriated Governor Bush for joining the Schiavo case. Others cheered him on, thanking him for his courage. We wanted to know more about Bush’s role in the case. So in February 2021, we talked with Rocky Rodriguez.

SOUND: ZOOM DOORBELL

LYNN: Hello

ROCKY: Hi Lynn

Rodriguez appears on the laptop screen in front of a white background, wearing a red sweater and pearls. Because the Schiavo case concluded 16 years ago, we sent her a timeline to refresh her memory on the order of events in the case.

LYNN: Did you get a chance to go through the timeline?

ROCKY: Yes, I did. I highlighted the things that were of direct import to my involvement…

Rodriguez had not only read the timeline, but expanded on it, adding details we hadn’t known. Rodriguez grew up in Miami and attended Catholic school for 13 years. Her father was a lawyer in Cuba and later, a political exile. She says in a 2013 article that as an infant, she probably went to multiple meetings with different exile groups plotting to overthrow Castro.

In law school, a classmate gave Rodriguez the nickname “Rocky” because “getting in the ring” with professors never intimidated her. Her reputation for fearlessness would remain throughout her career.

Rocky was an 18-year-old freshman at the University of Miami when she first met Jeb Bush. Bush was campaigning with his father, George H.W. Bush, in the 1980 presidential campaign. That’s when H.W. was Ronald Reagan’s vice presidential running mate. Rocky was a campaign volunteer.

ROCKY: We were making phone calls to Spanish speaking homes in Miami, urging them to go out and vote for George Bush. I didn't stay in touch with him. But I did help him in 94, when he ran the first time. And then…I worked on the 2000 election. But um, you know, he's been the same guy that I met when he was in his 20s. Maybe he's a better guy, I think he would say.

When asked what the governor was like when there were no television cameras around, Rocky laughs.

ROCKY: How much time do you have?! Barbara Bush had a huge influence, you know, back when he was governor, is when I would go somewhere with him and we were walking into a room. He would say Rocky, you go first. And I would say you're the governor and he says, Ladies First. He was a gentleman through and through, just always ready to light up the room with a joke. And on the other side, he's very serious about his job…

After a mentor nominated her for Jeb Bush’s general counsel in 2002, Rocky hit the ground running.

ROCKY: He would go around the table and ask each person, regardless of their title, what did they think he should do?

Rocky agrees that Bush’s willingness to depend on the counsel of others, albeit spontaneous, made him, her, and everyone else around them better at their jobs.

ROCKY: Everyone always walked away, believing that he had heard them and understood them and had valued them.

In October 2003, Governor Bush is on his way to a Catholic Charities camp for immigrant workers when the Schindler family pays him that visit in Plant City—the one you heard about earlier this season. After the meeting…

ROCKY: The press secretary called me and said, “Rocky, the governor just met with the Schindler family. We were actively continuing to look for ways to save Terri…

Rocky isn’t sure that Bush getting involved is a good idea.

ROCKY: I did not believe it was appropriate for the Governor to enter as a party that there was nothing in, in his constitutional authority or any other authority that allowed him to weigh in in random, you know, cases, and that trying to do so would set a very bad precedent. That was a big, slippery slope, and particularly at the trial level.

LYNN: Did your thinking evolve over time.

ROCKY: Well, the law was passed by the legislature.

She means Terri’s Law, the Florida version.

ROCKY: And he told the legislature if they passed it, I will sign it. It's his constitutional duty to take care that the laws are faithfully executed. And he felt that the legislation was appropriate. He is very pro life. And he believes that in the absence of, of, you know, really good reason, you should err on the side of life and it really was the only opportunity to take any kind of action to try to forestall Terri's death because at that point, the feeding tube had already been removed over the course of this process, I got to know the Schindlers. I reached my own conclusion about how inappropriate it was to allow her husband to be making these decisions, given that he already had a very serious involvement with another woman with a child and the lack of any, any valid by any stretch of the imagination, evidence, that it was her wish to be starved and dehydrated to death. And so the more that I learned about her circumstances, you know, the more I felt personally that this was wrong.

Many people around the country shared Rocky’s initial hesitation. But she tells me this isn’t the first time the government got involved in a “private” case. In fact, it still does.

ROCKY: We see it on a regular basis with civil rights laws, with the commerce clause with many, many issues, maybe not intervening specifically in one case, per se.

LYNN: You mentioned civil rights, we actually see that quite a bit now with racial issues.

ROCKY: Yes. Absolutely. And, you know, the federal government is using existing powers that it has to intervene in some of these excessive force cases. We have a Constitution, we have a Bill of Rights. And sometimes states and local governments fall short of their, of their obligations. And we do need the federal government to step in and uphold the Constitution. I wouldn't do it lightly. And I don't think every case calls for it. But this one was extraordinary.

The tedious crafting of Terri’s Law involves Rocky’s legal hand from the very beginning. Using the correct language to explain the difference between nutrition and hydration, and extraordinary medical measures is critical.

LYNN: From my reading, I gathered that the acceptable language, as far as Senator King was concerned, was greatly watered down and made the law very narrow, almost, like a bill of attainder special law, where it was just applicable to Terri.

ROCKY: There was never an argument made that it was a constitutional right to die case. It all came down to the very basic legislative principle that when the legislature delegates power to the governor, or to some other official, it has to have parameters around it and criteria. And this was just broad discretion that wasn't limited by anything.

The first time the Florida House votes on Terri’s Law, Rocky is in her Tallahassee apartment watching the House clerk count every vote on TV. As bipartisan support grows, so does Rocky’s confidence.

ROCKY: It clearly was an extraordinary event, and a serious concern about protecting a human life and avoiding discarding them just based on the judicial formalities. It I never seen anything like it. It was a human thing. Humanity.

The bill passes and Terri’s feeding tube is reinserted. But it’s only a matter of time before the courts reject the legislation—and ignore the testimony of people like Mayo Clinic neurologist William Cheshire, whose affidavit described Terri as responsive. Why is that?

ROCKY: I was stunned that it would be rejected and today I continue to read up on this because I'm still very interested in the science behind Terri's condition and Dr. Cheshire's opinion. And anytime I run across an article that has some relationship to it, I save it, and I send it to Governor Bush. And I really think that it was a disservice to Terri to the justice system and to science to summarily dismiss his opinion. I can only imagine that the court at that point didn't want to hear any more. There were a heck of a lot of hearings, and multiple appeals and multiple rulings from multiple judges. The reality of our system is that sometimes when you don't do things quickly enough, and cases get decided. The courts are not going to look kindly to new legal arguments that are brought in. And so I understand that sense of exhaustion.

The legal and emotional rollercoaster is wearing on Rocky too. As she works around-the-clock trying to keep Terri alive, the case resonates on an even deeper personal level. Only a few years before, Rocky lost her mother after a seven-year battle with Alzheimer’s.

ROCKY: She got aspiration pneumonia, and ended up in the, you know, ICU. I remember the emotional conversation with my father. The morning of her death. He was crying to me on the phone how he had given the order not to resuscitate her, which I agree with, she was very far along in Alzheimer's and she was very old and there was like, nothing else that we were really ever going to be able to do for her. And I knew how difficult that was. And I understood you know, the importance of leaving these decisions to the family.

As Rocky talks, she wipes away a tear from under her glasses.

ROCKY: I also knew the difference between that situation and the situation that we had with with Terri, and how she got there, and how the decisions were being made. There there just had not been a full appreciation for the different circumstances under which she found herself. You know interestingly, if this case had come up in Europe. I think they would be appalled. It's really unthinkable that you would starve or dehydrate somebody to death whose organ functions are all operating. She wasn't on a ventilator. She wasn't on any kind of artificial cardiac stimulation. And I just I'm still to this day. I'm shocked that that this happened, particularly on the flimsiest of testimony as to what her desires were. I think it's outrageous that that more proof was not required.

Though exhausted herself, Rocky finds fresh motivation to keep fighting when a woman named Kate Adamson visits Tallahassee. In 1995, Adamson suffered a massive stroke and was diagnosed as being in PVS. Against her husband’s wishes, doctors removed her feeding tube. She started slowly dehydrating to death. But one day, she responded to her husband. And then to medical staff. Her feeding tube was reinserted. She fully recovered and now only needs a cane to walk.

ROCKY: Here we had living proof in front of us, of someone who had been essentially written off by the health system as never having an opportunity to recover their lives, proving to us that these mistakes can happen.

And, even though Rocky doesn’t consider herself devout, she says she is a person of faith. So Pope John Paul II’s support of Terri encouraged her, too.

ROCKY: The statement from Pope John Paul the second, that just gave me so much more motivation to keep doing what we were doing to try to save Terri.

LYNN: Dr. Cheshire's opinion, the pope, Kate Adamson. So just over and over again, you were affirmed that you were fighting on a just side, not something that was unfounded.

ROCKY: Right.

LYNN: Medically unfounded.

ROCKY: And legally, legally founded. We had medical and legal reasons.

On February 25, 2005, Judge Greer issued his final ruling that Terri’s feeding tube would be removed. As far as the courts were concerned, that was the end of it. Rocky explains how nearly all options on the state level had been exhausted.

ROCKY: I don't think that our appeal lasted longer than an hour or two, before the District Court of Appeal, issued an order, called per curiam, affirmed, PCA, which means there's no explanation. And the significance of that is that when, when a District Court of Appeal, which is an intermediate court issues an affirmance without an opinion, you have no other option, because there's nothing you can take to the Florida Supreme Court. And so that effectively cut off our ability to pursue any other legal avenue on behalf of the DCF petition…

Many people thought Governor Bush overstepped his authority. Others thought he didn’t use it enough to save Terri. So, how did Bush navigate the case’s legal waters?

ROCKY: The separation of powers issue comes in is twofold. One is the, you know, let's call it the judicialists, who do not want the legislature or the executive, to trod on their purview. And at once the case had already been decided and appealed multiple times. And a ruling had been issued, that there was no more space for any other branch of government to become involved. And I think that's also a large part of the Supreme Court's ruling, which I disagree with, because the legislature has complete power to provide remedies to to litigants. And then the other separation of powers issue was the one that I was mentioning, which was the the absolute discretion that was granted the governor in the actual legislation. I think the main ground for the court's ruling was that, hey, you know, this has already been decided by the courts, there's been plenty of due process. To this day, I believe that they were wrong.

Rocky has something else she wants to say about the Schindlers’ appeal once it went to the federal level.

ROCKY: I think we should talk a little bit about the 11th Circuit opinion.

LYNN: Yeah, absolutely.

ROCKY: There was a three judge panel, which ruled two to one upholding the lower court's ruling. There was a notable dissent in that ruling. And it was by Judge Charles Wilson, who previously had served as the US Attorney for the Middle District of Florida, appointed by President Clinton, and later elevated to the 11th Circuit Court of Appeals, and also a Roman Catholic. And I remember his dissent saying the Congress has created a remedy. And the least that the courts can do is to allow the party to exercise that remedy. It didn't mean that he was going to rule you know, that he felt that in the end, they were going to win, but that he said it, we shouldn't just foreclose them. And again, this is an example that you didn't have to be a conservative Republican or a partisan or an activist. People from all walks of life and from different judicial philosophies and political philosophies, you know, wanted to do the right thing. And in the middle of all this, Jesse Jackson comes to Tallahassee, and he and lady who was working with him on this I don't recall her name or what her official status was. They were shopping legislation to, again to pass another Terri's law. And Jesse Jackson asked to meet with the Governor and Governor calls me down and we meet in the governor's formal office and so I'm sitting across from them in one of the other chairs closer to the door. And I I had to pinch myself because I never imagined I was going to be in a room with Governor Bush and Jesse Jackson, talking about working on something together. But this is another one of those examples where, you know, this wasn't a Republican versus Democrat issue. Here's Jesse Jackson, one of the most liberal Democrats that there was, and he's trying to help Governor Bush save Terri. That was a surreal moment.

Running out of time after Greer’s ruling in March 2005, Rocky finally reaches her breaking point.

ROCKY: When we get shut down by all of these extreme right wing people calling in, and basically preventing us from doing our work and attacking staff. You know, we were in the final days of running out of options, and I brought in all the staff, to thank them for everything that they were doing, to you know, prepare them that, you know, it looked like things were not going to work out. And, you know, the the toll of the the emotion just took over me and I broke down in front of my staff crying.

Since Terri’s death, she remembers her every March 31st.

ROCKY: For a few years after I would text or call Bobby, and check in on him. But March 31 is an important day on my calendar. If I've ever been disappointed while I was in government this was my highest level of disappointment that I ever experienced…

She closes her eyes and pauses to shake her head…just remembering.

ROCKY: The only thing that disappointed me more than losing Terri's life was the behavior of people who I understood to be Christians, who would have been aligned with us in saving her and attacking governor and the governor's staff for not violating a court order that we no longer could challenge.

LYNN: On both sides of this case, there has been a tremendous tendency to demonize the judiciary, to demonize the legislator legislature, to demonize the Schindler side, and the Schindler's demonizing the Schiavo. There are many people that feel that Judge Greer got it wrong…comment on that idea of this demonization.

ROCKY: I've been a litigator my whole career, and it's easy to demonize the other side. But you, you have to as a lawyer understand that everyone has a point of view, and the lawyers are doing their job to advance the client's interests as long as they can do so honestly. And it's the job of the judge to resolve the dispute. And there are many very difficult cases. I've heard judges say, if you're completely happy with every decision that you've ever made as a judge, you're not really judging. And it's true it happens all the time. But again, do I think the right thing happened? No. You know, we hope for perfection, but we're never going to be perfect.

Lawless is a production of WORLD Radio. Paul Butler is our executive producer and sound engineer. Our production assistant is Lillian Hamman. Lillian also wrote this Point Five episode. Music by Will Shehan. Lawless is reported and written by Grace Snell, Lynn Vincent, and me, Anna Johansen Brown. For more resources related to this and other episodes, visit LawlessPodcast.com. Thanks for joining us.

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