The Web    CNN.com      Powered by
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
SERVICES
 
 
 
 
 
 
 
SEARCH
Web CNN.com
powered by Yahoo!
TRANSCRIPTS


 

Return to Transcripts main page

CNN LIVE AT DAYBREAK

A Deliberate and Deadly Rampage; Federal Judge Refuses to Order Schiavo Feeding Tube Reinserted

Aired March 22, 2005 - 06:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


CAROL COSTELLO, CNN ANCHOR: Straight ahead on DAYBREAK, a deliberate and deadly rampage. A community left in shock and asking why.
Also, what if that were me? A lot of you are asking that question as Terri Schiavo's life hangs in the balance.

It is Tuesday, March 22.

You are watching DAYBREAK.

And good morning to you.

From the Time Warner Center in New York, I'm Carol Costello, along with Chad Myers.

Now in the news, 10 people are dead and 13 wounded after a shooting rampage in Minnesota. Authorities say a high school student killed two of his grandparents and seven of his schoolmates before killing himself. We'll have a live report for you in two minutes.

The convicted sex offender charged in the death of a 9-year-old Florida girl heads back to court in about an hour and a half. The girl's father said last night he hopes John Couey gets the death penalty. We'll have more from Florida in the next half hour of DAYBREAK.

We'll see if Michael Jackson arrives late again today for his child molestation trial. He said yesterday he's taking pain medication for his ailing -- see how slowly he's moving. And he almost threw up in court. But he didn't. Today's proceedings will take only half the day.

It looks like you're filling up despite some pain at the pump. The Energy Department says fuel demand is still rising, even though gas prices have shot up nearly $0.13 in the past two weeks -- good morning, Chad.

CHAD MYERS, CNN METEOROLOGIST: I had a shocker today.

COSTELLO: You did?

MYERS: My $1.97 gas station went up to $2.05 overnight. So that was my cheap gas. Forget about that now. And I know some folks are really hurting at $3, but if you even looked across the border, up into Canada, they're paying like $0.80 a liter, or, in some spots, $1 a liter, which is nearly $4 a gallon. So, you know, it's...

COSTELLO: Yes, but we don't live in Canada.

MYERS: Well, I know. It's all about the taxes in some spots, isn't it?

(WEATHER REPORT)

COSTELLO: This morning people in Red Lake, Minnesota are struggling to come to terms with a high school massacre. Ten people have been shot on an Indian reservation, a high school on an Indian reservation, I should say. More than a dozen others are wounded. The chairman of the Red Lake Chippewa tribe calls it the darkest hour in the tribe's history.

CNN's Robin Meade has more on the shooting.

(BEGIN VIDEO TAPE)

ROBIN MEADE, CNN CORRESPONDENT (voice-over): Once again, a community forced to cope with violence in the schools, this time Red Lake, Minnesota. Authorities say that the high school student first shot and killed his grandparents in their home, took more guns from there and headed to Red Lake High School. Near the school's entrance, he shot and killed a school guard, say authorities, then walked down a hallway and shot a teacher.

UNIDENTIFIED MALE: We heard boom, boom.

MEADE: Witnesses say that he'd point the gun at a student, grin, wave and shoot, then point again and open fire, over and over and over. As he went from classroom to classroom, banging on doors, terrified students tried to hide. Some used cell phones to call parents and police.

PAT NELSON, DIRECTOR OF PUBLIC SAFETY: We did receive a call at 2:55 this afternoon, a 911 call, that there was a shooting at the hospital. Our officers did respond almost immediately.

MEADE: When police arrived, a shootout ensued, the young gunman apparently killing himself. When it stopped, 10 people were dead, more than a dozen others wounded and another town wondering why.

Robin Meade, CNN, Atlanta.

(END VIDEO TAPE)

COSTELLO: And CNN is expecting updates from a hospital where some of the shooting victims were taken around 11:30 a.m. Eastern time. Police plan a news conference from the Indian reservation later this afternoon. Also, a Native American prayer service will take place on the steps of the state capital in St. Paul at 3:00 p.m. in the afternoon. That's Eastern time.

The Red Lake massacre now becomes the nation's second deadliest school shooting. The April 1999 Columbine shooting in Littleton, Colorado tops the list. Fifteen people were killed, 23 wounded. The death toll includes the two shooters. Of course, they killed themselves.

March of 1998 in Jonesboro, Arkansas, five dead, 10 wounded. Two heavily armed boys tripped a fire alarm at their middle school and then they gunned down students as they exited the building.

And two months later, May of 1998, four people were killed and 20 wounded. A student opened fire at the high school cafeteria in Springfield, Oregon. Two of the dead were schoolmates. The other two were the shooter's parents, whose bodies were later found at their home.

Now to the legal and political twist and turns over Terri Schiavo's life. The brain damaged woman is entering a fourth full day without food and water. Her dying process has begun, as both sides await a federal judge's decision on whether to order her feeding tube reinserted.

Her husband is expressing outrage to CNN's Larry King.

(BEGIN VIDEO CLIP FROM CNN'S "LARRY KING LIVE")

MICHAEL SCHIAVO, TERRI SCHIAVO'S HUSBAND: Every person in this country should be scared. The government is going to trample all over your private and personal matters. It's outrageous that these people that we elect are not letting you have your civil liberties to choose what you want when you die.

(END VIDEO CLIP)

COSTELLO: Terri Schiavo's parents insist that being denied nutrients and water until she dies is not something their daughter would want.

This case has taken extraordinary turns, all the way to the White House.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: In extraordinary circumstances like this, it is wise to always err on the side of life.

(END VIDEO CLIP)

COSTELLO: As you know, Terri Schiavo has been in a persistent vegetative state for 15 years now.

Making "News Across America" for you.

All 20 people who were abroad a grounded ship are now safe. The Coast Guard is working to free the sailing ship that became stuck on a sandbar off the coast near Oxnard, California. Rescuers plucked some people out of the water after they were either washed overboard or jumped. The man accused of plotting to kidnap David Letterman's son is expected to appear in a Montana courtroom today. Kelly Frank is charged with felony solicitation. He also faces charges that he overcharged for work done at Letterman's Montana ranch.

Letterman took time out of his show last night to thank those involved in foiling the alleged plot.

(BEGIN VIDEO CLIP FROM "THE LATE SHOW WITH DAVID LETTERMAN, COURTESY CBS/WORLDWIDE PANTS)

DAVID LETTERMAN, HOST: I want to thank FBI Special Agent Jim Wilson, FBI Special Agent Aaron Vanhoff (ph), Teton County Sheriff George Anderson, Teton County Attorney Joe Coble and the great people of Choteau, Montana. They have always made me and my family feel entirely welcome and as though it were our home, and that's how we think of it.

(END VIDEO CLIP)

COSTELLO: Three children are presumed dead after an explosion at a Colorado ski lodge. They were attending a family reunion at the Electric Mountain Lodge in western Colorado. Several other members of the family were hospitalized after the blast, which completely leveled the building, as you can see. The cause of this explosion still under investigation.

Baseball has been very, very good to them -- Chad.

MYERS: Yes, it has.

COSTELLO: I know.

MYERS: The fans are lukewarm.

COSTELLO: They are lukewarm. Polls not so good, actually. A new CNN/"USA Today"/Gallup poll is out in the wake of last week's Congressional hearing on steroid use in baseball. And guess what? Well, before we get to the numbers, let's talk about what happened.

Mark McGwire testified. As you know, he declined to answer questions about whether he used steroids. But the poll shows his image has taken a hit.

MYERS: Well, of course it has. You can't plead I'm not going to say and then -- because people just assume it was a yes.

COSTELLO: Oh, but wait. They might have slipped, but 53 percent of those surveyed still have a favorable opinion of McGwire.

MYERS: I wonder if those million dollar baseballs are still worth a million dollars.

COSTELLO: That's an interesting question.

Now, that 53 percent, of course, down from 1998, when McGwire broke a home run record; 25 percent, they have an unfavorable opinion of him; 22 percent, they just can't decide.

MYERS: I think I'm undecided as well. Maybe I'm just...

COSTELLO: I'm not.

MYERS: Maybe I just don't care.

COSTELLO: I think he looks bad.

Sammy Sosa, as you know, also testified. And it looks like his poll numbers have gone down, too -- 55 percent favorable; 21 percent unfavorable; 24 percent say I don't know, I'm not sure.

MYERS: You know what, Carol? Other than Alan Greenspan, I don't know anybody who can testify in front of Congress and not have their opinion go down a little bit. You're not in Congress because you did something good, usually.

COSTELLO: Usually not.

Straight ahead on DAYBREAK, drivers all across the country are feeling new gas pains. Is the cost of driving changing your habits, though? That's in our "Business Buzz" at 18 minutes past.

Also ahead, activist judges -- lawmakers are saying it a lot when talking about Terri Schiavo. Is it just a phrase or a loaded political weapon? We'll talk about that at 21 minutes past.

And living wills -- what you need to know to determine your own fate. That's at 51 minutes past. In fact, if you have a question about living wills, daybreak@cnn.com is the place to send your questions.

But first, here are some other stories making news this Tuesday morning.

(COMMERCIAL BREAK)

COSTELLO: Still to come, your child could be at risk right now and you don't even know it. An important recall to tell you about this morning.

And, will that phrase activist judge carry any weight in the life and death debate over Terri Schiavo?

DAYBREAK will be back in a minute.

(BEGIN VIDEO TAPE)

ANITA HILL: I have no personal vendetta against Clarence Thomas.

UNIDENTIFIED FEMALE (voice-over): When law professor Anita Hill came forward with sexual harassment charges against a future Supreme Court justice during his Senate confirmation hearings, it shocked the nation, divided and captivated it at the same time.

HILL: I seek only to provide the committee with information which it may regard as relevant.

UNIDENTIFIED MALE: I've heard enough lies.

UNIDENTIFIED FEMALE: No matter who you believe, Hill's televised Senate testimony brought workplace sexual harassment into the forefront.

HILL: It's good to be home.

UNIDENTIFIED FEMALE: After it was over, Hill went back to teaching law at the University of Oklahoma. But her life would never be the same.

HILL: I had no appreciation for the fact that there would be so much attention to this issue and that I would become a symbol of the issue.

UNIDENTIFIED FEMALE: Hill wrote a book about her experiences called "Speaking Truth To Power." She's now 48 years old and teaches at Brandeis University in Massachusetts. What drives her, she says, is a responsibility to her students.

HILL: They deserve a better society. That is what motivates me. And I think that I can be a part of creating that. I've been given that chance. I don't want to blow it.

(END VIDEO TAPE)

(COMMERCIAL BREAK)

COSTELLO: Your news, money, weather and sports.

It is 6:14 Eastern.

Here's what's all new this morning.

Police say a high school student has gone on a shooting rampage at an Indian reservation in Minnesota, killing 10 people and wounding 13 others. Police say the student killed his grandparents at their home and then he killed seven people at his high school before killing himself.

The Supreme Court has rejected an appeal from Zacarias Moussaoui. Moussaoui is the only man charged in the 9/11 terrorist attacks. Moussaoui wanted to question al Qaeda suspects in U.S. custody. The judges said no.

In money news, Coca-Cola is hoping that nothing will help sales. Allow me to explain. A new no calorie soda called Coca-Cola Zero should be on store shelves by June. The company already sells Sprite Zero, which is a no calorie version of their lemon lime soda.

In culture, Sylvester Stallone is going to the professional wrestling Hall of Fame on April 2, but he's only going there to introduce inductee Hulk Hogan. Hogan, as you know, appeared with Stallone in "Rocky 3." That's also the Rocky movie, Chad, that introduced us to Mr. T.

MYERS: Oh, I pity the fool!

COSTELLO: Thank you.

MYERS: You're welcome.

COSTELLO: In sports, Villanova will be missing a key component when tip off against No. 1 seed North Carolina in the NCAA tournament on Friday. Second leading scorer Curtis Sumpter will miss the rest of the tourney after injuring his knee in 'Nova's second round win over Florida. Ooh, that's got to hurt in many ways -- Chad.

MYERS: Yes, I saw him go down, but I didn't know he actually was going to be out. Yes, that was painful to actually watch, Carol.

Hey, good morning, everybody.

(WEATHER REPORT)

COSTELLO: When we come back, are gas prices keeping you parked at home? We'll see if the ever increasing cost of fuel is really forcing more Americans to take shortcuts.

And later, she didn't get the job, not once, but 16 times. So what's that got to do with her wardrobe? We'll tell you when DAYBREAK continues.

(COMMERCIAL BREAK)

COSTELLO: Time now for a little "Business Buzz."

It's no secret that gas prices are very high right now, but that doesn't mean we're using less.

Carrie Lee has more on this story.

You're kidding? So people -- I mean they say they care, but obviously they might not.

CARRIE LEE, CNN CORRESPONDENT: Well, you know, it's kind of a sign of how well the economy is doing, Carol. Gas prices are up because crude oil prices are up. Businesses having to absorb those costs, in some cases. In some cases they pass it on to the consumer. And in a lot of industries, they're being able to do that. People are willing to pay higher prices.

Now, gas prices are up more than 10 percent in the past month. Nationwide, we're above $2 a gallon, $2.10, and prices could continue to rise as the busy summer driving season picks up.

Now, one industry -- and you can probably guess which one -- that is not having such a great time with all this...

COSTELLO: Airlines. LEE: Airlines, that's right. And you know those two fare hikes we've seen in the past couple of weeks? Well, Continental is now rescinding that $5 one way price. They've seen so much competition from the low fare carriers. They have a different business model altogether. So they're having a very tough time with this. So we'll see if the other airlines rescinded their hike, as well.

A quick check on futures. Things looking a bit weak for today's session. Federal Reserve Chief Alan Greenspan will announce the latest decision on interest rates. Wall Street widely expecting another quarter point hike. It would be the seventh such one in as many meetings since June. And, of course, that language, will we expect to see gradual hikes going forward, that people will be paying attention to.

COSTELLO: All right, Carrie Lee, thank you.

LEE: All right.

Sure.

COSTELLO: You've heard the phrase activist judges. But what does it really mean and who are they and will they have an impact on the end result for Terri Schiavo?

We'll answer those questions when DAYBREAK comes right back.

(COMMERCIAL BREAK)

COSTELLO: The Schiavo case is one that divides. No matter what Judge James Whittemore decides, there will be criticism. If he decides against reinserting Schiavo's feeding tube, he may become an activist judge in the eyes of some.

We wondered about that term. Where did it come from and why do Republicans use it so often?

Some examples.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Because marriage is a sacred institution and the foundation of society. It should not be redefined by activist judges.

I support the protection of marriage against activist judges.

SEN. BILL FRIST (R-TN), SENATE MAJORITY LEADER: I think it will show in a strong way that we will continue to defend marriage against activist judges in this Congress.

(END VIDEO CLIP)

COSTELLO: We heard it a lot in the controversy over gay marriage.

Live to Washington now and Tom Fitton, president of Judicial Watch, a group that observes all things involving judges.

Good morning.

TOM FITTON, PRESIDENT, JUDICIAL WATCH: Good morning, Carol.

COSTELLO: Where did that term activist judge come from?

FITTON: Oh, it's a relatively new term, but an old concept. Going back to the founding of our constitution, the creation of our constitution, the Founding Fathers were concerned about judges who would go beyond what their designated powers were understood to be, that is, interpreting the law rather than making new law irrespective of what the constitution says and really substituting their own personal judgment for that of the legislature or the people.

You know, conservatives are complaining about activism in the courts right now. Back during the days of FDR, his folks complained about activist judges of the conservative bent who were ruling unconstitutional many laws that had been passed to help with the Depression, using the commerce clause as an example. And in that case you had conservatives saying I don't like the expansion of big government, I'm going to rule against it by saying it's unconstitutional when, in fact, it may not have been.

COSTELLO: OK, so that brings up the point, is there really such a thing? And aren't there checks and balances to prevent an activist judge from ruling improperly?

FITTON: Well, because of the powers of the judges under our constitution, there's a great temptation to rule as an activist judge. You think hey, this is my position, it must be right, so I'm going to go around the law, I'm going to go around the constitution and just write my own opinion as law. And I think we just need to be careful when we look at judicial opinions, especially in the area of the culture wars...

COSTELLO: You know, I'm going to interrupt you for just a second, Tom.

FITTON: Sure.

COSTELLO: Because A.P. is now reporting that federal judge in Florida has refused to order the reinsertion of Terri Schiavo, of her feeding tube. This is just coming over. We don't know the reasons behind this yet. But as you know, Judge Whittemore, the federal judge, he was supposed to have a news conference at 3:00 yesterday afternoon to announce what he had decided. Instead, he said that he would wait to make his decision and take some time.

As you know, Terri Schiavo's family want that feeding tube reinserted while they continue the fight to keep her alive. Her husband, Michael Schiavo, wants that feeding tube removed. This morning, we are getting word from the Associated Press that federal judge, Judge Whittemore, has refused to order Terri Schiavo's feeding tube reinserted.

Let's go back to Tom Fitton for just a bit.

Let's talk about now how difficult this decision must have been for Judge Whittemore.

FITTON: Well, it must have been a difficult decision. It's a troubling decision if, indeed, that is his decision, not to remove the feeding tube. I mean he should have been taking a look at this case. And one of the standards he had in terms of a temporary restraining order or a temporary injunction is it would have been -- would there h been irreparable harm to Terri Schiavo or her parents by not removing -- by allowing this to continue as it had.

Of course it would have been.

COSTELLO: Well, why do you think...

FITTON: We're talking about food and water.

COSTELLO: Why do you think he made this decision? What does this decision exactly mean? Can -- and I know I'm putting you on the spot.

FITTON: Sure.

COSTELLO: But he's ordering the feeding tube not be reinserted.

So what does that do to the case?

FITTON: What it does to the case is that they're going to have to appeal that decision. What the court had before was an immediately -- an immediate request by Terri's parents to reinsert the feeding tube. And the judge says well, look, I've got to consider various issues here -- whether or not you're going to succeed in the long run, whether or not there's going to be irreparable harm and some other legal matters. And, you know, it seems to me, as an observer, that there would have been irreparable harm if this feeding tube is not reinserted immediately and obviously you're talking about deprivation of food and water for several days now.

So I think the family is going to have to appeal this immediately and try to get this injunction requiring the feeding tube to be reinserted if...

COSTELLO: Who do they appeal to, Tom?

FITTON: They would appeal to a panel of the 11th Circuit, which has purview over the State of Florida. The courts are divided in this country by circuit. So they would go to the next level. You have the district court and then you go to the U.S. Court of Appeals for the 11th Circuit. And they would get...

COSTELLO: Will that also be in Florida, Tom, that appeals court?

FITTON: I believe it's based in Atlanta.

COSTELLO: Oh, I understand. FITTON: So that -- so Atlanta, for instance, would have purview over portions of Florida, although I'm not sure of the city exactly.

COSTELLO: Well, the reason I ask you that is because the federal judges, obviously, in Florida, where this has played out in the courts, the state courts, for many, many years...

FITTON: Right, and...

COSTELLO: I don't know if that factored into the judge's decision, but it seems logical that it might.

FITTON: Well, I hope it didn't because the Congress directed the judge to consider this case on its own and not to consider, really, the -- what happened in the state proceedings. He was supposed to consider this as a case separate and apart from anything that happened in the state courts. He had the ability to look at this case de nouveau, to look at it anew. And it looks like he didn't want to get involved here.

And I think it's going to be difficult for the federal courts to try to get involved here because they're going to be -- again, if they're not being activists, some might say, they may want to defer to the state courts, although one of the basic rules of our civilization and our government authorities is to try to protect life. So maybe they'll say that the right to life of this person, Terri Schiavo, is being deprived without due process. And that's the core issue before the courts now.

COSTELLO: And just to bring our viewers up to date, the Associated Press is reporting that federal judge in Florida has refused to order Terri Schiavo's feeding tube reinserted, as her parents had wanted, as Congress had wanted, because they went through that emergency session and voted extraordinary -- an extraordinary bill into law to try to force this to happen. It did not.

Can we go live to Florida for reaction yet?

Not yet?

Do we have our legal analyst, Kendall Coffey, on the phone?

We're going to go to Frank Newport now because he has some interesting numbers on the way Americans feel about this issue. And now that it's partially been decided -- but, believe me, it's not over yet -- Frank Newport, you have some numbers to show us, how Americans feel about Terri Schiavo and the feeding tube, and whether you have the right to die or not.

FRANK NEWPORT, EDITOR-IN-CHIEF, GALLUP POLL: Indeed, Carol. We've looked at a lot of polling data, including our own CNN/"USA Today"/Gallup poll over the weekend. Clearly, almost all the data shows the American public says it is appropriate that the feeding tube be removed.

In fact, I'll show you in a moment they say that's what they would do if it were their spouse.

Here is the very basic question: Should Terri Schiavo's feeding tube have been removed over the weekend? You can see a majority, 56 to 31 say yes.

We asked some other questions. One of them as I just mentioned was: If it was your spouse in a similar circumstance to what Terri Schiavo is in right now, would you want the tube removed for your spouse? It's a 2 to 1 ratio here, Carol, 61 to 30, Americans saying yes they would.

Other polling has shown the same thing. It's fairly consistent across the board that Americans believe it is the right of a person and the person's spouse to allow them to die in this kind of condition.

COSTELLO: Interesting numbers. Frank Newport live from Princeton, New Jersey, this morning. Thank you.

I'm sorry. I'm talking to my executive producer, Brian Bell (ph). What did you say to me?

Bob Franken is in Pinellas Park near the hospice. In fact, he's right in front of the hospice, where Terri Schiavo is staying.

Any reaction there yet? Do people know? Because I know there have been protesters out there day and night for the past few days.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, actually there are very few this time of day.

But this ruling by the judge as reported by the Associated Press not granting what is called a temporary restraining order is not a surprise to many legal scholars who have been following this. is something that we have talked over with the lawyer for the family, David Gibbs. He was seeking an emergency order from the court, so this could be heard consistent with the congressional legislation.

The court, the judge who is a Clinton appointee, James Whittemore, said that he had not been convinced that it met the standard for a likelihood that the family's case would prevail. In other words, the two standards for a temporary restraining order are one -- both of them have to be met. There's a likelihood that the case would be successful. And secondly, that there is irreparable harm, where, of course, there's a strong argument that the family is making, strong to them, that because the feeding tube removal is hastening the death of Terri Schiavo that that would be reason enough.

But that other standard, said the judge, had not been met. He made the point, the judge is saying, according to the Associated Press, that the likelihood of success has not been achieved.

Now what's next? The 11th Circuit Court of Appeals in Atlanta is going to be the difficult process of appealing a lower court judge.

I should point out that appeals courts start with the premise that they give deference to the judge in the lower court level. But, of course, if there is a dispute over questions of law, the appeals court could hear this.

But what it means is that the feeding tube will stay out. Terri Schiavo will not have it reinserted. And, of course, it's been removed, Carol, since last Friday.

COSTELLO: And, Bob, we talked to a local reporter there in Florida a short time ago. She said there was a move to pressure the Florida legislature to act. Do you know about that?

FRANKEN: Yes. As a matter of fact, even the advocates of the family's position, the family being the blood relatives of Terri Schiavo, are saying that any federal court action, what was granted by Congress, any federal court action would only be temporary. In effect, they were acknowledging that the lack of success in the federal courts thus far might mean that the reinsertion of the tube, if it occurred, would be temporary.

They are trying to get legislation in Florida, state legislation, which would favor Terri Schiavo and their point of view.

Now, even that, actions by the state government here has been overruled in the courts. So, they have an uphill climb. This emergency effort we had, the dramatic meeting of Congress over the weekend on Palm Sunday, almost unprecedented to come in and try and craft legislation that would result in the reinsertion of the feeding tube.

However, it had to run through the processes and legal questions that would be coming up in federal court. The first federal judge to deal this is saying there is not enough likelihood that the lawsuit would prevail. Therefore, he is not ordering that the tube be reinserted.

COSTELLO: You know, another question, Bob, this appeals process, the length of time it will take to get any decision from that appeals court, because her feeding tube has been removed for several days now. So, time is of the essence. How long might it take?

FRANKEN: Well, it's something that could happen instantly. You know, of course, that at all levels, up to the Supreme Court, if necessary, the justices, or judges in the case of the 11th circuit, can act immediately if they're persuaded that there is reason to believe that the lawsuit, the litigation, will ultimately succeed. But it is the very same standard that they're going to have to apply.

Now, a lot of it, quite frankly, will depend on which judges get this. At the appeals court level, they either will assign it to a judge to take the question, or they could possibly convene some sort of three-judge panel.

There are a variety of processes. They are going to, of course, file immediately. While we haven't been told that, if the AP report is correct and we have every reason to believe it is, if the AP report is correct, then we will be able to see lawyers trying very, very hard to come up with a legal strategy which would answer the concern you've expressed, Carol...

COSTELLO: Bob, allow me...

FRANKEN: ... the concern to get this thing moving quickly.

COSTELLO: Allow me to interrupt.

FRANKEN: Go ahead.

COSTELLO: CNN has confirmed it. We have confirmed that the federal judge in this case, Judge Whittemore, has ruled not to reinsert the feeding tube into Terri Schiavo.

I know you're standing in front of the hospice. Who has been in the room with Terri Schiavo for the past few days?

FRANKEN: Well, the families, plural. We have to say that that way, because you have the husband. He is the legal guardian, Michael Schiavo. He is the one who has been trying for years to get the nutrition to be removed. So, from his point of view, Terri Schiavo can have a slow and painless death.

Now, the blood relatives led by the family have also been making visits -- they try to avoid each other -- have been making visits. And they, of course, are fighting desperately now to get the feeding tube reinserted.

So, you have this very, very tragic, angry, emotional family situation that has become a very emotional issue for the entire country and the world.

COSTELLO: Bob Franken, I want you to stand by. We have an attorney from Chicago, Steve Greenberg, on the line with us right now.

And, again, for viewers just tuning in, that federal judge in Florida has ruled not to reinsert the feeding tube of Terri Schiavo. But the legal process will -- oh, the legal process will definitely go on.

Steve Greenberg, are you surprised by the judge's ruling?

STEVE GREENBERG, ATTORNEY: Good morning. No, I'm not surprised at all. The judiciary does not want to get into micromanaging the health care of Americans. There are far too many people in this country for the judiciary to be able to evaluate on a case-by-case basis whether or not someone should be taken care, should be kept on a feeding tube or not. These are decisions left to the doctors and families.

COSTELLO: Some might say the judge's decision is cruel. I mean, this woman is slowly starving to death. Does that enter into the picture when a judge is making a ruling or deciding on a ruling?

GREENBERG: It could enter into the picture, except some might also say that it's cruel to keep the young lady alive in the condition that we've all seen her in. Now, mind you, we haven't seen her recently. I can only suspect that her condition has deteriorated.

COSTELLO: Is...

GREENBERG: Judges over the years have -- yes.

COSTELLO: Continue your thoughts. I apologize.

GREENBERG: Well, the Florida judges have heard from many doctors. They have had extensive hearings. And they've determined that this is the better procedure. And I don't think that we should be questioning the decisions of the doctors.

COSTELLO: Well, you can bet David Gibbs will be fighting on. That's the attorney for the Schlinders, Terri Schiavo's parents. From what I understand from observers in the courtroom of Judge Whittemore, they didn't present very compelling arguments.

GREENBERG: They may not have very compelling arguments. They may just be resting on emotion at this point. This seems to be a cause, and she seems to have now become a pawn in a cause of others.

COSTELLO: So, what's next? What will David Gibbs do now?

GREENBERG: They're going to appeal to the court of appeals. And I agree with the earlier correspondent, who said that he doesn't believe the court of appeals is going to overturn this decision. I think they're going to be very reticent to get involved in this dispute.

COSTELLO: All right. If you could stand by, Steve, we have Trey Thomas from Bay News 9, our CNN affiliate there in Florida. He's standing live at the hospice in Pinellas Park, from what I understand? At the courthouse in Tampa. I apologize.

Trey, bring us up to date. What have you heard?

TREY THOMAS, CNN AFFILIATE BAY NEWS 9 REPORTER: Well, we just had a court officer come out of the federal courthouse here in downtown Tampa and hand me this 13-page ruling from Judge James D. Whittemore. Basically, I heard you discussing earlier with your expert. Well, the judge has agreed with your expert that their motion was not compelling enough for him to accept it. So, he denied that motion.

Now, the plaintiffs for the Schlinder family -- and that would be attorney David Gibbs -- he filed motions based upon several accusations. He was saying that basically the state ruling on last Friday to reinsert Terri Schiavo's feeding tube was a violation of her Fourteenth Amendment right, which include, according to this particular document, claims that there was a denial of a right to equal protection, also a denial of her right to a fair trial.

But there also was this religious caveat, one where he said that her religious freedoms were being denied under the First Amendment of the U.S. Constitution. And that was because, as you know, the Vatican has come out explicitly against Terri Schiavo's feeding tube being removed. And being raised a Catholic, her parents' attorneys claim that removing that feeding tube was a violation of her religious rights.

But I want to read you some of the summation in his ruling that Judge Whittemore said. Basically, he said: "In order to succeed on either claim, claimants must establish that the defendants were state actors. Plaintiffs' claims failed because neither defendant Schiavo" -- speaking of Michael Schiavo, Terri's husband -- "nor defendant hospice" -- that's the Woodside Hospice in Pinellas Park where she's living -- "are state actors." Moreover, "The fact the claims were adjudicated by a state judge does not provide the requisite state action for purposes of the statute or the Fourteenth Amendment."

Now, the judge goes on to say, he expressed some sympathy for the situation by saying: "This court appreciates the gravity of the consequences of denying injunctive relief. Even under these difficult times and strained circumstances, however, and notwithstanding Congress' expressed interest in the welfare of Teresa Schiavo, the court is constrained to apply the law to the issues before it as plaintiffs have not established a substantial likelihood of success on merits. Plaintiffs' Motion for a Temporary Restraining Order is denied."

Basically, the judge is saying he doesn't feel they have enough of a case, enough of evidence to even present a case. So, he's denying this temporary restraining order and not allowing it to go to federal court.

Back to you.

COSTELLO: Trey, thank you very much. Interesting information.

Let's get back to Steve Greenberg, our expert, our lawyer from Chicago.

Steve, did you hear any of that?

GREENBERG: I heard all of that, yes.

COSTELLO: OK. Give me your thoughts.

GREENBERG: Well, I think that what the judge is saying is the judge is saying that it's time to end this. By saying that there's no state action here, what he's saying is that the government wasn't really involved. These were private parties. And even though a judge ultimately decided the case, private parties were acting on each side of it.

The Constitution does not apply in all cases to every action that a private party takes. The Fourteenth Amendment says the federal Constitution applies to state action, and that typically is a situation where you're talking about action by the police or action by the local government or the state authorities. And here, we've got the hospice and we've got the family who are having a dispute adjudicated by a judge, no different than any other private dispute.

So, the judge says I don't want to get into that. I'm not going to enter a temporary restraining order at this point.

They can go on and still have their day in court and ask for a preliminary injunction. But given the situation and the time factors involved, what the judge is really saying is you're not going to win in my court.

COSTELLO: Congress. Can Congress interfere once again? Can Congress pass another law perhaps, you know, moving things...

GREENBERG: Congress...

COSTELLO: Go ahead.

GREENBERG: Congress can pass whatever laws they want to pass, but Congress can only pass the laws. Someone has to enforce the laws. Courts enforce the laws. And in this case, the court is saying, Congress, you gave it your best shot. You tailored a law essentially to cover one person in the whole country, and it wasn't good enough.

So, for Congress to get involved in trying to pass another law I think is going to be unsuccessful.

COSTELLO: So, what happens to that law now? Is it just thrown out? Or can it be used in the future?

GREENBERG: It may be able to be used in the future. As I understand the ruling -- and I haven't had an opportunity to read it yet. But as I understand the ruling, he didn't say the law was unconstitutional. He said, if I take this law, I apply it to these facts, I don't think you're going to prevail. So, I'm not going to give you a temporary restraining order.

It doesn't mean that the law is invalid. I'm sure that challenge will come in the next case.

COSTELLO: Steve Greenberg, stand by.

We want to go back to Pinellas Park, Florida, near the hospice, where Terri Schiavo is staying.

Bob Franken is on the line right now.

For those viewers just joining us, a federal judge, Judge Whittemore in Florida, has refused to order the reinsertion of Terri Schiavo's feeding tube. CNN has now confirmed that.

Let's get reaction now from Bob Franken.

Good morning -- Bob.

FRANKEN: Good morning.

The one thing that I want to mention is that we were very careful on Sunday to point out that what Congress was not doing was ordering that the feeding tube be reinserted. It was just saying that this needed to be part of a federal process that federal courts needed to review in this individual case, the question of whether Terri Schiavo should, in effect, be what people are calling a mercy killing or at least that her nutrition be removed.

Now, it has gone through the federal court system before. As a matter of fact, the U.S. Supreme Court has refused on a couple of occasions to hear this case, saying that there are no federal issues.

Now, the one thing that was happening is that the lawyers for the family were saying now that Congress has said, consider this in court, he was going to raise federal issues that run contrary to a lot of case law. The case law being, for instance, the argument that the religious freedom of Terri Schiavo was being violated. There is testimony on both sides of that, including her passion as a Roman Catholic.

And the family lawyers have said that they have gone to great lengths, first of all, to try and improve her condition over the years, the family has, Michael Schiavo has. And secondly, to meet all of the questions that have come up in the court, including he has been successful arguing the fact that he says his wife had expressed to him a desire not to be sustained as she has been.

So, the judge came down to the question: Would under the federal standards, the standards of the federal judiciary, would a case be successful now that he was required to hear it once again? In his ruling this morning, he says he believes the case would be just as unsuccessful as it has been before -- Carol.

COSTELLO: Interesting. I wonder if you got a chance to talk to protesters in the past several days, because they've been very powerful in this fight for the Schlinders, Terri Schiavo's parents. Operation Rescue and Randall Terry (ph) helping the parents get things done. Do they have a next step? Do they have a plan b that you know of?

FRANKEN: Well, the protesters are really just here to express their support. That's all. They are not part of the planning at all. There are some people who have organized them, including some Franciscan monks who have acted as their spiritual advisers.

But they have really deferred to the lawyers in this case and to the family. The family has made it clear that it is not going to quit as long as there is any possibility of fighting, including, as we've discovered, the ability to get the United States Congress to meet in an extraordinary session and pass this legislation.

But it is just so important, so important to point out again that what Congress was doing was only requiring the federal courts to once again consider this, even though the courts, using the standards of federal jurisprudence, have repeatedly turned down efforts to get this as a federal issue such as a constitutional matter.

COSTELLO: Bob Franken, stand by.

We have our legal analyst, Kendall Coffey, on the phone. He's been talking a lot about this case over the past several days on DAYBREAK.

Kendall, I just wanted to get your thoughts on the judge's ruling this morning.

KENDALL COFFEY, CNN LEGAL ANALYST: Well, I think it had been signaled by some of his questions, especially focusing on was there any precedent at all for not only this kind of intervention by the legislature, but also for finding that the state trial court judge's actions were unconstitutional. That was the essence of the federal claim that there had been unconstitutional failures in the state system to consider the rights of Terri Schiavo.

And with all of the years of very careful, conscientious, painstaking deliberations in the state court system, the judge clearly concluded that she has, in effect, had her rights fairly considered.

This is not the end of it, by any means, Carol. As we know, there is an 11th Circuit federal court waiting in Atlanta, and I am quite certain that sometime today the appeal will be taken up there.

COSTELLO: In fact, I'm just reading on the Associated Press, Kendall, that Rex Sparklin (ph), an attorney with the law firm representing Terri Schiavo's parents, said lawyers were immediately were appealing to the 11th Circuit Court of Appeals in Atlanta to save Terri's life.

You know, I find the timing of this so interesting, because the federal judge in Florida, who ultimately made that decision this morning not to reinsert Terri Schiavo's feeding tube, he was supposed to have a news conference at 3:00 in the afternoon. And he said, you know, look, I'm not going to hurry this decision along, even though this woman is starving to death in essence. And then he comes out very early this morning and releases his opinion. It's just a strange timetable, isn't it?

COFFEY: Well, it is and yet in some sense it isn't. Clearly, he was dealing with something that had not occurred before in our legal history in literally a life-and-death situation.

So, it's not astonishing that the judge would want to have at least a day to look at the arguments and get the parties before him to give them questions, to hear their answers to make this a fairly considered decision.

Obviously, though, he did not want it to extend past this morning. He knows that time is running out on Terri Schiavo. And among other things, before time runs out on her, this judge obviously wanted to get his ruling done, so that the federal appeals court would have its turn, because part of getting a day in court in our system means having a right to take your appeal and have your appeal heard as well.

COSTELLO: Yes, I just want to make a slight correction to what I said. There was supposed to be an announcement from the court at 3:00 in the afternoon, not an official news conference.

Let's head back. Kendall, stand by. We're going to go back to attorney Steve Greenberg in Chicago to get his thoughts as well.

The judge in making this decision, he was already working on his decision, wasn't he, long before yesterday or the day before?

GREENBERG: I think he had already started to think about where he wanted to take the arguments. And maybe he had some pre- disposition to what he wanted to do, but I think that he had the hearing. He asked the questions. I agree with the analyst that it was a well thought out and considered decision. That he took his time because he wanted to reach the right decision. I believe all judges inherently want to reach the right decision.

And it's a difficult question, because it's a life and death matter. But I think that he made the decision after hearing all of the arguments regardless of when he may or may not have started working on it.

COSTELLO: You know, we were talking a bit about the term "activist judges," and that some were putting pressure on judges to make certain issues when it came to moral dilemmas. You know, I just wonder if that pressure played any part in Judge Whittemore's decision either way, if he struggled with that during his decision-making.

GREENBERG: He may have struggled with it. I heard earlier he was a Clinton appointee, and I heard the discussion about activist judges. I think that that's just a term or a label that's put on people for political purposes, just as liberal or conservative is a term. And the definition of what's an activist judge depends on who's using the term and how it fits their needs.

I don't think the judge looked at this as, am I going to send a huge message, or am I going to send a small message? I think that it's a debate that he shouldn't get involved in.

You know, this is a debate that's been going on for a long time. I remember when I was a child, they talked about someone named Karen Quinlan, and it was a similar debate.

So, this is a debate that isn't going to get resolved today. It's not going to get resolved by Congress. It's not going to get resolved by this judge. And the Supreme Court has already said a number of times they don't want to get involved. So, it's not going to get resolved by them.

COSTELLO: Kendall -- I'm sorry. Not Kendall Coffey. Bob Franken, he's in Pinellas Park, Florida. I want to get some more reaction from him.

Good morning again -- Bob.

FRANKEN: Well, first -- OK. Good morning.

And the reaction, the demonstrators for the most part show up a little bit later in the morning. But consistent with what we were just hearing from Steve, the judge in his ruling said this court is not an appellate court for state court decisions. And that has been the consistent ruling of federal judges who have been presented with this over time.

This is the kind of matter that has been left to the states. In fact, one of the ironies that people have suggested is that the Republicans who are usually known as the states rights advocates who believe that amendment 10 of the Constitution is probably one of the prime ones, were arguing against that; that the federal court should take over a traditionally state measure. And the Congress said no. The federal courts have to review this.

Well, the review at this first level of the court at least is that there is no review; that there is no likelihood that under the federal standards, the federal issues that could be raised, that is to say constitutional issues, or violations of federal law would be unsuccessful. Therefore, there was not a reason to come up with a temporary restraining order.

COSTELLO: I'm just reading more about the judge in the "Tampa Tribune" this morning, Judge Whittemore, who made this decision not to reinsert Terri Schiavo's feeding tube. He was appointed to the federal bench in 2000 by President Clinton. He's 52 years old. As you know, he suddenly was thrust into the international spotlight as he considered whether to order Schiavo's feeding tube restored. This is a picture of him.

He had the Vatican weighing in on the Roman Catholic Schiavo's side, and President Bush signing an emergency bill to put the case under federal jurisdiction.

Tampa lawyer John Fitzgibbons (ph) is quoted as saying he knew Whittemore -- he has known Whittemore for years, and he said the judge will not kowtow to special interests. He's got no agenda, Fitzgibbons (ph) said. Probably if anything, he would be somewhat conservative.

Bob, where are the parents of Terri Schiavo? And where is Terri Schiavo's husband now? Do we know?

FRANKEN: Well, we don't know. And we do know that they've taken every opportunity they can to be at home and get whatever rest they can. And we have to assume that that's where they are now, because it is this early in the morning, No. 1.

But No. 2, they have been going around the clock. They have been constantly appearing on television, as we know. They have been organizing. They have been strategizing with their lawyers. They have been grasping at all of the straws. And beyond just the physical demands of that, I think one can only imagine on both sides that there's a tremendous emotional exhaustion.

So, that's a long answer to your question, which is the short answer would be probably at home right now.

COSTELLO: I'm sure they are. Bob, stand by.

We want to go back to Trey Thomas, Bay News 9 reporter, our CNN affiliate. He's in Tampa in front of Judge Whittemore's courtroom -- actually, he's outside the courthouse, where the courtroom is. Can you tell us anymore about Judge Whittemore, Trey?

THOMAS: Oh, well, we do know, as you guys probably as well, that he is a Clinton appointee from 1999. And his colleagues say that he is not one to inject his politics into his rulings.

Now, I have some interesting information before me, being able to digest more of this ruling that came down earlier this morning.

Under the heading of "applicable standards," the judge makes some reference to the constitutionality of the bill that Congress passed over the weekend. I heard you speaking with your legal expert about that.

And the judge says -- quote: "While there may be substantial issues concerning the constitutionality of the act, for purposes of considering temporary injunctive relief, the act is presumed to be constitutional."

He goes on to cite a case, "Bidding (ph) v. Georgia," in the circuit court in 2004, 11th District Court. "The purpose of a temporary restraining order like a preliminary injunction is to protect against irreparable injury and preserve the status quo until the district court renders a meaningful decision on the merits."

So, the judge understood his role in this particular motion that was filed yesterday. But the bottom line is, he did not feel that the attorneys for the Schlinders presented enough evidence to show that they had a strong enough case to take this to federal court.

So, he denied their motion and their claims of violation of Terri Schiavo's Fourteenth and First Amendment rights.

COSTELLO: Trey, we've got you on camera now, so you don't need to use the phone anymore.

THOMAS: OK.

COSTELLO: Just so you know.

For our viewers just tuning in, federal Judge Whittemore, that U.S. -- the federal judge in Florida, has decided, he has ruled not to reinsert Terri Schiavo's feeding tube. The case now goes to a court of appeals in Atlanta. And, as you might expect, the Schlinders' lawyers are working now towards filing that appeal as we speak.

Can we go back to Trey for just a second? I was just wondering, Trey, did this judge work through the night on this?

THOMAS: I honestly don't know. I do know that everyone across the nation was waiting for that Tron (ph) posting on the Internet. That has not happened. We were lucky enough to be here early this morning. I had a 6:00 live shot from my station, Bay News 9. And someone from the court, a court employee came down and handed this document to me, this 13-page ruling. Whether or not the judge was here in the wee early hours of the morning, going over this document and writing, I don't know. But I do know that this is probably the only copy that's being circulated at this time, because we have not seen those court officers since about 6:20 this morning.

COSTELLO: OK, Trey, since you have those documents, for many viewers just tuning in, tell us again, in a nutshell, what the judge decided this morning.

THOMAS: Well, basically, the plaintiffs, the attorneys for Bob and Mary Schlinder, that's Terri Schiavo's parents, they were claiming that Terri's Fourteenth and First Amendment rights were being violated.

On the issue of the First Amendment right, they were saying that her religious rights, her religious freedoms as a Catholic were being violated, because the Vatican explicitly has come out in opposition to her feeding tube being removed. As you know, that feeding tube was removed on Friday.

As to the issue of the Fourteenth Amendment, there were issues of rights to a fair trial, rights to equal protection under the law, and the judge basically said they could not prove any of their claims. So, he denied their motion for a temporary restraining order.

COSTELLO: Trey, many thanks to you for helping us out this morning. Thank you so very much.

I want to go to Kendall Coffey one last time for a legal perspective on this.

Kendall, in a nutshell, tell us what happens now.

COFFEY: Well, in a nutshell, the papers have already been studied in Atlanta. The judges there knew this was coming. A panel was initially put together for the first adverse ruling in federal court Friday. So, there are judges that are probably already assigned. They've probably been working through the night, along with their staff. They know this is coming. And they, like Judge Whittemore, are going to try to get a ruling out as fast as humanly possible.

COSTELLO: We have Bob Franken still from Pinellas Park. We do not have him.

What do you expect the family to do, Kendall? Will they be as public as they have been in the past few days?

COFFEY: I think probably so. And we need to understand that whatever is said by family members or by the husband, they are all exhausted. They have been through an unimaginable ordeal, and it's amazing that they've all held up as well as they have.

This certainly isn't the end, but, Carol, this is a very, very significant step. And at this moment, it does suggest that time and hope may be running out for Terri Schiavo.

COSTELLO: I was just going to ask you how long this might drag on. Are we talking days? Are we talking a month?

COFFEY: I think...

COSTELLO: Although I don't think she'll last a month.

COFFEY: Well, in terms of how much time there is left medically, I can't answer that question. We've read anything from a week to two weeks. But I think what we can expect from the federal appeals court is probably an answer by sometime tomorrow, if not sometime late tonight.

COSTELLO: Steve Greenberg, our Chicago attorney, is joining us. Do you agree with Kendall? Will it be over in just a matter of days now?

GREENBERG: I think the legal fight will be over in a matter of days. I agree with him that the appeals court has already looked at this issue. They probably have a fairly good idea of what all of the arguments that they're going to hear are and what their decision is going to be. I don't even know if they'll allow any kind of oral argument as you sometimes have in an appeal.

You know, the family now has raised claims under the Eighth Amendment, arguing that this is cruel and unusual punishment and under the First Amendment, on this religious freedom argument. And I don't think they've got many more arguments, if any, that they can raise. So, I think the end is near.

COSTELLO: Steve Greenberg, Kendall Coffey, Trey Thomas, Bob Franken, thank you for your perspective this morning.

Again, a federal judge just this morning has refused to order the reinsertion of Terri Schiavo's feeding tube, denying an emergency request from the brain-damaged woman's parents. Much more to come on "AMERICAN MORNING," which starts right now.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com


International Edition
CNN TV CNN International Headline News Transcripts Advertise With Us About Us
SEARCH
   The Web    CNN.com     
Powered by
© 2005 Cable News Network LP, LLLP.
A Time Warner Company. All Rights Reserved.
Terms under which this service is provided to you.
Read our privacy guidelines. Contact us.
external link
All external sites will open in a new browser.
CNN.com does not endorse external sites.
 Premium content icon Denotes premium content.
Add RSS headlines.