by Reason McLucus
originally published at Mediard.com
In most states a husband who killed his wife to inherit money and to
be able to marry his new lover without the costs of divorce would be imprisoned
for murder. A Florida man is attempting to avoid that fate by persuading
a state judge to order his wife’s death.
Conviction for murder normally requires the prosecution to prove “means,
motive and opportunity. “ Inheritance and dumping a spouse for a new
lover without the costs of divorce are common motives for murdering a spouse.
“Means” refers to the method used. Normally a spouse must have access
to a “weapon” capable of causing death. The weapon might be a gun,
knife, poison, etc. In rare cases a would be killer may be able to take
advantage of a victims’s allergy or arrange what appears to be an accident
for the victim..
“Opportunity” means being able to use the weapon, particularly using
the weapon without the presence of witnesses. Opportunity can also mean
being able to use the “weapon” in a way that doesn’t arouse suspicion
or appears to be legal, for example being able to claim self defense. In
the latter case a prosecutor would have to prove the killing was really
illegal, for example by disproving the “self defense” claim.
Michael Schiavo’s current effort to have the court order his wife
Schiavo killed could be described as legalized “murder”.
A court order to have doctors kill his wife through starvation could exempt
him from a murder charge even though he has motive(an inheritance and divorce
without a property settlement or alimony), means(Terri cannot obtain food
or fluids without assistance) and opportunity(a court order). Or, maybe
Michael Schiavo has a very capable attorney helping him get a court
order to kill his wife. However, he should really consult with a good criminal
defense attorney before continuing his efforts. The arguments that Terri
is “already essentially dead” or “brain dead” could hurt him in
a criminal murder case.
Michael could be vulnerable if a prosecutor could convince a court that
he caused the condition that rendered her “brain dead”. The fact that
a court ordered her feeding tube removed to completely end her life wouldn’t
help Michael if he were charged with murder. The question would be whether
he caused the condition that resulted in her death.
An attempt by him to argue that she died as a result of the court order
would automatically make him guilty of killing his wife by lying to the
court about her condition.
There is no statute of limitations on murder. This fact could potentially
be interpreted to also mean that there is no limitation on the amount of
time elapsing between the act that causes a death and the actual issuance
of a death certificate stating that the body is completely dead.
The farther back Michael placed Terri’s “brain death” the worse
he would be as a defendant in a murder case. An early “death” only
recently “discovered” by the prosecution would help explain to the
jury why the case was being filed to long after the “death”.
Michael’s attorneys in the suit against the hospital argued that a
“potassium deficiency” caused Terri to have a heart attack that in
turned caused brain damage. There was no evidence of any such deficiency.
As often happens in malpractice suits, the plaintiff won because the hospital
failed to use a test that could have indicated whether a specified condition
existed or not.
Dr. Michael Baden, chief pathologist for the City of New York and director of the New York State Police Forensic Sciences Unit, questioned the claim of a potassium deficiency in an interview by Greta van Susteren. He said such a situation would be “very unusual”. He suggested a physical trauma such as a beating provided a more likely explanation. He cited a bone scan indicating a head injury and other bone injuries.
On a subsequent episode, Schindler(Terri’s
family) family attorney Pat Anderson stated that a doctor who examined
Terri when she arrived at the hospital stated she had rigidity of the neck
consistent with strangulation. The Schindlers learned about the possible
bone injuries and neck rigidity in a 1998 evidentiary hearing.
Anderson also mentioned that during the day before Terri ended up in the hospital she had told a friend that Michael had been upset with her because he claimed she spent too much at the beauty salon. Terri dismissed the friend’s offer to come over saying she would pretend to be asleep when Michael came home and that would prevent a problem.. Terri had discussed divorcing Michael with her friend even though Terri is Catholic.
Michael had an advantage in the malpractice
suit against the hospital because of potential juror sentiment sympathetic
to his wife’s condition and turned off by the “impersonal” hospital.
The fact that the money comes from the insurance company in a malpractice
suit often works in the plaintiff’s favor. The jury awarded him $300,000
for his loss due to her condition and $750,000 that was supposed to be
put in trust for her rehabilitation.
In a criminal case any sentiment is with
the victim. A criminal jury might see an attempt to claim a “very unusual”
potassium deficiency as a desperation move by a guilty individual.
Michael’s behavior after winning the
malpractice award could increase the likelihood of a conviction. For example,
he told a doctor not to attempt to treat a potentially fatal kidney infection.
The prosecution could call various of the
nurses who treated Terri to testify that Michael wanted her dead and talked
about becoming rich if Terri died. Jeff Johnson quotes various nurses in
the following article discussing Michael’s efforts to prevent his wife
from receiving therapy. The nurses
also claim that he ignored progress Terri was making and kept their observations
from becoming part of her medical record.
In a subsequent article Johnson quotes Carla Sauer Iyer, a Licensed Practical Nurse(LPN) saying that on at least five occasions Michael had gone in to visit his wife alone and after he left Iyer would discover that Terri’s sugar level was so dangerously low that Iyer would have to administer dextrose to Terri to bring the level back up.
Michael’s efforts to discourage any therapy
after the malpractice award could be particularly damaging to his case
because he was willing to pursue therapy before the lawsuit when health
insurance was paying for the therapy. The size of the award was due in
part to his statements that he expected Terri to live for many more years.
The prosecution could argue that the settlement provided him with a motive
for wanting her dead.
Michael probably doesn’t have to worry
about being prosecuted for assault or anything else so long as Terri is
alive. The length of time since Terri arrived at the hospital probably
precludes prosecution for assault even if Terri eventually can tell the
police he attacked her. Claims that he might have attempted to poison her
would be difficult to prove because of a lack of evidence.
Her death would provide the opportunity
for the prosecution to place all of these allegations in a framework suggesting
a pattern of behavior consistent with domestic abuse and murder.
Prosecutors wouldn’t need to charge Michael
with murder immediately after Terri’s death. Prosecutors could take advantage
of the lack of a statute of limitations on murder to wait to see if his
second wife accused him of abuse.
Abusers seldom stop on their own. A man
who abuses one wife will likely abuse another.
An allegation of abuse by a second wife
would provide evidence of a pattern that prosecutors could use to strengthen
a charge of murdering his first wive.
Michael Schiavo’s attempt to end the
life of his wife Terri could be the worst thing he could do. He has very
little to gain from her death. Most of her money has been spent on attorneys.
He could probably get her family to support a divorce without making a
claim for alimony or anything else on her behalf. The Schindler’s would
be glad to insure that she wouldn’t be killed.
He has little risk of prosecution for anything
as long as Terri is alive. If she recovers he is off the hook because her
death at some point in the future would likely be from some other cause.
Terri’s death potentially opens Michael
to a murder charge. Prosecution might occur immediately after her death
or it could occur at some indefinite time in the future. Why is he taking
the risk of trying to end his wife’s life?
Florida needs to change its procedures
in cases of potential abuse if it hasn’t done so since Terri Schiavo
arrived at the hospital. The observation of the rigidity of her neck should
have caused the hospital to immediately notify the police. Hospital personnel
don’t have the training to investigate potential abuse. The police do.
The police can only do their job if they are notified in a timely manner.
Florida should also change court procedures
so that money awarded in civil cases for treatment can only be used for
that purpose. If the patient dies before the money is spent it should return
to the defendant or go to an organization to treat others like the patient.
I have no objections to someone posting this essay on another web site
provided my name is included as the author and there is a notation that
it was originally published at Mediard.com.