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Finger-pointing begins over failure to prolong Schiavo's life

WASHINGTON—Efforts in Congress and the courts to prolong Terri Schiavo's life failed because of political miscalculations, missed deadlines and misguided legal strategy, according to legal experts and some of the conservative activists who made the case a national issue.

That harsh assessment is causing recriminations and finger-pointing among social conservatives and Republican staffers on Capitol Hill, who say there's plenty of blame to go around for why efforts to reverse state court rulings fell short.

Ken Connor, the former head of the conservative Family Research Council who gave legal advice to Florida Gov. Jeb Bush as the case was moving through the courts there two years ago, said Congress' inability to agree on a bill to keep Schiavo alive before her feeding tube was removed March 18 "severely prejudiced Terri's case."

Republican leaders in the House of Representatives took credit for getting a bill passed two days later, "but that's like an arsonist claiming credit for putting out his own fire," said Connor, who worked for weeks on the Schiavo legislation. "They should have acted with more dispatch."

Connor, along with legal experts and three congressional staffers who spoke on condition of anonymity, cited key developments that hindered efforts to prolong the brain-damaged woman's life:

_Federal judges are inclined to preserve the status quo, and by acting after the feeding tube was removed, Congress made it harder for Schiavo's parents, Bob and Mary Schindler, and their lawyers to reverse that action.

_Republican leaders on Capitol Hill thought, or at least hoped, that the final version of "Terri's bill" would force a federal judge to reinsert the feeding tube to buy time to re-examine the issues in the case. But the bill didn't mandate that, as federal appellate judges pointed out in one ruling.

"When I heard Senator (Bill) Frist say he expected that a judge would issue a stay because of this bill, I thought, he hasn't been in federal court recently," Connor said.

_The Justice Department offered only minimal assistance to Congress, and Attorney General Alberto Gonzales made no public comments about the case. Some conservative staffers in Congress were disappointed in Gonzales' lack of activism, saying that if John Ashcroft were still attorney general more would have been done.

A representative of the Justice Department, Tasia Scolinos, said Wednesday that the department did what it was asked to do. "In this case Congress requested technical advice from department lawyers during the development of the legislation and we responded with technical input, as is our practice."

_The initial legal strategy of the Schindlers' lawyers, hours after President Bush signed the bill, was to emphasize how the Florida courts had handled the case and to call for a new federal court review.

That was "a poor tactical choice" and allowed U.S. District Judge James Whittemore to decide against their motion without receiving new evidence, said Michael Dorf, a constitutional law scholar at Columbia University.

Appellate courts, up to the U.S. Supreme Court, upheld Whittemore's ruling. Days later, some of the Schindlers' lawyers shifted strategy, right up to their final appeal to the 11th U.S. Circuit of Appeals, which failed Wednesday.

They argued that Schiavo didn't want to die, citing federal due-process protection under the 14th Amendment, which federal courts have used since the Civil War to protect individuals by striking down state actions.

"That was potentially their most meritorious claim, but that right-to-life claim came across as too little, too late," Dorf said.

Jay Sekulow, an attorney for the American Center for Law and Justice, a legal advocacy group, said Wednesday that he wouldn't second-guess the change in strategy because "this was litigation under the gun, and hindsight is 20-20."

"But we came up with a new approach that we hoped would force the federal courts to give this a fresh look," added Sekulow, who helped draft some of the later motions.

Dorf and other legal experts pointed out that Congress and the Schindlers' lawyers faced an uphill battle no matter how the legislation and the legal arguments were crafted.

"State courts did a pretty thorough job on this case, and it would have been difficult to reverse," Dorf said.

Connor, echoing several congressional staffers, said Republican leaders faced a political reality in the Senate: passing a stronger bill without objections from some Democrats "had as much chance as Miami getting a snowstorm in July."

But he said social conservatives still chafed at how Congress didn't act in time "to save Terri."

"If this were a tax cut or malpractice issue, something important to the bluebloods, Congress would have gotten it done," Connor said.

Even though polls showed that a majority of the public opposed congressional intervention in the case, Connor said support could grow for legislation to offer federal rights to incapacitated people.

"One legacy of this case is that even if it's too late to help Terri Schiavo, this debate may wind up helping others," Connor said.

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(Davies reports for The Miami Herald.)

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(c) 2005, Knight Ridder/Tribune Information Services.

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