Memo to State Attorney Bernie McCabe

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Memo to State Attorney Bernie McCabe

from Prosecutors Doug Crow and Bob Lewis

To: BMc

From: Doug Crow/Bob Lewis

Re: Governor's Request on Schiavo case

Date: June 27, 2005

Based on what he refers to as "new information" contained in the Terri Schiavo

autopsy report, Governor Bush has requested that our office take a "fresh look at

the case" with no "preconceptions as to the outcome." Governor Bush's letter

noted that the autopsy had not determined the cause of Mrs. Schiavo's "original

injuries" in 1990 and had in fact cast doubt on the explanation that had been the

basis of the 1992 malpractice verdict. He also noted that in 1992, 2003 and 2005

Michael Schiavo had given a time for his wife's collapse that was 40 to 70

minutes prior to the time that his 911 call was received by emergency services.

I believe it is unrealistic to expect, considering the past decade of increasingly

venomous litigation and family members' disparate and irreconcilable beliefs as

to Terri's wishes, that our office has the ability to resolve or ameliorate this long

standing dispute. This occurrence has been the object of continuing litigation for

the past twelve years. Most of the pertinent "facts" are in the public record and

have been considered and reconsidered by lawyers, jurors, judges and a myriad

of experts. Our office has twice been asked to consider accusations against

Michael Schiavo - once in 2003 based upon contact from Mr. and Mrs. Schindler

and again at the request of the Governor's staff earlier this year - and found

insufficient evidence of any prosecutable offense to justify a criminal

investigation.

Having reviewed the report and discussed the autopsy investigation with Dr.

Thogmartin and his chief investigator Bill Pellan in detail and having also

reviewed transcripts of the 1992 and 2002 court proceedings along with

documents previously supplied to us by the Schindler family, it is obvious to us

that there is no possibility of proving that anyone's criminal act was responsible

for Mrs. Schiavo's collapse. Despite a thoroughly researched and extensive

autopsy that included consultations with other expert pathologists and an

exhaustive search for and review of all available medical records and other

information concerning the events surrounding Terri's collapse, Dr. Thogmartin

has been unable to determine why it occurred. He has convinced us that there

are no remaining medical records in existence that would assist him in resolving

what caused her 1990 cardiac arrest to a reasonable degree of medical certainty.

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Without proof of criminal agency, there can be no hope of prosecution. Nor is

there justification to use our investigative powers to perpetuate suspicion where,

despite extended litigation and a detailed autopsy, we have no proof to suggest

that a crime has occurred. Although Dr. Thogmartin did not believe that the

cause could be determined with reasonable certainty, there are explanations far

more likely and logical than any involving criminal wrongdoing.

Criminal verses Non-Criminal Causes of Terri's Collapse

Although the Governor suggests that the cause of Terri's "injuries" is more in

doubt than ever, Dr. Thogmartin's extensive report makes clear that there is no

evidence that she suffered any physical trauma. Despite repeated physical

exams and radiographs, the hospital records contained no indication of traumatic

injury. Dr. Thogmartin indicated the absence of such entries was significant since

"contusions, abrasions, recent fractures and particularly healing fractures would

have been visualized during the initial months of treatment" if they had been

present. Similarly X-rays of her cervical spine that were taken within an hour of

her admittance were negative and external signs of strangulation such as

cutaneous or deep neck injury, blunt trauma or facial/conjunctive petechiae were

not present.

The hypothesis that Terri's low potassium level was a factitious result of

medication and fluid administered during her resuscitation is not new but first

surfaced in the 1992 malpractice trial. The basis of the 1992 malpractice suit

against Terri's gynecologist was that she had eating and nutritional disorders

which he failed to detect and which allegedly led to her cardiac arrest causing

profound and irreversible brain damage. Terri had sought this doctor's help in

1989 because of difficulty in getting pregnant and up until the time of her death

was under treatment for amenorrhea (abnormally infrequent menstrual periods),

a well documented result of eating disorders in young women. Terri had lost as

much as 100 pounds since adolescence and had lost 20 pounds since her

marriage. The suit alleged that her doctor failed to take a nutritional history and to

diagnose and treat the eating disorders and nutritional deficiencies that were not

only the cause of her menstrual problems but had ultimately led to her collapse.

Three physicians testifying on Terri's behalf concluded - based upon the medical

records as well as interviews and statements of family members and co-workers

- that Terri had an eating disorder or nutritional deficiency which had contributed

to her cardiac arrest. The testimony suggested, without contradiction, this was

the consensus opinion of all the doctors who had been involved in Terri's

treatment.

The plaintiff did not attempt to specify the eating disorder but suggested that

there was evidence to support bulimia and psychogenic polydipsia and that a

combination of diet, excessive intake of fluids and compensatory purging

behavior had caused both her amenorrhea and her extremely low level of

potassium and that the latter condition led to her cardiac arrest. The defendant

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doctor had admitted that Terri's eating disorder was probably a factor in the

amenorrhea for which he was treating her. He acknowledged that, while there

are a number of other possible causes, eating and nutritional disorders are

known to cause this condition. Additionally, the defense called a psychiatrist who

specialized in the treatment of eating disorders; he testified that based upon

reviewing the statements of family members, the medical records, the

depositions of eleven physicians and the statements of four of her co-workers

that Terri suffered from bulimia. This expert did not concede that the eating

disorder was responsible for her cardiac arrest. He noted, as does Dr.

Thogmartin, that the resuscitation efforts and administration of medication and

fluids could explain her low serum potassium after the incident and that this

reading did not necessarily reflect electrolyte levels at the time of her collapse.

He suggested, however, that Terri's condition was sufficiently severe and at an

early enough stage in the disease process that she would carefully conceal her

behavior, would not have acknowledged the problem and was not yet amenable

to treatment.

Dr. Thogmartin understandably concluded that currently available evidence was

insufficient to either definitively rule out the existence of an eating or nutritional

disorder or to conclude with reasonable certainty that it was the cause of her

collapse. However, all experts in the 1992 proceedings - relying on all available

contemporary records and witness recollections - opined that Terri suffered from

an eating disorder and the jury unanimously agreed.

While Dr. Thogmartin's report indicated that non-traumatic asphyxia was not

impossible, I do not believe that this can be constructed to mean that it

represents a plausible explanation or one that is equally or more likely than the

possible non-criminal explanations for Mrs. Schiavo's collapse. Asphyxiation

occurs when the brain is deprived of oxygen and can be accomplished by cutting

off the air to the lungs or the flow of oxygenated (arterial) blood to the brain.

While not impossible, it would be exceedingly difficult to accomplish this without

leaving evidence of a struggle in a surviving victim. (*See Footnote 1 below)

Cutting off the air supply through suffocation would have to continue for

approximately four to five minutes before brain damage ensues. The victim will

remain conscious for a significant portion of this time. Common sense suggests

and experience has confirmed that victims struggle violently when unable to

breath, flailing out at their attacker and whatever is preventing them from

breathing and necessitating in turn that the assailant increase the amount of

force against a moving, struggling victim. These factors make it virtually

inevitable that observable injury will result. It is also possible to cause rapid

unconsciousness with simultaneous bilateral compression of the carotid arteries.

Based upon our experience, however, it would be virtually impossible for

someone without considerable practice in using the technique to incapacitate a

struggling victim, who is later resuscitated and survives, without causing visible

injury.

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Dr. Thogmartin's report also could not eliminate the possibility of subtle trauma in

the form of "commotio cordis", a phenomenon that is most commonly seen in

young athletes who are struck in the chest directly over the heart with an object

such as a baseball. If the chest is sufficiently flexible and the impact occurs

precisely during the 20 millisecond interval of the heart's cycle in which the

ventricular muscles are repolarizing, ventricular fibrillation (rapid, unsynchronized

contractions) can occur. Resuscitation efforts are rarely successful unless the

person is defibrillated within two to three minutes. The timing of the impact as

well as the hardness of the object, age of the subject and speed of impact are

significant variables; it is unknown how often this type of blow to an unprotected

chest can cause fibrillation without leaving any identifiable injury in a surviving

adult victim. It seems very unlikely, however, that in the course of a domestic

argument where one party is intentionally trying to harm the other, they will direct

a single blow to the cardiac silhouette that is of sufficient force to cause

ventricular fibrillation but not the intended injury.

Dr. Thogmartin also could not exclude the possibility of toxins or drugs being

involved. Terri's described condition and the fact that paramedics were able to

resuscitate her despite the twelve minute interval between her collapse and their

arrival are not inconsistent with the possibility of an opiate overdose. The police

officer who responded to the emergency did find a small number of medications

in the residence, but did not feel that the drugs he found were relevant to Terri's

collapse and did not record what they were. While there is some indication in the

discovery materials from the malpractice suit that a prescription bottle of percocet

may have been in the residence, Dr. Thogmartin indicated that the drug screen

done at the ER would likely have detected the acetaminophen that is combined

with oxycodone in that medication. There is of course no affirmative evidence

that Terri ingested toxic amounts of any substance or medication and absolutely

no basis to conclude they were forcibly or surreptitiously fed to her.

Time Discrepancies Concerning Terri's Collapse

Absent proof that a crime has occurred, neither Michael Schiavo's credibility nor

the consistency of his statements would become a critical and material concern.

Nonetheless, the discrepancy between his recollection of the time of the incident

and the time that paramedics and police recorded receiving the call hardly

constitutes new information. Schiavo testified in the 1992 malpractice deposition

and trial that he heard a noise around five a.m. and found his wife collapsed near

the bathroom door. In a 2003 interview on Larry King Live he indicated this

occurred at 4:30 a.m., a time he repeated in a recent interview with medical

examiner Jon Thogmartin. Schiavo has consistently said he called for emergency

help immediately after finding his wife and that fire rescue arrived within a few

minutes of the call. To our knowledge he was never asked about or confronted

with the difference between his estimation of the time and the records indicating

the fire rescue was called at 5:40 and began resuscitation efforts at 5:52.

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Understandably, Michael Schiavo is not the only witness who has been

inconsistent or had difficulty recalling the timing of events surrounding Terri's

collapse and resuscitation. Shortly after finding Terri, Michael Schiavo called his

in-laws and told them what happened. It is unclear whether he or the Schindlers

called Bobby Schindler who lived in the same complex as Michael and Terri and

who immediately went to their apartment and arrived before the paramedics.

Although Terri's parents had been awakened in the middle of the night with

extremely disturbing news and waited at their house for a subsequent phone call

on their daughter's condition, they have no clear idea what time they were called

by Michael. They had previously provided our office a timeline indicating that they

were called as early as 3-4 a.m. but recently told Thogmartin they could not recall

the time. Similarly, Terri's brother, Bobby Schindler, told Dr. Thogmartin he could

not remember the time that he was called or initially arrived at the Schiavo

residence except in relation to the arrival of the paramedics.

It is not contradicted that Michael Schiavo appeared frantic and extremely

distraught throughout the incident. Under these extraordinary circumstances,

where both Mr. Schiavo and his accusers have similar difficulty in reconstructing

exact times, it cannot be credibly argued that this discrepancy is incriminating

evidence. Nor, in light of his consistent and uncontradicted claims that he

immediately called 911, can his error in estimating the time be considered an

admission that he waited over an hour to get help for his wife. It does not appear

that Schiavo's error was considered to be of probative value in either the civil suit

or in the subsequent guardianship proceedings. Schiavo was not confronted by

opposing lawyers (or by Dr. Thogmartin) with the potential inconsistency nor was

he given the exact times recorded by paramedics as a point of reference. The

most obvious explanation is also the most logical: under the extremely stressful

circumstances his attention to and memory of the exact time were faulty - in the

same way that the recollections of Mr. and Mrs. Schindler and Bobby are flawed.

Curiously, a delay such as this would further undermine the speculation that

Michael Schiavo caused Terri's collapse by assaulting her. Neither the medical

examiner nor our assistants were able to identify any plausible manner by which

Schiavo - having physically overcome Terri without injuring her or being injured

himself - could keep her incapacitated but sufficiently alive that she could still be

resuscitated almost an hour later. Additionally, we could discern no rational

motivation for attacking one's spouse allowing her to linger near death for forty

minutes or more and then calling for help in sufficient time to save her life so she

could potentially name her assailant.

Family members and others who disagreed with Mr. Schiavo's decision to seek

court approval to have his wife's feeding tube removed have made repeated

attacks on his credibility and accused him of mistreatment of his wife. At least

some of these accusations have been shown to be baseless by the autopsy

conclusions. We should note, however, that we have also received unsolicited

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comments praising his honesty, sincerity and devotion to his wife's care. Also,

when asked about her son-in-law during the 1992 malpractice trial, Mary

Schindler testified, "He's there every day. She (Terri) does not want for anything.

He is loving, caring. I don't know of any young boy that would be as attentive. He

is ... he's just unbelievable, and I know without him there is no way I would have

survived this."

In the complete absence of any evidence that Terri's collapse was caused by

anyone's criminal actions it has been unnecessary for us to attempt to resolve

these conflicting portraits of Michael Schiavo's character. It appears, however,

that opinions on his culpability derive from disagreement with the Court's decision

to allow Terri's life to end and not from any objective consideration of the

evidence. If the available facts are analyzed without preconceptions, it is clear

that there is no basis for further investigation. While some questions may remain

following the autopsy, the likelihood of finding evidence that criminal acts were

responsible for her collapse is not one of them.

We strongly recommend that the inquiry be closed and no further action be

taken.

Footnote 1

Decomposition of the body can sometimes hide some of the more subtle signs of

assault, including petechial hemorrhages. Also, the bruising process effectively

ends when the heart ceases to pump blood. This would not be an issue where

the victim is resuscitated and survives.

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