Uncharted legal ground in top court

Brain-damaged man's wife, mother fight over life and death

May 31, 2001

By Josh Richman
STAFF WRITER

SAN FRANCISCO -- The case of a severely brain-damaged Stockton man drove the California Supreme Court on Wednesday into uncharted legal territory surrounding the right to die.

Robert Wendland, 49, presents the court with a sticky circumstance mainly because he's not in the "persistent vegetative state" usually underlying such cases. The former auto-parts salesman, profoundly hurt in a 1993 wreck in which he was driving drunk, is somewhat conscious but unable to talk, walk, control his bowels or feed himself.

His wife, Rose, and mother, Florence, disagree on whether he can communicate meaningfully or even recognize his family, and so they've been embroiled in this legal battle since 1995. Rose claims her husband would want her to withdraw his feeding and water tubes and let him die, while Florence wants to keep her son alive.

The courtroom was packed Wednesday because this case's implications are the subject of heated national debate; bioethicists and the American Civil Liberties Union support Rose, while disabled-rights and right-to-life advocates support Florence.

At issue now is how much evidence Rose, as her husband's legal conservator, must present to support her decision to let Robert die.

The justices' questions indicated they are grappling with whether she must make her case with a "preponderance of the evidence," meaning there's more persuasive evidence that Robert would want to die than that he wouldn't; or "clear and convincing evidence," a stricter standard falling somewhere between a preponderance and the strictest "beyond a reasonable doubt" standard used in criminal cases.

Janie Hickok Siess, Florence's attorney, argued that although state law seems to apply the preponderance standard, that won't withstand the constitutional challenge posed by Robert's fundamental right to life. Dying by dehydration and starvation takes three painful weeks, she said, and that mustn't be inflicted upon someone without very clear evidence of his wishes, particularly when he's still capable of some limited thought and feeling.

"Mr. Chief Justice, the court must raise the bar," Siess said, urging use of the clear-and-convincing standard as a San Joaquin County Superior Court judge did.

Yet Rose and Robert's brother have testified Robert, before the wreck, had said he wouldn't want to live dependent upon tubes and wearing diapers, unable to interact with people and lead an active life. The state Court of Appeal said Rose's good-faith consideration of these statements, plus agreement from Lodi Memorial Hospital doctors, are enough to satisfy the state law's demands.

James M. Braden, Robert's court-appointed attorney, told the court Wednesday he's sure Robert would agree. "I believe he would find intolerable a much better condition than he's in now."

Lawrence Nelson, Rose's attorney, said forcing the clear-and-convincing evidence standard upon such a case is "unrealistic, it's unfair."

"It denies every American the right to have a best-interest argument made on their behalf" by those closest to them, he said.

The court should rule in the next few months.

Outside the courtroom, Wesley J. Smith of Oakland, author of "Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder," said he hopes the court forces a deeper inquiry into Robert's best interests.

Siess said Rose wants "to move the line over to where you can dehydrate and starve conscious folks" based solely on Robert's pre-wreck, offhand comments, some of which testimony indicates he may have made while drunk or hung over. Robert's life still has meaning, Siess claimed; he can paint, react to people and even take part in a sort of wheelchair bowling.

But Nelson blasted Siess's "unceasing exaggeration of Robert's cognitive abilities," noting Robert responds to the simplest commands only with intense, repeated coaching, an automaton doing nothing of his own volition. "I think she was deceptive."

Rose's children -- Katie, 22; Kerrie, 20; and Robert, 16 -- said they're sure their father wouldn't want to live this way.

"That's not my father," said Kerrie, adding he doesn't even seem to recognize her. "There are some sparks flying but nothing's really going."

Disability-rights activists from across the nation turned out to support Florence's fight, but Rose said this isn't their affair.

"This has nothing to do with me," she added. "This has to do with Robert and Robert's wishes."