Uncharted legal ground in top court
Brain-damaged man's wife, mother fight
over life and death
May 31, 2001
By Josh Richman
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
"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
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
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
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."