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In her own defense

By JOHN BARRY
Published December 17, 2006

In her early days as a public defender, Susan Schaeffer showed promising imagination. Prosecutors rely on evidence. Defense lawyers rely on imagination. They take the same damning evidence and insert it into "imaginary stories" that somehow suggest a path other than prison.

She didn't always have to convince a jury. If her stories were good enough, they could gnaw away at a prosecutor's confidence, enough that he might not want to go to trial at all.

"I had a case where a fellow had killed a man for raping his wife. The truth was, she wasn't raped; she was having an affair. What I had to suggest was, her husband didn't know that. He thought she'd been raped. I played that idea in enough motions to get a pretty good deal - a drop from first-degree murder to manslaughter."

Schaeffer, 64, was very good at that. Her aggressive, imaginative intellect propelled her from the public defender's office to private trial-lawyer practice to the Pasco-Pinellas circuit bench in 1982. It later led to her national renown as a death-penalty expert.

That imagination was at play as she sat at her computer two years ago staring at these words: small-cell lung cancer. Four to six months life expectancy.

She smoked a cigarette. Tried to absorb the words.

What did that mean?

Says who?

What are the statistical odds?

Who beats lung cancer?

The cigarette was still burning. But she had begun to frame an imaginary story.

One of survival.

The wrong answer

Judge Susan F. Schaeffer had been tied up in an ex parte meeting in her chambers when she took a call from the H. Lee Moffitt Cancer Center in Tampa. The lawyers in her office waited. Schaeffer asked the caller quietly, "Are you saying I have lung cancer?"

"That's what we think. Can you come in tomorrow?"

Schaeffer hung up. Her mind raced a thousand directions. She heard someone say, "Thank you for being so helpful." She had no idea what the woman was talking about.

She raced home. She needed to get to a computer. The tech had said a CAT scan showed small-cell lung cancer. She'd never heard of small-cell anything.

At home, she typed in a search. As she read, she counted the months. It was now July. She'd be dead by Thanksgiving.

Schaeffer kept reading. Framing her imaginary story.

Forcing the issue

She had to wait a month for a biopsy. On Aug. 19, the biopsy confirmed the diagnosis.

Schaeffer learned from the Internet that the cancer was inoperable. Her only options were chemo and radiation. The Internet told her they had to start immediately.

Moffitt protocol had caused her to wait five weeks from that first phone call before she saw an oncologist. She counted each day as another day lost. The judge brought her gavel down.

"When I saw the oncologist, I brought a four-page memorandum. The memo suggested that by following protocol I could be dying."

Schaeffer had learned on the Internet that there are two stages of small-cell lung cancer: "limited" and "extensive." Her cancer had already traveled to lymph nodes, but all the tumors were in her chest. She was still "limited." But without treatment, the next stop is usually the brain.

She told the doctor, "I want you to guarantee that I'm going to stay 'limited' despite these delays. If you can guarantee that, then fine, I'll relax. But if my cancer turns 'extensive' because of these delays, you're going to be in big trouble."

"I don't know if I've ever gotten a memo like this," the doctor said.

She started her chemo the next day.

Making her mark

Always, Schaeffer had guarded her private life, the human being under those robes.

Few people knew that she had been a music major who had given up the piano for law. Few knew that her judicial assistant, Sue Rudd, had also been her partner for 25 years. Few knew she had entered an addiction treatment program to stop drinking. Few knew she had cancer. Few knew how she cared about them.

These weren't exactly secrets, she says. "They just weren't anybody's business."

But facing death, she took inventory. What had she accomplished? What was left?

There was her stellar judicial resume. She had finished first in her law class at Stetson. She had learned how to handle herself as a lawyer, how to walk into a tough bar like the Blue Moon Cafe in St. Pete and find witnesses to a shooting. How to cultivate a friendship with a big inmate named "Pookie" who watched her back when she came to see defendants in jail.

She had been a finalist for a Florida Supreme Court seat in 1997 and had served as chief judge of the Pasco-Pinellas Circuit for six years. She had presided over hugely notorious trials, including those of St. Petersburg minister Henry Lyons, who among other misdeeds had swindled the Florida General Baptist Convention and others out of money; and killer Oba Chandler, who had raped and murdered an Ohio tourist and her two teenage daughters in 1989. She gave Lyons five years and sent Chandler to death row.

She had chaired a massive reshaping of the funding formula for circuit courts to ensure that everyone in the state - from backwaters to big cities - had equal access to justice. The work took six years and required two years of lobbying in Tallahassee.

She had become a death penalty expert who taught at the National Judicial College in Reno, Nev., for 15 years. She wrote a death-penalty textbook and spoke all over the country. She may have done more to expedite executions than any other Florida judge, though she had opposed the death penalty from day one. She was nicknamed "Ms. Death."

Besides all that, "I had loads of friends, many outside the legal community. I traveled; I saw Italy. I played golf. I had a 25 handicap. I had a mountain getaway in Silva, N.C.

"I conquered some addictions. I had to give up alcohol. I enrolled myself in a treatment center, and I followed up with a recovery program. I still go twice a week. I haven't had a drink in seven years."

She gave up her one remaining addiction - 45 years of cigarettes - when she was diagnosed.

After her inventory of all that, she concluded "I was very much at peace with myself."

Except for one flaw:

She was still a hard case.

"You just don't give up drinking. You also have to give up character flaws accumulated over a lifetime. I'd have to live a better life with higher principles."

In her imaginary story, the people in her life would know she loved them.

Reaching for more

Schaeffer asked to transfer her chemo treatments to Gulfcoast Oncology Associates in St. Petersburg. The office was just minutes from her house. She'd heard about an oncologist there, Jeffrey Paonessa. "I heard he was the best in town."

He gave her chemo immediately after his examination.

Paonessa is a numbers guy. Lung cancer is all about numbers.

Schaeffer already knew these numbers: 50 percent of lung cancer patients die in six months; 75 percent are dead within the first year; 85 percent are dead within two years.

Paonessa drew a mortality graph for her. The first two years are like a cliff. Nearly everybody falls off. But at the bottom of that two-year cliff was a kind of floor. If you could get that far, make it past the cliff, the mortality line leveled off.

"That's when you can start to feel there's hope," Schaeffer says.

She had found on the Internet one immediate way to make it into the lucky 15 percent. Most lung cancer patients start with chemotherapy, then take radiation treatments later. But those who take chemo and a double dose of radiation at the same time - and endure it - seem to have a slight statistical survival edge: 5 percent.

She grabbed the five.

Paonessa says he often felt cross-examined. She read a medical dictionary to understand cancer jargon. She read arcane medical journals and found experimental therapies. "She was able to detach herself from the disease to discuss treatment." He'd forget he was talking to a patient.

Here's an example of the judge's cross-examination of her doctor: "I know that the standard chemo drugs for SCLC small-cell lung cancer are cisplatin and etoposide, but there is clinical trial data that suggest significant survival benefit for irinotecan being included in the chemo mix."

She discovered more ways to grab another percentage point, or even two or three.

Survivors tend to stay on schedule. Chemo is done on a 21-day cycle: three days of chemo and 18 days of rest. Then another cycle. The chemo destroys the immune system. A sneeze can trigger an infection that delays the next cycle.

Schaeffer had to show up at 8 a.m. on the Saturday after her last chemo cycle for an injection of a white blood cell booster. She got blood transfusions when the shots weren't enough.

Feeling too nauseous to get out of bed at 8 a.m. on a Saturday could delay the next cycle and sacrifice a precious percentage point. "A lot of this is luck, but a lot of it is determination," Paonessa says. "I had a patient today who needs to come in on Sunday for an injection. He refuses to come in on Sunday.

"The judge would be here."

No need for goodbyes

Schaeffer went into remission in December 2004. But she was still searching for more therapy on the Internet. She researched the cranial radiation she would finish up with to prevent any lingering cancer cells from invading the brain. On the Web she found a clinical trial that showed "faster, more furious" doses of radiation had statistically higher odds of success.

The radiologist warned that she could suffer memory loss - similar to early Alzheimer's. "I'm not going back to the bench," she said. "Give it to me anyway."

Until that point, she had said little publicly about her treatments. Now she was among the 50 percent of lung cancer patients still alive after six months. She was ready to party.

She announced her retirement. Her colleagues wanted to throw a testimonial dinner. That sounded too much like a "maudlin retirement dinner" or, worse, a wake. She nixed all testimonials, demanded a roast.

She showed up bald-headed.

"I looked around the room," her partner, Rudd, says, "and all I saw was celebration."

At home, regaining her strength in remission, she thought about those friends. "I knew there were a lot of people I needed to tell 'I love you.' "

Often, Schaeffer couldn't sleep. She'd sit at the computer at 3 a.m. and write long e-mails. Some went to friends she hadn't seen since high school, one to a friend in a college singing trio. Some went to other cancer patients. (She exchanged more than 100 e-mails with Barry Bradley, the St. Petersburg Times editor who chronicled his own lung cancer battle in 2005. He died in February. Nearly every lung cancer patient she went through chemo with has passed away.)

She began to work with stained glass. She had never been able to draw. But she could cut glass and make beautiful patterns. Judge Nancy Moate Ley gave her a console piano. She hadn't played since she was a music major at St. Petersburg Junior College. She began practicing two hours a day.

She had friends over for dinner in small groups. "Susan would get up, go into her room to take a nap," Rudd says, "and when she woke up they'd still be here, wanting to talk some more."

No one dared say a final goodbye.

"I made it clear," Schaeffer says, "I was going to beat this thing."

All of 2005 went by. All of 2006 went by. In August, she sailed past the two-year cliff.

Ready for the future

Schaeffer is overdue for a CAT scan. She gets one every three months. She's a nervous wreck before each one. So she is delaying her next scan until after Christmas. If she passes, Paonessa will increase Schaeffer's odds of survival to 75 percent.

Schaeffer has a living will. If the cancer returns and she becomes incapable, the will gives Rudd authority to pull the plug.

"But don't rush it," she told her partner.

First she wants Sue to try to imagine a better story.

John Barry can be reached at (727) 892-2258 or jbarry@sptimes.com.

[Last modified December 16, 2006, 20:47:08]