Schiavo Discussion

I don’t seek to open old wounds, but since it’s the weekend and blogging is usually light, I want to provide a forum in which the Terri Schiavo case can be discussed.

In an earlier post I said that my hope is that we’d err on the side of individual liberty rather than on that of government intervention. But there were conflicting interpretations of fact in this case. So here is the way I see it:

* For whatever reason Terri Schiavo suffered cardiac arrest which caused brain damage due to a lack of oxygen.
* Michael Schiavo claimed that Terri said that she would not want to live in such a condition, and he sought legal permission to not artificially feed her.
* The court agreed.
* There are numerous appeals, all of which decide that the original decision should stand.
* Congress and the President believe that it is their duty to intervene in a single case, so they instruct the court to hear the case again. Congress and the President are denied.
* Every other appeal is denied, based upon the reasoning that the husband is the proper person to defer to in this particular case.

If my facts are correct, then what we have is not an activist court (an idea that Steven Taylor has already properly fisked), but a court that actually respected individual autonomy and federalism (my conclusion, not his). I know that Terri Schiavo was starved to death, and I’m really uncomfortable with that. But I’m not convinced that she was murdered in some Nazi manner.

Commenters: please take me seriously when I say that I know that I don’t have all the anwsers, and I’m not even sure if I have the facts straight. But yelling at me with ALL CAPS or something similar will only detract from your argument. I’m searching for understanding here, not dogma.

FILED UNDER: Law and the Courts,
Leopold Stotch
About Leopold Stotch
“Dr. Leopold Stotch” was the pseudonym of political science professor then at a major research university inside the beltway. He has a PhD in International Relations. He contributed 165 pieces to OTB between November 2004 and February 2006.

Comments

  1. reliapundit says:

    YES: I think it is a custody case, and the courts RELEXIVELY gave custodt to the title bearer: the husband.

    I think this was in ERROR.

    Here’s what the CRUX of the controversy is REALLY about:

    Contrary to what many would have you believe – (especially those who deride Schindler supporters as right-wing theocratic wackos) – the Schiavo controversy is NOT between right-to-die people and the right-to-life crowd.

    This case is about whether the court correctly determined what Terri’s wishes were.

    Contrary to what paranoid Leftists and nervous centrists would have you believe, there is NO MOVEMENT among ANY RIGHT-TO-LIFERS to ban DNR’s or Living WIlls; IN FACT, George W. Bush and Laura, and their parents have them and urge ALL AMERICANS to get them!

    Virtually the entire “religious right” – including the RC Church, evangelicals, orthodox Jews, and Jesse Jackson (Heh) – accepts that individuals have the right to refuse medical treatment when confronted with terminal illnesses. EVEN THE POPE REFUSED TO BE TAKEN TO A HOPSITAL IN THE LAST TWO DAYS!

    So the WHOLE case is about custody – legal guardianship, if you prefer.

    The Schiavo CONTROVERSY is based on the fact that: (a) she is NOT terminal; and (b) her wishes are patently obscure; and (c) the court ARBITRARILY one party over another.

    I have concluded that Greer erred in ruling that Terri would have wanted to be starved to death rather than live, and that therefore the feeding-tube should have stayed in.

    And it saddens me that the federal courts have – up to now – thumbed their noses at any and all attempts to re-open the case so that this critical determination could be properly re-examined, and justice be done.

    In the absence of proof positive, I think the court must NOT act, or condone any act which will cause anyone to die.

    If that makes me a right-wing theocratic wacko, then so is Joe Lieberman and Jesse Jackson and Ralph Nader and Tom Harkin and Harry Reid

    HERE’S WHY I THINK THE JUDGE ERRED –

    EXCERPTED FROM FROM JOHN HAWKINS:

    [Hawkins asks]: Did Terri Schiavo say she wanted to die if she were in this condition?

    This is one of the primary points of contention in this case and with good reason.

    Initially, as mentioned earlier, Michael did provide rehabilitation for his wife. Furthermore, in late 1992, Michael Schiavo said the following during testimony given in his medical malpractice suit:

    “I believe in the vows I took with my wife, through sickness, in health, for richer or poor. I married my wife because I love her and I want to spend the rest of my life with her. I’m going to do that.”

    But, in 1993 (Note: this is after Michael Schiavo had already started dating other women and received over a million dollars from the settlement of the medical malpractice suit), his attitude changed rather dramatically.

    Michael Schiavo admitted in a November of 1993 deposition that earlier in the year, he had requested that doctors not treat a urinary tract infection that was potentially fatal to Terri. The doctors were not able to comply with Michael’s request because it would have been illegal.

    According to the The Times Leader, Michael Schiavo first claimed that Terri had told him she wouldn’t want to live at this point, but most other sources that I’ve seen point to that information first being revealed in 1998.

    In 1998, Michael said that while watching a movie, Terri had once opined that she wouldn’t want to live if she were ever in a coma. Michael’s older brother, Scott Schiavo, and Michael’s sister-in-law, Joan Schiavo also claimed Terri had a similar conversation with them after a funeral.

    On the other hand, one of Terri’s friends, Diane Meyer, had a very different story to tell:

    “Diane Meyer can recall only one time that her best friend, Terri Schiavo, really got angry with her. It was in 1981, and it haunts her still.
    The recent high school graduates had just seen a television movie about Karen Ann Quinlan, who had been in a coma since collapsing six years earlier and was the subject of a bitter court battle over her parents’ decision to take her off a respirator. Meyer says she told a cruel joke about Quinlan, and it set Terri off.

    “She went down my throat about this joke, that it was inappropriate,” Meyer says. She remembers Terri saying she wondered how the doctors and lawyers could possibly know what Quinlan was really feeling or what she would want. “Where there’s life,” Meyer recalls her saying, “there’s hope.”

    Added to that is the testimony of Terri’s court appointed guardian, Richard Pearse:

    “Pearse said he was troubled by the fact that Michael waited until 1998 to petition to remove the feeding tube, even though he claims to have known her wishes all along, and that he waited until he won a malpractice suit based on a professed desire to take care of her into old age. As her husband, Michael would inherit what is left of her malpractice award, originally $700,000, which is held in a trust fund administered by the court. Accounting of the fund is sealed. But Michael’s lawyer, George Felos, said most of it has been spent on legal fees associated with the custody dispute. Pearse also said he did not find Joan and Scott Schiavo’s testimony credible.”

    Believe it or not, there’s even more:

    The Schindlers had contacted a woman Michael dated in 1991 who told them Michael had confessed to her he did not know what Terri would want.

    Although the woman refused to sign an affidavit, it bought the Schindlers some time. And with it, they found Trudy Capone. A former co-worker of Michael’s, Capone signed an affidavit on May 9, 2001, stating “Michael confided in me all the time about Terri … He said to me many times that he had no idea what her wishes were.”

    [HAWKINS CONCLUDES]: Despite the rather large amount of conflicting evidence, Judge Greer ruled in Michael Schiavo’s favor on the issue.

    [END OF HAWKINS EXCERPT.]

    THAT’S WHY I CONCLUDED THAT THE JUDGE ERRED.

    JONATHAN TURLEY has opined on TV that since – in 50 out of 50 states – cohabiting with another person is ABANDONMENT and ESTRANGEMENT, and that in 50 out of 50 states this is grounds for divorce, and because Michael was cohabiting with another women (whom he has children with)that THEREFORE custody SHOULD HAVE been removed from Michael by the judge.

  2. reliapundit says:

    SHORT VERSION:

    (1) Would you want your EX to have life and death power over you?

    Would you want the court to give them the power ABSENT CONCRETE PROOF?

    I wouldn’t.

    (2) The Left-wing extremists erred in making this a right to life STATISTS versus right to die LIBERTAIRIANS case because even the right to lifers – like the RC Church holds that obe doesn’t have to take any medicine if one has a terminal illness. The POPE proves this. As do the Bushes Living Wills.

    And of course: (givine that there was a family dispute as ti what Terris wishes were) Michael could not have pulled the feeding tube WITHOUT the STATE intervening. Becasue there was no LIVING WILL.

    (3) Congress acted properly, Constitutionally; the courts acted OUTSIDE their Constitutional powers. It is as if Nixon REFUSED to hand over the WHite House Tapes.

    (4) Some Judges one each panel (11th Cirucit, and SCOTUS) were with the Schindlers, so IN EFFECT: Terri was dehydrated to death by majority rule, not “rule of law” per se. Dred Scot was returned to slavery by the same thing.

    (5) Judge Greer had NO LEGAL AUTHORITY to forbid oral feeding.

    Therefore: I say the courts did NOT do well.

    Very sadly: they did very poorly.

    It has happened before.

  3. reliapundit: please correct me if I’m wrong, but your argument seems to boil down to the fact that Greer judged in a way in which you disagree, and thus he has no authority to judge.

    Except he *is* the judge, and you don’t seem to dispute the facts as I’ve presented them. This is problematic, because we can’t base decisions only on their unanimity or on whether we as individuals agree with them.

  4. reliapundit says:

    Forgive me Leopold, but: if it had been a jury trial then I would have disagreed with the jury’s decision.

    Decisions are what courts do.

    Did the Judge rule correctly?

    I agrued that he did not FOR FACTUAL reasons.

    FACT #1: Michael was legally estranged form Terri.

    FACT #2: the court had once IMPROPERLY taken over custody of Terri – in direct violation of Florida law.

    So, the court ignored law in the first case, and broke the law in the second.

    These are JUDICIAL ERRORS which might have been discovered and tested in a federal DE NOVO hearing – a hearing which Congress CONSTITUIONALLY ordered, and which the a MAJORITY of the judicary refused to do. Which was IMPROPER.

    That’s the third IMPROPER judicial act in the case.

    RECAP: (1) the judge improperly kept Michael as guardian; (2) the court imprpperly assumed guardianship for a period of time; and (3) the courts improperly refused to undertake a DE NOVO hearing.

    The Clinton appointeee in the 11th Circuit )who wrote the dissent) and Jonathan Turley – a legal scholar who has specialized in constitutional law and issues revolving around the separations of power – concur in my position.

  5. Yet your comments present this as if it were a single decision; isn’t it true that Greer’s original decision was challenged and upheld numerous times? I may be off on that, but that seems accurate to me.

    Second, isn’t in effect what Greer said is that the state cannot encroach on this family’s business? That to me is a fundamental good, regardless of whether you interpret his having another girlfriend after 15 years as a betrayal.

  6. John Burgess says:

    Leopold, I think you have it exactly right. Well, almost. When M. Schiavo first sought to have his wife’s feeding tube removed through the court, he was legally challenged. The Florida Court of Appeals split their decision on this saying that Greer’s court had actually not issued an order that could be executed. When the case came back to him, he rectified that by stating a date and time upon which the feeding tube should be removed.

    This took the decision out of M. Schiavo’s hands. His direct role was finished when the court determined the legal fact that T. Shiavo’s intention was that she not live under the conditions she was now in.

    Greer’s decision may or may not have been “right”, but it did create legal fact. That fact was the T. Shiavo wanted the feeding tube removed.

    Does it look bad that M. Schiavo was not going to spend the rest of his days sitting beside his wife’s bedside, but instead “chose life”? Maybe, if you want to see a conflict of interest.

    But I can argue with exactly as much proof that he realized that his efforts, from 1991 to 1998 in trying to keep his wife alive were the result of a selfish act. Perhaps he felt that keeping her alive, no matter what, only served his purpose of “being true” to his wife. In 1998 he realized that rather than being selfish, he should do what he wife really would have wanted, that is, to be let go.

    People say that T. Schiavo “wasn’t dying”. Yes, actually, she was. She just wasn’t dying quickly. Ceasing medical intervention is exactly that. Further, under Florida law, feeding tubes are explicitly identified as extraordinary means in exactly the same category as respirators and heart-lung machines. This was settled law in Florida (see In re Browing). It was also settled law in the federal courts (see In re Cruzan). To argue otherwise is to state a moral position, not a legal one.

    I believe this to be, absolutely, a matter for the state, not federal, government. Perhaps Florida law needs tweaking. As a Floridian, I have the ability to make my views on the matter known. I can encourage my State Assembly representative and senator to change the law–or to let it stay as currently written.

    Frankly, I prefer to live in a country that has a state like Oregon that permits medically assisted deaths, or a state like California that permits the medical use of cannabis. If I don’t like those particular laws I don’t have to live in those states. I wouldn’t mind if one or several states had laws that firmly outlawed abortion while other states had laws that permitted it under all circumstances. I think that the country should be an ongoing experiment.

    We have the People’s Republic of Taxachussets, and that’s just fine. If you don’t like the conditions there, there are lots of options available, ranging from not living there to living there and working to change the laws more to your preference. Maybe parts of Utah, Montana, and Wyoming lean closer to a libertarian ideal (if you don’t look too closely into the matter of subsidies) and that’s pretty cool, too.

    While there will not be 270 million different states, 50 is enough to permit sufficient differences in opinion and world outlook so that most people can find a place in which they’re comfortable.

    I deeply resent the idea that this country has to be homogenized into a plain milkshake, that the lowest common denominator will determine the limits of life, liberty, and the pursuit of happiness.

    And yes, I consier the matter of federalism more important than the life of an individual. How many individuals have died in defense of that federalism already?

    BTW, if one hasn’t read everything that’s being posted and linked at Abstract Appeal, then one really doesn’t understand the way the Florida legal system works.

  7. OBVIOUSLY someone DOESN’T UNDERSTAND what it mean to BE ADVISED not to USE ALL CAPS!

  8. reliapundit says:

    LEOPOLD;

    (1) You wrote:

    Yet your comments present this as if it were a
    single decision; isn’t it true that Greer’s original decision was challenged and upheld numerous times? I may be off on that, but that seems accurate to me.

    I REPLY: many have written/blogged that the original decison is the MOST critical in a case, and that the SChindlers had POOR legal representation and that Michael had the guy that really wrote the law for the Florida legislation – Felos. So the first finder of fact – Greer – may have not been given opportunity to get the law and facts right because of this disparity. And this disparity weighed heavily in ALL succeeding hearings/appeals as the first finder of fact always does. POWERLINE (all lawyers) blogged on this and linked to an article by Steven Sailer, if I remeber correctly. Google it, if you want.

    THIS IS WHY THE CONGRESS ORDERED A DE NOVE REVIEW.

    (2) YOU WROTE:

    Second, isn’t in effect what Greer said is that the state cannot encroach on this family’s business? That to me is a fundamental good, regardless of whether you interpret his having another girlfriend after 15 years as a betrayal.

    I REPLY: NO; exactly BACKWARDS. Michael could NOT have pulled the feeding tube WITHOUT the court intervening – the STATE intervening. Only the ARBITRATION by the courts amde it possible for Michael to order the feeding tube removed.

    SO – IMHO – this is an activist inteventionaist act by the court.

    The court could’ve decided that absence WRITTEN DIRECTIVE that they could legally authorize nothing – sort of, you know TURNED IT DOWN, much as the SCOTUS refuses to take certain cases.

    Only an interventionist judge could decide to empower one party in this dispute. I this cse the judge INTERVENED to support the claims of an estranged husband.

    That’s just plain AWFUL.

    I repeat: WOULD YOU WANT YOUR EX TO HAVE LIFE AND DEATH POWER OVER YOU!?

  9. reliapundit says:

    Besides Leopold: the judge had NO LEGAL AUTHORITY to forbid the administration of food and water orally.

    Only to remove the feeding tube.

    MAYBE she sould take nutrition orally – as a fedw nurses claimed in affadavits.

    This is ANOTHER instant of the judge OVERSTEPPING his bounds.

  10. reliapundit says:

    DONALD SENSING:

    I did NOT use caps to SCREAM; I used CAPS to achieve a distinctive typeface – to make the body of my long arguments stand out better, visually.

    There are too few options for that in comments sections (and on BLOGGER) – you cant easily undrline, or italicize.

    THAT’S ALL.

  11. reliapundit: as I said in the post, I have to say that I believe that Steven Taylor has covered the notion of judicial tyranny to my satisfaction. I don’t mean to stifle debate, but thus far I agree with his take over yours.

    I’m still open to all perspectives though.

  12. reliapundit says:

    LEOPOLD, THIS IS FROM POWERLINE –

    March 26, 2005
    What Went Wrong

    Steve Sailer reproduces a letter from a Florida lawyer, who comments on how the seemingly perverse outcome of the Terri Schiavo litigation came about:

    SAILER:

    *******

    I have been following the case for years. Something that interests me about the Terri Schiavo case, and that doesn’t seem to have gotten much media attention: The whole case rests on the fact that the Schindlers (Terri’s parents) were totally outlawyered by the husband (Michael Schiavo) at the trial court level.

    This happened because, in addition to getting a $750K judgment for Terri’s medical care, Michael Schiavo individually got a $300K award of damages for loss of consortium, which gave him the money to hire a top-notch lawyer to represent him on the right-to-die claim.

    By contrast, the Schindlers had trouble even finding a lawyer who would take their case since there was no money in it. Finally they found an inexperienced lawyer who agreed to take it partly out of sympathy for them, but she had almost no resources to work with and no experience in this area of the law. She didn’t even depose Michael Schiavo’s siblings, who were key witnesses at the trial that decided whether Terri would have wanted to be kept alive. Not surprisingly, Felos steamrollered her.

    The parents obviously had no idea what they were up against until it was too late. It was only after the trial that they started going around to religious and right-to-life groups to tell their story. These organizations were very supportive, but by that point their options were already limited because the trial judge had entered a judgment finding that Terri Schiavo would not have wanted to live.

    This fact is of crucial importance — and it’s one often not fully appreciated by the media, who like to focus on the drama of cases going to the big, powerful appeals courts: Once a trial court enters a judgment into the record, that judgment’s findings become THE FACTS of the case, and can only be overturned if the fact finder (in this case, the judge) acted capriciously (i.e., reached a conclusion that had essentially no basis in fact).

    In this case, the trial judge simply chose to believe Michael Schiavo’s version of the facts over the Schindlers’. Since there was evidence to support his conclusion (in the form of testimony from Michael Schiavo’s siblings), it became nearly impossible for the Schindlers to overturn it. The judges who considered the case after the trial-level proceeding could make decisions only on narrow questions of law. They had no room to ask, “Hey, wait a minute, would she really want to die?” That “fact” had already been decided.

    *****

    POWERLINE

    I can’t comment on the quality of the work done at the trial level without reading the transcript, but in general, what this lawyer says is correct. The reason why appeals don’t often succeed is that all fact-finding is done in the trial court. If there is evidence to support the facts found by the judge or the jury, those facts are set in concrete from that point on. The question on appeal is only whether proper procedures were followed and the law was correctly applied. It is not hard to imagine that the Schindlers had no idea what they were getting into, and were ill-equipped, financially and otherwise, to fight a legal battle against their son-in-law. By the time they started garnering outside support, it was too late.

    Via Michelle Malkin.

    UPDATE: As several readers have noted, the statute that Congress passed last week was intended to mandate a new look at the facts, with no deference paid to what happened years ago in the Florida state court. This is what is meant by a “de novo” review. But, as we have said many times, the federal district court took an unreasonably narrow view of the act, and simply deferred, once again, to the facts that Judge Greer found long ago. This cannot be blamed on the inherent, and appropriate, principles of our judicial system.

    Posted by Hindrocket at 06:28 PM

  13. Boyd says:

    I’m hesitant to take exception to a lawyer’s comments on the law, but I have a problem with Hindrocket’s interpretation of the Act For the Relief of the Parents of Theresa Marie Schiavo.

    According to several attorneys who have commented on the Act, here’s the key directive: “[T]he District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.” [emphasis added]

    IANAL, but I’m not exactly stupid, either. It seems pretty clear to me that the Act did not require a de novo hearing on the facts in this case. In fact, this seems to me to be horrendously worded if the intent of the Act was to give the Federal District court jurisdiction to reexamine the facts in the case.

    The only court which has ruled on any facet of this case which could potentially be accused of overstepping their bounds, IMHO, would be the Florida Supreme Court regarding earlier interpretations of Florida law and its Constitution, on which Judge Greer, in part, based his findings. And I’m going to limit myself to “potentially”, because this is even further beyond my knowledge and expertise.

    Again, I’m not a lawyer, but I kin read purty good, and I have a hard time reading the Act and believing that any of the Federal courts failed to follow it.

    Oh, and Reliapundit, as you can see, it’s REALLY not all that hard to EMPHASIZE your text without resorting to ALL CAPS, as requested by the good Doctor.

  14. reliapundit: first, accept that I’m reading all your comments and taking them to heart. But I’m unconvinced. What I see is you citing several conservative bloggers who seem to believe that what they would determine in *this specific case* differs from Judge Greer’s position — and thus Greer is objectively wrong.

    If this premise is right, then your argument rests solely on the idea that many people disagree with this case and on the legal reasoning upon which it is founded. However, there were like 18 decisions in this case, that in essence all sided with Michael Schiavo as the husband. Not one judge, but multiple majorities of judges at all levels. Thus your assessment of this situation as a case of judicial tyranny still isn’t resonating with me.

    But understand that I write all this from the perspective of one that believes that this woman suffered a brutal death.. Yet also as one who is unconvinced that her death was murder, judicial activism, or frankly any of my business.

  15. Itsapundit says:

    Photoblogging Shiavo’s Death
    Heh.

  16. Mark J says:

    Your conclusion is one of reason over emotional outrage. It might not be a fun conclusion to reach, but it is the correct one. The Schindler’s attempts to get their desired results by going through the courts was doomed to fail… as the law was not on their side.

  17. For starters, your facts are not correct:

    * For whatever reason Terri Schiavo suffered cardiac arrest which caused brain damage due to a lack of oxygen.

    The conclusion was that she did not suffer a heart attack. The enzymes produced by a heart attack were absent from her blood. For some reason that has yet to be explained, there was no investigation of why she collapsed. A medical investigation found her doctor had not erred in her care (in spite of the malpractice settlement) and the evidence for bulimia was weak.

    * Michael Schiavo claimed that Terri said that she would not want to live in such a condition, and he sought legal permission to not artificially feed her.

    He claimed that seven years after her collapse, after he’d won a large malpractice settlement and after he’d asked another woman to marry him. Missing those factors, your statement is misleading.

    * The court agreed.

    A judge, already predisposed to euthanasia, ignored evidence and found Michael’s hearsay evidence adequate. It is still unclear under what circumstances the judge’s own parents died. An event which seems to have sparked his interest in the bench. Odd.

    * There are numerous appeals, all of which decide that the original decision should stand.

    Appeals of individual items of the case, never of the entire case.

    * Congress and the President believe that it is their duty to intervene in a single case, so they instruct the court to hear the case again. Congress and the President are denied.

    Many members of Congress said they would reject any legislation which changed the law, unless lengthy debate were allowed. Therefore the legislation was offered to specifically address one person. Terri didn’t have time for a lengthy debate — therefore a specific legislation was the only alternative. It is still within the powers of Congress to do so.

    * Every other appeal is denied, based upon the reasoning that the husband is the proper person to defer to in this particular case.

    No, every appeal is denied for a variety of reasons. I have yet to hear any specifically claim that they found the husband to be the proper guardian. One appeal did send the case back to Greer for review, but Greer simply ignored the same evidence, and issued the same decision. Therefore removing that avenue of appeal. Greer’s contempt for even the appeals process further made a mockery of the courts. That the courts eventually made the case about their unwillingness to have a legislature of governor tell them what to do became apparent.

    Terri Schiavo was sacrificed for the sake of the court’s arrogance. A lone state judge made a moronic decision, and no higher court wanted to allow the state or Federal legislature to gain the political upper hand.

  18. arky says:

    “A judge, already predisposed to euthanasia, ignored evidence and found Michael’s hearsay evidence adequate. It is still unclear under what circumstances the judge’s own parents died. An event which seems to have sparked his interest in the bench. Odd.”
    Posted by Danny Carlton at April 2, 2005 07:43

    How is Michael’s evidence hearsay?

    If a cashier says in court that the defendant said “Give me all the money”, and no one else heard it, is that also hearsay?

  19. reliapundit says:

    Michael;

    Your wrote:
    According to several attorneys who have commented on the Act, here’s the key directive: “[T]he District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings.” [emphasis added]

    IANAL, but I’m not exactly stupid, either. It seems pretty clear to me that the Act did not require a de novo hearing on the facts in this case. In fact, this seems to me to be horrendously worded if the intent of the Act was to give the Federal District court jurisdiction to reexamine the facts in the case.

    INCORRECT. Legally, when the word SHALL is used it means MUST.It means that there is NO CHOICE.

    Leopold;

    You wote:

    “However, there were like 18 decisions in this case, that in essence all sided with Michael Schiavo as the husband.”

    INCORRECT. They accepted that finding as fact.It went untested after the first trial.Thos is Sailer’s point. And Turley’s.

    LEOPOLD;

    You also wrote:

    “But understand that I write all this from the perspective of one that believes that this woman suffered a brutal death.. Yet also as one who is unconvinced that her death was … judicial activism,…”

    IT WAS JUDICIAL ACTIVISM. The judge could have decided that absent any written directive of Terri’s that NEITHER party had proved what Terri wanted, and that therefore the court – THE STATE -could not intervene. Intervening was judical activism.

    Many have written that Judge Greer is an ally to right-to-die forces within Florida; it was only natural that he would see things as he did, and believe he was doing the right thing.

    Scalia has often spoken out against on this aspect of judical activism; it’s when judges think their job is to find a way to make the law (and the state) improve the world. This is always going to mean that they use the law to achieve their personal aims. This is NOT blind justice.
    Greer should have begged out of the dilemma; instead he used his power to arbitrarily pick a winner. That’s judicial actvism.

    Were he not a judicial activist, Greer could have decided that the state could order nothing, and he could have ordered that Michael was not the legal guardian – because that is clearly the law.

  20. Boyd says:

    Reliapundit:

    Point 1: My name is not now, nor has it ever been, nor will it ever be, Michael.

    Point 2: You claimed my statement was incorrect because you apparently think I missed or ignored the word shall. To use your own type of response: INCORRECT. You focus on shall while ignoring the meat of the sentence, which I even highlighted for you. Hopefully, you’ll notice it when I repeat it for you again: shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo. If you think that means the District court shall re-examine the original fact-finding in the case, you are just as mistaken and misguided as the senators and congressmen who voted for the bill.

    You continue to try and throw actual hearsay, unsubstantiated claims and outright misstatements of fact as rationale to support your position. Courts don’t and can’t work that way.

  21. Starving Justice
    As millions of Americans wring their hands over the process of Terry Schiavo’s death, more important questions are left unconsidered:

  22. rossi says:

    thanks for this post
    and your honesty
    i posted one of my own
    and was shocked at the very heated responses i got
    is a very volatile all caps subject for sure
    but staying honest but respectful
    is the only way to talk about this
    i honestly thing the courts ruled correctly
    and sad as the whole story was
    the husband deserved to have his wishes and that of his now, late wifes’ respected
    this should have never become the spectacle it became
    a pawn in too many political battles

  23. RAM SUBRAMANIAN says:

    I am Indian and had high opinion about American justice system and family values. Now I am laughing at American justice system and family values. Not only me people all over the world are laughing at American justice system now and now we don’t believe the story how good the justice system is in America after seeing Terri Schiavo’s case.

    With Regards,
    Ram

  24. wayne says:

    An interesting back and forth – I’d like to add a few comments:

    1) Judge Greer determined that Mr. Schiavo had not only proved his case, but that he had proved it to the highest standard of proof available in a civil action (clear and convincing). How the judge came to that result after hearing from a man who had testified 179 degrees opposite in the malpractice hearing, who was disputed by his inlaws, and when both sided produced dueling expert witnesses seems to me to be plain error on the finding of fact.

    2) The commentors above make a good point that all subsequent reviews addressed procedural issues – whether the Schindlers had been given their day in court – not whether the facts were decided in an arbitrary manner.

    3) Compare the obstinate, stiff necked attitude of Judge Greer with the trial court judge in the Mumia al Jamal case. In the Mumia case, despite 6 eyewitnesses and a mountain of proof, the judge decided that since a life was at stake he should bend over backwards and allow a de novo review. I wish Terri Schiavo had been given as much due process as a cop killer.

  25. Sgt Fluffy says:

    The one thing that bothers me is the fact that the Judges refused to look at all of the evidence. I’m sure Judge Greer has done what the law told him, but heck, animals aren’t even allowed to be starved to death….anywhere. I also believe that the Congress and the President had every right to ask the courts to look at the case once again. In fact they have a Constitutional obligation to do so. As a citizen of the US, Terri is guaranteed the right to Life Liberty and the pursuit of Happiness. She comitted no crime, other than being useless to one person. I do not believe she was murdered in Nazi Deathcamp fashion, she was callously tossed aside and forced to die because one man wanted to get on with his life. I do believe that his Lawyer put him up to it and convinced him it was the right thing to do. Felos to me has rung in a new age of serial killers in America. In his own book he described meeting a woman and when he looked into her eyes that they screamed let me die ( If not that its close) either way, he felt she screamed at him to help her die. He was present if I’m not mistaken at her time of death and the whole time up until she died described her as “beautiful” and “peacceful”as she lay dying. Thats just friggin creepy. Hey preys upon the week and the helpless, he just preys upon them….legally. Dr Kevorkian started it, he is refining it. Think about that.

    Sgt Fluffy

  26. wavemaker says:

    Leopold — here’s something that hasn’t been said (in this thread anyway).

    Following Congress’ enactment of Terri’s law, Terri supporters were incensed that Judge Whittemore did not immediately order the feeding tube re-inserted while the facts of the case were renewed do novo. He declined to do so because the Schindlers were unable to satisfy him that they had a likelihood of success on the merits — he did find that they had satisfied the other three prongs of the test for issuing injunctive relief. This determination effectively would render the “trial on the merits” that supports wanted moot, as Terri would not survive long enough.

    The 11th Circuit Court’s first review of that decision is instructive in the way that it analyzes the legislative history of Terri’s law. Despite Tom Delay’s histrionic accusation that Whittemore had ignored the clear will of Congress, the Circuit Court was careful to analyze the amendment process on this important point, and cited a floor exchange between Senator Frist and Senator Levin in which Sen. Frist confirmed his understanding that the law would not require the district court to enter an injunction:

    LEVIN: Section 5 of the original version…stated that the Federal court “shall” issue a stay of the state court proceedings…The majority leader and other sponsors accepted my suggestion that the word “shall”…be changed to “may.” The version of the bill we are now considering strikes section 5 altogether…The absence of any stated provision in the new bill simply means that Congress relies on current law. Under current law, a judge may decide whether or not a stay is appropriate. Does the majority leader share my understanding of the bill?

    FRIST: I share the understanding of the Senator from Michigan…Nothing in the current bill…mandates a stay…

    On that basis, Levin did not object to the unanimous consent agrement under which the bill was allowed to reach the Senate floor at all.

    So, Terri’s supporters in Congress got the best that they could get in their political negotiations, and it wasn’t good enough, because liberal Democrats (like Levin) held enough cards to prevent Congress from ordering a federal court what to do.

    Then, in their final review, the 11th Circuit’s Judge Birch (a Bush 41 appointee) opined that the law was unconstitutional on its face, and two Clinton appointees dissented, opining that Congress could indeed have ordered the federal judge to issue a stay.

    I see extraordinary irony in that.

    And all said without any caps.
    [the only time I recall seeing caps used to prolificly was when I read mail in Senator Brooke’s office from a lady who claimed aliens had implanted radio transmitters in her fillings]

  27. notherbob2 says:

    Thank you, Boyd, for pricking reliapundit’s balloon. Reasoning backwards from one’s strongly-desired conclusion usually leads one to overlook and mis-state facts and put forth poorly-reasoned conclusions.

  28. Kelly says:

    Judge Greer did not visit Terri once, throughout this whole ordeal. He hands her life over to a man that has failed to be true to his vows- hmm I think adulty is against the law in FL? He wojuld not allow her therapy, antibiotics, nor could she have her teeth brushed. I mean you can only see so much evil here before you start to wonder. This Judge failed to allow test results in the court and the fact that she could say MA MA. I think that Micheal Shiavo is no different then Scott Peterson. Where are the checks and balances in our court system?