It's not that surprising. The more "liberal" members of court tend to favor as much flexibility as possibility allowing family members to do this even in the absence of "clear and convincing" evidence of the person's wishes.
And for the "conservatives," "states' rights" trump "due process" and other considerations.
We're basically screwed on both ends of the ideological spectrum.
(apologies for any overstatements - It's been a long couple of weeks and I'm pretty fried)
Posts: 4344 | Registered: Mar 2003
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posted
I'm not sure what SCOTUS could have done here, since the Florida SC was essentially ruling on the constitutionality of a law under the Florida Constitution. SCOTUS can only find laws incompatible with the U.S. Constitution.
There are possible U.S. constitutional equal protection claims that could be made to defend Schiavo. I don't know if anyone has launched any of these attacks on the Florida law authorizing the killing.
posted
You know -- when I worked at a nursing home, there were many people came through there who were totally bed-ridden, and had to be fed by hand little bites at a time -- sometimes you had to even help them swallow by massaging their throat.
How is this different? I mean, shouldn't the same rules apply to Terry S. that apply to these elderly patients that we treat so carefully? They both have a right to live, even if it means taking a little extra effort to help them get the food in...
No one would ever think about doing this to a nursing home patient "Oh, just quit feeding grandma altogether if she can't feed herself."
quote:The Florida law in this case was preventing the killing, not authorizing it. Or are you referring to a different law?
I'm referring not to the law that the Florida court overturned on Florida constitutionality grounds that would have preventing the killing, but on the Flordia law under which the original Florida court decision authorizing the killing was based.
Farmgirl, I think it's being treated as a question of evidence, legally. The court found that she wanted to die, based on her husband and other people's testimony. In other words, she has the right to request cessation of treatment. In the absence of her ability to do so, the court is taking her husband's word that this is what she wanted done. It's not technically his decision, but his duty to convey her wishes that are controlling.
I think it's a mighty low standard for a life and death decision, and there's an equal protection case to be made, I think.
quote:No one would ever think about doing this to a nursing home patient "Oh, just quit feeding grandma altogether if she can't feed herself."
Actually, those kinds of statements are made. It was suggested in the case of my grandfather.
I can state, with peace about it, that he was fed up until pneumonia claimed his life, but there were some family members who, under the doctor's recommendations, felt that perhaps not feeing him would be an okay thing to do.
Posts: 14428 | Registered: Aug 2001
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posted
Huh, I hadn't heard much about this. It does sound like a case where prudence would dictate keeping the woman alive. Brain damage != brain death.
Posts: 4600 | Registered: Mar 2000
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quote: In other words, she has the right to request cessation of treatment. In the absence of her ability to do so, the court is taking her husband's word that this is what she wanted done.
Not only that, these were comments allegedly made in casual conversation. The only ones to step forward who say she made statements like these were the husband and his relatives.
And there was no hint of this until after he won a malpractice award, in which he was claiming he needed funds to take care of her for the rest of her life. Obviously, it would kind of mess up a malpractice case if the jury knew you were going to withdraw a feeding tube - at least in terms of what they'd be willing to award. Posts: 4344 | Registered: Mar 2003
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quote:Not only that, these were comments allegedly made in casual conversation. The only ones to step forward who say she made statements like these were the husband and his relatives.
Yes. My thought is that without some kind of formality indicating true consideration, such statements should not be given evidentiary weight.
Posts: 26071 | Registered: Oct 2003
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posted
I have a friend from high school who was in a wreck and they said he was brain dead. Turned out he wasn’t. Looked like he would be immobile for the rest of his life. He’s been rehabbed and finished college. He’s really limited on movement and speech, but he gets around. There’s always hope. And with the way research is going it could be tomorrow that they find a cure or treatment for these kinds of injuries.
Posts: 2845 | Registered: Oct 2003
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You don't know what might happen to you without warning, so if there's any question at all about how your comatose body should be treated, what funeral rites you want (or don't), what should happen to your kids and your house and your money and your everything, get it on paper and make it official.
Posts: 7790 | Registered: Aug 2000
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posted
As distasteful as this whole situation is, I do get a bit tired of people demonizing her husband. Every account I've read of him in the paper comes off very sympathetic, unless it was based on an interview with his wife's parents. He spent a lot of time and energy on her behalf and, I think, sincerely believes that his wife would not have wanted to live in this condition.
Read the abstract of the case chronology here, please, before just assuming that this guy is after the money.
Heck, he waited 8 years before asking the COURT to appoint someone to help mediate and make a decision.
The judge's statements PRAISE him and his dedication to his wife.
You may look at all that malpractice money and think "oh, he want's to go spend it on his new girlfriend" but I think it's worth at least looking at what he's been doing all these years and not just take Terri's parent's word for it.
They're locked in a bitter legal battle and they are not necessarily being fair minded when it comes to their adversary in this.
NOTE: I don't have an axe to grind here. I just think that Michael has been painted with a very broad brush, at times, on this Forum. And based on the facts (and court opinions) I've read over the years, he probably doesn't deserve it.
Whichever side of the issue one is on, I think it's important to remember that people might hold the opposite opinion and NOT necessarily be bad people.
Posts: 22497 | Registered: Sep 2000
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posted
I don't think he wants to spend the money on his new girlfriend, I think he wants to move on with his life. That sounds all fine and dandy and perfectly sympathetic, but when he's willing to put moving on with his life above what's actually best for his current wife that is not justified behavior.
Posts: 3446 | Registered: Jul 2002
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quote:actually best for his current wife that is not justified behavior.
Surely you're not claiming to know so much about this case that you can assert this with confidence.
Here's an interesting recent event:
quote:March 29, 2004 Nursing home workers discover 4 “fresh puncture wounds” on one arm and a fifth wound on the other arm; the workers state that a hypodermic needle appears to have caused the wounds. Attendants discovered the wounds shortly after the Schindlers visited Terri Schiavo for 45 minutes. Toxicology reports indicate that no substance was injected into Terri Schiavo.
These are the people that accused Michael of abusing Terri and causing the heart attack that lead to her present condition.
Of course, there's no proof, but but I think her poor parents are desperate for some sort of miracle. And even when they get what they hoped for in terms of state laws, independent guardian ad litem, etc., there's still some sad realities that everyone is facing.
Actually, if you look at the settlement amounts, it would not surprise me to find out that every dime of the malpractice award money has already been spent.
I really don't think this guy is what some are making him out to be.
Posts: 22497 | Registered: Sep 2000
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posted
Bob, there are three major problems I see with the case:
1) The standard is clear and convincing; I think it should be reasonable doubt. A significant difference. Why? Because if Terri is truly brain dead, then she suffers nothing from living. If she isn't, then her parents are right. The risk of a wrong decision hold significant harm to the patient in only one case.
2) The judge has not heard all the evidence - the new evidence, whatever that was, was rejected as being untimely. The decision does not take this evidence into account. I oppose this in general in criminal cases, and I oppose it here.
3) This is most important: I believe there is a deep-ingrained prejudice against people in Terri's condition. It is so unbelievable to this judge that Terri would wish to remain alive that the evidence to the contrary is given greater weight. You see this deep-seated assumption fairly consistently throughout our society.
Now I know (or assume) your post wasn't directed at me, since I have only questioned the quality of the evidence. But the site you present brushes over some very important details.
Argument over Michael's motives is misplaced by both sides. The system is plain broke, and needs to be fixed.
posted
Dag...I was responding to a general bashing of Michael, not anyone in particular.
I don't disagree with you on the particulars of the case. And frankly, if Michael is wanting to move on with his life, I think he should step aside as her guardian. He's got a conflict of interest there even without considering the money (which I still bet is nearly gone). His conflict is precisely that he wants to move on.
Anyway, I also agree that there is a bias in this country in that people simply can't conceive that someone would want to remain alive after suffering the kind of dibilitating damage that would result in brain "death" or whatever the proper term is.
I personally think that Terri's parents should be allowed to act as guardians, with strict supervision. My concern is not that they wouldn't want to keep her alive, but that they might harm her in misguided attempts (see needle poke incident suspicion) to "improve" her condition.
I don't really understand all of Judge Greer's decisions, except that I sense a bit of growing exasperation with the Schindlers. I suspect only part of it stems from his own attitudes about quality of life. I suspect the other part is that these folks and their experts are sounding more and more strident as time goes on. They are probably grasping at straws and, I suspect, not really availing themselves of the kinds of experts that a court would want to listen to. They've been "caught" presenting somewhat biased testimony (edited videos of Terri "reacting" for example) that have been later judged by a panel examining a longer video to be essentially random.
All that is by the way.
We should keep her alive because we have no truly unbiased, credible knowledge that she would wish otherwise.
Why our laws are not built to recognize that is a mystery to me. Seems like it should be a common sense thing.
Posts: 22497 | Registered: Sep 2000
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quote:I don't really understand all of Judge Greer's decisions, except that I sense a bit of growing exasperation with the Schindlers. I suspect only part of it stems from his own attitudes about quality of life. I suspect the other part is that these folks and their experts are sounding more and more strident as time goes on.
You see the same thing in death penalty cases. A lawyer falling asleep at trial aside, you really do see kitchen-sink briefs in death penalty cases. There's been a series of controversies amongst anti-death penlty activists that some cases shouldn't be advanced, or some arguments not advanced in some cases, because it makes those claims less credible when advanced legitimately. It's a clear conflict to make decisions for your client that way - iterative effects may not generally be considered. But, it's also considered bad to advance claims with no legal or factual basis. Very sticky, ethically.
In both situations, the activists see a common sense premise being ignored at the expense of justice and react in less than an ideal manner.
posted
You know, I think the Schindlers and Michael Schiavo at this point simply despise each other and, in part, we're seeing their loathing play out in the courts.
They've failed at mediation so many times, it's just horrible to contemplate. Of course, now, it's gone beyond that to bald-faced accusations.
RE: death penalty -- it's an interesting quandry. I don't see how a lawyer, knowing his client to be guilty, can even function as an advocate in those situations. It takes an ability I don't think I'd ever possess. But having decided that this is the life for them, I guess they really do have an obligation to pull out all the stops and try every gambit, no matter how cynical or far fetched.
Posts: 22497 | Registered: Sep 2000
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posted
MichalSchiavo has just turned down a million dollarsheld in a trust account overseen by GloriaAllred's law firm to turn over custody to the Schindlers. "Other such offers, including one for $10 million, had already been made, and rejected by Michael Schiavo"
posted
He was closer to her than anyone else, and he's obviously not interested in the money. He cares for her, and knows what her wishes were, why go against them?
Posts: 21898 | Registered: Nov 2004
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posted
The offer was offensive? See, that sort of statement makes it difficult for me to feel sympathetic towards Mr. Schiavo.
Also, if it was so important for him to carry out his wife's wishes, why did he not do so for 8 years after the accident? In particular, in the 3 years during which malpractice suits were being pursued?
Posts: 2010 | Registered: Apr 2003
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They are trying to pay him to give up what he sees as his responsibility. I would be extremely insulted that someone thinks I'm acting dishonorably, or that I could be bought. And I'm sure he feels the same way.
As far as why not in the past. This has been ongoing for some time. And from what I've read she was fine after her first couple incidents, she had good brain activity then, but doesn't know, and he thinks it's time.
Posts: 21898 | Registered: Nov 2004
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quote:That's exactly what the three-branched government is supposed to avoid. If the Legislature doesn't like a court decision, they need to amend the Constitution.
I didn't see this last time around. This isn't quite true. Most judicial decisions interpret statutes. These can be "overturned" by the legislature/executive at whim, although they can't change already decided cases. The evidentiary issues related to proof that Schiavo would wish to be starved to death can easily be changed by statute.
The decision of the Florida Supreme court was about the constitutionality of writing a law intended only to affect a single case. The time limits on the law made this clear, and were cited in the decision.
It's very possible a new law, with a new standard of proof, with general application, could be passed and change the outcome in this case. I don't know enough about res judicata in Florida law to know if this would pass Florida constitutional muster or not.
posted
It means that once an issue has been resolved by final judgment and exhaustion of appeal, it can't be relitigated.
Example: If you sue me for running into your parked car, and I win, you can't reopen the case if you get more evidence. It also means that if you won and were awarded $1000, and the legislature later passed a law saying "no one who damages a parked car may be sued for damages," I couldn't get out of paying you the $1000, even though you couldn't win that case now.
It's a very technical issue, and there are ways around it, but it was the main issue in the last ruling by the Florida Supreme Court.
posted
One reason I've been working 7 days a week since early January is the Million $ Baby campaign. Another one is the situation with Terri Schiavo, which is really just the visible tip of a very ugly iceberg.
I haven't posted much about it on Hatrack, but here's links to stuff on our site that gives you some information on some of the developments in the Schiavo case, and our own efforts in trying to help save her life and also look at the larger picture, which will remain whether Terri Schiavo lives or dies:
Press Release on Recent "Order of Execution" for Terri Schiavo (We're not being overly sensationalist here - the latest order by Judge Greer actually orders removal of the tube providing food and water, rather than allowing the guardian to order the removal.)
Disability Groups Support Habeas Corpus Review Act (Bills introduced in the U.S. House and Senate would provide for federal habeas corpus review of state court rulings in situations similar to Terri Schiavo's. Significant list of disability organizations endorsing the legislation.)
posted
One more thing - here's a link to a letter sent to the Florida ACLU, which gives a history of the situation with Terri Schiavo and lays out the disability rights perspective:
posted
The last two items seem so obviously right to me I have trouble understanding why they're not already in effect.
By the way, Lyrhawn, one of the ways around res judicata is what's called a "collateral attack," where someone files an action claiming a previous judgment is invalid. The burden of proof usually switches to the moving party. Habeas corpus is the classic means of filing a collateral attack on criminal convictions. If the legislation passes, it would be used to allow collateral attacks on decisions authorizing removal of feeding in certain cases.
Remember how I said U.S. constitutional equal protection claims were possible? This would be a vehicle to get them heard.
There's a concept called "hearsay." Hearsay is an out-of-court statement offered to prove the matter asserted. All the evidence about what Schiavo wanted is hearsay. Although it's admissible in some cases, it is generally looked on with suspicion. Schiavo's hearsay would not be admissible against a criminal defendant except in limited circumstances. But here it's admissible in a hearing to determine if she should be starved to death.
posted
Wouldn't legislating a collateral attack have reprecussions throughout Florida's legal system?
I mean, if they allow for a law that makes that sort of attack allowed, could be it be done specifically for cases like this one, and others having to do with the wishes of people in similar medical conditions?
I would think that if it were made and passed, it could be easily used by anyone seeking to get around Res Judicata.
I don't think it's a good idea though. It makes court cases irrelevant and takes the power away from the lower courts and local courts if every case with an unloved resolution ends up being overturned somewhere else. What's to stop them from continually being overturned in court after court?
Posts: 21898 | Registered: Nov 2004
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posted
The fact that it takes an act of the legislature and agreement of the governor.
Such a law would still apply to extremely few cases. By general applicability, I mean not limited to exactly one case.
Here's the question that keeps getting missed, I think. The standard is "Clear and Convincing Evidence." Stephen outlined some of the weaknesses of the evidence above. The only reason this evidence is considered clear and convincing is the inborn assumption of a lot of people that Schiavo is "better off dead." Think about it - the trier of fact's assessment of her quality of life is likely the deciding factor here. And that's atrocious.
posted
The only copy of Greer's order I could find is the .pdf version linked on our press release. I only have acrobat reader, and can't copy and paste from the text. But here are some retyped bits that sound an awful lot like a "hanging judge" who is sick of having an execution being put off by appeals:
quote:Five years have passed since the issuance of the February 2000 Order authorizing the removal of Theresa Schiavo's nutrition and hydration and there appears to be no finality in sight to this process. The Court, therefore, is no longer comfortable in continuing to grant stays pending appeal of Orders denying Respondents' various motions and petitions. The process does not work when the trial court finds a motion to be without merit but then stays the effect of such denial for months pending appellate review. Also, the court is no longer comfortable granting stays simply upon the filing of new motions and petitions since there will always be "new" issues that can be plead.
quote:The Court is persuaded that no further hearing need be required but that a date and time certain should be established so that last rites and other similar matters can be addressed in an orderly manner.
quote:It is further ORDERED AND ADJUDGED that absent a stay from the appellate courts, the guardian, MICHAEL SCHIAVO, shall cause the removal of nutrition and hydration of the ward, THERESA SCHIAVO, at 1:00 p.m. on Friday, March 18, 2005.
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