Patterico's Pontifications



Filed under: General — Patterico @ 6:07 am

TAKING A STEP BACK: THOUGHTS ON THE SCHIAVO CASE: Much of the blogging I have seen on the Terri Schiavo controversy is driven by day-to-day events. This is understandable, given the fast-paced nature of the story. (For instance, just yesterday we learned here that Michael Schiavo’s lawyers (as expected) filed court papers challenging the constitutionality of “Terri’s Bill.”) But I think it might be worthwhile at this point to take a step back and look at some of the issues raised by the controversy, without getting bogged down in whatever happened today.

The Schiavo case is remarkable for the depth of feeling it inspires in people on both sides of the issue. I have received more letters on this topic than any other topic I have discussed since this blog began. I have had a regular reader tell me he is boycotting my site because he disagrees so violently with my opinions. Many others have written me to support my point of view, to share their thoughts, and to encourage me to continue the discussion.

The emotions people feel are understandable. Although there are far more serious issues in the world, this one has a deeply personal aspect to it. Many people have had a relative or friend in a similar position, and have had to make difficult decisions about life-or-death issues — often based on limited information regarding what their friend or loved one would really want.

Even if you haven’t been through such an experience, it is very easy to imagine yourself in the position of someone in the case. We wonder what we would do if we were the Schindlers, or Mr. Schiavo. Worst of all, we can’t help but imagine what it would be like to be Ms. Schiavo herself.

Unfortunately, as often happens when people feel strongly about an issue, many are allowing their feelings to cloud their judgment. People (mostly from the political left) have been heard making all sorts of unreasonable arguments, and discarding compelling evidence on the flimsiest basis. For example, I had a debate with a woman on a leftist internet site in which she discounted three affidavits (filed by a nurse and two nurses’ aides) because they were all notarized by the same person. When you start making objections based upon such trivia, we are in OJ-land.

To my knowledge, Terri Schiavo never killed anyone — but many on the left advocate treating her worse than they would treat a convicted murderer. Early on in this debate I noted the irony that, at the same time a court had ordered Terri Schiavo to die in a manner (forced starvation and dehydration) that appears cruel, our United States Supreme Court had granted a stay to a man convicted of murdering two people, sparing him from a lethal injection — because he has collapsed veins.

This is not the only way in which Ms. Schiavo has received less consideration than an accused or convicted murderer. Criminal defendants are constitutionally entitled to have their cases decided by a jury — bringing to bear the collective experience and wisdom of a group of diverse people — rather than by a single judge. Criminal defendants are also entitled to have their guilt decided according to the “reasonable doubt” standard — whereas Ms. Schiavo was condemned to death based on findings made according to the less stringent “clear and convincing evidence” legal standard.

If nothing else, this case suggests that the procedural protections available to criminal defendants should be available to people who can’t speak for themselves, whose very life or death hinges upon the trial court’s decision. Is not Terri Schiavo’s life worth at least as much as that of someone charged with a deliberate, cold-blooded murder? Why, then, do we not accord her at least the same protections under the law that we would accord to the suspected murderer?

We should also recognize that, even with all of these protections, the courts are fallible. Courts get things wrong, every day. Judges and jurors are people like you and me. They have preconceptions and biases. They make mistakes. You think the O.J. jury got it right?? You think O.J. deserved custody of his children??

If you have any doubts about the fallibility of trial courts, just look at the dozens of provably innocent people who have been on Death Row in this country. I support the death penalty in principle, but if you think that no innocent people make it onto Death Row, you just haven’t been paying attention.

Yet the left continually argues that “19 judges” have ruled for Mr. Schiavo. This argument ignores the fact that the only judge whose opinion really mattered was the trial judge, who made the factual findings in this case. After that, appellate judges deferred to the trial judge’s findings. For better or worse, our legal system depends to an incredible extent upon such findings of fact, and it is well-nigh impossible to obtain a reversal based on an argument that the factfinder got the facts wrong.

By the way, the deference that appellate courts show to factual findings made in the trial court is the main reason that innocent people on Death Row are rarely freed through the orderly workings of the justice system. Far too often, a defendant’s innocence is revealed not by layers of judicial review, but rather by the efforts of activists — who usually have to fight the judicial system to obtain a defendant’s release, even when the defendant’s innocence is clear.

Consistent with their other bizarre positions, leftists also purport to be outraged at the idea that the Florida Legislature gave the Governor the power to stop the starvation of Ms. Schiavo. If she had murdered someone, these same leftists would likely praise a commutation of the death sentence — even though such an order is (like Gov. Bush’s order in this case) an executive order that directly overturns a valid judgment rendered in a court of competent jurisdiction. But Gov. Bush’s order was in essence a stay of execution for Ms. Schiavo. So what made it so outrageous — the fact that she hadn’t murdered someone before she was condemned to die?

The media, which often operates in effect as an arm of the political left, has been equally complicit in making silly arguments, distorting the facts, and generally behaving in an irrational and irresponsible fashion. As I have documented on this site, a one-sided view of the story has been presented in virtually all forms of available media, including news articles and editorials in major newspapers, articles in national magazines, stories on the radio, and TV talk-shows.

But here’s the thing. Even after you strip away the silly arguments discussed above, society is still faced with a very difficult decision. We all have to admit that we don’t really know what Ms. Schiavo would want in this situation. We can make the best judgment we can, based on the facts we know. But there will inevitably be facts we don’t know, and will probably never know.

So what to do? I don’t have all the answers. Here’s what I do know:

Absent a clear written directive, issues of life and death should be resolved by a jury, not a judge, applying a stringent evidentiary standard. If this standard can be met by hearsay testimony from people with glaring conflicts of interest, the standard is too low.

I am not inclined to put blind faith in doctors, any more than I would in the courts. There are too many credible stories of people who were written off by doctors as vegetables and lived to tell the tale. If you are rabidly in favor of killing Terri Schiavo, I would like to introduce you to Rus Cooper-Dowda and Stephen Drake. Tell them that we need to trust the doctors. Tell them that when a doctor diagnoses someone as a “vegetable” with no chance of recovery, the doctor must be right.

Finally, I will agree with Mr. Schiavo and his attorney on one point: this case highlights the need to reduce to writing your wishes regarding such important decisions.

At the risk of seeming flippant, I think it also highlights the need to be careful whom you marry.

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