Patterico's Pontifications

3/25/2005

What the Schiavo Case Is About

Filed under: Schiavo — Patterico @ 6:52 am



Here is one way of summing up the Schiavo case.

There is a group of people in the country who think Terri Schiavo should be taken off her feeding tube. They see no value in her life, and they wouldn’t want to live that way. They have a certain outlook on life.

There is also a significant group of people in the country who think Terri Schiavo should be allowed to live. They may have many reasons for this, including religion and distrust of doctors. Whatever the reason, they believe strongly that the feeding tube should stay. They have a very different outlook on life from the first group.

As far as I am concerned, the issue is whether Terri Schiavo herself, when she was able to make such decisions, was the type of person who fell into the first group, or the second.

If she was the first type of person, it would be terrible to force her to stay alive under these circumstances.

If she was the second type, it would be terrible to starve and dehydrate her to death.

And if we just don’t know, there cannot be clear and convincing evidence of her wish to die, and she should be kept alive.

The Florida courts found that Terri Schiavo would want to die. I am not so sure. Her friend Diane Meyer quoted Terri Schiavo as saying: “Where there’s life, there’s hope.” Her testimony was discounted by a judge primarily for a reason that was factually incorrect.

I have seen other friends of Terri Schiavo’s on television saying that they had heard her say things similar to that reported by Diane Meyer. While they never heard her talk about end-of-life issues specifically, they say that her basic attitude on life was: “Where there’s life, there’s hope.”

If she really was a person like that, she should not be forced to die.

That is one of the biggest reasons that I am disturbed by this case.

63 Responses to “What the Schiavo Case Is About”

  1. I think you’re missing out that there is a huge number of people who think that this, including teasing out terri’s wishes, should be up to the family. And that the courts are the venue where the family argument has been resolved.

    Its these people who are probably the majority of democrats and republicans who think it was inappropriate for congress to get involved.

    actus (e137d7)

  2. Well said Actus.

    ThreeSheets (79d1c8)

  3. Actus, the whole controversey is over the fact that her blood relatives strongly dispute Michael Schiavo’s assertions about Terri’s wishes! If it were truly up to the family, as you say, then, why give the husband — whose loyalties to his wife are highly suspect, IMO, the right to decide? How can anyone know for certain that he has the best intentions towards Terri when he’s obviously moved on with his life?

    It’s ironic that Terri ended up with a feeding tube at her husband’s insistence — if she’d received the rehabilitative care her parents wished her to, she may well have regained the ability to swallow. We’ll never know, all because of Michael’s decision. Now that the tube has been removed by court order, the Schindlers are not even allowed to try to feed their daughter/sister by alternate means.

    Saying that the matter has been settled by the courts doesn’t mean the just, humane and correct decision has been made. There is no resolution here — only a “might makes right” finality from the all-too-powerful judicial branch. That’s scary…and tragic.

    Ann (f52e4f)

  4. “Actus, the whole controversey is over the fact that her blood relatives strongly dispute Michael Schiavo’s assertions about Terri’s wishes!”

    I know. And that family dispute has been litigated in a court. Several, actually. Over years.

    actus (e137d7)

  5. And we all know courts never get factual issues wrong, do they. That’s why liberals never, ever argue against the death penalty on the basis that some jury might convict an innocent man.

    Xrlq (ffb240)

  6. So….applying your several-courts-over-several-years “logic”, in this country, an African American might still be counted as less than a whole person, and women wouldn’t have the right to vote. I’m not convinced.

    Ann (f52e4f)

  7. Ann, I appreciate the spirit but I don’t think it’s fair to blame either of those issues on the courts. Both slavery and male-only suffrage were contemplated, albeit not required, by the original Constitution, as written. Both were fixed not by court decisions but by legitimate constitutional amendments.

    That said, the courts definitely made matters worse in Dred Scott v. Sandford by construing a slavery-neutral Constitution as though it were slavery-friendly, and later in Plessy v. Ferguson, by gutting the 14th Amendment with the infamous “separate but equal” rule.

    Xrlq (ffb240)

  8. “So….applying your several-courts-over-several-years “logic”, in this country, an African American might still be counted as less than a whole person, and women wouldn’t have the right to vote. I’m not convinced. ”

    I don’t think that those are arguments where Congress and the 24-7 press are stepping in to a particular family’s decision and litigation.

    “And we all know courts never get factual issues wrong, do they.”

    Of course not. But we do know there are avenues for appelate review of factual determinations. In an age of DNA tests, this gets better and better.

    We also know that there are different moral, ethical and legal issues raised by family arguments and death penalty prosecutions.

    But if you want to make an argument that the legal system has some sort of a bias against PVS people, in the same way that it has against african american death penalty defendants, lets do that.

    actus (e137d7)

  9. And if we just don’t know, there cannot be clear and convincing evidence of her wish to die, and she should be kept alive.

    Why is that? It seems to me that if the evidence is mixed, then either outcome is reasonable. One could also argue that if her wishes are unknown then some other principle governs, such as her being in a persistent vegetative state with no hope for improvement.

    And there is also some difference of opinion as to whether she’s “alive” in any meaningful sense of the word. In fact, I would argue that the meaning of life is the central divide in the public opinion in this case. There are some of us who look at the body that’s been hooked-up to a feeding tube for 15 years and say “that’s not really living” and there are others who say “well, her heart’s still beating and who knows there might be a miracle.”

    It’s sortof a glass half empty/full kinda deal.

    Richard Bennett (c5751d)

  10. OK, so maybe my own logic was weak here — I’m willing to admit that. But for all of you who are content with “the courts have spoken” results of the Schindler vs. Michael Schiavo cases, then please don’t let me find you ever whining and complaining about the Supreme Court ruling in the 2000 presidential election.

    Ann (9318ea)

  11. Richard, doctors dispute whether Terri is actually PVS or not. Schiavo has found doctors to say she is — the Schindlers have found doctors who believe she is not. What’s absolutely not in dispute is the fact that the “hope for improvement” certainly dies when Terri is denied food and water.

    Ann (9318ea)

  12. “But for all of you who are content with “the courts have spoken” results of the Schindler vs. Michael Schiavo cases, then please don’t let me find you ever whining and complaining about the Supreme Court ruling in the 2000 presidential election.”

    But here the “courts have spoken” on an issue that courts discuss all the time. The claims that were made weren’t that novel, and the law not that complicated. This is part and parcel of what we mean when we say its been “resolved”.

    Election 2000, on the other hand, was unprecedented. Please don’t misunderstand the argument as total deference to judicial pronouncements on any topic under the sun.

    actus (e137d7)

  13. No person should be dehydrated to death when they are not terminally ill. The judge here didn’t just order a feeding tube removed. He also ordered that Terri cannot receive food or water or even ice chips orally, even if she is able to swallow them. That order is murder under any definition.

    Proverbs (8ff521)

  14. I agree, Patterico. All along, I thought this was a garden-variety case, until I learned about Michael’s Schiavo’s conflicts of interest, the claims that he’s a control freak, and the big pile of money. Then I thought, well, maybe we can’t take his word for it.

    Actus, I have a question for you. Do the wishes of the incapacitated person matter? Should it be legally necessary to know what those are?

    Bostonian (a37519)

  15. “Actus, I have a question for you. Do the wishes of the incapacitated person matter? Should it be legally necessary to know what those are?”

    I said that their wishes are part of the determination.

    actus (e137d7)

  16. People who value the wishes of her spouse over those of her parents are accused of preferring death over life, in general. Michael’s rights and duties as a spouse are said to be irrelevent because he is a creep, but he has done nothing illegal. Gee, let’s inspect his porn stash to shed light on how much of a creep he is; that will prove he doesn’t care about her!

    When asking if Terri would want this, consider what this is. She would have been angry to know this pathetic video of her would be played over and over. If Terri ever did have an opinion, it was about a different situation.

    Ladainian (91b3b2)

  17. “And we all know courts never get factual issues wrong, do they.”

    Of course not. But we do know there are avenues for appelate review of factual determinations. In an age of DNA tests, this gets better and better.

    DNA evidence isn’t the only thing that has gotten better over the years. So has the medical profession’s ability to diagnose correctly, or avoid over-diagnosing, PVS. If a death row inmate comes up with new, potentially exculpatory DNA, it gets reviewed no matter how procedurally fair the original trial may have been. But if a woman was given a fuzzy CT scan and originally diagnosed as PVS by 3 of the 5 doctors who examined her, no court will order a much more accurate MRI or PET scan, let alone entertain a more recent affidavit from a Mayo Clinic neurologist who believes she is minimally conscious rather than PVS. Now all that matters is that the original trial was conducted fairly, even if Congress came and said the words “de novo” right there in the statute granting jurisdiction.

    But if you want to make an argument that the legal system has some sort of a bias against PVS people, in the same way that it has against african american death penalty defendants, lets do that.

    OK, let’s. But first, let’s dispense with both canards. The courts are not biased against blacks or PVS people. They’re biased against death as a form of punishment, and they’re biased in favor of death for just about anything else.

    Xrlq (5ffe06)

  18. Actus, their wishes are “part of” the determination.

    How much? 50%? 10%? What?

    I say: 100%.

    Bostonian (a37519)

  19. Richard, doctors dispute whether Terri is actually PVS or not. Schiavo has found doctors to say she is – the Schindlers have found doctors who believe she is not.

    Of course there’s dispute in the case, that’s why it’s been headlines recently, and that’s why it was taken to the courts. The courts looked at the opinions of the doctors one both sides and deemed that PVS was the consensus diagnosis.

    And all three of the GALs who looked at the evidence concluded that she’s in a PVS, even that Pearse fellow that Pat likes so much.

    And it’s because of the fact that there’s no meaningful dispute over the diagnosis that we get into these secondary questions about the specific wishes, the meaning of life, and the role of miracles in everyday life.

    The nature of PVS is such that you’re always going to be able to hire an opinion that goes either way on it; that’s why we have courts to evaluate the claims and judge their credibility. And courts do that sort of thing pretty well, actually.

    Richard Bennett (c5751d)

  20. Richard, there is not a single person on the planet who does not already know that the courts ruled that Terri has PVS. Please do not be so boring.

    To use the word “consensus” here is to mangle it. The doctors voted 3-2.

    That is a side issue anyway. The central question is what Terri’s wishes would truly be.

    And please note that the courts required only “clear and convincing” evidence about Terri’s wishes; this is a lower standard than is needed to convict an accused criminal.

    Could it be that we reserve higher standards of evidence for people who can speak?

    Bostonian (a37519)

  21. Bostonian: “I thought this was a garden-variety case, until I learned about Michael’s Schiavo’s conflicts of interest, the claims that he’s a control freak, and the big pile of money. Then I thought, well, maybe we can’t take his word for it.”

    Just curious, how did you learn about Michael Schiavo? Was it from a disinterested party who knew him or was it from the parents in their attempt to have him removed as her guardian? I don’t know him at all, but as an attorney who handles many domestic relations cases I’m a bit suspicious of bad character information arising during court proceedings. Doesn’t mean they are false, but I do think they could be spun hard in certain directions.

    Also, was the judge who ruled in his favor (or better phrasing, that Terri Schaivo did not wish to live in such a state) aware of this “conflict of interest” evidence? If so, and assuming he was in a better position to evaluate the credibility of the witnesses before him than we commenters on a blog are, why shouldn’t hte judge be given the benefit of the doubt that he made the correct decision.

    ThreeSheets (79d1c8)

  22. “If a death row inmate comes up with new, potentially exculpatory DNA, it gets reviewed no matter how procedurally fair the original trial may have been.”

    The standard is prejudicial clear error no? I don’t know how florida civil courts handle it, but I assume its similar. And I assume that both sides have competent counsel: not a good assumption in some criminal cases.

    And doesn’t “de novo” mean no deference? It doesn’t mean they need to retry. Or hear new evidence. I can have a de novo appeal that is based on the same record as an original hearing. It just means they need give it no deference.

    “They’re biased against death as a form of punishment, and they’re biased in favor of death for just about anything else.”

    Speaking of canards.

    “I say: 100%.”

    Sure. No problem.

    actus (e137d7)

  23. Actus,

    I think you’re missing out that there is a huge number of people who think that this, including teasing out terri’s wishes, should be up to the family. And that the courts are the venue where the family argument has been resolved.

    Your comment misses my point by a mile. The question is: what type of person was Terri? Not what type of people disapprove of Congress’s decision.

    I understand the court is where the family argument has been resolved. It’s just that, based on what I know, I am not comfortable with the court’s decision. One of the most important findings of fact was based primarily on a mistaken assumption by the judge. The quality of the evidence does not appear to rise to the applicable standard — in my opinion. You differ, and that’s fine. But don’t say I missed the point.

    Richard Bennett,

    Your comments seem to be getting more civil, while losing none of their passion. That works for me. I don’t want you to take the passion out of your arguments, just the insults.

    You say:

    Why is that? It seems to me that if the evidence is mixed, then either outcome is reasonable.

    That’s not my understanding of Florida law. My understanding is that, to remove the tube, Michael Schiavo had to prove his case by clear and convincing evidence. That’s greater than a preponderance, which itself is greater than 50%. So, under Florida law, if we don’t know, then Terri Schiavo lives.

    The courts have ruled that we do know, but I think their decision was wrong. My opinion gets Terri Schiavo exactly nothing, but it remains my opinion.

    My point again is that how to treat Terri Schiavo depends upon her wishes. If she were philosophically akin to the people who decry her starvation, then she should not be starved. Plenty of people are coming forward to say she was that type of person, and at least one testified at trial and had her opinion discounted by a judge who made a factual error that weighed heavily in his credibility determination.

    I think that what I just described presents issues of real concern that should not be brushed aside, though I am confident that they will be by many on this thread.

    Patterico (08c813)

  24. ” The question is: what type of person was Terri? Not what type of people disapprove of Congress’s decision.”

    you said “there is a group of people who think . . .” And I said what a very big group of people think, that you seem to be leaving out.

    actus (e137d7)

  25. Threesheets, it could be that every single thing I’ve heard about Michael Schiavo is an abominable lie.

    The plain fact is that I would trust this verdict far more had it come from a jury and if the same standard of evidence had been required as in a death-penalty case.

    A jury can screw up too, but it’s heavily weighted towards giving undeserved people their freedom rather than the reverse. I can tolerate that kind of error; THAT is the error we should permit.

    But that’s not the process we followed.

    I am to trust Judge Greer and Michael Schiavo. And I don’t.

    Bostonian (a37519)

  26. If technology improves to the point it is able to improve upon a court order, no matter how correct the original order at the time, it is obligatory upon right thinking people to demand a more correct directive by the courts (except, of course in minor details of no consequence).
    It appears that no court has ordered an MRI scan. Why is this? Is it because an MRI is not conclusive?
    Someone tell me if an MRI has been done, and if it has not, why not.
    This seems unconscionable to me.

    Boman (b50d32)

  27. Actus,

    Are you M. Croche?

    There is a group of people who think Elvis is still alive. They are wrong. There is a group of people who think the Earth revolves around the sun. They are right.

    It doesn’t matter what a group of people think unless you can relate it to some point, that is relevant to my point.

    For all our sakes, when you post comments in the future, could you do me a favor? Ask yourself: what point is Patterico trying to make? Then ask yourself: what point am I, Actus, trying to make? Then ask yourself if the Actus point is responsive to my point in some way — and how.

    If you are responding to another commenter, follow the same procedure, trying to ascertain that commenter’s point, and making clear how your point relates to theirs.

    Then, make that clear in your comment.

    Please.

    If you follow this procedure here, I think you’ll see that your point has nothing to do with mine.

    Patterico (08c813)

  28. An MRI was done in 1990. The thalmic implants that were installed as part of the therapy that the tubists claim never happened make MRI no longer meangingful. But there’s no point in MRI’ing a patient with a flatlined EEG, as I understand it.

    But I’m not a doctor, a lawyer, or an architect.

    Richard Bennett (57f7ac)

  29. “It doesn’t matter what a group of people think unless you can relate it to some point, that is relevant to my point.”

    You talked about what it was about, and set up a dichotomy. I said what it was about to a lot of people, left out of your dichotomy. People who may or may not agree with what terri’s wishes are, but who disagree with what this case is turning into.

    actus (e137d7)

  30. Just curious, how did you learn about Michael Schiavo?

    You asked another person, but I’d like to weigh in and tell you how I learned about him. What first convinced me that there was a real problem with this case, and caused me to post about it, was learning that 3 nurses and nurses’ aides had filed affidavits saying that Michael Schiavo had said things like: “When is that bitch going to die?”

    Three different such people filed affidavits accusing Michael Schiavo of some fairly cold behavior and comments regarding his wife.

    As far as I knew (and still know), those nurses or nurses’ aides are not friends with the Schindlers. At most, they might have an axe to grind against Schiavo because he was rude to them. It seems unbelievable to me that they made up these accusations out of whole cloth.

    They have been accused of waiting too long to come to the court with this information, by the same people who appear wholly unconcerned with the failure of Michael Schiavo and his relatives to come forward earlier with what they supposedly knew.

    This is not me making the accusations. Nor is it anyone who appears to be an interested party.

    If Michael Schiavo really spoke about the things he was going to buy once Terri Schiavo died, and called her a bitch as he wished for her death, as is set forth in various of the affidavits avers, then we have a real conflict of interest.

    And the L.A. Times comes along and paints this all as vilification that is being presented at the last second.

    Patterico (08c813)

  31. You talked about what it was about, and set up a dichotomy. I said what it was about to a lot of people, left out of your dichotomy. People who may or may not agree with what terri’s wishes are, but who disagree with what this case is turning into.

    You still haven’t explained what that has to do with my point. Do you understand my point? What is my point? What was I trying to say in my post??

    Patterico (08c813)

  32. “You still haven’t explained what that has to do with my point. Do you understand my point? What is my point? What was I trying to say in my post?? ”

    What you think terri’s wishes are. what kinds of people out there are. And i added what peoples views are of terris wishes, and what we should do about that.

    actus (e137d7)

  33. Bostonian — I totally agree with your lack of trust where Michael Schiavo and Judge Greer are concerned!!

    Especially Schiavo. Many people don’t realize — and the MSM isn’t helping spread the fact — that during the ’92 malpractice suit he filed he didn’t bring up any specific details about Terri’s supposed wishes not to live if she were in a PVS. On the contrary, he’s the one who agreed to insert the feeding tube! Why would he have ever done that at all if all he’s wanted to do is honor her wishes?

    Could it be that making the “let me die” claim in ’92 might have meant Michael would have to give up the big bucks in the settlement? If you look at the timeline, it was only after he’d gotten the $$ that he suddenly became so concerned about honoring Terri’s supposed wishes. The family — Terri’s actual blood relatives — weren’t buying it…and have fought ever since to keep their daughter/sister alive.

    Ann (eea39a)

  34. Pat, you’re making a couple of big assumptions here, and I’d like to highlight one of them. The legal system likes to pretend that all questions have black and white answers, so an assertion of fact is either true or false, a defendant is either guilty or not, and so on. This is a useful fiction, but Real Life doesn’t conform to it. Not only are many things fundamentally unknowable because of our limited intellect, but some thing can’t be fixed because their nature is to be volatile.

    I submit that most people’s feelings about life in a vegetative state aren’t all that firmly nailed down. Unless the question is forced, most of us probably don’t spend a lot of time thinking about it. So it’s entirely likely that Terri Schiavo didn’t have a strong feeling one way or the other about living in a vegetative state, so the court had to determine what her opinion would have been were she to have one. That’s not so easy to declare one way or the other, and therefore not so easy to prove as having been found wrong. Maybe that’s what they did.

    As to whether the Florida courts have properly applied Florida law in this case, I’d submit that such a question can be competently decided in Florida but not elsewhere. If the judge made an error of law, well, you know how that goes.

    BTW, I just learned that Terri weighed 240 pounds at age 19, 140 when she met Mike, and 110 when her heart stopped.

    Any family that has a 240 lb. girl is doing something wrong.

    Richard Bennett (c5751d)

  35. Patterico-

    Where did they file those nurse file those affidavits? I would think they were filed as part of the legal proceedings as so availble to Judge Greer in making his decision. For whatever reason, Judge Greer found that Terri Schiavo’s wishes were to not live like this. Assuming (big if there) that he heard all the relevant facts from both sides, why the conclusion that he was wrong and so were the appellate courts for affirming his decision. Is it soley because it is a different conclusion that you would have reached?

    Similarly, I think Bostonian’s faith in the jury system is misplaced. Plenty of guilty people have been set free by juries and plenty of innocent people convicted. In Illinois former Gov. Ryan put a momratorium on the death penalty because about 13 innocent people (or more precise “not guilty”) were put on death row by juries. Those juries found sufficient evidence, beyond a reasonable doubt, to convict innocent men and sentence them to death.

    I don’t think juries are anymore infallable than judges. In fact, I think that often times Judges are in a better position to render accurate decisions because of their experience. Usually my clients take jury trials only when they know the judge is going to convict them on the facts. They want to “fool” the jury into buying what they know they can’t sell to the judge.

    In my humble opinion, there are nothing infallable about our legal system.

    ThreeSheets (79d1c8)

  36. I must admit to not following this story too closely so maybe Ann, Bostonian and Pat can enlighten me. Or really anyone who knows.

    Some of their argument rests on their lack of faith in Michael and Judge Greer. Fine. I get the point they think Michael is a shit. I’m not really in a position to know whether he is or not, but let’s say for the sake of argument he is.

    Was Judge Greer aware that Michael was tool? Was he aware of the nurses’ affidavits? Was he aware of Michael’s statements during the Med Mal case? This surely can’t be the first time in the past however many years that the parents brought this up.

    And, why the lack of faith in Judge Greer. I’ve read comments here that Michael had a conflict and was not a nice person, but what is the gripe with Judge Greer other than he ruled differently than you would have.

    Seriously, this isn’t meant to be snarky. I’m asking.

    ThreeSheets (79d1c8)

  37. The Pearse GAL report that speculated that Michael had a “potential” conflict of interest was submitted to the court before the finding was made on Terri’s wishes.

    Richard Bennett (c5751d)

  38. Richard, let’s not be too clever here. Yes, she had an MRI in 1990. No, that MRI did not form the basis of her later being diagnosed as PVS. What it found was “profound atrophy w/ very atrophic appearing cortex” and “mild white matter disease, anoxic/hpoxic injury,” which is a wee bit different from determining that her cortex is gone altogether, as the later CT scan allegedly found. Removing her thalmic implants would not be all that hard to do; it’s not as though they were doing her any good right now, anyway. Even if such removal were nearly as difficult as Felos et al. make it out to be, that would be no excuse for refusing to order a PET scan instead.

    Xrlq (ffb240)

  39. There has been a lot of acrimony between the Schindlers and Michael Schiavo for a long time. And there are so many voices with conflicting opinions. I started to look into the whole affair beginning with the original finding. Judge Greer sought to apply a law established through the case of Guardianship of Estelle M. Browning; the appeals route from which resulted in establishing three key points for a guardian to satisfy before a petition to stop treatment can be granted. It seems these 3 points and the reason why the findings in the Schiavo case have never been overturned is key to understanding this case. The details are on my site.

    Howard Larson (b51ffd)

  40. Threesheets,
    I’ve come to realize that one of the purposes of jury trials and a high standard of evidence is not just to ensure that the right thing be done.

    It is to reassure ALL OF US that the right thing is being done.

    Greer is just one guy. If there had been a jury, there would have been twelve personalities arguing ferociously with each other, calling each other ignorant pigheads, and generally thrashing the issue out by forcing everyone to think really hard and defend their positions.

    Does anyone really argue that we should do away with jury trials? NO. We have them for a very good reason: we trust them better than judges.

    ***
    As for my motives, you’ve made an assumption that I am motivated by my disagreement with the results. Sorry, no, you do not get to see what is inside my head; I could not prove it to you anyway.

    Bostonian (a37519)

  41. Richard Bennett: “So it’s entirely likely that Terri Schiavo didn’t have a strong feeling one way or the other about living in a vegetative state, so the court had to determine what her opinion would have been were she to have one.”

    Yes, I’d think that summarizes the case pretty well. WHICH WAY should the error lean? Towards killing people or towards not killing people.

    There will always be error. I want to know which error you feel is preferable.

    Bostonian (a37519)

  42. ThreeSheets, I did a google search on Greer and read about his various personal and professional connections with Schiavo’s legal team and the Woodside hospice (which has its own connections to “right to die” organizations like the Euthanasia Society of America and the Hemlock for Hospice group — gee, is it any wonder why Michael Schiavo chose that particular facility?) that make him seem anything but impartial!

    Also, if you want, you can check out the Terri Schindler-Schiavo Foundation website (terrisfight.net) for a highly detailed timeline of this whole sad saga.

    Ann (8ac289)

  43. We’ve become buried in unhelpful analysis on this case. Why are those against the tube removal pretending (a) that Mrs. Schiavo’s life in its current state would be so valuable to her, and (b) that there is a chance she will recover? I think you’d tell us she hates her her life and her doctors have already told us she will never recover. We are over-analysizing this case to the point that the analysis has little bearing on reality.

    This case has become a way for (mainly) Christians to prove their credentials to their personal Jesus. That should bother us, that kind of religious fervor entering not only public debate, but the docket box in Congress as we saw last week. This has very little to do, as I see it, with the day-to-day reality Mrs. Schiavo’s is facing.

    Richard Ames (adfcb0)

  44. Richard, let me ask you this: is it fair for us the end the life of an innocent person without knowing her wishes for a certainty?

    Should the law require proof of that person’s wishes or not?

    Bostonian (a37519)

  45. PS I am an atheist.

    Bostonian (a37519)

  46. ThreeSheets,

    Here is the judge’s order which discusses the affidavits. Here is my post where I link the affidavits he discusses. Read what he says about the affidavits, and read the affidavits themselves and see if you think he was correct to reject them on their face, without allowing the affiants to testify. Perhaps you will.

    His reasoning strikes me as the reasoning of someone who doesn’t want to believe the affidavits. For example, he assumes that, when Iyer says she called the Schindlers about Terri in violation of Michael’s orders, she told them everything that was happening. The affidavit doesn’t say that, and given the atmosphere at the facility as she describes it, she would have a motive to be circumspect, and just report on their daughter’s condition. She may have felt that doing even that was bold enough. But Greer doesn’t consider any of this — or order that the woman come testify so that such questions can be explored. He just rejects the affidavit out of hand.

    None of this will make sense to you unless you read the affidavits and his order.

    Patterico (756436)

  47. Richard, is it “unhelpful” to consider whether a person’s wishes be respected?

    Bostonian (a37519)

  48. Patterico –

    It does seem to me that Judge Greer was clearly annoyed that the parents were attempting to relitigate the same thing they had just lost and appealed throughout the system. The beginning of his ruling lays out a pretty detailed timeline concerning the trial and evidentiary hearings that they now seek to relitigate.

    His rejection seemed more based on the fact that those witnesses were available for the earlier trial but never presented and not a rejection of what they have to say. He did note that the affidavits were presented and read in court so even though the witnesses did not testify the substance was still presented.

    If one makes a claim that the parent’s lawyer was ineffective for failing to call those witnesses or that no one was aware of those witnesses that might be one thing. But, I don’t think it was unreasonable not to allow the witnesses to testify (if in fact the lawyers ever asked for them to testify and not just rely on the affidavits).

    Ann, it seems you get much of your information from the parents’ website. I doubt they include much discussion of the other point of view. Do you also read other websites that support Michael’s position? I’m also not ready to engage in conspiracy theories that Michael Schiavo questioned and researched the affliations of particular hospices to find out which one will help him kill his wife anymore than I am going to dismiss Patterico’s comments because he works as a prosecutor and some CA prosecutor just made dumb remarks about “stupid people” on the Blake jury. Likewise (although I admit that was a poor analogy but I’m trying to make dinner for my kids and don’t have too much time to think this all out), merely because a Judge has had some past dealing with lawyers doesn’t make me jump to the conclusion he/she is biased. I have personal or professional relationships with probably about 100 judges here in Cook County and it doesn’t mean they find for my clients anymore than anyone else. The nature of law practice is that those relationships will intertwine. Guilt by innuendo doesn’t do it for me. Back it up with facts. Did the Judge meet with the lawyers ex parte? What did he do that showed bias? If there was such proof of bias, why wasn’t that a basis for appeal. Why didn’t the parents ever push to have him recuse himself because of a conflict. If they did, let me know that.

    ThreeSheets (4950ea)

  49. ThreeSheets, you’re right, I’ve followed much of the story from the point of view of the parents and I admit I am biased in their favor. But the whole Judge Greer’s bias business I mentioned came from an entirely different source — easy to find with a google search. I doubt Patterico would appreciate it if I gave the link here — but if you care to, you’d be able to find/read it (and others — there are petition drives to have Greer removed from the bench) yourself when you have more time.

    Bottom line, I think Greer’s impartiality is highly suspect — you may come to a different conclusion.

    Time for soccer practice….

    Ann (6f1a83)

  50. I think this whole case has done immense damage to the Republican Party and to the credibility of those like me who associate themselves with this Administration on the issues of war and security. I’m very angry that the leadership in this country has subjected us all to an unnecessary political risk for the sake of placating a bunch of lousy zealots.

    Toby Petzold (cd28cf)

  51. Toby, do the life-and-death wishes of a person matter? If they are not known, in which direction should the law err?

    Bostonian (a37519)

  52. Bostonian, give it a rest. You don’t have a pipeline to Jesus and neither does anybody else. The law should not be designed to err on one side or the other, it should be designed to get the best answer in a reasonable amount of time.

    Many of us don’t see the case as about Terri’s wishes any more, we see it as about simply recognizing that her life, in any meaningful sense of the word, is already over and has been for a long time. Terri’s mother, bless her sainted heart, is having a hard time letting go. Terri’s husband, bless his sainted heart, is doing his best to do what’s right for her.

    And a lot of other jerk-offs are trying to hijack the issue for their personal agendas.

    I’m for pulling the tube on Terri because I’m sick the hateful, lying nonsense the tubers are making up about Michael.

    Honor the living and let the dead take care of themselves, that’s my motto.

    Thank you and goodbye.

    Richard Bennett (c5751d)

  53. Bostonian– If I left the impression her wishes are not relevant, that’s completely wrong. Her wishes are the only thing that is important. We’ve had fact finding on her wishes by the court, and review after review of how the court handled its authority and obligation.

    Just because Christians don’t like the outcome of the fact-finding process does not mean the process was faulty or the conclusion wrong. I was only saying that it is entirely plausible, to me anyway, that she would have wanted the tube pulled.

    Richard Ames (adfcb0)

  54. Bostonian, the “law” has already determined that we do know Terri’s wishes.

    The “law” you’d prefer got passed the other night in an outrageous abrogation of Federalist principles.

    And since there is an inherently moral judgement being called for in this matter, outside of the law, I would rather respect the human being that Terri Schiavo once was (and hope for her peaceful passing) than to prolong her useless and joyless life to satisfy the vanity of those whose sense of human dignity is more doctrinaire than practical.

    Toby Petzold (cd28cf)

  55. Richard and Richard, WHERE did I EVER say or imply that I had a pipeline to God?

    I am a lifelong atheist, thank you very much.

    Toby, repeat after me: the court applied a lower standard of justice here (“clear and convincing”) than it does in criminal trials. This is why it is QUITE reasonable to doubt the outcome.

    ***
    What is very clear to me is that you, Richard, and others believe a person to be truly human only if he or she has cognitive ability and can prove it. What moral authority are YOU referring to when you give in to this assumption that Terri had no use and no joy?

    Toby, you make an assumption also that I approve of Congress’s actions the other night, when in fact I have not talked about them. You wasted your breath there.

    Bostonian (04094f)

  56. But for all of you who are content with “the courts have spoken” results of the Schindler vs. Michael Schiavo cases, then please don’t let me find you ever whining and complaining about the Supreme Court ruling in the 2000 presidential election.

    I think Actus already said this, but the difference specifically focuses on jurisdictional concerns. The Supreme Court ruling in the 2000 presidential election was a violation of both federalism and separation of powers principles. Here, the attempts of Congress and the Bush Administration to obtain a different result than that achieved at the end of years of litigation are similarly violations of both principles.

    I should add that I don’t think it’s right to starve Schiavo. What should be done, though, is not to have legislative and executive branches abrogate the judiciary in one specific case; the legislature could pass laws relating to the issues of how patients on feeding tubes are handled. We don’t allow people to commit suicide in most places — even those places that have assisted suicide laws on the books don’t allow for it in all cases — so there’s nothing to say that Schiavo’s “wishes” would have to be honored even if the clear and convincing evidentiary standard were met to everyone’s satisfaction.

    Of course, new legislation requires (technically) “the consent of the people” and so it might not happen anymore than snatching the decision from the state judiciary did in this specific case.

    Finally, I think that these are actually different discussions and that failure to recognize that often has us arguing past one another. Rather than eat up fourteen pages of comment space here explaining that — which might not be appreciated — I’d simply note that further comments on this by me have been made on my blog.

    Rick (2ef12c)

  57. I’m for pulling the tube on Terri because I’m sick the hateful, lying nonsense the tubers are making up about Michael.

    Just when I thought it impossible for Bennett to outprick himself…

    Xrlq (c51d0d)

  58. Finally, I think that these are actually different discussions and that failure to recognize that often has us arguing past one another.

    I think that has been especially true in this case.

    The bottom line for me is that I question whether the courts got it right. It seems to me that most of the dissenters *assume* that the courts got it right and premise their arguments on that assumption.

    If I were to *assume* that the courts got it right, I would agree with them. But I have pointed out the reasons that I question the courts’ rulings, and I have not found the responses to my arguments on *that* point to be particularly compelling.

    Patterico (756436)

  59. I dare say that most of us who agree with the court, or at least don’t attack the court’s decision have examined it and actually, you know, concluded that it’s within the bounds of reasonableness.

    It’s insulting to say that anyone who doesn’t agree with you is ignorant, lazy, or stupid. But if I were taking a position that’s at odds with all the courts in the land, I’d probably be sliming my opponents too. But that’s a page from Randall Terry’s playbook, unworthy of a serious person.

    Richard Bennett (c5751d)

  60. I should have been more specific. What I meant was that most of the dissenters’ arguments I have seen appear to be premised on the notion that Terri Schiavo would want to die in this position. Thus, the arguments go: she should be allowed to die; Michael Schiavo is just carrying out her wishes; it is outrageous for the government to get involved; this is just an attempt to appease Christian zealots; etc. etc. etc.

    Much of that is true — *if* you believe that the courts got the issue of her wishes right. But that’s what I see as the issue. And most — most, I say, not all — of the dissenters aren’t raising compelling arguments defending the courts’ holdings regarding her wishes. They simply say: the courts have spoken and must have gotten it right (and anyway, I wouldn’t want to live like that myself) — and then move on to the sorts of arguments I have laid out above.

    In other words, I am focused on the issue of Terri Schiavo’s wishes, and I think that most of the people who think she should die are taking it for granted that the courts got it right on that issue. I don’t think so.

    That’s what I meant. Not nearly as insulting as you portray it, I don’t think.

    Didn’t you say “goodbye” above?

    Patterico (756436)

  61. Patterico,

    Since, there is varying standard of proof in the different jurisdictions, “beyond a reasonable doubt”, or “preponderance of evidence” or “clear and convincing evidence” for proof of legal insanity in a criminal case, can there therefore be flexibility for proof of Terri’s wish? Is the standard used by Judge Greer fixed by local or federal statute or case law precedent or whatever?

    Yi-Ling (3b0ea2)

  62. It’s fixed by Florida law.

    Patterico (756436)

  63. Your reply would suggest that its entirely up to each state to fix its own standard of proof in like Terri’s case if it happened within their state.

    Have all the states passed laws to fix the standard of proof?
    If yes, did all the states fix the standard also at “clear and convincing evidence”, which is mid way standard between preponderance of evidence as the lowest standard and beyond a reasonable doubt as the highest standard?

    If beyond a reasonable doubt is contended as the ideal standard for such like Terri’s case, and we urge the legislature to change the standard of proof, can we cite any prior precedent, where, the legislature has imposed the highest standard of proof in a civil case?

    From the evidentiary point of view,

    * does it necessarily mean, “beyond a reasonable doubt” can only be satisfied with “written evidence” or living will of the person?

    * does it mean that even if there is a conflict of evidence, and in the absence of written proof of Terri’s wish, the highest standard can still be applied and depending on the facts of the case, it can still yield either answer.

    * is it the norm that evidence should be discussed in the judgement, and expressions of weight attached to them?

    * if Michael’s evidence is tained by his conflict of interest, what would be the guiding rule to judge the evidence of his brother and sister in law? Would there be a presumption that he could have conspired with them, given that he did not disclose to the judge the jury the doctors and insurance companies? of Terri’s not wanting life support, which would have affected the quantum of his claim for Terri?

    * Terri’s mother gave evidence which suggests that Terri when young, wanted life support removed. Yet on appeal, Terri’s family wanted to introduce new evidence that Terri would have wanted life support. It is not clear to me, from reading the judgement, whether Terri’s family gave evidence favoring life support or just had a change of heart on appeal.

    Yi-Ling (138ca9)


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