My Position on the Courts and Terri Schiavo
Recently, someone rarely acquainted with the truth accused me of disagreeing with every lawyer in the country about the Schiavo case. Rather than debate the issue with him, I thought I’d make my position clear here.
First, as regards the initial (pre-Congressional involvement) litigation, I have expressed serious doubts regarding the soundness of the factfinding done by the probate judge — in particular on the topic of Terri Schiavo’s wishes. I have documented one specific and crucial error he made in the factfinding process. Even putting that aside, I just don’t see how the quality of the evidence presented to the probate judge rises to the level of “clear and convincing” — especially given the conflicts of interest Michael Schiavo had.
The state appellate judges simply deferred to the probate judge on that issue, as appellate courts generally do.
As regards the law passed by Congress, I believe that the federal courts were wrong not to re-insert the tube while they considered a constitutional argument that I believe to be strong. I have explained at length my reasons that I believe the courts got it wrong, here. I am joined in this view by two judges from the 11th Circuit, including a highly respected judge named Gerald Tjoflat. I may also be joined in that view by several Supreme Court Justices, since the Court’s decision not to grant certiorari indicates nothing about the Justices’ view of the merits.
My views on the Schiavo case are well-documented. Any honest person who disagrees with my legal analysis of the federal courts’ rulings is welcome to weigh in on the relevant thread (linked above), which has garnered almost 200 comments so far — not one of which has raised a convincing argument that my analysis is wrong. I’m still waiting . . .
For what it is worth, please allow me to summarize as well as I believe we are in virtual agreement:
Had Greer not overreached, I would be in agreement that clear and convincing is an adequate constitutional standard for the state to step aside while a next of kin elects to execise a written directive of the patient to forego surgically assisted feeding.
However, unforced assisted feeding by mouth cannot be interpreted to be in compliance with a previous directive unless society is totally unable to provide for this service.
This whole situation was created IMO by a series of errors by Greer. Those errors went uncorrected by the appellate courts as you have pointed out.
Thanks for the use of your blog as a thought-assist.
Paul Deignan (96d51a) — 4/24/2005 @ 1:03 pmPatterico, aren’t people often criminally convicted (under the higher no reasonable doubt standard) on less convincing evidence? For example Skakel for the Moxley murder. Would you reverse a criminal conviction based on three eye witness identifications opposed by two alibi witnesses?
[No. Of course not. But if the primary reason that the jury rejected the alibi wits were later shown to be a flat-out mistake, a court might well vacate the verdict. For example, the Rampart case, in which the jury convicted police officers due to a mistake about the meaning of “force likely to cause great bodily injury.” The judge vacated the verdict, and her decision was upheld on appeal. — Patterico]
James B. Shearer (fc887e) — 4/24/2005 @ 5:08 pmJames Shearer writes
Of course they are.
Yes. That’s the entire point, is it not? People should not be convicted, sentenced and put to death on evidence as questionable as that in the Schiavo case. Not for committing a crime, and certainly not for no better reason that someone else thinks they wouldn’t want to live like that.
At a minimum the courts should be as certain as possible that the evidence in the case has been properly vetted and has not been subjected to bias.
antimedia (2590f7) — 4/24/2005 @ 8:04 pmOn the subject of analogy to review in criminal cases, note that a major innovation in due process claims in the last ten years is the “actual innocence” movement. When DNA forensics revealed a significant percentage of rape convicts to be innocent, defense attorneys were horrified by the fact that only procedural flaws, not errant findings of fact, were grounds for review. I believe that most of the progress that has been made on securing review in these cases has been legislative, not judicial, but this has nevertheless been perhaps the most innovative area for due process claims in recent years.
This raises another line of possible due process claims in the Schiavo case. Shouldn’t proof of “actual consciousness” provide a rebuttal to an errant finding that Terri was in a persistent vegetative state, just as proof of actual innocence is now allowed to counter an errant finding if guilt? This is what Congress wanted to see for itself when it called Terri as a witness: can she demonstrate consciousness? Can she, for instance, answer the question of whether she wants to live or not? More scientifically (in line with the DNA analogy), Terri was never given a PET scan, which can map brain activity. In a case where whether she was in a persistent vegetative state or not was crucial (because she did not leave a living will) shouldn’t giving a PET scan have been a matter of due process, just as the access to DNA forensics is now coming to be considered a matter of due process?
The results of these tests (the Congress test and the PET scan test) would provide anecdotal evidence of the quality of Florida’s fact finding, which as Mr. Patterico noted in his masterful earlier post, is very much a matter for federal review (according to the Court’s ruling in Jackson v. Virginia (1979).
I put up a post in March on the “actual innocence” analogy, if anyone wants to read more. I also have a post on substantive-due-process vs. procedural-due-process, which Patterico touches on, and a post calling for the prosecution of Judge Greer for ignoring Terri’s congressional subpoena. My arguments are not as lawyerly as Patterico’s, but I think his citations of case law (particularly Jackson v. Virginia) bear out my intuitions. Great work Patterico. You nailed it.
Alec Rawls (f5dd56) — 4/24/2005 @ 10:39 pmPatterico, according to the account I found the appeals court ruled (in the Rampart case) that while the evidence presented was legally sufficient for conviction the trial judge did not abuse her discretion in ordering a new trial. The implication is that if the judge had let the verdict stand this would have been ok also.
Also didn’t Greer (unlike the Rampart case jury) have the opportunity to change his original decision after his mistake was discovered?
James B. Shearer (fc887e) — 4/25/2005 @ 3:11 pmDepends on whether you think the mistake was fatal or inconsequential. Patterico interprets the mistake as fatal and thus views Greer could have changed his views. But Greer viewed the mistake was not important at all, and that even with the mistake the factual findings remain the same. You would have to get into the mistake and determine whose view you subscribe. I have looked into it and subscribe to Greer’s view. Its your call 🙂
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