Michael Schiavo to Get His Wish
Michael Schiavo has finally received an answer to his heartfelt question: “When is that bitch gonna die?” The answer is: soon. As expected, the Florida Supreme Court has declared unconstitutional the law passed to save the life of Terri Schindler-Schiavo. Absent an appeal to the United States Supreme Court, which would almost certainly fail in any event, Michael Schiavo will soon achieve his longstanding desire to see his wife dead.
I have expressed my thoughts about this case extensively on this site. The best distillation of my feelings can be found in this op-ed that I wrote for the California Republic web site. In that piece, I make the case that the procedural protections afforded by our judicial system were insufficient — and indeed are less stringent than the protections that we afford to the worst murderers.
Nothing in today’s decision changes my mind.
The Court today assumed away the fundamental question in the case: did Ms. Schiavo truly express a wish to die under these circumstances? If we assume that she did, as the Court does today, then everything the Court says in its opinion makes perfect sense. Of course the Florida Legislature and Governor may not retroactively interfere with citizens’ vested constitutional rights to decide for themselves whether they will live or die.
But whether Ms. Schiavo truly expressed such a wish is the very matter at issue. There is a genuine dispute between Mr. Schiavo and Ms. Schindler-Schiavo’s parents regarding what her wishes would have been. If the Court were to recognize that there is good reason to question the previous judgments of the courts, the high-flown language about Ms. Schindler-Schiavo’s vested right to die might ring a bit hollow.
Yet, despite compelling arguments that Mr. Schiavo has some insurmountable conflicts of interest, both of a financial and emotional nature, the Florida Supreme Court simply assumes that there is no longer any valid dispute. Why? Because the dispute has been finally resolved by the courts. And, we are told, neither the legislative nor the executive branch has the right to alter a final judgment of the courts.
Yet, as I point out in my op-ed piece, governors have the right to pardon criminals whose convictions were duly secured in the court system, even if those convictions have been upheld by courts at all levels. Similarly, a state governor has the right to commute a death sentence that has been affirmed by the highest court in the land.
Moreover, such powers do not violate the separation of powers; to the contrary, they are considered an integral part of our system of checks and balances.
What is different about Terri’s Law? Why is Governor Bush not entitled to commute Terri Schindler-Schiavo’s death sentence?
Nowhere in today’s decision does the Florida Supreme Court explain why Terri’s law is not analogous to the pardon power. This failure is strange, because both Terri’s parents and Governor Bush analogized to the pardon power in their briefs to the Florida Supreme Court arguing that the law is valid.
Indeed, as I argue in my op-ed, the need for a pardon power here is arguably greater. An innocent person who may not have expressed a wish to die deserves at least the level of procedural protections that we afford to someone who has been duly convicted of murder and sentenced to death. Yet Terri Schindler-Schiavo’s death sentence arises out of a judicial process in which the facts were found by a single probate judge applying a standard applicable to many products liability cases. This process inspires far less confidence than a judgment rendered by a unanimous jury of twelve citizens, according to the stringent “beyond a reasonable doubt” standard.
I grant you that a law such as this should be used sparingly. The judgments of the courts should not be lightly overturned. That is true in the pardon/commutation context as well.
But this is an extreme case, as you know if you have followed it closely. If you aren’t familiar with it, read my op-ed. If you want to know more, browse these posts on my site about the Schiavo controversy. The more you learn, the more you’ll come to see that a terrible miscarriage of justice happened today in the Florida Supreme Court.
The following ideas for help Terri Schiavo were suggested by a participant named Lydia on the WorldMagBlog web site:
Idea: There is some doubt about the circumstances under which she originally collapsed. Examination of X-rays has been interpreted as indicating injury. Bush should direct the Atty. Gen’l. to declare her a material witness in a case to investigate whether she was the victim of assault and battery. Then, pursuant to this declaration and to protect her as a possible future witness, he should have her removed to a different health care facility where she will be taught to eat by mouth.
The entire fiction that she needs a feeding tube is perpetuated by her husband because it is the only way he can legally have her killed. The illogic goes, “If she will choke if fed by mouth, and if I say she wouldn’t want to be fed by tube, she can’t be fed at all and must be left to die of dehydration.” Once she is off the tube she will be safe.
Another idea: Start a drive for a change of venue in future litigation regarding her custody, which her parents will continue to mount. The reason things have gone this far is that the judge for the geographical region where her husband is careful to keep her is pretty clearly in collusion with the husband’s lawyer. (Really.) I don’t know the legal process for such a change of venue, but I would think the executive branch in Florida could influence it in some way.
Another idea: Immediately begin impeachment proceedings against the judge who has again and again ignored the law and the facts of the case. (E.g. Adultery is against Florida law and should long ago have resulted in the removal of the husband as her legal guardian. E.g. Florida law defines “abuse” of handicapped people to include the refusal to give food and water.)
Comment by Ed Jordan — 9/23/2004 @ 7:02 pm
Her husband is Scott Peterson without the successful (for him) ending. I hope she haunts him and his new wife til death
Comment by Frank G — 9/23/2004 @ 7:24 pm
Ideas for Saving Terri Schiavo
The Florida Supreme Court has struck down the law that has kept Terri Schiavo alive. According to the AP,
The ruling gives the governor 10 days to
Trackback by MediaCulpa — 9/23/2004 @ 7:58 pm
Terri’s Law Struck Down
Terri’s Law allowed Florida Governor Jeb Bush to step in and stop the murder of a brain-damaged woman when a lower court held that her husband’s rigths were greater than hers. The Florida Supreme Court has now struck down Terri’s…
Trackback by Calblog — 9/23/2004 @ 8:37 pm
Florida Judges Uphold Right to Kill
To the disgust of many but the surprise of none, the Florida Supreme “Court” has granted Michael Schiavo’s request to starve his ex-wife to death. Equally predictably, the American Criminal Liberties Union is crowing and citing ACLU-FL’s Legal Dir…
Trackback by damnum absque injuria — 9/24/2004 @ 1:03 am
As a physician, I cannot comprehend the Florida Supreme Court’s decision to allow Terri Schiavo to be starved and dehydrated until she dies. As I said in my CodeBlueBlog today:
Many have adduced as evidence supporting starvation, that in her mental state, Ms. Schiavo could not possibly suffer physically or mentally from this act.
Then she cannot possibly suffer physically or mentally from its absence.
Will we, as a civilization, be able to make the same claim?
CBB MD
Comment by CodeBluBlogMD — 9/24/2004 @ 8:08 am
Q: What is the difference between Terri’s Law and the power to grant clemency?
A1: The governor’s right to grant clemency is contained in Section 8 of the Fla Constitution. Terri’s law is not in the Fla Constitution. Of course, the Constitution is difficult to amend, thus protecting people like Terri from the vagaries of state politics.
A2: The pardoned criminal is seeking to avoid death, whereas it was Terri’s wish that she be allowed to die (according to a court finding based on exhaustive factual findings and a legal standard of clear and convincing evidence).
Comment by Ron C — 9/24/2004 @ 8:09 am
A3: To those who consider Michael Schiavo to be an “unimpeachable” source who should be trusted absolutely with respect to a conversation that was “seared, seared” in his memory, the fact remains that the pardoned killer did a hell of a lot more to communicate to society that it was appropriate to kill him.
A4: Even that had to be proved beyond a reasonable doubt. “Clear and convincing” evidence based on the say-so of one witness, with no other evidence to corroborate it, would not have been enough.
A5: Even the unpardoned killer could not have been killed by starvation, which would clearly be cruel and unusual punishment. For Terri, it’s a punishment all right, just not for a crime. Rather’ it’s a punishment for the non-crime of lacking the foresight to leave a written directive stating “please don’t starve me to death even if my adulterous husband claims that’s what I want.” I guess it’s OK to mete out cruel and unusual punishment, as long as the punishment was not for a crime, and therefore isn’t technically considered a punishment.
Comment by Xrlq — 9/24/2004 @ 8:57 am
Ron C is comfortable having life and death decisions made by a single probate judge, who rejected the opinion of a guardian ad litem, based on hearsay testimony of parties with a conflict of interest, according to the same civil burden of proof that is used to determine whether McDonalds must pay punitive damages to someone who spilled coffee on their lap.
I am not comfortable with that. I am comfortable with a Governor having a one-time power to stay the effect of such a decision to allow further review of the case.
For a summary of what has been left out of the controversy, see my latest post.
Comment by Patterico — 9/24/2004 @ 9:06 am