Patterico's Pontifications


Hannity: Coaching? Or Just Saying to Stick to What You Saw?

Filed under: Schiavo — Patterico @ 10:26 pm

About a month ago I read an item on L.A. Observed regarding a tape Harry Shearer had played on his radio show, ostensibly of Sean Hannity coaching a couple of Terri Schiavo’s nurses:

‘Investigative comedian’

That’s the term used for KCRW’s Harry Shearer by Lloyd Grove in today’s New York Daily News. He says that on last weekend’s “Le Show,” Shearer played an audio tape of Fox News talking head Sean Hannity coaching two nurses what to say during the Terri Schiavo controversy. It was off the air, between commercials on his evening Fox show, and Hannity is heard instructing the nurses how to respond to questions from the show’s more liberal co-host, Alan Colmes.

I had missed the show where Shearer had played this tape, but when I read this item I thought: interesting. I’ll have to check that out when it becomes available on the Web. My expectation was that I would link it, and criticize Hannity (and possibly the nurses) for trying to pull the wool over the public’s eyes.

I saw the video today in a Shearer post on that Huffington blog. (The post is titled We Coach, You Decide. Cute.) As it turns out, I was surprised to see how little it seemed like “coaching.” The closest thing to “coaching” that Hannity does is to advise the nurses: “Say: ‘I’m here to tell you what I saw. I’m not going to be distracted by silliness.'” He also tells the nurses where to look when they’re speaking.

That’s it? Isn’t that what the audience wants to know: what the nurses saw? With limited air time, isn’t that just good advice?

Clearly, Hannity is a partisan trying to make the nurses sound persuasive; nobody who has watched him or who saw this segment could possibly think otherwise. But other than that, I don’t think the tape establishes anything.

But don’t take my word for it. Watch it yourself.


Michael Schiavo: Still a Lowlife

Filed under: Government,Schiavo,Scum — Patterico @ 10:04 pm

Michael Schiavo’s true self is made painfully apparent once again:

MIAMI (AP) — The family of a severely brain-damaged woman who died after her feeding tube was removed in March said Friday they still have not been told where her remains will be laid to rest.

Terri Schiavo’s parents and siblings, who waged a lengthy court battle over her end-of-life wishes, said on Fox’s “Hannity & Colmes” show that her husband is keeping her remains from them.

“They were supposed to tell us, and we still have not heard from … Michael Schiavo where Terri’s been laid,” said Terri Schiavo’s brother, Bobby Schindler. “Our family expected this. Michael has disobeyed court orders throughout the ordeal and continues to do so today.”


UPDATE: For those who defend Schiavo: he is violating a court order by this behavior. Details in this earlier post of mine.


My Position on the Courts and Terri Schiavo

Filed under: Government,Schiavo — Patterico @ 12:03 pm

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 . . .


Schiavo Abuse Investigation Documents

Filed under: Schiavo — Patterico @ 2:45 pm

DJ Drummond at Polipundit has links to court records relating to the DCF investigation of claims that Michael Schiavo abused Terri Schiavo. I have not been able to read the reports myself, but DJ has a summary. (Hat tip to Xrlq.)


A Legal Argument Why the Federal Courts Should Have Granted the Schiavo Injunction

Filed under: Court Decisions,Schiavo — Patterico @ 4:32 pm

The Terri Schiavo case is over, but it continues to have importance to the looming battle over judicial confirmations. For example, in a commentary titled Latest Assault on Judges Threatens Rule of Law, University of Chicago law professor Cass Sunstein argued:

The problem, as the legal battle over Terri Schiavo demonstrated, is that whatever their politics, judges are unlikely to ignore the law. In that case, the law clearly did not authorize federal judges to order Schiavo’s feeding tube reinserted — but some Republicans are outraged that the judges did not have it reinserted anyway.

Sunstein is wrong. The law clearly did authorize federal judges to order Schiavo’s feeding tube reinserted. The courts got it wrong.

The courts’ fundamental error was brushing aside the Schindlers’ meritorious argument that the Due Process Clause of the Constitution requires a showing of clear and convincing evidence for the withdrawal of a feeding tube under these circumstances.

If the Constitution requires a clear and convincing evidence standard, that changes everything. It means that the question whether that standard was met is a federal issue rather than a purely state law issue. And that means that the federal courts were required to take a fresh look at whether the evidence was sufficient under that standard.

I do not believe this means a new evidentiary hearing was required. But, at a minimum, such a determination would require the federal district court to comb through a mountain of transcripts from various proceedings — something Judge Whittemore could not possibly have done in the few hours that he allowed himself to decide the Schindlers’ final claims.

The extended entry discusses the Schindlers’ claim that the federal Constitution requires “clear and convincing evidence” of the patient’s wishes in a case like that of Terri Schiavo. It analyzes how that claim was cavalierly dismissed by the federal courts. It also explains why this was, indisputably, a solid claim that justified the reinsertion of the feeding tube while the merits of the claim were reviewed.

[NOTE: This post is about a legal issue. I welcome any comments about the soundness of my arguments. But any comments that revisit tired arguments about the facts of the Schiavo case will be unceremoniously deleted. You have been warned.]


Schiavo Original Documents and Testimony

Filed under: Schiavo — Patterico @ 11:32 am

I have discovered a fascinating resource for those still interested in the facts of the Terri Schiavo case. It is a website that contains much original material from the case, including documents and transcripts of testimony that I haven’t seen anywhere else.

There are excerpts of Michael Schiavo’s testimony at the trial over her wishes, here. The excerpts contain all of his direct testimony, and the beginning of the cross-examination. Here are some of the excerpts I found interesting:



Still More on State Action

Filed under: Constitutional Law,Schiavo — Patterico @ 11:15 pm

For those who are interested, the state action discussion that began at Xrlq’s blog is continuing here.

(Let’s see how long it takes Richard Bennett to try to throw the discussion off.)


Here we go again

Filed under: General,Schiavo — See Dubya @ 3:44 am

We’re picking up speed down a slippery slope, and I fear we burned out the brakes trying to save Terri Schiavo from destruction. From Fr. Rob Johansen, emphasis mine:

The similarities of Mae Margourik’s situation and Terri Schiavo’s are obvious: Once again we have a family divided over what care should be given to a seriously ill relative. And once again, we have a judge playing God with someone’s life. But what is different, and in a sense worse, is that Mae is being deprived of food and water in clear contravention of her own stated wishes, and at the request of someone who should have no standing under Georgia law.

God help us.

(h/t: the Dawn Patrol.)

UPDATE: The granddaughter says “She has glaucoma and now this heart problem, and who would want to live with disabilities like these?”

Well, I for one would prefer it to the alternative, and apparently, judging by her CLEARLY WRITTEN LIVING WILL expressing a desire NOT TO BE TAKEN OFF LIFE SUPPORT, so would Mae Magourik.

UPDATE FROM PATTERICO: Tom Maguire has an interesting angle on this.


Schiavo Memo

Filed under: Schiavo — Patterico @ 8:16 am

Power Line has the scoop on the Schiavo “talking points memo.” It turns out that the memo — which was billed as a memo created by and distributed to top GOP officials — was drafted by a staffer to a freshman senator. In a real boneheaded move, that senator (Mel Martinez) gave it to Tom Harkin.

Mike Allen, the reporter who disseminated so much misleading information about the memos, apparently believes he is off the hook. He e-mailed the AP story about the identity of the memo’s author to John Hinderaker, as if that story somehow vindicated him. As Hinderaker makes clear, it doesn’t. Allen is not off the hook.

And Mel Martinez seems to think he’s off the hook as well, because he accepted the resignation of the memo’s author. Mel, Mel, Mel. Staffers write stupid things now and then. That doesn’t bother us. What bothers us is when you distribute it to others.


More on State Action

Filed under: Schiavo — Patterico @ 9:01 am

Xrlq has a thread with a discussion of the state action requirement as it relates to the Schiavo case. It’s not a thread for recycling well-worn policy arguments, but it is a place to weigh in on interesting constitutional issues. Con law experts should pay a visit.

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