Patterico's Pontifications


The Mistake That May Cost a Life

Filed under: Schiavo — Patterico @ 7:17 am

Here you can read Judge Greer’s order explaining why he found “clear and convincing evidence” that Terri Schiavo would want to be starved and dehydrated to death. The finding of “clear and convincing evidence” was based in part on a mistake by the judge.

Greer explains in the order why he rejected testimony from Diane Meyer, who corroborated testimony from Terri’s parents that Terri had said Karen Ann Quinlan should be allowed to live. Greer wrote:

A witness [Meyer] called by Respondents testified to similar conversations with Terri Schiavo but stated that they occurred during the summer of 1982. While that witness appeared believable at the offset [sic], the court noted two quotes from the discussion between she [sic] and Terri Schiavo which raise serious questions about the time frame. Both quotes are in the present tense and upon cross-examination, the witness did not alter them. The first quote involved a bad joke and used the verb “is”. [Patterico notes: the joke in question was: “What is the state vegetable of New Jersey?” Answer: Karen Ann Quinlan.] The second quote involved the response from Terri Schiavo which used the word “are”. The court is mystified as to how those present tense verbs would have been used some six years after the death of Karen Ann Quinlin [sic].

In other words, although this witness originally seemed credible, the judge decided that she was not credible largely because he believed that Karen Ann Quinlan had already died in 1982 — while the witness had Terri Schiavo saying Karen Ann Quinlan was alive. But Karen Ann Quinlan died in 1985, not 1976 as Judge Greer appears to have believed.

Based largely on this mistake in dates, Greer rejected the testimony of Meyer in favor of that of Michael Schiavo, his brother, and his sister-in-law, who apparently testified that Schiavo had said she wouldn’t want to be “hooked to a machine” (is a feeding tube a “machine”?).

It’s hard to admit you’re wrong, and when this was pointed out to Judge Greer five years later, he wrote that it made no difference to his credibility analysis when Quinlan had died. As I read the language quoted above, it made a big difference to him. Greer just didn’t want to admit it.

36 Responses to “The Mistake That May Cost a Life”

  1. […] 17;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 o […]

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  2. […] ” by Judge Greer, and pointed to the judge’s clear error (mentioned on my blog here) in rejecting Diane Meyer’s testimony largely on the basis of a […]

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  3. […] 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 proce […]

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  4. FWIW, the judge said in 2000 that he hadn’t given much credibility to Meyer’s testimony, and not just because of the is/was issue.

    steve sturm (e37e4c)

  5. FWIW, Patterico already said that in his entry, and pointed out why the statement itself lacks credibility. Did you even bother to read the whole entry before commenting on it?

    Xrlq (e2795d)

  6. The order is linked in the post for anyone who wants to read it. The other supposed reason was that she remembered things better at trial than she had in her deposition. I don’t see (and the judge didn’t explain) why this is more significant than the Schiavos not coming forward with their information sooner than they did. Improved memory at trial and a failure to come forward earlier are both factors to take into account.

    Read in context, it was the date discrepancy that really made an impression on the judge. And he was just plain wrong about it.

    Patterico (08c813)

  7. The end is near
    So a federal judge denied the Schindlers’ appeal to reinsert the feeding tube into Terri. Even if the 11th Circuit grants the TRO, which is doubtful, the odds of Terri surviving have become remote. Four days without food or water…

    Physics Geek (1483fa)

  8. FWIW, Xrlq, your sarcasm is noted.

    Yes, I bothered to read Patterico’s post and the linked documents, and before commenting. I, not being a team player, simply have a different interpretation as to what the judge wrote back in 2000. To me, he clearly didn’t believe Meyer, and not just because of the date issue.

    As such, I disagree with Patterico’s assertion that the date issue was ‘largely’ responsible for the judge’s decision to discount Meyer’s testimony. The judge doesn’t use that word himself (at least not on page 5 on which he discusses Meyer’s testimony). It seems to me, both from the 2000 and the 2005 rulings, that the judge had other reasons – of which he seemingly only hints at by writing in 2000 of her ‘improved memory’ – for not taking Meyer’s testimony at face value.

    Of course, none of what I say matters to you, does it?

    steve sturm (e37e4c)

  9. FWIW, your original comment read as though you thought you were telling Patterico something he didn’t already know, rather than repeating a point he had already made, but which you considered to be more reliable because … well, just because. I don’t see how anyone who didn’t already share your view would be persuaded to adopt it after reading the first comment. The second, maybe, if it hadn’t ended on such a whiny note. For the record, I judge ideas on their own merits, not according to who espouses them. I have a lot more respect for you personally than I do for, say, Sunshine, but that doesn’t make you any less wrong, or her any less right, on this particular issue.

    Xrlq (6c76c4)

  10. Although I confess that I’m not up to speed on all of the issues in this case, I have just completed a review of the order opinion and do not for life of me understand how this evidence meets the clear and convincing standard that is apparently required in this juridiction. Am I missing something? How on earth can such evidence be clear and convincing? It’s hard to see how it can meet the regular standard that we see in most civil courts.

    Ben M. Rose (221809)

  11. ” But Karen Ann Quinlan died in 1985, not 1976 as Judge Greer appears to have believed.”

    IIRC, what happened in 76 was that her life support was turned off.

    actus (e8ffe9)

  12. Hey, as I tell (or is it ask?) my wife, listen to what I say, not the terrible way I say it…

    steve sturm (a27d61)

  13. IIRC, what happened in 76 was that her life support was turned off.

    Okay. Nice to know. Has nothing to do with any point I’m making, but nice to know.

    Patterico (756436)

  14. “Okay. Nice to know. Has nothing to do with any point I’m making, but nice to know. ”

    Meaning thats probably the source of any confusion anyone might be having. She lived on without her respirator, and probably out of the headlines.

    actus (e8ffe9)

  15. Does this mean the judge was right to base his decision about a witness’s credibility in large part upon his mistaken belief as to when Quinlan died — by placing so much emphasis on the verb tense Ms. Meyer used in her testimony?

    If not, then who cares?

    Patterico (756436)

  16. Ben Rose,

    Exactly. That’s what has so many of us bothered.

    Patterico (756436)

  17. “Does this mean the judge was right to base his decision about a witness’s credibility in large part upon his mistaken belief as to when Quinlan died – by placing so much emphasis on the verb tense Ms. Meyer used in her testimony?”

    I don’t think so. I just think its pretty interesting and probably helps to explain what is going on.

    actus (e8ffe9)

  18. “How? ”

    Because it gives us some idea of where the confusion came from. Don’t make it any less confusing. But given that it is a mistake that cost a life, its interesting to know more about how it came about.

    actus (e8ffe9)

  19. Actus, she might have lived out of the headlines, but she was in them again when she died- years later than the Judge assumed.

    I’m also curious about reruns- wasn’t there a movie about Karen Anne’s story, and couldn’t it have been seen on television at some point after when her machines were unplugged?

    DeputyHeadmistress (e71725)

  20. In this case, the judge is serving the function a jury usually functions in a criminal or civil trial. So — would a civil judgment or a conviction be overturned in the event of a similar mistake in fact? That’s really a question for the lawyers out there. My own gut says no.

    Appalled Moderate (a0723d)

  21. “In this case, the judge is serving the function a jury usually functions in a criminal or civil trial”

    Lots of criminal and civil trials have a judge as a fact finder rather than a jury.

    actus (ebc508)

  22. It’s allowed in a criminal trial only if the defendant consents.

    Patterico (756436)

  23. Actually, the same is true for a civil trial . . . but the criminal analogy is more pertinent.

    Patterico (756436)

  24. But I’m sure Michael Schiavo would say that Terri would want to have a judge decide the case rather than a jury . . .

    Patterico (756436)

  25. Guardianship proceedings stem from court of equity proceedings in common law, which I think were always tried before judges.

    sj (a3bf18)

  26. A trial by jury would have been helpful. Not only would a jury have likely concluded she didn’t want to die, if the O.J., Blake and Avila I juries are any indication, they wouldn’t even have figured out that Michael Schiavo wants her to die!

    Xrlq (e2795d)

  27. This situation is so FUBAR. What is in this judge’s drinking water anyway? Basing a witness’s credibility on verb tense? Has he been out in public and heard colloquial American English? It would be different if there were a direct question about the timing of the joke versus the status of Quinlan, but I don’t see that. So, will defendants and prosecutors need to employ gramarians to determine what a witness said? I thought that was the point of questioning in the first place. If the witness gives some bit of testimony that is ambiguous or unintelligible, then ask them a follow-up question.

    Yes, yes, I know that there were other reasons for which Judge Greer cited for rejected this witness’s testimony, but then why does he need to bolster it with such a ridiculous argument? He might as well have said that he couldn’t trust her because she spells her name m-e-y-e-r, but he knows it should be spelled m-e-i-e-r.

    kbiel (6cd987)

  28. No kidding! I mean, I hear this, and think to myself…

    OK, never mind what I was about to say. It doesn’t have any credibility, as I just got done saying “I hear this, and think” when I clearly meant “I heard this, and thought.”

    Xrlq (6c76c4)

  29. I think this semantic debate has little to do with the issue at hand.

    Patterico (756436)

  30. I think this semantic debate has little to do with the issue at hand.

    Which is exactly the issue at hand.

    The Apologist (f3473c)

  31. No. You guys are discussing a different issue from the one I am discussing. I am saying, take it as meaningful what tense people use in conversation. the judge was just wrong.

    Patterico (756436)

  32. It’s hard to believe. Back in the 70s being kept alive artificially was thought of as being hooked up to artificial respirators. Since all the hoopla about Quinlan occurred and she still held on for years after, feeding tubes are now an artificial means of keeping someone alive. Ahh! What a Brave, New World we live in! Kind of scares me.

    Nancy Maloney (dcbedf)

  33. How could all the the appeals courts ignore the 800 pound Gorilla:
    the Greer Equation
    Food and Water = Artificial Life Support

    In the court order Judge Greer goes into the Florida Supreme Courts 3 prong test. Prong 1

    1. The surrogate must be satisfied that the patient executed any document knowingly, willingly, and without undue influence and that the evidence of the patient’s oral declaration is reliable.

    So he gets to skip the “document” altogether? The order clearly states “AND” not document OR … oral statement. What’s worse is the oral statements here are heresay from others about what she said after watching TV and TV movies. Judge Greer takes this and extrapolates it to

    “The court does find that Terri Schaivo did make statements which are creditable and reliable with regard to the situation at hand.” Does any rational person think that Terri thought in advance that means death by thirst, the situation at hand?

    Patterico, thanks for posting the court order link . Reading this has convinced me that appellate judges must not read what comes before them and depend heavily on their staff to feed them summaries and positions in advance. With their loads it might be understandable but this was life, and as of today is now death. Willful murderers get more consideration.

    Paul Petkoff (f442f0)

  34. […] nder purported to be “clear and convincing” evidence is enough. That he later explained away his false Perry Mason moment with Diane Meyer, or relied on […]

    damnum absque injuria » Being a Judge Means Never Having to Say You’re Sorry (38c04c)

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