An Autopsy Won't End It - (John Leo on the hypocrisy of Michael Schaivo and George Felos)

Just when it seemed that every liberal commentator on the Terri Schiavo case was starting to sound like Barney Frank, the great Joan Didion published a long and remarkable article on the case in the quite far left New York Review of Books of June 9. Frank, of course, took the occasion of last week's Schiavo autopsy results as yet another opportunity to denounce Republicans as "this fanatical party willing to impose its own views on people."

For those of you still somehow unaware, "imposing their views" is a semiofficial Democratic meme or code phrase meaning "religious people who vote their moral views and disagree with us." Didion, on the other hand, cut through all the rhetoric about imposing views and said the struggle to spare Schiavo's life was "essentially a civil rights intervention." This is a phrase of great clarity, particularly since Democrats have a long track record of protecting civil rights and Republicans don't. Behind the grotesque media circus, the two parties were essentially switching roles. In the first round of public opinion--the polls--the GOP took a beating. But in the long run, the American people tend to rally behind civil rights, and the party that fights to uphold them is likely to prevail.

On the "rational" or "secular" side of the dispute, Didion wrote, there was "very little acknowledgment that there could be large numbers of people, not all of whom could be categorized as 'fundamentalists' or 'evangelicals,' who were genuinely troubled by the ramifications of viewing a life as inadequate and so deciding to end it." Amen. There was also little admission that this was a "merciful euthanasia" controversy posing as a "right to die" case. Many of us understood, as the autopsy has now shown, that Schiavo was severely damaged, but a national psychodrama built around the alleged need to end a life without clear consent is likely to induce anxieties in all but the most dedicated right-to-die adherents.

"The ethical argument" Didion did not conclude that ending Schiavo's life was a wrongful act, but she seemed to be leaning that way. She wrote: "What might have seemed a central argument in this case--the ethical argument, the argument about whether, when it comes to life and death, any of us can justifiably claim the ability or the right to judge the value of any other being's life--remained largely unexpressed, mentioned, when at all, only to be dismissed."

That issue was slurred and muffled by the media and by shrewd, though completely misleading, right-to-die arguments that distracted us from the core issue of consent. George Felos, the attorney of Terri Schiavo's husband, Michael, told Larry King, "Quality of life is one of those tricky things because it's a very personal and individual decision. I don't think any of us have the right to make a judgment about quality of life for another."

Here Felos piously got away with adopting a deadly argument against his own position by presenting it as somehow bolstering his case. This can happen only when the media are totally incurious or already committed to your side. Michael Schiavo made a somewhat similar eye-popping argument to King: "I think that every person in this country should be scared. The government is going to trample all over your private and personal matters. It's outrageous that these people that we elect are not letting you have your civil liberties to choose what you want when you die." Americans were indeed scared that they might one day be in Terri Schiavo's predicament.

But Michael was speaking as though Terri Schiavo's wishes in the matter were clear and Republicans were determined to trample them anyway. Yet her wishes, as Didion says, were "essentially unconfirmable" and based on bits of hearsay reported by people whose interests were not obviously her own--Michael Schiavo and two of his relatives.

One hearsay comment--"no tubes for me" --came while Terri Schiavo was watching television. "Imagine it," Didion wrote. "You are in your early 20s. You are watching a movie, say on Lifetime, in which someone has a feeding tube. You pick up the empty chip bowl. 'No tubes for me,' you say as you get up to fill it. What are the chances you have given this even a passing thought?" According to studies cited last year in the Hastings Center Report, Didion reminds us, almost a third of written directives, after periods as short as two years, no longer reflect the wishes of those who made them. And here nothing was written down at all.

The autopsy confirms the extraordinary damage to Schiavo and discredits those who tried to depict the husband as a wife-beater. But the autopsy has nothing to say about the core moral issue: Do people with profound disabilities no longer have a right to live? That issue is still on the table.

Actually, the judge claimed that he had "clear and convincing" evidence as to Terri's wishes, thereby meeting the State of Florida standard.

Affirmed by the Second District Court of Appeals in an almost de-novo review of the case and the FSC in an appeal.

The 2nd District in their ruling wrote...

The testimony in this case establishes that Theresa was very young and very healthy when this tragedy struck. Like many young people without children, she had not prepared a will, much less a living will. She had been raised in the Catholic faith, but did not regularly attend mass or have a religious advisor who could assist the court in weighing her religious attitudes about life-support methods. Her statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her.

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.

Schiavo Thoughts:

Hearsay
Yesterday, I saw on the news a protester carrying a sign that asked, "SINCE WHEN IS HEARSAY ADMISSIBLE?" I wonder how often protests involve rules of evidence.

I also heard hosts on news shows of three different networks express bewilderment at how the trial court could have relied on hearsay to determine Terri's wishes.

If you've read the trial court's original decision regarding Terri's wishes, then you know the court considered five persons' testimony of what Terri supposedly said to them about what she wanted. That's the supposedly inadmissible hearsay. Some say it shouldn't have been admitted. Others say it can't amount to clear and convincing evidence. "It's not in writing!" they say, as if writings aren't hearsay, or that a writing would eliminate any controversy. (More on that oft-repeated fallacy in a later post.)

I've addressed this issue countless times in emails, but the email flood has gotten too large in the last couple days to respond to each one, and this issue continues to bother people. It doesn't help that the media haven't figured it out. I wish they would. They're supposed to be doing a public service.

So I'll do what I can to clear this up on the blog. Someone tell the news folks.

Courts generally employ rules of evidence during trials, and a well known rule of evidence holds that hearsay is admissible to prove something only in limited circumstances. Under Florida law, there are about 30 or so such circumstances. You could say that one of them applies here, such as the exception for statements describing the declarant's then-existing state of mind. You could also say that Terri's statements were not hearsay, since they were offered to prove she said those words, not to prove that what she said was true. Hearsay is an out of court assertion offered to prove the truth of the matter asserted.

Those are evidentiary reasons why the testimony was admissible. There's a better reason. A constitutional reason. Terri had, and every Florida citizen has, a constitutional right to privacy that includes the right to decide that certain medical treatments should not be used to prolong her life. The Florida Supreme Court has clearly decided that this right can be exercised through written and oral statements.

In the landmark 1990 case In re Browning, Florida's high court explained that a surrogate attempting to determine what the ward would do can rely on the ward's written or oral statements. The court said:
A surrogate must take great care in exercising the patient's right of privacy, and must be able to support that decision with clear and convincing evidence. Before exercising the incompetent's right to forego treatment, the surrogate must satisfy the following conditions:

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 declarations is reliable;

2. The surrogate must be assured that the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient; and

3. The surrogate must take care to assure that any limitations or conditions expressed either orally or in the written declaration have been carefully considered and satisfied.

The court also explained how the surrogate may have to defend any decision regarding the ward's orally declared wishes from a challenge by another person interested in the ward's welfare:

We emphasize, as did the district court, that courts are always open to adjudicate legitimate questions pertaining to the written or oral instructions. First, the surrogate or proxy may choose to present the question to the court for resolution. Second, interested parties may challenge the decision of the proxy or surrogate.

* * *
Although a surrogate may rely on oral statements made by the incompetent, while competent, to exercise the incompetent's wishes to forego life-sustaining treatment, the presumption of clear and convincing evidence that attaches to a written declaration does not attach to purely oral declarations. Oral evidence, considered alone, may constitute clear and convincing evidence. However, the surrogate would bear the burden of proof if a decision based on purely oral evidence is challenged.

Because the only issue before the court is a determination of the patient's wishes, challenges generally would be limited to that issue. For example, there may be challenges to claims that the declaration was not executed knowingly, willingly, and without undue influence; that the patient had changed his or her mind after executing the declaration; that the declaration was ambiguous; that the conditions or limitations contained in the declaration were not satisfied; that the surrogate or proxy was the one actually designated; and, of course, that there was a reasonable probability that the patient would regain competency. When the only evidence of intent is an oral declaration, the accuracy and reliability of the declarant's oral expression of intent also may be challenged.

I quote these passages at length to show that the Florida Supreme Court has confirmed the ability of Florida citizens to use oral statements, not just written ones, to exercise their fundamental right to decline medical treatment. The rules of evidence help define how facts can be proved at trial, but they cannot be used to preclude the admission of statements that effectuate a fundamental constitutional right.

An assertion that the ward made a particular statement may certainly be challenged as unreliable -- that the ward never said it -- but there is no question that evidence of the ward's oral statements is admissible evidence, or that oral statements may constitute clear and convincing evidence. That's the law.

...posted by Matt Conigliaro

http://abstractappeal.com/archives/2005_03_01_abstractappeal_archive.html#111167384435979940

That "hearsay" dog won't hunt.

Let me tell you something, who are you or anyone else to say (especially a spouse with a conflict of interest), who is fit to live or not. While you were reading the court record, you should have read them all. Three different positions and times that he found her in (face down, face up, turned her over; hour and a half period in the time frames; what of the amount of time he took to call 911?...ok he could have been in shock. How about the fact that taxpayers were paying for her care and not the settlements that he received; Felos sealed the financial records, M. Schiavo only reported once when Guardianship was challenged. I suggest you go back and look again.
According to Florida Statues, only the terminally ill (6 months or less to live), are allowed admittance to a hospice. There is no record of admittance. Felos was on the board of directors, he gave to Greer's campaign during a judgement on the feeding tube issue...I could go on for days...but I have the documents to prove it.

The bottom line is, no one can say who is worthy of life, tomorrow it will be you or whoever. I sat watching the hearings in the House last week on insurance...several senators were dismayed at the number of seniors and disabled receive Medicare and Medicaid. Sounds like the Soros direction of Useless Eaters (check out website of the same name). We are repeating a horrible history here, if you can't see it...then indeed you are blind...and selfish.

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