Posted on 03/26/2005 5:44:58 PM PST by hipaatwo
A Florida lawyer writes:
I have been following the case for years. Something that interests me about the Terri Schiavo case, and that doesn't seem to have gotten much media attention: The whole case rests on the fact that the Schindlers (Terri's parents) were totally outlawyered by the husband (Michael Schiavo) at the trial court level.
This happened because, in addition to getting a $750K judgment for Terri's medical care, Michael Schiavo individually got a $300K award of damages for loss of consortium, which gave him the money to hire a top-notch lawyer to represent him on the right-to-die claim. He hired George Felos, who specializes in this area and litigated one of the landmark right-to-die cases in Florida in the early 90s.
By contrast, the Schindlers had trouble even finding a lawyer who would take their case since there was no money in it. Finally they found an inexperienced lawyer who agreed to take it partly out of sympathy for them, but she had almost no resources to work with and no experience in this area of the law. She didn't even depose Michael Schiavo's siblings, who were key witnesses at the trial that decided whether Terri would have wanted to be kept alive. Not surprisingly, Felos steamrollered her.
The parents obviously had no idea what they were up against until it was too late. It was only after the trial that they started going around to religious and right-to-life groups to tell their story. These organizations were very supportive, but by that point their options were already limited because the trial judge had entered a judgment finding that Terri Schiavo would not have wanted to live.
This fact is of crucial importance -- and it's one often not fully appreciated by the media, who like to focus on the drama of cases going to the big, powerful appeals courts: Once a trial court enters a judgment into the record, that judgment's findings become THE FACTS of the case, and can only be overturned if the fact finder (in this case, the judge) acted capriciously (i.e., reached a conclusion that had essentially no basis in fact).
In this case, the trial judge simply chose to believe Michael Schiavo's version of the facts over the Schindlers'. Since there was evidence to support his conclusion (in the form of testimony from Michael Schiavo's siblings), it became nearly impossible for the Schindlers to overturn it. The judges who considered the case after the trial-level proceeding could make decisions only on narrow questions of law. They had no room to ask, "Hey, wait a minute, would she really want to die?" That "fact" had already been decided.
In essence, the finding that Terri Schiavo would want to die came down to the subjective opinion of one overworked trial judge who was confronted by a very sharp, experienced right-to-die attorney on one side and a young, quasi-pro bono lawyer on the other.
Nothing unusual about this, of course. It's the kind of thing that happens all the time. But it's an interesting point to keep in mind when you read that the Schiavo case has been litigated for years and has been reviewed by dozens of judges . . . yadda yadda yadda.
By the way, I'm guessing that George Felos is probably quite happy to work the Schiavo case for free at this point since it's making him one of the most famous right-to-kill -- I mean right-to-die -- lawyers in the country. His BlackBerry has probably melted down by now, what with all the messages from the hurry-up-and-die adult children you've been blogging about.
The lawyers were incompetent there again. TWICE.
Oh BS... These Judges have tons of latitude when they want to. The apealant courts could have overturnred him easily based on the "clear and convincing" requirement to remove life support. Fact one: --Hearsay should never be considered clear and convincing when it essentially puts the state in the position of removing food and water from a human. Second, the case law to date has never had the state do this before. Yes, they ave allowed resperators to be removed on hearsay (which I still think is wrong) but never food and water from someone who wasn't terminal. There are a bunch of ways these judges could have gone but they didn't.
BEst post on this subject I have read. Kudos!!
I think Felos is very clever and insane. I really do. To hear him talk of the beauty of this starving woman, well it gave me chills.
I think the turning point was way back in 94 when MS got guardianship. He tried to kill her then and was stopped. One thing not very many people have noted is his taking her from nursing home to nursing home when I suspect the staff got uncomfortable with his intrusion into nursing home procedures. He was unbearable and bullying and I haven't heard much about that. He supposedly insisted on perfect care and at the same time forbade therapeutic effots in the first years.
One sort of odd thing. When he and the Schindlers took her home for a few weeks, he was dressing her and putting on her make up, sort of like she was a doll. It felt odd to me. MS has some loose screws.
I totally agree with you hipaatwo. See: Pamela A.M. Campbell, Esq. lost the Terri Schiavo trial.
Can you venture a guess why the St. Petersburg Bar is making such a fuss over Ms. Campbell? They have given her awards three years in a row? Should I venture to guess the reason is that most bar associations are liberal?
Opinion: Florida law should require a trial by jury for right to die cases, and not leave the decision in the hands of a judge.
My personal rule, never forget you are usually a pawn for lawyers in this kind of case. I suspect whatever bad blood happened between the parents and MS, Felos fanned the flames to keep a resolution from happening.
Silverleaf, you have summarized it pretty well, I think.
It's always grim discussing matters like this, but I like this turn of phrase!
His post was so lucid and good.
I wonder if the Schindlers would have had any help if they had gone to the "report them to the regulators" route. For instance, Terri was in a hospice against all hospice policy. The feds are very strict about this, could they have reported this as a medicare fraud. Certainly she was on SS disability and got medicare.
And the medicaid route, she had a trust that they set up to get medicaid against the spirit of that law. Could they have done anything about that.
And the nursing home board, surely they are regulated. The lack of care, the inappropriate hospice care, could they have approached it that way.
"I have never understood people who let themselves get into these horrible struggles with children in law."
We'll never know the full story. Most likely both sides have inconsistencies. I think that's true with all conflicts.
One problem I have is with the judicial system. If it was quarter til midnight, and Terri had been an axe murderer, and a fragment of evidence had suddenly appeared that just might exonerate her, a stay of execution would have been given.
There is way too much eagerness for her to die, and this, in my opinion, foretells what is going to be seen as normal in the not too distant future. If I had a disabilty I would be fearful.
If one looks at polling, a large majority exists that is clueless. We best be fearful.
"I have never understood people who let themselves get into these horrible struggles with children in law."
We'll never know the full story. Most likely both sides have inconsistencies. I think that's true with all conflicts.
One problem I have is with the judicial system. If it was quarter til midnight, and Terri had been an axe murderer, and a fragment of evidence had suddenly appeared that just might exonerate her, a stay of execution would have been given.
There is way too much eagerness for her to die, and this, in my opinion, foretells what is going to be seen as normal in the not too distant future. If I had a disabilty I would be fearful.
If one looks at polling, a large majority exists that is clueless. We best be fearful.
In this matter, Congress passed a law giving the US District Court jurisdiction. And, that law authorized a hearing de novo in the matter. That means the federal court should have reviewed the facts from the beginning, which is NOT the usual practice.
The federal judge did NOT conduct such a hearing. It did, however, reach a decision and issue an order, meaning that it did not rule as a threashold question that the law was unconstitutional. So, the federal appeals courts should have ordered the trial court to do its job.
The power was there. The judges chose not to use it. Terri Schiavo will now die, due to the faults of others.
Congressman Billybob
Right, I think with the parents and with MS there was a bad chemistry waiting to happen. And Felos came in and fanned it. And the crowd supporting Terri has their agenda too. And a stubborn judge, probably not too smart but one of those people who sticks to their guns no matter what. He is probably proud of his "gumption".
I for one do not take the last minute utterances as truth. It sounds like that woman heard what she was desperate to hear. That does not mean I think "nobody was there". I do think someone was there inside her. The neurologist from Mayo expressed it when he said "she has a presence" about her. That presence is the life force. Comatose people don't have it. I know exactly what he is talking about. And people made fun of him.
Thank You- I am not a lawyer but I did stay at a Holiday Inn Express last night.
Was it not optional for the fed court to order a de novo review? My understanding was that they could do a review, perhaps the reality was they could have ordered a review. I don't know why they didn't given the stakes. But the presumption of MS as guardian I think would have held even with his obvious conflict. They might, with a review, have held that her statements about wanting to die were not credible. That is where the problem was, the acceptance of MS's account of that which is inconsistant with her religion and her youth.
In the recent opinion of the Supreme Court in Campbell v. Government Employees Insurance Company, Fla., 306 So. 2d 525, that court reversed this court's setting aside of a judgment for excess liability, holding that this court was not at liberty to substitute its judgment for that of the trier of facts since there was evidence to support the judgment. It stated:
In analyzing these issues, we adhere to the well-settled principle that an appellate court will not disturb a final judgment if there is competent, substantial evidence[*25] to support the verdict on which the judgment rests. Indeed, it is not the function of this Court to substitute its judgment for that of the trier of fact. See Castillo v. E.I. Du Pont De Nemours & Co., 854 So. 2d 1264, 1277 (Fla. 2003) ("It is a basic tenet of appellate review that appellate courts do not reevaluate the evidence and substitute their judgment for that of the jury."); Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 939 (Fla. 2000) (quoting Helman v. Seaboard Coast Line R.R. Co., 349 So. 2d 1187, 1189 (Fla. 1977)) ("It is not the function of an appellate court to reevaluate the evidence and substitute its judgment for that of the jury."); Grounds, 311 So. 2d at 168 (stating that an appellate court is not authorized to substitute its judgment for that of the trier of fact).
That said, the federal court knew he was hearing a case based on Congress coming in on a weekend to pass a law by supramajorities in both Houses of Congress. For the court NOT to conduct the hearing that that unprecedented action had authorized, was a deliberate slap in the face to Congress.
I have my suspicions that the failure of the federal trial court was deliberate. The judge is a Clinton appointee.
Congressman Billybob
It was more than mere outlawyering -- try collusion, Medicare/Medi-Caid fraud -- his attorney Felos was on the board of directors for the hospice until 2001 -- links between former Sheriff Rice who gave Scheivo his job as RN for the jail; Felos and his offiuce-mates all contributed to Judge Greer's re-election campaign.... Greer acting as GAL as well as ultimate decision-maker; which is against the Canons of ethics, the dirty dealings are pervasive and I think there is a great deal a good constitutional lawyer could have used to get this thing pulled from that jurisdiction... but, it's called $$$$$$
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