Inside Story on Schiavo Case

http://isteve.blogspot.com/2005/03/inside-story-on-schiavo-case.html ^

[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.

[hipaatwo]

Yes it is, I was a pharmacy tech until I lost my job do to a disability. I have Fibromyalgia and was out of work for it, when it was time for me to go back, my employer said with my restrictions I'm not able to do my job at full capacity anymore.

[harpo11]

I heard that Terri could swallow her own saliva without need of suction.

I also have heard several nurses state that Terri could eat pudding, jello.

But, the good all knowing and just judge Greer, did not want to look at that nor did he allow it after he ordered her feeding tube withdrawn and to be starved to death.

Although, I did hear on the other hand that the Judge followed the law. I wonder what kind of law makes it possible for a judge to order a defenseless disabled woman be starved to death?

Moreover, I don't understand the hurry to kill an otherwise healthy woman except her mental disabilities. Also, an autopsy would reveal much about her condition. Will there be an autopsy? Are her organs worth something to Schiavo and his attorney?

[maica]

I've heard that there is a great need for pharmacists in the States now - I guess everyone is on so many meds these days - I hope you will get back to a stage where you can work.

[hipaatwo]

Thank you!

[Servant of the 9]

But, the good all knowing and just judge Greer, did not want to look at that nor did he allow it after he ordered her feeding tube withdrawn and to be starved to death.

You can't just reopen a case on 'I heard' or 'maybe' if you did no case would ever end. You have to have substantial documented evidence that has a significant chance of changing the result. Nurses gossip about a reflexive swallow action doesn't come close.

So9

[harpo11]

"reflexive swallow action"

Specifically what causes the reflexive swallow action? Just saliva?Ffood and drink?

Thanks for thoughtful input as well.

[LifeOrGoods?]

We spend a lot of time here venting anger about overreaching judges, and here some of you are angry because this judge follows the law.

Let me interject here and say that the fact that Terri Schiavo is in a permanent vegetative state and is not going through excruciating pain at the moment has not been established. We have a sworn affidavit by a doctor who has attested to that fact.

[LifeOrGoods?]

You mean the federal judiciary wouldn't have as much time for golf? You mean they would have to work for a living? You mean they might have to shepherd a jury through fact finding? You mean pointless cases might not even be taken to court?

You mean effective and relevant tort reform? The wheels of justice are rolling over the innocent.

[LifeOrGoods?]

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.

Whenever a murderer is accused by a witness, that witness is put under the microscope until the defense can call the witness' character into question. This type of bias was not exercised on M. Schiavo in this case. What a double standard!

[wingman1]

"Whenever a murderer is accused by a witness, that witness is put under the microscope until the defense can call the witness' character into question. This type of bias was not exercised on M. Schiavo in this case. What a double standard!"

I'm getting ready for sunrise services and haven't much time.

Excellent point, and one I will remember.

[lonestar]

bttt

[Schwarzeneger]

So your telling me that if a lower court judge found that it was leagal to beat your wife, that the higher court would be powerless. Bull hockey!

[Schwarzeneger]

heres the key: " if there is competent, substantial evidence[*25] to support the verdict "


There is NOT substantial competent evidence to support that there is clear and convincing evidence that Ms. Schiavo wants to die. Any judge could find this, if for no other fact then the fact that the living wills were available and Ms. Schiavo did not get one. Also the seven year delay in revealing the hersay evidence to the judge after anounced intentions to remarry.

Its total BS that the courts couldn't do it. They didnt want to do it and thats the truth!

[Coleus]

bttt

[watchdog_writer]

So your telling me that if a lower court judge found that it was leagal to beat your wife, that the higher court would be powerless. Bull hockey!

I believe that I posted exactly what the law is on this subject. I don't have the time or inclinatino to educate you here and now.

[watchdog_writer]

heres the key: " if there is competent, substantial evidence[*25] to support the verdict "


There is NOT substantial competent evidence to support that there is clear and convincing evidence that Ms. Schiavo wants to die. Any judge could find this, if for no other fact then the fact that the living wills were available and Ms. Schiavo did not get one. Also the seven year delay in revealing the hearsay evidence to the judge after announced intentions to remarry.

Its total BS that the courts couldn't do it. They didn't want to do it and thats the truth!

I am not disagreeing with you on the ridiculousness of the outcome in this case. I completely agree that Judge Greer was not justified in finding by "clear and convincing" evidence, if based only on the testimony of Michael, that Terri expressed an abiding conviction not to be maintained on life support. Setting aside the argument that a feeding tube is not life support, Ms. Campbell, the trial attorney conceded during her opening statement that Terri was in a persistent vegetative state.

A trial judge sees the witnesses, which is the excuse most often given why appellate judges will not consider the credibility of the witnesses. In this case I agree with you that the appellate judges should have at least considered the weight of evidence and should have determined that regardless of his credibility, Michael's testimony was not legally sufficient to sustain the burden of proof.

Clear and convincing evidence is the civil equivalent to "beyond a reasonable doubt" in a criminal case. The questions is: Did the attorneys on appeal point to the evidence at trial and make the argument that the verdict was against the weight of the evidence?