Terri Schiavo and our Moral Confusion

MARS HILL AUDIO Journal ^ | April 01, 2005 | Ken Myer

[supercat]

I suppose you have a better way to resolve the case? Care to share with the class?

Well, for starters, I would suggest that oral statements should generally not be "clear and compelling" in the absense of anything to authenticate them (such as a videotape, etc.) It is trivial for an unscrupulous person to attribute to people things they never said. There may be a few cases where an oral statement could constitute clear and compelling evidence, but only if all of the following apply:

1. The statement is heard by enough independent people who would have no motive to invent it, that a conspiracy to invent would be implausible.
2. There is consensus about what was said and what was meant, the statements were clearly intended to serve as a living directive, and the claimed meaning is plausible.
3. There is a logical reason why the person making the statement was unable to personally put it into tangible form.
4. The statement is disclosed to people who can officially record it as quickly as practical.

An example of a case where purely oral statements might constitute clear and compelling evidence would be a train wreck, where an injured passenger tells others of his wishes prior to losing conciousness. In such a case, if the other passengers were to report what the passenger said as quickly as practical to officials, I would say such statements could be regarded as 'clear and compelling' evidence:

1. Unless the other passengers conspired to cause the crash, they would seem an unlikely group to conspire to invent a story.
2. There would be little confusion about the person's statements or the purpose thereof.
3. The person's decision to give the statement orally rather than writing or recordig it would be clear and logical given exigent circumstances.
4. The witnessess to the statement would be able to report it in timely fashion.

As you can see, I wouldn't outlaw all non-recorded oral statements, but I would only allow them in places where there would be no reason to doubt them. Let's see how Terri's "wishes" stack up:

1. Her wishes were heard by an openly-adulterous husband, his brother, and his sister-in-law. One of them had a very clear and obvious conflict of interest, and conspiracy by the others is highly plausible.
2. The three people witnesses Terri's claim that Terri spoke to each of them at a different time; there is thus zero corroboration. There is no particular reason to believe Terri's statements--if she made them--were meant to be enforceable as a living will. At the time Terri's statements were made, hydration by any means was not considered life support and therefore a claim that she intended them to justify the removal of same would seem implausible.
3. There is no logical reason why, if Terri wanted her supposed wishes carried out, she could not have written them down.
4. The statements were not recalled until seven years after Terri's 'collapse'--long after they were supposedly made.

Do you think my criteria for accepting oral statements are too rigid? Terri's siblings' hearsay testimony fails all of them.

[supercat]

The reason I don't have one is because I WANT to be kept alive.

It might be a good idea to put that in writing and explicitly say that no oral declarations shall authorize any alteration of the directives unless they are recorded in authenticable tangible form such as a camera-original analog videotape.

[ironman]

I finally read the February 2000 order today. Without getting dragged down into the details of the case, I was expecting it to be a more rigorous review of the law and testimony. I'm no lawyer but I thought it was at the level of what a first year law student could crank out on an overnight case study assignment.

[robertpaulsen]

Yeah. My first reaction, too.

[robertpaulsen]

Well. That took some some work. Thank you for your effort.

Naturally, my first reaction to your 4-point criteria is that it was designed around the Terri case (ie., working backwards to achieve the desired result). Basically, it does nothing more than detail your version of "clear and convincing".

For example, let's take your #1. "The statement is heard by enough independent people who would have no motive to invent it, that a conspiracy to invent would be implausible."

Now read just the "Saturday, April 2, 2005 of this link to see that Judge Greer evaluated the oral evidence with this in mind.

"In fact, the judge acknowledged, without necessarily accepting, a guardian ad litem's position that Michael's testimony could not amount to clear and convincing evidence."
-- from the above link

It's an interesting link. On your #2 about removing tubes as implausible:

"... and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise ..."

I don't agree with your #3. I don't think there needs to be a reason.

#4 "The statements were not recalled until seven years after Terri's 'collapse'--long after they were supposedly made."

True. But why would they be recalled any sooner. For what purpose? It wasn't until Michael requested the court to determine Terri's wishes that it was necessary to recall Terri's statements.

As to the charge that by waiting seven years, Michael was not acting in good faith, Judge Greer said it the best: "That assertion hardly seems worthy of comment other than to say that he should not be faulted for having done what those opposed to him want to be continued."

[PFKEY]

It was the extreme pro-life crowd that totally ignored Terri's wishes and turned this whole thing into a "hate Michael, he-wants-her-dead" euthanasia circus.

I am part of the pro-life crowd but I have to admit that those who carried this case to such extremes with all the conspiracies. The "I know better than anyone what Terri wanted" and if you disagree with me I'll call you names and might evern threaten you crowd made the pro-life cause that much more weak and loonier.

[PFKEY]

You blind idiot! Terri was not dying at all. She was healthy! She was not on life support. She was not in a coma! There was no proof she wanted This terrible death. Hearsay is not proof in any court of law. Her loving parents wanted her. She was denied therapy. Her husband wanted her dead for his own selfish reasons.

And her death was perfectly legal. Given the nod by severall state and federal courts.

[PFKEY]

This whole spectacle has been embarrasing. Long time FReepers are leaving in disgust. Naysayers are pointing in our direction saying, "what a bunch of nutjobs over at Free Republic." Sadly, they have a point!

True, this case has made FR the least enjoyable that I have ever seen it.

I'm not leaving because there is still no better place on the web that I have found.

I am glad the TS threads are waning.

[supercat]

I don't agree with your #3. I don't think there needs to be a reason.

If someone is capable of expressing their wishes in a tangible medium and fails to do so, how serious can they be about having those wishes carried out?

A requirement that required all advance directives to be transcribed in tangible media, period, could impose an undue burden on people who were unable to thus record their wishes, but it would not seem to impose much burden on those who were able to. Explain, therefore, why you would think it unreasonable to require that anyone who is capable of transcribing their wishes in a tangible medium must do so for them to be carried out.

[PFKEY]

The truth will come out in the civil suit.

There will be no civil suit.

[robertpaulsen]

There is nothing wrong with being pro-life. I'm pro-life. But this was not a euthanasia case.

Let me ask you. If Terri's wishes (not to live in a brain damaged state supported by artificial means) were in writing instead of verbal, would you have objected to the carrying out of her wishes?

My guess is that 99% of the public would not object. That's what Living Wills and Durable Powers of Attorney do.

Unfortunately, Terri did not have a Living Will. Unfortunately, Terri's parents wanted her to live.

Unfortunately, as a result, the extreme right wing right-to-life groups went into full propaganda mode and called it euthanasia and murder.

[supercat]

#4 "The statements were not recalled until seven years after Terri's 'collapse'--long after they were supposedly made."

True. But why would they be recalled any sooner. For what purpose? It wasn't until Michael requested the court to determine Terri's wishes that it was necessary to recall Terri's statements.

The only reason I can see to allow any statements at all that are not recorded in a tangible authenticable medium is that exigent circumstances may arise wherein such recording is not feasible. Requiring that any oral statements be tangibly recorded and dated at the earliest opportunity helps considerably in establishing their credibility.

Suppose, for example, that one of Michael's siblings had written Terri's wishes on a sheet of paper at the time she made them, folded it up, self-addressed it for post-office pickup, stamped it, and took it to the post office for a postmark. Assuming that the postmark, paper, and ink all checked out, there would have been a lot less controversy about Terri's "wishes". Although it would be plausible that Michael and his relatives could have invented the 'wishes' in 1997 since they had a clear craven motive to do so, it would be far less clear why any of them would invent such wishes in 1988.

Further, even if one assumes people are honest, people's memories aren't perfect. A person's recollection of what someone else said a decade ago is often apt to be inaccurate even if the person truthfully says what they remember. If people's memories weren't imperfect, why would they ever take notes of anything?

[PFKEY]

But this was not a euthanasia case.

I'm pretty much with you on this case.

For those that agrued forcfully that she was not in PVS state I always said that I hoped she was for her sake because 15 years is a long time to be conscious and not be able to speak or move in any meaningful way.

[robertpaulsen]

"Explain, therefore, why you would think it unreasonable to require that anyone who is capable of transcribing their wishes in a tangible medium must do so for them to be carried out."

1) If oral is acceptable (ie., meets your criteria 1,2&4), then why even bother?
2) Grampa, worth $20 million, writes on a scrap of paper that he wants to live no matter what the cost. How long would it take the family's attorney, being paid 30%, to invalidate it? 10 minutes?

That's two off the top of my head -- but the best two.

[supercat]

For example, let's take your #1. "The statement is heard by enough independent people who would have no motive to invent it, that a conspiracy to invent would be implausible."

Now read just the "Saturday, April 2, 2005 of this link to see that Judge Greer evaluated the oral evidence with this in mind.

I just read through the piece you linked and I didn't see any recognition and rebuttal of the possibility that the Schiavos made the whole thing up. It doesn't take much of an imagination to dream up plausible reasons for the Schiavos to invent Terri's supposed statements out of whole cloth. They represent a self-selected group of people who could easily share a common craven interest.

I won't fault you if you think the Schiavos are telling the truth, but I really must question your judgement if you don't think it at least plausible that they might be lying.

By comparison with the train scenario: suppose the person's oral wishes witessed by the only two people who were sitting close to him, who had no relationship to him or each other prior to boarding the train, and these people report the person's wishes to arriving medical personnel. What plausible motive would two complete strangers have to lie about a person's oral advance directives? I'd have to stretch pretty far to imagine one that would make any sense at all.

Note, btw, that the situation would be far different if two supposed strangers were to emerge at some later time and claim the person made his statements. In that case, other conspiracy theories become plausible. For example, a relative who wanted the incapacitated passenger's estate could have tracked down and talked to the passengers who had sat nearest him. Even if it could never be proven that a relative in fact did so, the fact that such a thing is plausible should be sufficient to prevent the testimony from being regarded as 'clear and compelling'.

[robertpaulsen]

I understand what you're saying, and I agree it would make things a heck of a lot easier on everyone.

But why would I write down some comment my friend made to me about some medical show we're watching? Who does that? Especially the post office thing. (But isn't hindsight great? It makes us look so smart and organized.)

And what about this: In January, 1989, Michael writes down that Terri (with a $10 million life insurance policy) would wish to die. In April, 1989, Scott writes down the same. In June, so does Joan.

In January of 1990, Terri becomes brain damaged, cause unknown.

Since it's in writing though, you're comfortable with "pulling the plug" and authorizing the $10 mil, huh?

Excuse me, but you'd be screaming to high heaven. Worse than you are now!

[robertpaulsen]

"I won't fault you if you think the Schiavos are telling the truth, but I really must question your judgement if you don't think it at least plausible that they might be lying."

Sure, they could be lying. And the sounds of hoofs in the distance -- they could be zebras.

Why? Why would they lie? What's to be gained by their lying? And if there were the remotest possibility that they were conspiring with Michael, why was this not brought up during the January, 2000 hearing -- a perfect time to do it?

[supercat]

1) If oral is acceptable (ie., meets your criteria 1,2&4), then why even bother?

Because (1) anyone serious about such things would want to minimize the likelihood of their desires being misremembered or misinterpreted, and written statements are much better in that regard than oral statements; (2) One of the key tests in deciding whether an oral declaration should be accepted is whether it's plausible that supposed witnesses are making it up. The sooner a statement is recorded in tangible form after its supposed utterance, the less plausible it would be for it to be simply invented. If a witness to an oral declaration should transcribe it in tangible form as soon as practical, why not just have the declarant himself do it, if practical?

2) Grampa, worth $20 million, writes on a scrap of paper that he wants to live no matter what the cost. How long would it take the family's attorney, being paid 30%, to invalidate it? 10 minutes?

On what basis would you suggest that it be invalidated?

[bad company]

Somehow it gives me the creeps when I consider that all the letters in "Judge Greer" are in my screen name "GeekDejure" !!!

Calm down, you're short one "R". (that was a close one though)

[supercat]

But why would I write down some comment my friend made to me about some medical show we're watching? Who does that? Especially the post office thing. (But isn't hindsight great? It makes us look so smart and organized.)

You wouldn't, because if your friend wanted to make an advance directive, your friend would do so in writing or some other tangible medium. If your friend fails to do so, that would suggest your friend wasn't all that serious about his wishes. If you thought your friend was serious about his wishes, you should get some paper and ask him to write them down.

And what about this: In January, 1989, Michael writes down that Terri (with a $10 million life insurance policy) would wish to die. In April, 1989, Scott writes down the same. In June, so does Joan. In January of 1990, Terri becomes brain damaged, cause unknown.

If those things had happened and Terri became incapacitated as a consequence of some event the Schiavos could not plausibly have foreseen or caused (e.g. a train wreck), the fact that the statements were written down as they were would make them more believable. Had the statements been so written in the extant case, it would have justified more investigation into the cause of the supposed "collapse".

To put it another way: it would be plausible for the Schiavos to conspire if they'd expect to have something to gain by it. For them to note for themselves Terri's supposed wishes would seem strange but if they had no way of knowing she'd be incapacitated the most logical explanation would be that Terri in fact said the things claimed. If Terri's incapacitation was something the Schiavos could have foreseen or caused, then conspiracy becomes more plausible.