10/18/03 -- Jeb's Emails to FR poster, summer, today, re: Terri. (And, a Message to Michael Shiavo)

Note to FR: I am posting here an email conversation I had today with Gov Bush about Terri, and yes, he knows I am posting it here on FR.

In my reply #1, located below this post of Gov Bush’s email, I have posted a message from me to Terri’s husband. And, no, I did not discuss with anyone my idea here to write to Terri’s husband. No one suggested it to me. Nor did I discuss it with anyone at all.

In my next reply, reply #2 below, I hope to post a message to my friends here on FR. And, while I would like to respond to each reply that may be posted on this thread, I can not. Due to a pressing personal matter, I will not be able to respond tonight.

However, my thoughts and prayers and hopes remain with each person involved in this matter.

God bless.

summer

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----- Original Message -----
From: [summer]
To: Jeb Bush
Sent: Saturday, October 18, 2003 4:46 PM
Subject: Re: …question for you…

Gov Bush,

Thank you, and I have no doubt you would move Heaven and Earth for her if you could.

Sincerely, [summer]

----- Original Message -----
From: Jeb Bush
To: [summer]
Sent: Saturday, October 18, 2003 4:42 PM
Subject: …question for you…

I cannot offer much hope. I am sickened by this situtation and pray for her family. We have looked at every angle, every legal possibility and will continue to do so. It is clear that we need to make living wills the norm for families in our state. Too few people use them.

Jeb

-----Original Message-----
From: [summer]
Sent: Saturday, October 18, 2003 4:38 PM
To: Jeb Bush
Subject: Re: …question for you…

Thank you for your response, Gov Bush. Before I post this, can you provide any measure of hope for a legal way to preserve this woman's life? To think that all her parents want to do is care for her and not see her starve to death, is, I think, not asking for a lot in this world. My own parents would feel the same way about me, I am sure[…]

[summer]

----- Original Message -----
From: Jeb Bush
To: [summer]
Sent: Saturday, October 18, 2003 4:07 PM
Subject: …question for you…

this was tried in the courts I believe and was rejected.

jeb

-----Original Message-----

From: [summer]
Sent: Saturday, October 18, 2003 4:03 PM
To: Jeb Bush
Subject: …question for you…

Is there a way you can utilize Family Law as it pertains to abandonment of a spouse -- on the grounds of lack of sexual contact -- so that the path can be cleared for him to be legally removed by the state or her family as a husband?

-----Original Message-----

From: Jeb Bush
Sent: Oct 18, 2003 1:47 PM
To: [summer]
Subject: …question for you…

Unfortunately, I cannot issue an executive order when there is a court order upheld at every level in the judiciary. Mr. Shiavo is the legal guardian and I can't override that fact. I wish I could but I have no legal authority to do so.

Jeb

-----Original Message-----
From: [summer]
Sent: Saturday, October 18, 2003 11:02 AM
To: Jeb Bush
Subject: …question for you…

Can you use your authority to issue an Executive Order, to place her in a different hospice that has no connection to her husband, as a temporary stop measure to [get] this woman back on feeding -- so that you have the time necessary to review whatever other options may exist for you? This current situation with her removed from the tubes will result in an irrevocable situation.

"Judges may not rewrite or reinterpret the law."

I'm afraid that 220 years of Constitutional case law says that half of your sentence is wrong. They can't rewrite the wording of the law or the Constitution, but in practice they can interpret and reinterpret it all they like in terms of how it applies to the specific case before them. They do it all the time - that's actually their job. If their interpretation is found wanting, it can be referred to a higher court for appeal. The problem is that all higher courts have steadfastly refused to get involved, making Greer the only go-to person for any findings of fact in this whole mess.

The problems here aren't so much in Greer's interpretations of the law itself anyway, as it is his rulings on substantial findings of fact such as if Terri is definable by law as being in a comatose/vegetative state and, more importantly, if Schiavo has a conflict of interest. No one can legally overturn those rulings except a higher court, and some have led me to believe that not even they could do so, they could only order Greer to consider evidence that he had not already considered.

Without new evidence, Jeb can't legally act as if Schiavo has a conflict of interest (as obvious as it may seem to everyone else) because the Court has ruled that he does not have one based on all existing evidence.

New evidence showing Schiavo's conflict of interest could get Terri's life extended and this case reopened again. However, it's my understanding that they just tried this and all the courts again simply refused to hear it.

No one outside the courts can make findings of fact like the ones just discussed. If I'm wrong on that, give me a historical example where an executive or legislature's finding of fact has trumped the judiciary's. Unfortunately, I don't know of one.

The Legislature is the only branch with a hope of stopping this, by impeaching Greer and other judges that might rule the same way, or by adding a new law. Here's to hoping.

Qwinn

The only thing I can think of that might be stopping them from trying it is that they know it would simply go to another judge in the chain of command for a ruling, and they are already aware that any other Judge that the case would go to would (or already has) ruled the same way.

Fundamentally, the problem has been that Greer has been the sole arbiter of all matters of fact in this matter. Any time any case has gone to a different trial court judge, one of two things has happened: (1) the other trial court declared the matter outside of jurisdiction, and rejected the case without regard for its merits; or (2) the other trial court accepted the case, found for the Schiavos, and was overruled by an appeals court who ruled that the case should have gone to Judge Greer.

So being able to have new matters of fact tried before any other judge would be a good start. I expect that many trial court judges would be willing to overlook rulings made by a judge who had been impeached.

To further solidify such a finding, though, I would posit that the Senate should pass (and the assembly sign AsAP) a bill explicitly amending the rules of judicial procedure such that in the matter of Terri Schindler Schiavo, any and all decisions made by impeached Judge George Greer shall be rendered null and void. Whether or not such a law would ultimately withstand constitutional muster (the question being whether the power to impeach implies the power to overturn the bad rulings which resulted in such impeachment) it would certainly provide time for the legislature to come up with something better.

Further, the legislature should probably explicitly provide that attempts shall be made to orally feed people who are disconnected from feeding tubes, and shall be made to orally hydrate such people even if they cannot be fed. Further state that it is the explicit intention of the legislature that this requirement not be superceded by judicial orders, any judicial order to the contrary shall be considered null and void, and that in the event someone dies as a consequence of such an illegal order being followed, the judge and any persons involved in carrying out the order shall be chargeable with murder in the first degree.

Sound good?

"Jeb Bush requested and received legal advice from six law firms on how to intervene in Terri's case."

I took a long, slow read of the Thomas More brief. I posted my opinion in another thread, I'll reproduce it here.

I read it in full. I think the issue may be one of goals. If the goal is to allow Terri to live the rest of her natural life, I don't think what they are suggesting would cut it. If the goal is simply to "prolong" her life, meaning save her for another week or two before the Court (namely, Greer) simply decides to kill her again, then yes, there is probably enough room for Jeb to do so. And he would likely set some bad precedents that could later be abused by Democrats in the process.

Honestly, their legal opinion seems very very weak in several regards. I can't tell if it's wishful thinking or an effort to get public opinion up against Bush.

For example, they make a big deal in the second paragraph about Bush's right "to bear arms, make arrests and apply for, search and execute search warrants, arrest warrants capias and other process of the court." Right. OF THE COURT. In this case, since it is the Court he is directly opposing, he has no warrants, capias or any other process of the court to be executing. He can't just execute his own will - this gives him the power to execute the COURT'S will. In this case, we wish he could OPPOSE the Court's will.

The best argument in that pdf is the one where he can send in the Department of Children and Family Services. Yes, I do believe he could indeed do that. Unfortunately, it would be useless in the not-that-long run, because as it notes in the very same pdf, "In the event you employ this procedure, the Department must petition a court for an order authorizing emergency protective services within 24 hours after arranging for the emergency removal of Ms. Schiavo." And guess what court that would be redirected to? I have no doubt that it would be Greer. In other words, all it would do would be to drag this horrible situation out for another couple of days. I can understand if he's not willing to act just to be obstructionist without actually changing the ultimate outcome - that would be a very bad precedent to set that Democrats would certainly abuse in the future.

In the rest of the .pdf, it makes assertions that Greer has already dismissed. Yes, YOU know that there's a conflict of interest, -I- know that there's a conflict of interest, but as Supercat has already pointed out, every time the potential conflict has gone to a court to be ruled on, it's Greer that gets to make the decision! And there's simply nothing that Bush can do that won't immediately be sent to Greer for a ruling, and once it's back in Greer's hands, he'll overturn it. That's the problem!

Qwinn

No one can legally overturn those rulings except a higher court, and some have led me to believe that not even they could do so, they could only order Greer to consider evidence that he had not already considered.

Your grammar is garbled, but I believe what you mean to say is correct: that the only thing an appeals court can do is tell a trial court judge to consider certain evidence. If a trial court judge states that he has considered evidence even though such evidence is squarely contrary to his opinion, the appeals process is meaningless.

Without new evidence, Jeb can't legally act as if Schiavo has a conflict of interest (as obvious as it may seem to everyone else) because the Court has ruled that he does not have one based on all existing evidence.

This isn't baseball, and this isn't some Matrix-style movie fantasyland where declaring that something is so makes it thus. There can be no doubt at all that the possibility exists of a conflict of interest regarding Michael's care of Terri. Jeb Bush's allegiance is not to men in black robes, but is to the Constitutions of Florida and the United States.

No one outside the courts can make findings of fact like the ones just discussed. If I'm wrong on that, give me a historical example where an executive or legislature's finding of fact has trumped the judiciary's. Unfortunately, I don't know of one.

There are numerous historical examples of a President overruling a court, and plenty of Presidents and governors enforcing or not enforcing laws in manners not explicitly authorized by courts. I don't know that any of these officials have ever openly declared that their actions were based upon disagreements over judicial findings of fact, but the basic principle is that the executive does something and is then either impeached or not.

Suppose Judge Greer were to examine someone who was gagged and tied to a stretcher, and he declared on the basis of that examination, that the person was dead and should be cremated immediately; the person's apparent struggling was no different from that of a chicken with its head cut off. Would Jeb Bush have the authority to intervene? After all, there would be nothing illegal about incinerating a corpse, and if Judge Greer were to declare the person dead having seen the evidence of her breathing, moaning, struggling, etc. then under the legal standards at play nobody would have the right to question his finding of fact.

If the executive isn't willing to check the judiciary when it makes findings of facts that are just plain wrong, then there is no effective check at all on rogue judges. Because of rules which were supposedly designed to prevent judge-shopping, it is possible for one person to have almost complete lifelong control over any person who comes under his authority. Truly scary.

I can see how that would be politically suicidal and would probably be considered unconstitutional by a court - heh. Can't forget that the Judiciary also has that check against the executive and legislature.

However, the judiciary once restrained themselves for fear of having their independence breached, and would even say so repeatedly.

And also there is the Nuremborg principle, inherent within the law, that I brought up at bullet number 7 that I now would state philosophically, in the hopes of preserving respect for the law by protecting it from overintepretation by judicial tyrants, in this manner:

When any specific law is in violation of common human decency, it is in violation of a higher law. It is the higher law which demands the errant law be defied.

And discrediting the law has been happening, incrementally, for some time now. Destruction of our Constitutional Republic is top down. People are getting understandably unsettled by all the autocratic mumbo-jumbo rationalizations. Compelling State Interest is noticably Extra-Constitutional. The restlessness and demand for reforms will, G-d willing, escalate.

"I don't know that any of these officials have ever openly declared that their actions were based upon disagreements over judicial findings of fact, but the basic principle is that the executive does something and is then either impeached or not."

Certainly. Bush indeed COULD storm into that hospice and do whatever he wished, and then face the legal consequences of those actions. I have never disputed that Bush -could- simply defy the Court. I have also never stated any opinion other than that he would have the ethical and moral right, even duty, to make such a stand.

All I have said is that he lacks the legal right... and in that sense, you and I and everyone at the vigil has just as much "right" and ethical duty to intervene in this as Bush does. No more, and no less.

If anything, due to his duty to uphold the law as interpreted by the courts, he has less right to interfere than we do.

Am I condoning civil disobedience here? Not explicitly, no (although don't hold your breath to hear me condemn someone who does so). All I'm trying to get at is that you and I and everyone else here is just as empowered to defy the Court as Jeb is. It would make more sense for someone else to do it, with Jeb remaining in his position to defend that person in the aftermath.

Qwinn

"And discrediting the law has been happening, incrementally, for some time now. Destruction of our Constitutional Republic is top down. People are getting understandably unsettled by all the autocratic mumbo-jumbo rationalizations. Compelling State Interest is noticably Extra-Constitutional. The restlessness and demand for reforms will, G-d willing, escalate."

I couldn't agree with you more. I am in fact terrified of the powers our current judiciary wields.

All I'm trying to get at is that the arguments you are making could be just as validly made over abortion. In every way. I consider it every human being's moral duty to prevent every abortion they are aware of just as much as they are required to prevent every overt murder they can. No one does so. Why? Because the Courts have decreed that we can't, and throw us in jail if we try. It's been that way for 30 years. No one should be surprised now that the incrementalism has gone even further. Is it horrible? Yes. But everyone here should know by now that I agree it's horrible. That's not the point in debate.

I think it's just as wrong to rant at Jeb for failing to defy this order as it is to rant at Jeb for not marching down to the nearest abortion clinic and stopping every abortion he sees. If someone feels that strongly about it, they should be willing to do it themselves, rather than demanding that Bush break the law and face prison time -for- them.

Qwinn

I have hesitated to enter this debate, because it is so emotional and personal. The situation with this pitiful woman is truly tragic, and forcing some people to come to grips with their own mortality- perhaps for the first time.
As a nurse, I saw many people "saved" through advanced technology- but the quality of life left to them and their families was as tragic as Terri's. Florida's "right to die" laws are the result of medical advances- and assert the individual's right to refuse medical treatment. None of us know what Terri would have chosen in an advance directive. Testimony in her case more than 3 years ago- by Michael and friends- claimed she had said she didn't want to be "kept alive by tubes". Her parents disputed that testimony- and the judge ruled in Michael's favor. That is the pivotal ruling in this case- based on sworn testimony given in court.
Maybe they perjured themselves- or maybe her parents are mistaken. The Judge ruled, based on evidence presented, which story was the most credible.
If Terri had a living will, or advance directive, she could have named any person as her guardian. Since she did not, her husband is her de facto next of kin. The family sought to have him removed for cause- and lost. He legally represents her interests in court, her funds pay for the lawyers. Apparently, over 13 years of court cases, the money is about gone. Although she probably has Medicare and Social Security income- neither pay for lengthy nursing home stays. Care costs in about $50,000 year here. Only Medicaid pays for nursing homes- and it is for indigent people. Her assets have gone to lawyers- and she is now indigent. Michael will not reap any profit from her death- the money is gone. He cannot sell her organs- that is against federal and state law.
Feeding tubes are legally considered life support for patients who cannot swallow. IV's, respirators, and feeding tubes are all "extraordinary measures" in terminal patients. "Vegetative" state is not "brain dead"- here is a medical definition: "A persistent vegetative state, which sometimes follows a coma, refers to a condition in which individuals have lost cognitive neurological function and awareness of the environment but retain noncognitive function and a perserved sleep-wake cycle.

It is sometimes described as when a person is technically alive, but his/her brain is dead. However, that description is not completely accurate. In persistent vegetative state the individual loses the higher cerebral powers of the brain, but the functions of the brainstem, such as respiration (breathing) and circulation, remain relatively intact. Spontaneous movements may occur and the eyes may open in response to external stimuli, but the patient does not speak or obey commands. Patients in a vegetative state may appear somewhat normal. They may occasionally grimace, cry, or laugh."
Looking at the edited video tapes as a medical professional- I, too, question whether Terri is in PVS. But expert testimony of physicians in court assert she is- and the court accepted their diagnosis.
Additional points: The Legislature cannot pass retroactive laws. Any changes made will apply only after the law passes and takes affect. No help for Terri there. But one of us might benefit if changes are made to insure that people in her situation are given the benefit of the doubt toward life, and guardians seeking to halt life support have to meet a greater burden of proof that the person would have chosen death. Urge your legislators to make these changes.
Criminal investigations of the alleged abuse of Terri have been requested and denied- by local and state lawmen. The bone scan in question is 12 years old-the statute of limitations is past, and there is no new evidence of abuse they can use. It has been part of the case file for more than a decade- and only now does it become evidence of abuse. Either their laywer is incompetant or she's grasping at straws.
Michael appears to be a selfish person- his testimony during the malpractice trials a mere charade. or perhaps he just gave up hope- in either case, it is clear she is not his primary interest any longer. My guess is the years of court battles with her parents have become an ego thing with him- he just wants to beat them again- and Terri no longer matters. He best move to another state, where people are less likely to know his history- and pass judgement on his actions. I have to wonder what his marriage to Terri was like...
Terri suffered from bulemia, and starved herself to the point of cardiac arrest from low potassium levels. She was resuscitated after 10 minutes- and suffered severe brain damage. Is it possible she wanted to die? Did modern medicine restore her to a life she had discarded- but she is now helpless, and unable to express her true wishes? Suicide is abhorrent to me- but what if that was her intention- and all of us are imposing our morality and will on a person who does not share our views?
Despite the calls for the Governor to take action- legal or not- in this tragedy- I agree with Quinn's dispassionate assessment, and refer you to his comments on this thread. Clinton was the one who was poll driven- the Bush's take their constitutional oaths seriously. Jeb's hands are tied. If the claims of misconduct on Judge Greer's part can be proved, the Legislature very well might impeach him- but it would be too late to save Terri.
Like Karen Quinlen so many years ago- hope remains that- if her parents are correct, and the doctor's wrong- Terri's will to live will triumph, and she will wake enough to eat and drink. Karen did- Terri might. It would be the miracle her parents hope for- and proof to Michael it is past time for him to divorce her, give up his guardianship, and get on with his new life.
I am praying for Terri, too. Praying she finds the strength to live, or finds peace as only the truly innocent can with our Father in heaven.
And I urge each of you- not to rail against elected officials, or seek vengeance against those you believe let her down, but to sit down RIGHT NOW with your families- and discuss how you would want to be treated if you were in Terri's place. Tell them CLEARLY what you want. Write it down in your will- name a person you trust to make decisions for you- learn from this tragedy that was so avoidable. Don't let it happen in your family.

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