Posted on 11/07/2003 12:59:03 PM PST by nickcarraway
Pinellas Park, FL (LifeNews.com) -- Though a judge prohibited them from being a part of defending "Terri's Law" from a lawsuit by Michael Schiavo, Bob and Mary Schindler filed amicus briefs Thursday backing the law and another asking him to reconsider the decision.
The brief asks Pinellas County Circuit Court Judge W. Douglas Baird to reconsider his decision disallowing the Schindlers to intervene in the case saying they have sufficient legal interest in the case to defend the constitutionality of Terri's Law.
The American Center for Law and Justice, a pro-life law firm, filed the brief on behalf of the Schindlers.
"The court should permit the Schindlers to be directly involved in this case," said Jay Sekulow, the firm's chief counsel. "It is the life of their daughter that is at stake in these proceedings."
In case the judge doesn't reconsider his decision, the firm has also filed an amicus brief urging him to declare the law valid.
"In an effort to ensure that the position of the Schindlers is heard by the court, we have also filed an amicus brief on their behalf defending the constitutionality of the actions of the legislature and the Governor," Sekulow said.
Attorneys for Florida Governor Jeb Bush have filed a motion to dismiss the lawsuit saying that it is constitutional.
The parents' brief says both the legislature and the Governor acted properly and constitutionally in passing "Terri's Law."
"The courts have acted as they were the only government entity to be concerned about the outcome of Terri's case," Sekulow concluded.
"The fact is that Florida law and constitution are clear: the legislature is the policy making body and has the authority to set and review standards -- including standards dealing with the protection of human life. The state and Governor had a clear, compelling, and constitutional interest in passing and implementing 'Terri's Law.' We're hopeful the court will uphold that action."
George Felos, an assisted suicide advocate who is Michael's attorney, filed the brief along with lawyers from the ACLU, who joined the case recently.
"It argues that her constitutional right to refuse medical treatment was, in essence, cast aside by a statute that allows the governor to do that under any whim and without any standards and without any review," said Felos.
Related web sites:
Terri's family - http://www.terrisfight.org
ACLJ Goes Back to Court on Behalf of Parents of Terri Schindler Schiavo -- Court Filings Defend "Terri's Law"
November 6, 2003
(Clearwater, FL) - The American Center for Law and Justice, an international public interest law firm specializing in constitutional law, today went back to Florida state court on behalf of Robert and Mary Schindler - the parents of Terri Schindler Schiavo - taking additional legal action to ensure that the parents will be heard in defending "Terri's Law" - legislation that cleared the way for Florida Governor Jeb Bush to restore life-saving measures to Terri Schindler Schiavo.
The ACLJ today filed a motion for rehearing - asking Pinellas County Circuit Court Judge W. Douglas Baird to reconsider his decision on Tuesday to deny a motion to permit Terri's parents to intervene directly in a case where "Terri's Law" is being challenged by a lawsuit filed by Terri's husband, Michael Schiavo, and supported by the ACLU. At the same time, the ACLJ today filed an amicus brief with the court - as authorized by Judge Baird - in an effort to ensure that the views of the Schindlers are heard in this constitutional challenge.
"We believe the Schindlers do have sufficient legal interest to be directly involved in defending the constitutionality of 'Terri's Law,'" said Jay Sekulow, Chief Counsel of the ACLJ, which is representing the Schindlers in the state case.
"We are asking the court to reconsider its decision to deny the Schindler's motion to intervene in the case," said Sekulow. "And, in an effort to ensure that the position of the Schindlers is heard by the court, we have also filed an amicus brief on their behalf defending the constitutionality of the actions of the legislature and the Governor. The court should permit the Schindlers to be directly involved in this case. It is the life of their daughter that is at stake in these proceedings."
In the friend-of-the-court brief filed on behalf of the Schindlers, the ACLJ contends that both the legislature and the Governor acted properly and constitutionally in passing "Terri's Law" and in acting to restore the feeding and hydration measures that were removed by her husband.
"The courts have acted as they were the only government entity to be concerned about the outcome of Terri's case," said Sekulow. "The fact is that Florida law and constitution are clear: the legislature is the policy making body and has the authority to set and review standards - including standards dealing with the protection of human life. The state and Governor had a clear, compelling, and constitutional interest in passing and implementing 'Terri's Law.' We're hopeful the court will uphold that action."
The ACLJ is representing the Schindlers in Schiavo v. Bush - the legal challenge to the constitutionality of the actions of the Governor and state legislature. Patricia Fields Anderson, an attorney in St. Petersburg, is representing Terri's parents in all other aspects of the Schiavo case.
The American Center for Law and Justice is an international public interest law firm specializing in constitutional law and the protection of human life. The ACLJ is based in Washington, D.C. and its web site address is www.aclj.org.
When has Terri refused treatment? There is no living will, and the only people who claim she didn't want to be kept alive by artificial means are her husband, his brother, and sister-in-law. And in fact, their claims didn't come to light till after Terri's husband won a malpractice suit.
If anyone wants on or off my ProLife Ping List, please notify me here or by freepmail.
OK, I'll bite...what do you think is Bush's strategy? (we may be in agreement on this, BTW)
90.802 Hearsay rule.--Except as provided by statute, hearsay evidence is inadmissible.
History.--s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379.
90.803 Hearsay exceptions; availability of declarant immaterial.--The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(1) SPONTANEOUS STATEMENT.--A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.
(2) EXCITED UTTERANCE.--A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.--
(a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.
(b) However, this subsection does not make admissible:
1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant's will.
2. A statement made under circumstances that indicate its lack of trustworthiness.
(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT.--Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.
(5) RECORDED RECOLLECTION.--A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
(6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.--
(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. The term "business" as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(b) No evidence in the form of an opinion or diagnosis is admissible under paragraph (a) unless such opinion or diagnosis would be admissible under ss. 90.701-90.705 if the person whose opinion is recorded were to testify to the opinion directly.
(7) ABSENCE OF ENTRY IN RECORDS OF REGULARLY CONDUCTED ACTIVITY.--Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, of a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances show lack of trustworthiness.
(8) PUBLIC RECORDS AND REPORTS.--Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.
(9) RECORDS OF VITAL STATISTICS.--Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if a report was made to a public office pursuant to requirements of law. However, nothing in this section shall be construed to make admissible any other marriage of any party to any cause of action except for the purpose of impeachment as set forth in s. 90.610.
(10) ABSENCE OF PUBLIC RECORD OR ENTRY.--Evidence, in the form of a certification in accord with s. 90.902, or in the form of testimony, that diligent search failed to disclose a record, report, statement, or data compilation or entry, when offered to prove the absence of the record, report, statement, or data compilation or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation would regularly have been made and preserved by a public office and agency.
(11) RECORDS OF RELIGIOUS ORGANIZATIONS.--Statements of births, marriages, divorces, deaths, parentage, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization.
(12) MARRIAGE, BAPTISMAL, AND SIMILAR CERTIFICATES.--Statements of facts contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, when such statement was certified by a member of the clergy, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and when such certificate purports to have been issued at the time of the act or within a reasonable time thereafter.
(13) FAMILY RECORDS.--Statements of fact concerning personal or family history in family Bibles, charts, engravings in rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
(14) RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY.--The record of a document purporting to establish or affect an interest in property, as proof of the contents of the original recorded or filed document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording or filing of the document in the office.
(15) STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY.--A statement contained in a document purporting to establish or affect an interest in property, if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
(16) STATEMENTS IN ANCIENT DOCUMENTS.--Statements in a document in existence 20 years or more, the authenticity of which is established.
(17) MARKET REPORTS, COMMERCIAL PUBLICATIONS.--Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations if, in the opinion of the court, the sources of information and method of preparation were such as to justify their admission.
(18) ADMISSIONS.--A statement that is offered against a party and is:
(a) The party's own statement in either an individual or a representative capacity;
(b) A statement of which the party has manifested an adoption or belief in its truth;
(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;
(d) A statement by the party's agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or
(e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member's participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.
(19) REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY.--Evidence of reputation:
(a) Among members of a person's family by blood, adoption, or marriage;
(b) Among a person's associates; or
(c) In the community,
concerning a person's birth, adoption, marriage, divorce, death, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.
(20) REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY.--Evidence of reputation:
(a) In a community, arising before the controversy about the boundaries of, or customs affecting lands in, the community.
(b) About events of general history which are important to the community, state, or nation where located.
(21) REPUTATION AS TO CHARACTER.--Evidence of reputation of a person's character among associates or in the community.
(22) FORMER TESTIMONY.--Former testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination; provided, however, the court finds that the testimony is not inadmissible pursuant to s. 90.402 or s. 90.403.
(23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM.--
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and
2. The child either:
a. Testifies; or
b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1).
(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child's statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.
(24) HEARSAY EXCEPTION; STATEMENT OF ELDERLY PERSON OR DISABLED ADULT.--
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by an elderly person or disabled adult, as defined in s. 825.101, describing any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act on the declarant elderly person or disabled adult, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the elderly person or disabled adult, the nature and duration of the abuse or offense, the relationship of the victim to the offender, the reliability of the assertion, the reliability of the elderly person or disabled adult, and any other factor deemed appropriate; and
2. The elderly person or disabled adult either:
a. Testifies; or
b. Is unavailable as a witness, provided that there is corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the elderly person's or disabled adult's participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to s. 90.804(1).
(b) In a criminal action, the defendant shall be notified no later than 10 days before the trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the elderly person's or disabled adult's statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.
History.--s. 1, ch. 76-237; s. 1, ch. 77-77; s. 1, ch. 77-174; ss. 20, 22, ch. 78-361; ss. 1, 2, ch. 78-379; s. 4, ch. 85-53; s. 11, ch. 87-224; s. 2, ch. 90-139; s. 3, ch. 90-174; s. 12, ch. 91-255; s. 498, ch. 95-147; s. 1, ch. 95-158; s. 2, ch. 96-330; s. 1, ch. 98-2.
90.801 Hearsay; definitions; exceptions.--
(1) The following definitions apply under this chapter:
(a) A "statement" is:
1. An oral or written assertion; or
2. Nonverbal conduct of a person if it is intended by the person as an assertion.
(b) A "declarant" is a person who makes a statement.
(c) "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(a) Inconsistent with the declarant's testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(b) Consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or
(c) One of identification of a person made after perceiving the person.
History.--s. 1, ch. 76-237; s. 1, ch. 77-77; ss. 19, 22, ch. 78-361; ss. 1, 2, ch. 78-379; s. 2, ch. 81-93; s. 497, ch. 95-147.
90.804 Hearsay exceptions; declarant unavailable.--
(1) DEFINITION OF UNAVAILABILITY.--"Unavailability as a witness" means that the declarant:
(a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;
(b) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;
(c) Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant's effectiveness as a witness during the trial;
(d) Is unable to be present or to testify at the hearing because of death or because of then-existing physical or mental illness or infirmity; or
(e) Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.
However, a declarant is not unavailable as a witness if such exemption, refusal, claim of lack of memory, inability to be present, or absence is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.
(2) HEARSAY EXCEPTIONS.--The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:
(a) Former testimony.--Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
(b) Statement under belief of impending death.--In a civil or criminal trial, a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.
(c) Statement against interest.--A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant's position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.
(d) Statement of personal or family history.--A statement concerning the declarant's own birth, adoption, marriage, divorce, parentage, ancestry, or other similar fact of personal or family history, including relationship by blood, adoption, or marriage, even though the declarant had no means of acquiring personal knowledge of the matter stated.
History.--s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379; s. 3, ch. 90-139; s. 4, ch. 90-174; s. 499, ch. 95-147.
Well, although the Pinellas judge's striking down Bush's petition for dismissal puts a slight damper on things, I think one of the major issues is that because Bush was not a party to the earlier proceedings, no proceeding involving him should be bound by matters of fact decided in earlier proceedings. After all, Bush hasn't had a chance to cross-examine any of the witnesses who testified in earlier proceedings, and thus due process requires that Bush be provided the right to cross-examine any witness whose testimony will be used against him.
If the Schindlers were bona fide parties to the case, then the case could be focused on them; indeed, it might theoretically be possible for the Schiavos to drop Bush as a defendant if the Schindlers were listed as such; the case would still go forward and the Schindlers--having petitioned to be included--would have a hard time seeking dismissal.
As it is, Bush is the only relevant party to the case, so he can't be dropped from it without dropping the case altogether.
(1) DEFINITION OF UNAVAILABILITY.--"Unavailability as a witness" means that the declarant:
(a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;
(b) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;
(c) Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant's effectiveness as a witness during the trial;
(d) Is unable to be present or to testify at the hearing because of death or because of then-existing physical or mental illness or infirmity; or
(e) Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.
I think you are confused. The exceptions you cited refer to hearsay, when the declarant is unavailable. Michael Schiavo, the Schindlers and their corroborating witnesses would be the declarants. They are all presumably available, being alive and not incapacitated.
Terri Schiavo is unavailable to be cross-examined but if she were available, her testimony would not be hearsay, as hearsay does not include one's own statements, which are the statements in question in this case.
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