Posted on 12/25/2003 5:52:45 PM PST by JOHN W K
Tuesday, December 23, 2003 marked yet another day of Floridas active renegade judicial system and its willingness to participate in a depravation of Terri Schiavos rights under color of law.
In this latest incident, [see:Judge Ready to Rule in Schiavo Case; Bush Lawyers Predict Defeat] Circuit Judge Douglas Baird, who previously stated Terris Law was presumptively unconstitutional prior to a trial concerning its constitutionality, has now seen fit to suggest that Terri Schiavos wishes have already been decided in another court case, and rejected Floridas Honorable Governors request to have a trial by jury to determine the wishes of Terri.
Earlier this year in a case involving Terri, and which Judge Baird apparently made reference to on Tuesday, Judge Greer, the presiding judge, acted as both judge and jury and decided what Terri wanted--- first as a jury in evaluating testimony of witnesses as to what Terri would want, and then as a judge in issuing a court order to remove Terris feeding tube. The court order to remove Terris feeding tube resulted in Floridas Legislature adopting Terris Law, requiring the tube to be reapplied and protect her life which was in harmony with Floridas Constitution which commands life to be protected from all those who would attempt to abridge this constitutionally recognized and protected right.
But how can Judge Baird rely upon the above court proceeding concerning Terris wishes in which her right to a trial by jury, and the protection afforded by such a proceeding, was waived without her knowing and willing consent? The unauthorized waiving of Terris right to a trial by jury is part of the courts record and cannot be contended! Did Terri consent to waiving such a right? No. Can Terris constitutional guaranteed right to the protection of a jury in a case involving her life and liberty be lawfully waved by another without her knowing and willing consent? No! Does Floridas Constitution guarantee the right to a trial by jury in a case involving life and death? Yes. Are there any stipulations in Floridas Constitution which alters this guaranteed protection or allows the right to be waived in a case involving life and death without the knowing and willing consent by the individual who is guaranteed this right? No!
The Florida Constitution states in part:
SECTION 2. Basic rights.--All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.
SECTION 9. Due process.</B.--No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.
And what due process is provided for by Floridas Constitution?
SECTION 22. Trial by jury.--The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.
Perhaps Judge Baird does not believe in the constitutionally intended separation of powers of judge and jury written into Floridas Constitution as is also written in every other States constitution and in our federal Constitution as well. Perhaps Judge Baird does not believe in the protection which a jury was intended to provide, and that Judge Greer is somewhere constitutionally clothed with both these powers. If so, the historical evidence surely contradicts Judge Bairds notion concerning the importance of the right to a trial by jury, and the intended separation of powers of judge and jury, to wit:
As Thomas Jefferson put it to Tom Paine in a 1789 letter, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
And, in 1794, in the first jury trial held before the U.S. Supreme Court, John Jay, the first Chief Justice instructed jurors thusly: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still both objects are within your power of decision. The jury has a right to judge both the law as well as the fact in controversy."
J. Story writes in his Commentaries on the Constitution of the United States 1757 (1833). ''t is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty.'' Id. at 1762.
And, in Sparf v. United States, 156 U.S. 51, 106, (1895) Justice Harland wrote:
The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.
In a more recent case, in Taylor v. Louisiana, 419 US 522 , 530 (1975) Justice Byron White stated with regard to the right to a jury trial:
"The purpose of a jury is to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the over-zealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge."
For a more complete review of this legal topic see: RIGHT TO TRIAL BY IMPARTIAL JURY
So, contrary to what judge Baird asserted, that Terris wishes have been decided in another case, the truth is, Terris wishes, as alleged by witnesses, have not been evaluated by a jury, and under the existing circumstances and our constitutional system, is the only constitutionally authorized body which may make such a determination, and therefore, Judge Bairds relying upon a case in which Terri has not been afforded the protection of a jury, and prefers to accept the opinion of a judge who has improperly acted as a judge and jury, is aiding in a depravation of Terri Schiavos rights under color of law. those rights being: due process of law and the protection found in a trial by jury.
It is also important to note that the comment made by Judge Baird prior to the trial to determine the constitutionality of Terris Law, the comment being that Terris Law was presumptively unconstitutional, which was then somehow found to not be a biased remark by the First District Court of Appeal [Fulmer, Davis, and Wallace, jj concurring] in which Governor Bush had petitioned to have Baird removed from the case because of the biased remark, the Court in not finding Judge Bairds remark to be biased pointed to North Florida Women's Health & Counseling Services, Inc. v. State of Florida and relied upon an unprecedented standard used earlier by a Florida Court in In re T.W., 551 So. 2d 1186 (Fla. 1989), in which the court, with its opinion, laid the groundwork to subjugate and overturn a number of fundamental principles of constitutional law practiced in America for over three hundred years as listed below:
1. The burden is upon him who assails the constitutional validity of a statute,
2. It is presumed that the Legislature intended a valid constitutional enactment,
and 3. When the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one which it would be unconstitutional and the other it would be valid, it is the duty of the Court to adopt that construction which will save the statute from constitutional infirmity.See Floridas own Supreme Court in case NO. 93, 649 NATHAN MIZRAHI and AVA RUTHMAN:
The court reasoned, in refusing to remove Baird from the case as follows:
The circuit judges statement that this legislation is presumptively unconstitutional simply announced the standard by which he believes the constitutionality of the statute is to be measured and is therefore legally insufficient to create a well-founded fear of prejudice or bias.
Is that so? Not bias or prejudicial? In making the comment prior to trial, Judge Baird announced to the world and without reservation, that he had already determined Terris Law to impinge upon her right to privacy as discussed in North Florida Women's Health & Counseling Services, Inc. v. State of Florida in which the phrase presumptively unconstitutional is used. In this case the phrase was used by the court to observe a new standard of judicial review created by the court and to disobey three hundred years of established principles which govern constitutional law. In fact, it was used to strike down as unconstitutional an act requiring parents of an adolescent child seeking an abortion to be notified prior to such an abortion, pretending such an act would forsake the will of the people as they intended by their framing and adoption of Article 1, Section 23 of Floridas Constitution, an intention nowhere to be found in the historical records during the framing and adoption of Article 1, Section 23!
As it turns out, the people of Florida during the 1970s were quite concerned with folks in government collecting information about them without their knowledge by the use of wire taps and other such means as was exposed was being done by the Watergate incident. The peoples will with regard to the privacy mentioned in Article 1, Section, 23 was related to this type of government intrusion and was never, even remotely intended, to overturn parental rights as known in the State of Florida since its beginning when the people adopted the Amendment in 1980, nor overturn the principle that: The burden is upon him who assails the constitutional validity of a statute.
As to the alleged intention that Article 1 Section 23 may have been adopted to allow Terris protection of a jury to be waived without her willing and knowing consent, in order to protect her privacy by allowing a judge to act as judge and jury in determining a medical decision she may have wanted, nothing in the historical record of the amendments framing and adoption supports such a theory--- a theory which in fact suggests that the people of Florida intended to repeal the protection afforded by the guarantee to a trial by jury in cases in which the state is called upon to end a persons life.
In any event, it was generally thought that Floridas judicial system would hand the Honorable Governor a defeat, but such a defeat is not expected when the 14th Amendment protection to due process of law is invoked at the federal level, and the Court there is called upon to guarantee Terri a trial by jury to determine what her wishes may have been. Thankfully Floridas Honorable Governor has promised to appeal this decision, and eventually our system will be made to work as intended by our Founding Fathers.
JWK
ACRS
[Permission is hereby given to reprint this article if credit to its author and the ACRS appears in such reprint. No copyright is claimed for quotes within the article which are public domain materials.]
I think it would help if Governor Bush is encouraged by a showing of public support to guarantee Terri's right to a trial by jury to determine her wishes! Perhaps someone can post the appropriate phone and fax numbers and e-mail addresses. I do believe if an appeal is made to a federal district court via the 14th Amendments due process [the right of trial by jury being within that due process, and its protection not being granted to Terri] there is too much case law to refuse her this right.
JWK
Well, its interesting that you say there isn't legal BS and then you start right in on some. The point I tried to make and apparently missed, is that we will never know what SHE wants. We have one set of legal experts with their second hand BS against another batch. Now we will advance the purity of this argument by getting a jury involved who will make their decision, [which will be final in Terry's case, but will NOT be Terry's decision], based on the legal BS spoonfed from both sides. Throw into the mix every political action group from the entire spectrum each with their own agendas and you have the makings of a grand circus. Meanwhile this woman is treated like an object, or worse yet, like a trophy to be fought over.
This thing needs to park all the above mentioned crap and find out directly from the woman what she wants. If she says no then thats it. If she says yes she wants to leave, she should not have so suffer through starvation or writhing in pain as treatment is withdrawn. There should be lots of checks to let her change her mind and make sure it is not merely an emotional impulse. In the end it must be her choice to go or stay.
This is ground zero!
Also see:
From the headlines for other discussions concerning Terris case this forum is sponsored by the St. Pete Times in Florida, and is continually monitored by Governor Bushs people, legislators, and even judicial tyrants! We need to give Gov. Bush our support!
Sincerely,
JWK
Also see:
From the headlines for other discussions concerning Terris case this forum is sponsored by the St. Pete Times in Florida, and is continually monitored by Governor Bushs people, legislators, and even judicial tyrants! We need to give Gov. Bush our support!
Sincerely,
JWK
Terri also has a right to life...for medical treatment that she has been denied! etc.
Terri also had a right to the protection of a jury trial in a case in which she was the most interested party, a case to determine her wishes, [see Schiavo's wishes recalled in records] and whose right to life and liberty was at stake. And, who has waived her right to the protection of a jury, and has done so without her knowing and willing consent [making it illegal]? Her alleged loving husband who has been out and about thinking with his little head, engaging in extramarital affairs! But not to fret as the Court had the audacity to permit this active adulterous spouse to continue as Terris guardian! For some reason I just get the feeling that Judge Greer, Judge Baird, and the infamous George J. Felos have something else in their minds other than Terris best interests. But who knows? Maybe they are just good friends .very, very good friends.
In re GUARDIANSHIP OF Estelle M. BROWNING: and I suggest you read the entire case, a case which Im sure the infamous George J. Felos is familiar with, [it has been pointed out elsewhere this is the case which inspired him to hear voices,] the following quotes taken from the case are most interesting:
1. The Ethics and Advocacy Task Force, as amicus curiae, raises a very legitimate concern that the "right to die" could become a license to kill. There are times when some people believe that another would be "better off dead" even though the other person is still fighting vigorously to live. Euthanasia is a crime in this state. 782.08, Fla.Stat. (1987). See 765.11(1), Fla.Stat. (1987).
2. We emphasize and caution that when the patient has left instructions regarding life- sustaining treatment, the surrogate must make the medical choice that the patient, if competent, would have made, and not one that the surrogate might make for himself or herself, or that the surrogate might think is in the patient's best interests.
The bottom line is, our system of justice guarantees Terri a right to the protection of a jury in determining the facts in her case in which her life may be ended by the authority of the State. Until this protection and due process is afforded to Terri, which may not be perfect but is guaranteed by our system of justice, Terris case will not be concluded within the four corners of our Constitution, and those who move forward without providing this protection, will be doing so in violation of their oath of office and be willingly participants in the subjugation of our constitutional system.
See: Sec. 241 - Conspiracy against rights
Sec. 242 - Deprivation of rights under color of law
Civil Action For Deprivation of Rights (see 42 U.S.C. § 1983 )
Conspiracies to Interfere With Civil Rights (see42 U.S.C. § 1985 )
In Sparf v. United States, 156 U.S. 51, 106, (1895)Justice Harland wrote:
The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.
And, Justice Byron White, in Taylor v. Louisiana, 419 US 522 , 530 (1975)emphatically stated:
"The purpose of a jury is to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the over-zealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." --
JWK
ACRS
Michael Schiavo Is Being Charged With Perjured Testimony and Fraud On the Court
Does anyone know the status of these cases?
Civil Lawsuit:If these cases were still active all this time, Why were these given such a SLOW TRACK? and how were the judges able to justify killing her FIRST, and finding the REAL 'facts' SECOND?
...April 2001 lawsuit in which Michael Schiavo has been charged with numerous counts of wrongful acts... Subsequent to the April 2001 filing, an amended Civil Lawsuit was filed on May 7, 2001, charging Michael Schiavo with the following counts and allegations:...the charges in the lawsuit compelled Civil Court Judge Quesada to conduct an emergency hearing on April 26, 2001. In that hearing, Judge Quesada recognized the inconsistency of Michael Schiavo's original 2000 trial testimony...
- INTENTIONAL CONSPIRACY
- BREACH OF FIDUCIARY DUTY
- INFLICTION OF EMOTIONAL DISTRESS
- ALLEGATIONS COMMON TO ALL COUNTS
The civil suit presented to Judge Quesada has since been amended and a portion pertaining to probate matters has been reassigned to Judge Greer's court. However, the major segment of the lawsuit is presently under consideration in Judge Schaefer's Civil Court.
May 1998 - George Felos is hired and files a petition in Court to remove Terri's feeding tube.
April 6, 1999 - House Bill 2131 was introduced in the legislature by the Florida Elder Affairs & Long-Term Care Committee to amend Section 765 (Civil Rights) of the Florida Statutes. two weeks later, the legislature Committee on Judiciary recommmended that House Bill 2131 should also change the Section 765.101 legal definition of life prolonging procedures to add: "INCLUDING ARTIFICIALLY PROVIDED SUSTENENCE AND HYDRATION, WHICH SUSTAINS, RESTORES, OR SUPPLANTS A SPONTANEOUS VITAL FUNCTION".
Oct 1, 1999 - Senate Bill 2228 (formerly HB2131) becomes law changing Section 765.101 of the Florida Statutes to include the above.
Jan 24, 2000 - Trial begins to decided whether to remove Terri's feeding tube.
Feb 11, 2000 - Judge Greer orders that Terri's feeding tube can be removed.
If you followed the timeline, Felos filed a petition to remove Terri's feeding tube BEFORE the law was changed...
Why is that? Did the Florida legislature knowingly or unknowingly pass a law that would apply specifically to Terri? I don't think there were any other hotly contested "right to die" cases at that time. (The cases of Cruzan, Bludworth, and Browning were decided years before). I wonder who paid-off or influenced who to get the law changed?
http://freerepublic.com/focus/news/1018981/posts?page=316#316
(post 316 has tons of other juicy stuff)
MY COMMENTS on this snippet:
WHY DOES THIS COURT OBJECT to the legislature changing laws in 2003 affecting an active case (to SAVE Terri)...
BUT the SAME COURTS WELCOMED the legislature changing laws in 1999 affecting this SAME ACTIVE case (to DESTROY Terri) ?
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