Posted on 01/24/2005 7:11:46 PM PST by eartotheground
Fighting For Her Life Inflicting 'Capital Punishment' on Terri Schiavo... [Patterico] 11/8/03
Imagine that a court is about to decide whether you will live or die. Although it's a frightening thought, you can take comfort in your constitutional rights. Here in the United States of America, your case will be decided by a jury of your peers, which cannot condemn you to death unless it finds the essential facts to be true beyond a reasonable doubt. If the courts convict you unjustly, you can ask the governor to issue a stay, or commute your sentence. And if you do not get a reprieve, the Constitution says that the government cannot cause you to die by cruel and unusual means.
You are entitled to these protections and more -- that is, if you face a death sentence because you committed a brutal murder. And here in California, you can count on legions of activists to protest if you are threatened unfairly with death.
But the situation is quite different for Terri Schiavo, the brain-damaged Florida woman whose husband obtained court approval to have her feeding tube removed - and would even have been worse had she been a resident of California. Unlike a convicted murderer, Ms. Schiavo was ordered to die based on the findings of a single judge, applying a standard of proof typically reserved for civil cases involving monetary awards, rather than life-or-death issues. If the political left had its way, Ms. Schiavo's death warrant could not be countermanded by the governor, as could occur in a criminal case. Finally, Ms. Schiavo was ordered to die in a way -- forced starvation and dehydration -- that would never be tolerated as a means of executing a murderer. Worst of all, a patient in Ms. Schiavo's position in California would likely receive even less protection under the law than Ms. Schiavo has received in Florida.
The stakes in the Schiavo case are high, just as they are a capital murder case.
In both cases, parties are litigating whether a human being will live or die. In both cases, the burden of proof is appropriately placed upon the party seeking to end a human life. And in both cases, the wrong decision could result in the killing of a person who neither wants nor deserves to die.
Despite the high stakes involved, the life of someone like Ms. Schiavo is not protected by our judicial system the way it would be if she were on trial for capital murder. Like all criminals, suspected murderers are constitutionally entitled to have their cases decided by a jury -- bringing to bear the collective experience and wisdom of a diverse group of people. Indeed, the Supreme Court recently held that a death penalty cannot constitutionally be imposed where the facts supporting the imposition of the penalty were determined by a judge, rather than by a jury. Moreover, all criminal defendants are entitled to have their guilt decided according to the stringent "beyond a reasonable doubt" standard -- the highest evidentiary standard in our judicial system.
By contrast, Ms. Schiavo -- who killed nobody -- was condemned to death based on factual findings made, not by a jury, but by a single probate judge. That judge was not required to decide the facts of her case beyond a reasonable doubt.
Rather, the judge ordered that Ms. Schiavo be starved and dehydrated to death, after making factual findings according to the lower "clear and convincing evidence" standard applicable in many civil cases.
As Ms. Schiavo's case shows, this standard can be very malleable in the hands of a single judge. The judge in Ms. Schiavo's case found "clear and convincing evidence" that Ms. Schiavo is in a persistent vegetative state from which she will never recover -- despite testimony and statements to the contrary from several respected doctors. Moreover, videos appear to show Ms. Schiavo responding appropriately to stimuli. Finally, people like Rus Cooper-Dowda are living proof that a person can be diagnosed to be in a persistent vegetative state, and live to tell the tale. Ms. Cooper-Dowda has written of the horror of lying in her bed, listening to doctors talking about when they were going to kill her. But arguments like this failed to sway the probate judge who alone decided Ms. Schiavo's case.
He believed the doctors who supported Mr. Schiavo's position -- and that was that.
Similarly, that judge found "clear and convincing evidence" that Ms. Schiavo would want to be starved to death, despite the fact that Ms. Schiavo left no written expression of her wishes, and her own family does not recall her saying anything about the issue. The evidence of her alleged desire to die consists entirely of hearsay testimony from Mr. Schiavo, his brother, and his sister-in-law, concerning statements they say Ms. Schiavo made in casual conversation.
Watching a television movie about Karen Ann Quinlan, Ms. Schiavo allegedly said that she would not want to be hooked up to a machine, or to be a burden to others. Discussing a friend's dying baby, Ms. Schiavo allegedly said that she wouldn't want to be kept alive with "tubes." Even if this testimony were taken at face value, Ms. Schiavo's statements do not clearly reflect a considered decision that starvation and dehydration would be preferable to receiving basic nutrition through a feeding tube -- especially if she had parents willing to care for her, no painful or terminal illness, and a possible chance at being weaned off of the feeding tube and being able to swallow food on her own.
Moreover, there is substantial reason to doubt Mr. Schiavo's claims regarding his wife's stated wishes. Mr. Schiavo suffers from clear conflicts of interest -- both emotional and financial. He has lived with another woman for eight years, and has sired two children by that woman. His statement that his wife would want to die conveniently facilitates his ability to inherit what remains of a $750,000 trust fund, created pursuant to a judgment in his wife's medical malpractice case. Mr. Schiavo won that judgment by arguing to the jury that he wanted to rehabilitate his wife -- never mentioning that she supposedly did not want rehabilitation under these circumstances. Once the trust fund was set up, Mr. Schiavo quickly refused to pay for the rehabilitation.
When the stakes are life and death, the system should not allow such evidence to be rejected based on a credibility determination made by a single judge, applying the same standard that juries use to decide whether someone who spilled coffee on their lap is entitled to punitive damages. That the evidence in the Schiavo case is susceptible to more than one reasonable interpretation is illustrated by the fact that a guardian ad litem, who was appointed early in the case, declared that he was troubled by Mr. Schiavo's obvious conflicts of interest, and did not find his claim regarding his wife's alleged wishes to be credible. The guardian recommended against the requested starvation and dehydration, but that recommendation was rejected by the probate judge. If the guardian was not convinced by Mr. Schiavo's claims, isn't it possible that the probate judge got it wrong?
The availability of judicial review is cold comfort. The political left continues to repeat the refrain that this case has been reviewed by 19 (or, depending on who is making the claim, 20, or even 24) judges -- all of whom examined the facts and ruled for Mr. Schiavo. Sadly, this just isn't true. The fact is that appellate courts almost never conduct an independent review of the facts. Instead, they defer to the credibility determinations made by the trial judge -- as long as some evidence was presented by the side that won. This case is no exception. The fact that the case has been appealed several times does not change the fact that the critical facts were decided by one man, and one man alone.
In criminal cases, society recognizes that such limited appellate review is sometimes inadequate to properly evaluate an accused's claim of innocence.
For this reason, our system of checks and balances authorizes the head of the executive branch to act as a sort of fail-safe mechanism. If new evidence of innocence arises -- or if a governor believes that the judicial system has overlooked previously presented evidence of innocence -- the governor may grant a stay of execution, a commutation of the sentence, or even a full pardon.
Nobody contests the authority of a governor to perform such acts, even if he thereby reverses a final judgment of the courts, reached after twelve members of the public unanimously found the accused to be guilty beyond a reasonable doubt.
But in the Schiavo case, it took a special law to grant Florida's Governor Jeb Bush the authority to issue a one-time stay of the judicial order intended to kill Ms. Schiavo. The law was passed only after Ms. Schiavo's parents obtained several affidavits attacking the credibility of Mr. Schiavo's claims regarding his wife's wishes. For example, a former co-worker of Mr. Schiavo's executed an affidavit saying that he had repeatedly confided in her that he had no idea what Ms. Schiavo would have wanted. Also, a registered nurse executed an affidavit saying that Mr. Schiavo often said things like: "When is that bitch gonna die?" -- and would talk about all the things he was going to buy, and trips that he would take, once his wife finally died.
If issues of similar significance were raised in a capital murder case, calling into question whether courts were correct to order a death sentence, liberals would rush into action to prevent the possibility of an unjust execution. But here, where the person condemned to die was not convicted of murder, the political left seems eager to ignore any suggestion that the courts might be wrong. When Governor Bush acted to save Terri Schiavo's life, howls of outrage from the left were heard from coast to coast.
Perhaps the most disturbing distinction between Ms. Schiavo's case and that of a convicted murderer is that there is no law against subjecting Ms. Schiavo to cruel and unusual punishment. The death ordered by the courts in the Terri Schiavo case -- a slow death by dehydration and starvation -- is not a death we would wish for a dog. If the patient has any conscious awareness (as many doctors have said Terri Schiavo does), such a death can be agonizing. Patients may feel pangs of hunger and thirst. Their skin, tongue, and lips may crack. They may suffer nosebleeds, heaving, and vomiting.
It is bitterly ironic that, at the same time that many on the left argued that Terri Schiavo should be killed in this brutal way, our United States Supreme Court granted a stay to a man convicted of murdering two people, to examine his claim that lethal injection would be cruel and unusual punishment because he has collapsed veins.
Californians have special reason to be worried by the lack of protections for Terri Schiavo, because even fewer protections are available in California. The California Supreme Court has held that courts must apply the "clear and convincing evidence" standard (the standard used in the Schiavo case) to resolve whether a conservator may withhold artificial nutrition and hydration from a "minimally conscious" patient -- one able to throw and catch a ball, write letters and draw shapes, and sometimes even answer questions "yes or no." By contrast, the court said, evidence meeting that standard is not required to order the death of a patient who (like Ms. Schiavo) is ruled to be in a "persistent vegetative state."
Ideally, cases like that of Ms. Schiavo should not end up in the courts. Ideally, these sorts of life-and-death decisions should be made privately, by the patient's family, according to the best interests of the patient. Ideally, people will make their wishes known in a clear, unmistakable written form, or will vest decisionmaking power in a trusted person, using a power of attorney, or a designation of a surrogate.
But life is not always ideal, and we must recognize that there will be unfortunate situations like that of Ms. Schiavo, where relatives dispute what is the appropriate course of action in the absence of a clear directive. In such situations, the procedural protections available to criminal defendants should be made available to people who can't speak for themselves, whose very life or death hinges upon the court's decision.
Is not Terri Schiavo's life worth at least as much as that of a suspected murderer? Why, then, do we not accord her at least the same protections under the law that we would accord to someone charged with deliberate, cold-blooded murder?
I think your post pretty much obliterates any opposition on this point. If these people really "cared" about Terri, the most "humane" solution they could come up with might involve just shooting her in the head at point blank range rather than just starving her through slow torture. Hitler could not be prouder.
Don't you know? Michael Schiavo has made arrangements to have her cremated as soon as possible after her last breath!
I would like to start a fund - anyone else?
Shhhhhhhhhh! He could probably find you with his 'ability' to read minds.
Bump! We need to organize mass protests! We need to get diverse groups from all walks of life over here. Creative ideas welcome.
My 2 cents worth:....If her parents want to take care of her.....why won't the State let them? Sign Releases of all claims and get on with life.
I don't know that we'll hear what the Supremes said, the articles I've read state that they denied to hear the case without comment.
Hubby's not going to allow time for that, she'll be cremated immediately.
Thanks for the sentiment in regards to keeping on Dubya and his bro. I wish people from all spectrums would wake up to see the injustice against Terri and fight to get whatever interests involved who can to stop her murder. If anyone has a line of contact to Dubya please use it.
Bump. I recently voiced an idea to a friend that someone should get a pig and say in the national media that they are going to starve and dehydrate a pig and then see what happens and then when everybody is up in arms inform them about Terri's plight.
It's not a switch. It is a port for feeding and it's not even connected to a feeding tube all the time.. Only a couple times a day. This is all the more maddening. She's not on life support, is conscious, has some cognizance. She is being denied any rehab/therapy since '93 and those who seek her death subsituted her voice with their own in trying to make her dead while denying her the therapy so she could have her own voice. This is the most maddening thing possible.
Bump. Hopefully massive amounts of people will step up to the plate for Terri and get her back on the road to her recovery while slapping those who want to see her dead down to the ground if they don't want to let go of their death grip.
Not without food and water.
Hopefully people can get them to see they do incalculable wrong, damage, etc. by doing nothing more and letting two-bit criminals get away with murder in front of the face of the nation and the world.
Yep they'd have a fit!
The libs come running from far and wide when a manatee is in distress. UGH!
It appears that he and his brother have unless enough people can get them to change their minds and get her back on the road to her recovery after putting her in some kind of protective custody.. the problem is that the Hospice of the Florida Suncoast, Inc. and bioethicists,etc. have lobbied on up to the Florida Office of Elder Affairs, and there is even a pdf file that I got from 1992 that has Jeb in it about End of life stuff. Then I heard that one of the persons in legal affairs for Jeb is connected to this Right-to-Die stuff. After I saw this I was like OMG this is the new T4 nazi actions reborn. Then I heard from someone in another country something about our President being in masonry and that other masons couldn't ask him to do anything to stop this murder and that they were trying to introduce the euthanasic principle into the United States while pretending to be for life and starting with Terri. Look up Ken Goodman and Hospice of the Florida Suncoast in Google and you will find this PDF file from Office of Elder Affairs. You can then search under Ken Goodman and Hospice of the Florida Suncoast, Inc. (where Terri is being held hostage and where they are going to attempt to kill her again for a 3rd time by dehydration and starvation) and find them in the document. You can also search in Google for Ken Goodman and see he is against Terri and says she is brain-dead, etc. He was the person who put together the PDF file or was involved and in which Jeb speaks at the beginning of it. He was also on an interview with PBS alongside Johnny Byrd.. Byrd was saying the legislature was going to fix the problem with Terri and that Terri's law was just a temporary stop gap but now it appears that he was lying in regards to the legislature doing anything and was quoted by his office from another on freep that Terri is just one person. But that is what our nation is founded upon is the individual, etc. and what that represents!, etc. at least in part and our inalienable right to life, liberty and the pursuit of happiness, from God, etc.
So far he hasn't put his political neck out. Sorry but he hid behind the legislature to give him authority. 2 against 1 ... separation of powers? Not. He or his brother have yet to stick out their political necks and show the rest of the world just what they are made of. Maybe they can give an example to the Democrats who are just as sick as the republicans not doing anything to definitively save Terri and make sure she is PUT BACK ON THE ROAD TO HER RECOVERY by getting her out of harms way and getting her the rehabilitation and therapy she needs. The parents will have more than enough support to provide the funds for that aspect.
Not sure about Hugh Finn but you have good observation in regards to Terri.
I don't think he got that far but he did bring some pudding with him I believe one time and he was banned from seeing Terri for a while. I think he was trying to make a point.
Bump.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.