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?
Yes, indeed, she is beautiful and she is loved by her family and others. That is very self-sacrificing of you to want to do that. I think others would help out, too.
What is really amazing to me is that the Schindlers haven't cracked under the strain of all the years of lawsuits. I think that would do me in totally. They seem like very strong, loving, and determined people.
While it has given them more than 15 minutes of fame, that appears to me to be unsought and/or a last-ditch effort to try to save their daughter's life. I think the fame has caused them even more grief because so few are on their side and it adds to the stress they are under already and have been for years. A lot of people act as if they are the villains.
She needs to be taken out of the custody of those trying to kill her so she can be afforded rehab and therapy without their interference.. hopefully permanently. She will then have her own voice that they have been blocking with their substituted wishes and she will also be getting better. The point isn't just to keep her alive but to actually put her back on the raod to her recovery.
Bump. They are doing it for sensationalism (ratings) and because of pure ignorance and depending on the person who is reporting perhaps because they really want to see Terri dead too. Depends on the context of situation.
correction: to get her back on the ROAD to her recovery, etc.
That is very generous of you. In fact, there may be lots of tired families in Ohio caring for loved ones (like Terri) who would be forever grateful for your help.
Yes, there are people here, too, who need my help, and I do help from time to time. Maybe that's why God hasn't taken me back to my home state yet! My point was that however difficult the care is, there can be found people who are willing to pitch in and help. I would like to take care of Terri sometime. She has become like a sister to me. Her care does not seem so much more difficult than those I've cared for in the past.
God bless you for what you do.
Bump.
OK, here's what I have never understood about this case, and I'm hoping one of you can help me out: Why don't Terry's parents simply help her husband get a no fault divorce? It is unpalatable, but if it means that he releases her as their ward, they get to make the life or death decisions going forward. When she dies, unless she had a very unusual will, he is going to get her assets anyway. If they want her to live, why not just take that step now, and we can stop fighting him in court and concentrate on what's best for Terry? What am I missing here?
You pose an interesting question. That is part of the case I have not heard much about, but, I must confess, I do not live in Florida and have not kept up with the case.
From the information I have read, the parents did step up, saying that if he would divorce her they would legally and morally would take on the job of making sure that she is cared for.
You ask about a will. Frankly, if there was any money that would come as a result of the death of Ms Shiavo, I would think it would pay off any of her doctors and health care providers who "may" have a claim.
With such bad feelings, if the family had hoped of receiving any of their daughters belongs, that probably went out the window long ago, when this legal battle began. They have not spoken for years.
I also read that Michael has been seeing a woman and would like to marry and start a family. OK, FINE, give a divorce, give the parents power of attorney to sign for the divorce.
The more I think of it the more I am disgusted I become.
I suppose this ethical issues here may become the norm. We have technology to keep people alive who long ago would leave this earth to go to their maker. This might be the time I say, find paper and pen, write your wishes, share with your family, go to a lawyer and have it witnessed and notarized. Will that help in the future I do not know but it is sure as hell worth a try.
Her husband became eligible for an automatic divorce three years after Terri was incapacitated. He could go to the courthouse tomorrow and get one. It is unpalatable, but if it means that he releases her as their ward, they get to make the life or death decisions going forward. When she dies, unless she had a very unusual will, he is going to get her assets anyway. If they want her to live, why not just take that step now, and we can stop fighting him in court and concentrate on what's best for Terry? What am I missing here?
If Terri had an honest guardian, that person would immediately seek a divorce on Terri's behalf, on the grounds that (among other things) Michael has publicly repudiated his marriage vows and stated his intention to marry the mother of his illegitimate children. Unfortunately, Michael can use his dual role as guardian and husband-in-name-only to prevent Terri from getting a divorce.
It should be noted that Terri's parents filed to remove Michael as guardian in September of 2002. Unfortunately, every time the case has come up for a hearing, Michael has refused to show up and instead requested a continuance. Any normal person who refused repeatedly to show up when summoned by any normal judge would spend time in jail for contempt (and would then be escorted from the jail to the courthouse to ensure he attended the next one). For some reason, however, Greer has shown no interest in holding Michael accountable.
Worse, when the parents filed another motion to demand that Michael demonstrate that he has the legal authority to do the things he's done pending the guardianship hearing, Greer dismissed it on the basis that the statute authorizing such motions is only intended for people who would have no other legal recourse. The parents in this case have other recourse (filing a guardianship challenge), a fact of which Greer noted they must obviously be aware, given that they in fact filed such a challenge.
I wish more people would realize that the parents aren't trying to make things difficult. They'd be more than happy if Michael just went off somewhere with the mother of his illegitimate children and they all had nothing more whatsoever to do with them. But Michael, Felos, and Greer all want Terri dead.
They are faith-filled people. There's no way you could walk this path and still be sane, without God right at your shoulder.
Michael Schiavo has been living for years with a woman .. and he's still legally married to his charge, Terri. He's fathered two children with this "person."
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.
Not so much "reborn" ... save for its being a Family Tradition of sorts.
Thanks for the flags.
There has GOT to be a way to stop this Juridical murder.
Basically he wants her dead saying it is her hearsay wishes to be killed because she wouldn't want to live on machines or artifically. All this while denying the rehab and therapy for her to get her own voice back so she can communicate just what it is she wants. The reason why he refused to do this: she's brain dead when videos and visits by her parents and attorneys prove otherwise as well as testimony by Hospice of the Florida Suncoast, Inc. personell in court transcripts that she is calm and content, etc. that they sit her up in a chair.. reports by investigators of AHCA in regards to her care show these same personnel denying her any therapy saying she received all the therapies in the past and that she is getting passive range of motion (which isn't therapy) but they had signs on the wall showing rehab stuff. There is much more than this. Much more.
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