""I think you'd be hard-pressed to convince me that you have a substantial likelihood" of the parents' lawsuit succeeding, the judge said."
The point was a "de novo" hearing, i.e. starting NEW and fresh, and keeping Terri alive, so someone can hear the new case and rule on it, NOT deciding the case, while Terri is dying of thirst and hunger. The judge shouldn't expect to be convinced of whether the parents' lawsuit succeeds, only that Terri had no representation of her own, which is already painfully obvious.
Well, I agree for the most part, but in any "de novo" case which is filed for the first time, the judge has to decide likelihood of success if he is asked for an emergency injunction. The TRO is an extraordinary form of relief. I agree that the prudent thing under these extraordinary circumstances is to reinsert the tube. However, judges do not view matters as we do. IF the judge does not think the parents have a case, then he will feel he is doing greater harm by issuing an order to reinsert the tube.
The de novo nature of the federal hearing is not intended to return to square one. The U.S. district judge will be looking at the record to determine if the patient was accorded the due process to which she was entitled and if findings of fact and conclusions of law as adjudged by Judge Greer are sufficiently supported by the record. His hearing is in the nature of a post conviction petition in an analogous criminal setting. The supervening issue is: Is the trial court's judgment adequately supported by the law that was applied in the context of the record facts. Witness credibility and controverted factual allegations are not weighted by the district judge, he is bound by the record, law and evidentiary sufficiency in his determination of due process.