Gibbs had to plead a civil rights cause of action because that is what the law said. The court had to try the case de novo without regard to the rulings of the state court because that is what the law said. You are trying to argue that Gibbs pleadings gave the judge no option but to rule one way, when the law gave him no option but to try the case.
Furthermore, I suggest you actually read Whittmore's decision. It is the most circular piece of reasoning I have seen from an otherwise intelligent educated individual and I am amazed at how many attorneys here don't see what is so obvious. Whittmore's decision that Terri's civil rights were not violated is based on the findings of the trial court, findings which the law required him to set aside.
IOW there is no way that the judge could reach a decision in this matter than to try the case.
Schindler's lawyer, David Gibbs, may have fatally erred by dragging the previous court case into federal court as the basis for the stay.
Whittmore had to respond to what was presented to him, and Gibbs presented nothing new.
A major screw-up by Gibbs.
The judge must advert to the pleadings. The pleadings complained about how the case was handled, and posed unpersuasive constitutional theories. It did not say in the pleading that Terri did not want to die in this circumstance, and was not PVS, as just an allegation. It for example complained that Greer must have blown it, because Terri was Catholic. Sad.
In other words, he has to cite many details of Greer's previous rulings while simultaneously arguing that Greer's rulings should be ignored in deciding the merits of his case.
Grrrr.....
Isn't it convenient also, that the judge that just regurgitated Greer's rulings has life time tenure-=--
so he doesn't have to be concientious or even right, because he won't get FIRED---
THAT is why it is so very important that any GOOD judges that Bush sends in for nomination, get an up or down vote---
These judges with lifetime tenure really BELIEVE they are God, because unlike the President even, they won't lose their jobs---
If the appellate judges do the same thing, and just use OLD evidence, not start fresh like they are supposed to, then Terrr will surely die, and I think we all should be very afraid of where our country is headed---
If I were the Dem Senators, I would want this NOT to go against Terri, because if it does, and these Federal judges do not follow the Congress' instructions for a "de novo" hearing---
Senator Frist and the Reps will have plenty of ammunition to use when they fight the dems over Bush's judicial nominees!!!
I think you meant there is no way he could follow the law that gave him the case (the Palm Sunday Law) than to try the case.
I haven't read the pleading before the Court, but assuming Torie has (& I think he has), I agree with the contention that Gibbs blew it. Read FN 3 in Whittemore's opinion.