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.
Oh my feeble brain is having trouble processing this one. I was wondering why he brought up the violation of her religious rights.....so what SHOULD he have brought up?
Well, at some point you would have mentioned the previous court because that is the one that removed the tube that is killing her.
But, Whittemore ruled on the issue of a de novo trial IMMEDIATELY and did it on the conclusion that based on the OLD COURT info (wasn't supposed to be considered), that the Schinlder might not win. Dumb, or deliberately malicious to stall.
So...the only thing before the court regarding the de novo hearing was to SCHEDULE a new trial at a later date AND act on the INJUNCTIONS that he didn't even really consider.
Gibbs did not have to present anything new. The law required that Whittmore try the case de novo. It does not mean new factual allegations. It means a new hearing to hear all of the evidence. The previous court case was relevant, because, if the allegations are true, then it is part of the pattern of violations of Terri's civil rights.
The error that Whittmore made, and that his sympathisers are repeating is a circular argument - presuming that since Gibbs argued nothing new, the case had already been decided. But, if the law requires that the case be retried, then Whittmore cannot base his decision on the findings of fact of the previous court hearing.
The error is a transparent logical error (question begging) and I am surprisde that any experience jurist would commit it or fall for it.