I appreciate your logic; however, the clear intent of the bill was to have a new trial without any prior procedings effecting this trial, de novo, new record.
Why couldn't the argument be made that this is the bills intent, and that if you do not consider the findings of fact of the previous procedings as binding - which the law instructs - then these facts concerning her intent and her medical condition do offer a reasonable chance of winning?
In other words: the law says start anew, unrestricted by previous findings. Under those conditions, there is a reasonable chance of different findings of fact on two key issues and here's why...
The trouble is, there are no new facts, no new evidence to present to the federal judge. What else can you do but ask him to look at the evidence that was presented in the state courts? Worse, you're not really even asking him to do that, you're asking him to only look at the half of the record that's favorable to you. Well, if you're going to present all these same arguments and bits of evidence that you presented before, how can the judge not assume that the other side will also present pretty much the same response, and then examine it as well? Worse still, you're presenting a set of facts that are supposed to show that you have a substantial likelihood of prevailing, when that exact same set of facts has already lost several times before.
As much as I hate being the voice of negativity here tonight, what judge in his right mind would issue a ruling based on a trial transcript with half the pages ripped out? No one would, and he almost surely wouldn't have to - if the Schindlers show up with their half of the previous record, you can bet Schiavo and his attorney were only too willing to provide the other half. "De novo" doesn't really mean "tabula rasa", especially not if your argument is solely based on the prior record, as the Schindlers' was.