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.
The key facts lost only once essentially. There were appeals on process and law, but it was one of subjective judgement by Greer that put in stone the lie that Terri wants to die and that she is PVS.
Ok. I think maybe just laying out the, yes, previous, evidence on these two issues and saying: Here's the crux, the nexus of the case, obviously there's a lot of room for a completely different finding of fact. For example, the judge ruled Terri wants to die based on equal hearsay for and against. He included "public opinion surveys." Take the same set to ten judges and it's quite likely you get at least five to go the other way. Same with the PVS. Plenty of fuzziness here in the science.
We do not have notarized signatures of Terri, we don't even have hearsay less that three ten years old. We do not have MRI or PET scans or even the minimum medical experts today say is needed to reasonable conclude PVS. We have fuzziness resulting in findings of fact that could just as easily, more easily, go the other way.
Secondly, there is certainly new evidence they could produce, new science, studies, opinions regarding her medical condition.
And finally, no matter what the likely outcome, the clear intent of the law was a new trial and that she be alive til it finished.
As the minority opinion illustrated tonight, you can build an opinion for injunction on this alone.
And I appreciate you being the "voice of negativity." It's useful to us layfolks.
Shouldn't the de novo case require new medical assessment of Terri's condition. You are saying that the Schindlers lawyer had nothing new to bring to the judge. I expected that new examinations would be the critical new evidence.