Posted on 03/26/2005 1:34:45 AM PST by Destro
March 25, 2005
COMMENTARY
Why Schiavo's Parents Didn't Have a Case
By Andrew Cohen, Andrew Cohen is CBS News' legal analyst.
Terri Schiavo's parents did not lose their federal case because they didn't try hard enough. They didn't lose their case because everyone conspired against them. They didn't lose it because Congress ticked off the judiciary over the weekend with its over-the-top custom-made legislation. They didn't lose it for lack of money or because they failed to file a court paper on time. They didn't lose it because the laws are unfair or because bureaucrats sometimes can be arbitrary and capricious.
The Schindlers lost their case and their cause — and soon probably their daughter — because in the end they were making claims the legal system has never been able or willing to recognize. They lost because they long ago ran out of good arguments to make — those arguments having been reasonably rejected by state judge after judge — and thus were left with only lame ones. And they lost because in every case someone has to win and someone has to lose. That's the way it works in our system of government. It isn't pretty, and sometimes it's unfair. But it's reality.
Especially during this final round of review, orchestrated by Congress' extraordinary attempt at a "do-over" for the couple, Schiavo's parents lost appeal after appeal specifically because they were asking the federal courts to declare that their constitutional rights had been violated by the Florida state court rulings in the case. They were arguing, in other words, thanks in part to their custom-made congressional legislation, that the federal Constitution gave them the right as losers in state court to get a new, full-blown trial in federal court.
(Excerpt) Read more at latimes.com ...
Anyway, the point is that no judge or court can issue an order that she cannot be given food or water by mouth -- that is euthanasia and is not legal in Florida. Since it is not even humane I would call it murder by judicially enforced dehydration.
There are a lot of "red herrings" in this case which are going to play out later.
One is the so-called "Persistent Vegetative State".
This is a term which was invented AFTER the discussion about terminating life support began in the 1970s. The purpose of a new diagnostic category, "PVS", was to clarify that there were patients who had not experienced death of the whole brain but who nonetheless would not recover.
Of course, there are many other patients with damaged or absent diencephalic function who do not have "PVS" but who nevertheless are not going to recover.
The use of the term "vegetative" is dehumanizing (vegetables do not have beating hearts, do not breathe, etc, etc, etc), and the invention of this diagnosis intended it to be dehumanizing, in that it would allow the purposeful death of humans. (In a similar way, saying "brain dead" does the same thing, except that brain dead people are really dead in a way that PVS and other brain-damaged people are not).
If it's wrong to kill Terri Schiavo because she has "almost enough brain damage to have PVS, but not quite enough", then it's also wrong to kill her if she actually has "PVS". People who are so invested in a "wrong diagnosis" are barking up the wrong tree.
In moral terms, the use of the term "PVS" obscures more than it reveals-which is exactly what it's inventors wanted to accomplish.
DISQUALIFIED PERSONS.--No person who has been convicted of a felony or who, from any incapacity or illness, is incapable of discharging the duties of a guardian, or who is otherwise unsuitable to perform the duties of a guardian, shall be appointed to act as guardian. Further, no person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in s. 39.01 or s. 984.03(1), (2), and (37), or who has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under s. 435.03 or under any similar statute of another jurisdiction, shall be appointed to act as a guardian. Except as provided in subsection (5) or subsection (6), a person who provides substantial services to the proposed ward in a professional or business capacity, or a creditor of the proposed ward, may not be appointed guardian and retain that previous professional or business relationship. A person may not be appointed a guardian if he or she is in the employ of any person, agency, government, or corporation that provides service to the proposed ward in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed ward's best interest. The court may not appoint a guardian in any other circumstance in which a conflict of interest may occur.
This section of the law was probably used in attempts to remove Michael from his role as Guardian. Prob
Here's what the law describes as conflicts of interest:
744.446 Conflicts of interest; prohibited activities; court approval.--
(1) It is essential to the proper conduct and management of a guardianship that the guardian be independent and impartial. The fiduciary relationship which exists between the guardian and the ward may not be used for the private gain of the guardian other than the remuneration for fees and expenses provided by law. The guardian may not incur any obligation on behalf of the guardianship which conflicts with the proper discharge of the guardian's duties.
(2) Unless prior approval is obtained by court order, or unless such relationship existed prior to appointment of the guardian and is disclosed to the court in the petition for appointment of guardian, a guardian may not:
(a) Have any interest, financial or otherwise, direct or indirect, in any business transaction or activity with the guardianship;
(b) Acquire an ownership, possessory, security, or other pecuniary interest adverse to the ward;
(c) Be designated as a beneficiary on any life insurance policy, pension, or benefit plan of the ward unless such designation was validly made by the ward prior to adjudication of incapacity of the ward; and
(d) Directly or indirectly purchase, rent, lease, or sell any property or services from or to any business entity of which the guardian or the guardian's spouse or any of the guardian's lineal descendants, or collateral kindred, is an officer, partner, director, shareholder, or proprietor, or has any financial interest.
(3) Any activity prohibited by this section is voidable during the term of the guardianship or by the personal representative of the ward's estate, and the guardian is subject to removal and to imposition of personal liability through a proceeding for surcharge, in addition to any other remedies otherwise available.
And finally, the section on removal of a guardian:
744.474 Reasons for removal of guardian.--A guardian may be removed for any of the following reasons, and the removal shall be in addition to any other penalties prescribed by law:
(1) Fraud in obtaining her or his appointment.
(2) Failure to discharge her or his duties.
(3) Abuse of her or his powers.
(4) An incapacity or illness, including substance abuse, which renders the guardian incapable of discharging her or his duties.
(5) Failure to comply with any order of the court.
(6) Failure to return schedules of property sold or accounts of sales of property or to produce and exhibit the ward's assets when so required.
(7) The wasting, embezzlement, or other mismanagement of the ward's property.
(8) Failure to give bond or security for any purpose when required by the court or failure to file with the annual guardianship plan the evidence required by s. 744.351 that the sureties on her or his bond are alive and solvent.
(9) Conviction of a felony.
(10) Appointment of a receiver, trustee in bankruptcy, or liquidator for any corporate guardian.
(11) Development of a conflict of interest between the ward and the guardian.
(12) Having been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under s. 435.03 or under any similar statute of another jurisdiction.
(13) A material failure to comply with the guardianship report by the guardian.
(14) A failure to comply with the rules for timely filing the initial and annual guardianship reports.
(15) A failure to fulfill the guardianship education requirements.
(16) The improper management of the ward's assets.
(17) A material change in the ward's financial circumstances such that the guardian is no longer qualified to manage the finances of the ward, or the previous degree of management is no longer required.
(18) After appointment, the guardian becomes a disqualified person as set forth in s. 744.309(3).
(19) Upon a showing by a person who did not receive notice of the petition for adjudication of incapacity, when such notice is required, or who is related to the ward within the relationships specified for nonresident relatives in ss. 744.309(2) and 744.312(2) and who has not previously been rejected by the court as a guardian that:
(a) The current guardian is not a family member; and
(b) Removal of the current guardian is in the best interest of the ward, the court may remove the current guardian and appoint the petitioner, or such person as the court deems in the best interest of the ward, either as guardian of the person or of the property, or both
More:
744.477 Proceedings for removal of a guardian.--Proceedings for removal of a guardian may be instituted by the court, by any surety or other interested person, or by the ward. Reasonable notice shall be given to the guardian. On the hearing, the court may enter an order that is proper considering the pleadings and the evidence.
History.--s. 1, ch. 74-106; ss. 21, 26, ch. 75-222; s. 85, ch. 89-96; s. 59, ch. 90-271.
Note.--Created from former s. 746.04.
744.511 Accounting upon removal.--A removed guardian shall file with the court a true, complete, and final report of his or her guardianship within 20 days after removal and shall serve a copy on the successor guardian and the ward, unless the ward is under 14 years of age or has been determined to be totally incapacitated.
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But what does this all mean? It means that insofar as the law is concerned, Judge Greer covered his behind. As you can see, Michael Schiavo's guardianship could only be terminated if the judge felt it necessary. His position as spouse appears to have exempted him from removal, allowing him to do as he wished with their joint marital estate, without being subject to automatic removal, since that power is his as the spouse.
Whereas the fact that no specific example was given for his particular conflict of interest, having another family with another woman, allowed the judges to decide if this constituted sufficient cause for removal, as a conflict of interest. They of course decided that it wasn't.
So, it is true that one can't blame the law as being unfair or unjust. The law in this case just is what it is, and unfortunately... tragically, Terri's particular circumstances have no applicable statues in regards to her guardianship which can save her... save one.
744.3215 Rights of persons determined incapacitated.--
(d) To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.
To properly define the allowing of her person to be denied sustenance, and to have her starvation and dehydration and death enforced by a court order, defined properly as abuse and neglect.
There was no scene of a crime involved here -
Because some of the criteria that would rule out being PVS would be visible even to a layman.
I've shown him that. He just comes back with "it's survived judicial review 12 times" or something similiar. I'm paraphrasing here.
Indeed she committed no crime except to become ill. A murderer would have a better chance than she on the fact finding level (i.e. a jury).
it's also wrong to kill her if she actually has "PVS" - at least your honest about your agenda - Even if she had a living will asking for her life to end - that also falls into 2 camps more - would you follow her wishes or keep her tubed up regardless?
re: he is not allowing her to be fed
Excellent point. I don't see how he can prevent her parents from attempting to feed her and hydrate her by mouth. The law gives him the right to order her feeding tube removed, but as you point out it hardly gives him the right to order them not to attempt to feed her or hydrate her. If she is sufficiently aware of her surroundings and condition to be able to make the decision to live or die she can simply refuse to accept the food and liquid. If they attempt to give her something by mouth and are successful then it means either she wants to live, or she's so far gone that she can't make the decision.
You talk about "agenda" as though you don't have one yourself?
You know exactly what I'm trying to say here. No sh*t there's no crime scene. I wasn't suggesting that there was a crime scene. I was using that as an example to show that judges on a regular basis go to look at the source of whatever has brought the two parties before him or her in court.
There was nothing to stop this judge from going to the Hospice himself to see Terri with his own eyes.
But God forbid he might do that and put a "face" on this person he's sentened to death.
And then he might find out too that one of his contributors to his campaign lied to him about the state of his clients wife.
Can't have that happen now can we? Can't do anything to cut off the campaign cash can we?
HE IS THE PROXY as husband! Name of actual gaurdian provided in above earlier posts. Thanks.
yes - conservative principles - states rights, etc.
Unless you can come up with a primary source, I can just google up another reference backing what I said, and back and forth we will go.
Kindly populate that "etc."
In our ignorance we will see a person opening and closing eyes, moaning, making sounds, and then think she can't be in a PVS - all the Hollywood movies I ever show makes it seem they just lay there - in actuality that is exactly how PSV victims react. The judge going there or any other layman going there would be meaningless and misleading - he had a medical team go there for the court and that is the best thing for this type of thing.
I did in posts 1-100. Let's save bandwidth.
YOU DORK!!! That's the same AP article, just in another online paper.
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