Why Schiavo's Parents Didn't Have a Case

latimes.com ^ | March 25, 2005 | Andrew Cohen

[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.

[Destro]

I don't know yet and it is late so we can both look it up and see in the 'morrow.

[Right_in_Virginia]

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.

I may not agree with the author's explanation of his statement, but IMO, this is the essence of the enormous battle the Schindlers---and perhaps thousands more in their situation---face.

The laws must define new parameters in right to live/die cases where there is no WRITTEN "living will". For instance:

1.--The patient must have separate legal representation to protect his or her right to due process; 2. --The definitions of "terminal" and "disabled" must be unbound and the disabled individual must be afforded all protections under the Americans with Disabilities Act; and 3.--The law must allow for guardianship by an individual other than spouse, or even family, if someone capable of accepting the responsibility petitions the court.

Hopefully, energy and passion can be challenged to preventing a situation like this in the future.

[HiTech RedNeck]

Guardians which the HINO was able to dispose of at will, apparently.

[Cboldt]

PS: This issue falls into 2 camps - those that think her life support should remain because she is not in a PVS (the majority it seems) and those that are against her life support ending even if she is in a PVS - no matter what state she is in. Which one are you?

Correction, 4 or more camps. Error on PVS = 2, Error on correctly finding Terri's wishes = 2, Ethics of forced starvation as a means to CAUSE death = 2. There are various combinations and permutation of those, as you know.

[txradioguy]

There are so many avenues of this case that have not been explored or investigated that need to be or should have been before now.

I somehow get the feeling that Michael Schiavo would like nothing more than to sweep theis under the rug before the casue gets the full investigation it should have in the first place.

[Destro]

sober statement.

[dennisw]

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.

Bullshit. It all started with a punk named judge Greer who accepted Michael Schiavo's lies and who allowed M Schiavo to raid Terri's rehabilitation lawsuit settlement to pay his lawyers. Greer is in the death cult same as lawyer Felos and Michael Schiavo.

I don't accept "justice" built on a foundation of lies. F off black robes and your liberal shills such as this author

[Tax Government]

The justice system is like a car with an electronic navigation system and auto pilot. (Nothing like this exists yet, of course.) The car requires you let IT do the driving and navigating.

Given the Schindler/Schiavo facts (current location) and desired destination (a just outcome), it started driving and navigating on its own. But it got lost and is now going the wrong way.

The car is incapable of processing and acting on a corrected set of facts. The car is just bent on taking these passengers to hell, no matter what.

The passengers are beating on the dashboard and windows, trying to make it stop. They'll do anything possible to escape. And they should.

The passengers scream over their cellphones the car is flawed, much to the embarrassment and consternation of the designers, who even as the passengers rush to their deaths, claim it is perfect.

People have rights that the government cannot withhold or abridge. These include LIFE.

[jude24]

They're supposed to be triers of fact, nothing more

That's rarely true; in any jury trial, judges rare triers of law. Facts are traditionally the domain of the jury.

[Destro]

I am talking hyptheticals - which camps are we falling into - ok to pull the plug if she is indeed in a PVS with little doubt after we perform new tests or the don't pull the plug under any circumstances crowd even if tests prove she is in a PVS?

[jwpjr]

re: The story that she can be given food or water by mouth is another false hood arising from this case.

Didn't the husband say that no one could give her ANYHING by mouth and the judge issued an order to that effect? I honestly thought this was the case. It would be sad to find out that all this time the family could simply have fed her and given her water but no one thought of that. In fact, her guardian (and that's the right term in this case) suggested a 'swallowing test' and after both sides had agreed and scheduled it the husband's side backed out for fear agreeing to it would jeopardize a suit they had pending that challenged the constitutionality of the law.

[coconutt2000]

From what I'm hearing, the courts haven't acted in good faith toward Terri Schiavo.

A simple solution to the issue would be for the courts to take temporary custody of Terri, and then order a full medical examination, including tests previously denied by the husband (the previous guardian).

Once completed, the court can invite the testimony of multiple experts to interpret the results of the tests, and then make a fully informed decision.

As best as I can tell, the tests so far done would suffice for a guesstimate diagnosis, or a working diagnosis, but to decide the life or death, a guesstimate is not good enough. In such a case, the court should require that it be convinced beyond the shadow of a doubt, before it could then condemn a patient to death. And if such is the decision of the court, no pussy-footing around the issue by "letting" someone die. If we're going to kill someone, we might as well do the job ourselves, rather than starve them to death. Lethal injection, and may God have mercy on those who advocated the killing of an innocent.

[dennisw]

Whoopps... can't find dad's living will where he said he wanted to live. Pull the plug on the old buzzard so we can divide up his property, get on to his will

[kjenerette]

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these rights are Life, Liberty and the pursuit of Happiness, — That to secure these rights, Governments are instituted among Men, deriving their just powers from the Consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter and abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

- Declaration of Independence, 1776

[Destro]

Not that I have read from a reliable source.

[M. Espinola]

Michael Schiavo & 'judge' Greer are being fully supported by the likes of the pro-death American Civil Liberties Union's Florida chapter. Do you feel when the ACLU promotes anything its in the best interest of this nation?

You do not question my the 'husband' is so determined to murder his wife? Why he has stated an autopsy is out of the question. Why does this thug demand cremation, case closed? Even after offered massive sums of money from various people around the nation, so he would simply transpire Terri into the protection of her family, he still refuses. Why?

Why does Schiavo want Terri dead as a door nail in the worst way? Maybe his death driven agenda is mandated to make damn sure Terri never speaks on what really brought on here 'heart attack', as such a young age.

Could it be this vicious animal beat her so severely the beating induced her unexplained 'brain damage' He knows it's Scott Peterson time if the truth is told.

Follow the money in the nazi like travesty of justice and you shall find the answers. Florida is notorious for crooks, payoffs and a corrupt 'justice' system, what better place for this nightmare and think, soon it will be hurricane season again. Was last year's multi-hurricane damage & loss of life just a small sample of what lies ahead for later on during 2005 in Florida? G-d just might be getting really fed up at this point.

[jude24]

If creating Terri's law was a violation of the separation of powers, the isn't every single ammendment to the Constitution as well?

There's a difference. Usually, when people don't like the outcome of a case, they change the law for the future. Not so in this case, where they changed the FL legislature and the Congress changed the law during the trial. In the case of the latter, it was a designer law that would only apply to Terry Schaivo. This stands starae decisis on its head.

[Cboldt]

This case stands for the proposition that there is no protection in the law, for incapacitated people. The meaning of words changes over time. Men's hearts have been hardend. Life is no longer viewed, by the law, as a sacred gift.

[txradioguy]

Maybe Michael would be happy if we just gave Dr. Kervorkian a 24 hour furlow, got his rusty old van out of the impound lot and spend about an hour with Terri.

[jwpjr]

re: IIRC

You are correct. She could swallow liquids without difficulty and as you point out when her husband found out about it he raised hell with the hospice. I can't for the life of me understand how all these facts have not been allowed to be introduced into this whole case. It is the most frustrating thing about this whole situation. They keep fighting the fight based on how things were years and years ago. Time passes and things change. If the husband weren't so intent on her death he would permit a fresh examination of Terri using the technology of today. Instead he keeps insisting on presenting that snapshot that was taken of her years ago.