Terri Schiavo Before dehydration
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 ...
I don't think a majority of citizens even have a basic understanding about their government's functioning and maintenance. That's just not the way it has been, ever. Even the American Revolution was not supported by the majority of colonists. So, "the system" is a creation of the powerful; and while nominally the people have a voice in this constitutional republic, the strings of control are tenuously attached.
Ours is a complex system to boot, with local, state and federal interests intertwined in a complex but working web. I don't have the answer ore rremedy for injustice, and God says it's man's burden to bear. It just breaks my heart though, to see evil masquerade as "just following the law." Or, "I did it because I could."
Having studied Blackstone, and deliberated on it, I long ago concluded that a nation of laws cannot stand. There must be more, and in those days, the legal system had "law" and "equity," which operated (or was supposed to) from sound moral bases. The remnants of that are still in place, see the dissent in 11th Circuit's decision of a few days ago.
Having given this case a basic review, I am convinced it is a victory of form over substance; and it is a sad spectacle indeed.
Testimony in the guardianship case from 1993 and 2000 shows that the original family split came, in part, because the Schindlers thought their son-in-law owed them more than $10,000 in living expenses and had reneged on a promise to share his malpractice cash.At the medical malpractice trial against doctors who treated Schiavo in 1992, Mary Schindler spoke with admiration about Schiavo's attentiveness to her disabled daughter.
"He's there every day," she said. "He is loving, caring. I don't know of any young boy that would be as attentive. ... He's just been unbelieveable. And I know without him there is no way I could have survived all this."
Odd that the Schindlers weren't telling the courts that Terri's injuries were caused by Michael Schiavo back then.
That's because for the first 7 years of this he was a caring husband. 8 years ago is when he started the process we are in now.
Where's the Red Cross in all of this?
Shouldn't they be as outraged about the treatment of Terri Schiavo as they are about how we treat enemy combatants at Gitmo?
The Schindlers now claim that Michael doesn't want Terri to wake up because she would be able to testify that she was injured when he tried to kill her - they claim they've believed that from the start, but they didn't testify to that during the malpractice trial, etc.
Their story has changed, dramatically.
Well it's logical to assume that they've learned things related to the case over the last 15 years.
Nothing fishy there?
We are finally getting down to the nub of the matter.
"Wanting to die" is meaningless. You cannot make a contract to be murdered, and Jack Kervorkian is still in prison.
Society has agreed to tolerate the killing of severely disabled persons, though, as long as they qualify as being in a "persistent vegetative state". The problem with this morally, though, is that "PVS" was invented to define a group of people who could be killed. Its application to this case is an example of begging the question.
Whether or not Terri Schiavo meets the criteria for "PVS" is irrelevant. The difference between "PVS" and "almost-PVS" in her case is undefinable, and if she were examined by 100 neurologists or ten thousand neurologists, the result would remain that there would not be unanimity as to her classification.
The question is, is the practice of killing severely disabled people with severe brain damage to be tolerated. It's not a medical or scientific question.
Read slowly now....THEY CLAIMED THEY'VE BELIEVED MICHAEL PUT TERRI IN THIS POSITION FROM THE BEGINNING.
The federal district courts are courts of limited jurisdiction, "empowered [*4] to hear only those cases . . . which have been entrusted to them by a jurisdictional grant authorized by Congress." University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). The plain language of the Act establishes jurisdiction in this court to determine de novo "any claim of a violation of any right of Theresa Schiavo within the scope of this Act." The Act expressly confers standing to Plaintiffs as her parents to bring any such claims. There can be no substantial question, therefore, that Plaintiffs may bring an action against a party to the state court proceedings in this court for claimed constitutional deprivations or violations of federal law occasioned on their daughter relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. [emphasis mine]
Therefore, this particular case - according to law, precedent and tradition - can be reviewed by the federal courts under powers granted to the Congress by the Constitution. It is not an issue of state's rights.
And you read slowly now...THEY COULD HAVE DISCOVERED THIS AT SOME POINT AFTER TERRI WAS PUT IN THE HOSPICE!
No one wants to belive that their son-in-law would do this to his wife.
But after a time when you begin to add things up and put two and two together it's logical to look back on everything and realize as you said in your own words "that the believe Michael put Terri in this condition."
"from the beginning" doesn't automatically mean that they believed from the moment Terri arrived in the ICU that he had something to do with it.
Whose lawyer, and what was the blunder?
The Schindlers' lawyer. Instead of filing the opening plea of a de novo trial, he filed what was essentially an appeal of the state court ruling. His arguments all hang on alleged procedural errors by Greer.
The whole point of having a de novo trial was to get the facts re-heard, with the goal of having a different judge reach a different conclusion regarding the "fact" that Terri Schiavo's preference is to die in this circumstance, and the "fact" that Terri Schiavo is in a persistent vegetative state from which she will never recover.
CNN wrote about the trial procedings, (I don't have that link & I'm not going to dig thru a week's worth of coverage to find it now) and reported that the judge asked the Schindler's lawyer for case law to back his assertions and he said he couldn't think of any. To make a case, you've got to have references, either to the Constitution, to legislative law, or to previous cases. If their lawyer had nothing to back him up but his opinion, where did he expect the case to go?
On the contrary, it lies at the heart of the case. If Ms. Schiavo does not meet the criteria for PVS, then her health care surrogate (her husband in this case) may not "exercis[e] the incompetent patient's right to forego treatment" according to FS765.305.
I, too, suspect their lawyers haven't been terribly bright in the way the appeals have been handled. I believe Judge Whittemore made a footnote stating that several affidavits disputing Michael Schiavo's claims had been attached to the appeal documents by the Schindler's lawyers, but never discussed as to their relevance - a big boo-boo.
You'll get no argument from me on this point.
But, if you want to change the current system, use your powers of speech and vote. We each much research, prepare and boldly participate in the arena of ideas.
The libs are sitting this one out not because they haven't a "dog in the fight"; but because they know we will turn on our own and let emotions diminish our resolve and fracture our unity.
Remember, Libs are cold and calculating. They do not permit their emotions to cloud the path to their goals. -- We should learn this lesson.
So, I repeat: The system is ultimately our creation.
We must stay engaged in this fight with mind, heart and soul---and save our emotional release for the celebration of a new morning in America.
Yes, but the original "powerful" designed a system with the people as its core (ie: Congress, freedom of speech, right of assembly). What we in this day and age have forgotten is that we also have the responsibility to exercise the power our Founders fought to give us.
Never underestimate the power of even one voice, rational in thought and rooted in democratic principles.
Please. Do not despair. Your help is needed.
Please. Do not despair. Your help is needed.
Whatever gave you the idea that I am in desperation? Damn right I have powers, and rights, and responsibilities. I'm more vocal than most, to boot ;-)
I'd characterize my state of mind as generally clear, and seeing the absence of proper respect for the sanctity of life for what it is.
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