Posted on 03/28/2005 7:48:32 PM PST by Theodore R.
Schindlers Were Outgunned by Lawyers Early
In case you were wondering, with so many facts in dispute about the Terri Schiavo case, the answer is relatively clear: The Schindlers, well-intentioned as they have been, were outgunned in the early legal fight that sealed their daughter's fate.
The early legal maneuvering created "facts" that are now beyond dispute in higher courts. One is the unbelievable claim by Michael Schiavo that Terri wanted to be starved and dehydrated to death.
One Florida attorney told the story on Steve Sailer's Web blog (www.isteve.com).
Here's what the lawyer wrote:
"I have been following the case for years. Something that interests me about the Terri Schiavo case, and that doesn't seem to have gotten much media attention: The whole case rests on the fact that the Schindlers (Terri's parents) were totally outlawyered by the husband (Michael Schiavo) at the trial court level.
"This happened because, in addition to getting a $750K judgment for Terri's medical care, Michael Schiavo individually got a $300K award of damages for loss of consortium, which gave him the money to hire a top-notch lawyer to represent him on the right-to-die claim. He hired George Felos, who specializes in this area and litigated one of the landmark right-to-die cases in Florida in the early '90s.
"By contrast, the Schindlers had trouble even finding a lawyer who would take their case since there was no money in it. Finally they found an inexperienced lawyer who agreed to take it partly out of sympathy for them, but she had almost no resources to work with and no experience in this area of the law. She didn't even depose Michael Schiavo's siblings, who were key witnesses at the trial that decided whether Terri would have wanted to be kept alive. Not surprisingly, Felos steamrollered her.
"The parents obviously had no idea what they were up against until it was too late. It was only after the trial that they started going around to religious and right-to-life groups to tell their story. These organizations were very supportive, but by that point their options were already limited because the trial judge had entered a judgment finding that Terri Schiavo would not have wanted to live.
"This fact is of crucial importance -- and it's one often not fully appreciated by the media, who like to focus on the drama of cases going to the big, powerful appeals courts: Once a trial court enters a judgment into the record, that judgment's findings become THE FACTS of the case, and can only be overturned if the fact finder (in this case, the judge) acted capriciously (i.e., reached a conclusion that had essentially no basis in fact).
"In this case, the trial judge simply chose to believe Michael Schiavo's version of the facts over the Schindlers'. Since there was evidence to support his conclusion (in the form of testimony from Michael Schiavo's siblings), it became nearly impossible for the Schindlers to overturn it. The judges who considered the case after the trial-level proceeding could make decisions only on narrow questions of law. They had no room to ask, "Hey, wait a minute, would she really want to die?" That "fact" had already been decided.
"In essence, the finding that Terri Schiavo would want to die came down to the subjective opinion of one overworked trial judge who was confronted by a very sharp, experienced right-to-die attorney on one side and a young, quasi-pro bono lawyer on the other.
"Nothing unusual about this, of course. It's the kind of thing that happens all the time. But it's an interesting point to keep in mind when you read that the Schiavo case has been litigated for years and has been reviewed by dozens of judges ... yadda yadda yadda.
"By the way, I'm guessing that George Felos is probably quite happy to work the Schiavo case for free at this point since it's making him one of the most famous right-to-kill -- I mean right-to-die -- lawyers in the country. His BlackBerry has probably melted down by now, what with all the messages from the hurry-up-and-die adult children you've been blogging about."
I must have misinterpreted your original post .. I thought you were suggesting that perhaps there was $$ to be made by MS for the sale of Terri's organs. That, of course, under these circumstances would be rather impossible. There is no question that within the medical and legal community, not to mention activists on the left, human life is an interesting experiment to be studied objectively only (can't let any human emotion interfere).
Since that thread began, it appears MS has agreed that an autopsy will be performed (I understand by FL law, in cases of cremation, an autopsy MUST be performed). I also heard/read that the family has asked further for bone scans which would either confirm the family's suspicions or clear MS of those suspicions. We shall see if the ME can or will do that. I suppose MS could object and J. Greer would go along.
Sorry, sorry tale all of this is.
I may be mistaken, but it occurs to me that in commanding that she be cremated, MS opened Terri's remains to the medical examiner; by 'requesting' and autopsy, he may be able to limit the examination to just her brain, effectively blocking any further revelations of a 'bone healing' nature.
Yeah, I agree. Attorney Gibbs may be a nice guy with a good heart, but when it comes to hiring a lawyer, it's better to get somebody with a very strong nasty streak. To this layman's eyes, he seems out of his depth.
Since Felos took $357,000 of the $700,000 set aside for her care and THERAPY, maybe that's where we should look. Michael, with the approval of Felos, violated the instructions of the jury. Let him pay. Let Felos pay.
To use the organs from Terri's body would be a hideous crime, whether "research" or no.
That is exactly what the Nazi doctors did. Tortured and killed people, and used the findings for "research".
Don't go there.
As a lawyer myself I agree completely. I will also add that the argument was lost once the 'right to die' was entertained at all. That in itself was an extension of the right of privacy, which was originally put forth by Justice Brandeis in the early 20th Century as a theory for protection against government interference in financial affairs, then misused completely in the Roe case.
Any judge down the line could have said that the right to die was itself illegal and therefore the order of Judge Greer was void on its face. Clearly there is some legal basis to argue this since there is a contradiction between statutes prohibiting suicide and choosing to die. The Supreme Courts (Fla and US) could redecide the case on Constitutional grounds, but then, indeed, it would be a readdress of the right to abortion, and guess what--they will not do that.
They are two sides of the same coin.
It does, actually. An appellate court in a criminal case cannot reverse a jury's finding of fact if it was supported by some evidence. It can only review the fairness of the procedures followed by the trial court, or other issues of law.
excellent explaination.
Thanks for the clarity.
You are right in that I read the comments to my post and thought I saw a common undercurrent. So, the response wasn't to you specifically.
The government has only stepped in here because the Schindlers forced it too. The procedures and rules for this situation predated TS. The only people trying to change them are the Schindlers, their followers, and activists. For activists to then suggest that the government is actively trying to kill people is disingenuous. The government wanted nothing more than the historical status quo.
For that reason, the slippery slope argument is a red herring. This red herring has been gobbled up by certain factions. While I think it started as red meat for the radical pro-life crowd, I think it's clear now that many political groups see this as a great opportunity to divide and conquer. The media plays it 24/7 - in lieu of reporting successes in Iraq. The "religious right," as diverse as I think it is, can now be portrayed with some effect as wackos because they don't care about rules, laws, or anything else other than getting THEIR way.
You presume any of us knows what Terri wants. We don't. The law says her husband gets to decide. What if the law said her parents got to decide . . . but they wanted her tube removed . . . while the husband wanted her alive. There is no one answer. The outcome here is within the realm of compassion.
Terri, the Schindlers, and those of you screaming bloody murder have been taken advantage of. To the extent some are worried about an intrusive government controlling our lives and deaths . . . their actions are doing more to make that likely than anything Michael Schiavo ever thought of doing. Public opinion and political prices will villify the radicalness of the circus that is TS. If the radicals amongst you insist on their current path, TS's legacy will be an increasingly socialistic government put in place by people who feared radicals proposing the overthrow of the rule of law.
How's that? Is that what "you" want? I think the term is irony.
Mary and Bob Schindler Sr., her parents, consulted a St. Petersburg attorney about removing Michael Schiavo as their daughter’s guardian and discussed the case at length with him.
Unfortunately, the Schindlers did not have the amount of money the attorney demanded as a retainer to take the case.
That attorney then became the judge in the case-----a totally prohibited conflict of interest.
Thereafter, the attorney-judge approved the hiring of George Felos as the attorney for Schiavo to be paid from the trust fund and the stage was set for judicial homicide.
The judge wasn’t George W. Greer of the Sixth Judicial Circuit of Florida.
It was Sixth Circuit Court Judge Mark I. Shames.
Not only did Shames allegedly try to covertly withdraw the feeding tube from Terri as early as 1997 but he had a wholly prohibited conflict of interest which has tainted the case from the beginning and is clear evidence of the fraud and deception that exists in the case.
The Florida Code of Judicial Conduct dictates that a judge is mandated to disqualify himself in a proceeding in which he has personal knowledge of disputed evidentiary facts concerning the proceeding and if the judge has served as a lawyer (or been consulted) in the matter in controversy.
After the Schindlers discussed their potential case at length with Shames and wanted to hire him to represent them to remove the guardianship of their daughter from Michael Schiavo, Shames announced his candidacy for Sixth Circuit Court judge. Upon being elected, Shames was assigned the guardianship case of Schindler v. Schiavo and Shames failed to disqualify himself as required.
Thank you, little jeremiah -- you are quite right about what the Nazi's did in pursuit of "eugenics". I asking if anyone understood or knew what Florida Autopsies involved.
You raise a good point, and frankly, I have absolutely no knowledge in this field.
All of this is indeed a sorry tale.
My wonderings about the first part came after learning MS was demanding an autopsy. And so I had many questions.
And the rubber stamp tyranny passed the injudtice on along as per the usual Florida judicial oligarchy. And the governor could not intervene? ... Bullsh!t to Jeb Bush and his political posturing.
This article is based on the same information as that link I sent you.
http://abstractappeal.com/schiavo/infopage.html
Therein lies the problem.
The law says her husband gets to decide.
Actually, the law says that an appointed guardian gets to decide. The husband doesn't automatically reign supreme. The law also says that a guardian should be free of any conflict of interest that may compromise his decisions.
You also said
The procedures and rules for this situation predated TS. The only people trying to change them are the Schindlers, their followers, and activists. For activists to then suggest that the government is actively trying to kill people is disingenuous. The government wanted nothing more than the historical status quo.
That is patently false. The existing "end of life" laws were only revised in 1999 - 9 YEARS AFTER Terri's collapse.
Back in 1990, feeding tubes were not legally considered life support in FL. In addition, a PVS state was not considered a terminal illness for which life support could be removed.
It was only through the activism of people like George Felos (who agressively lobbied for the above statute changes) that the law was revised. The "historical status quo" is a mere 6 years old.
Read for yourself. This is a link to 1999's chapter 765. Read the descriptions for "life-prolonging procedures" and "terminal condition." Then navigate the site to pull up the statutes for 1998 and see how they were changed from one year to the next. 1998 makes no mention of artificial hydration/sustenance, nor does it mention PVS.
bump
"Once a trial court enters a judgment into the record, that judgment's findings become THE FACTS of the case, and can only be overturned if the fact finder (in this case, the judge) acted capriciously (i.e., reached a conclusion that had essentially no basis in fact)"
Exactly. That is why this case is so painful. Once Greer's findings became a matter of record, it was all over.
It seems to me the way things have gone that the best thing the parents could have done from the get-go (before security around her got too tight) was to make arrangements to move themselves AND their daughter out of this country (yes, the word "kidnap" does run fleetingly through one's mind at times like these) to a facility and country that would have not only allowed them to stay without extradition, but would have afforded Terri the therapy she needed and that Michael Shiavo chose to withhold from her. I realize things like this usually only happen in movies, and are easier said than done, but anything would have been better than this fiasco.
bump to mark
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