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."
Of course, they probably did not realize the depth of Clearwater's attachment to the Scientology philosophy, if not the actual church itself.
An interesting thing is that I was talking to my brother --he has a JD in law and an LLM as well.
He says that most of the lawyers he talks to realize that this has been a travesty of the law and quite poorly done.
However--and this was an interesting point of view to me--he says that this case is really about ABORTION not T.S. at all, and that the legal community understand this very well. The problem is--that if the courts establish some kind of default of "erring on the side of life" this opens the door to acknowledging the "right to life" and he says that once you acknowledge a "right to life" then it is only a matter of time before "right to life" trumps the "right to privacy" which is what the law currently uses to justify abortion.
clinton purposefully put in a LOAD of rabid pro-abortion judges--and these judges know very well that acknowledging any sort of right to live would be against their abortion intersts. And so--T.S must die. It is an interesting theory--for what it is worth.
Felos gives me the creeps.
it's so easy for all these legal scholars to talk about where the Schindlers' attorneys failed ... but where were they when the Schindlers needed them? Their lawyers have worked on this case for years, pro bono. Time for the big-time, showboat lawyers to stfu.
I am sure someone will correct me if I am wrong. Appeals are usually filed to challenge " findings of law" . There is a distinction between " findings of fact" and " findings of law". It is usually assumed and it is very rare to overturn a decision based on findings of fact. I am sure someone else can provide some examples of the difference.
As a lot of people with public defender's are
I've been watching this issue trying to maintain some sanity. We have a planet with 6 billion people on it. Hundreds of thousands are dying regularly in conflicts and genocidal events. Political prisoners are tortured in many parts of the world. Our brave soldiers are hunting down bad guys all over the world. They die regularly in Iraq in a great effort to inject liberty into a region that has precious little of it.
Day in, day out the world is happening to us.
Day in, day out 90% of the postings on FR are about Terri Schiavo. This is most definitely a very sad situation for all parties. No one wants this to happen.
Who is paying for all of this?
I don't like criminals testing the legal system to the tune of hundreds of thousands or millions of dollars. Of course, they are convicted criminals.
Terri has done nothing wrong. But this situation is costing taxpayers what I suspect is millions of dollars. I don't know the answer to this question, but I suspect some of you diehards do - who is to pay for her medical attention after the last trickle of settlement money runs out in April 2005?
The world is about difficult choices. Efficiency (that little engine that has driven capitalism, development, and general progress) dictates that at times uncomfortable decisions must be made. We assign value to lives in law suits. We don't intervene in every country that needs intervention. We eat our vegetables. We even put down animals. Choices. If our new paradigm is "life at all costs," then all of you should pick up those peace protestor placards and head to the next antiwar protest.
This holier than thou thing with this case is unsavory. For awhile I thought holy cow this guy has another family and is ignoring her parents. That's all Freepers talk about. I had no idea her family encouraged him to get out and on with his life. Whatever the truth is, its not the mantra so many folks on FR are proposing it is.
People should write down what they want done in this situation. When that's not done, someone else will necessarily decide. Those others may disagree.
We can't stop the world when there is a disagreement. I've read many of the rantings and ravings of people here who are disgusted about what is happening. Well, I for one am disgusted that most of those I thought to be my ideological compatriots are so whacked out that they are willing to toss logic out the window over a case in which the facts are very heavily in dispute. I thought the right to lifers who bombed clinics were the fringe lunatics.
If FR, talk radio, and conservative columnists are any indication, I may have been wrong. What in the world convinced so many of you to toss out thinking of the world, Iraq, the issues of the day and in lieu focus all on what amounts to a political ploy which is taking advantage of a terrible situation?
Terri may or may not have wanted to have lived in her condition. I find it hard to believe she would want her legacy to this world to have been the image of a helpless woman in her current state who people used for a political agenda. It's gross. And a terrible and dishonorable way to have spent the last of her days here.
I don't know what the Schindlers are doing today but I certainly hope they're sitting at her side loving her. I fear they are taking copious notes for their movie deal.
Besides, its all in His hands. For some reason I don't think moving the political crosshairs onto men like George Bush helps, does it?
You are morbid..in this thread. Harvesting?...she is fighting for her life. Have erased the rest of my comments!
The cheap tabloids probably liberal based would bring up crap like this.
HEADS UP: WFTV OUT OF ORLANDO JUST ANNOUCED ON THE 11:00 NEWS THAT JESSE JACKSON IS COMING TO THE HOSPICE TOMORROW AT THE INVITATION OF THE SCHINDLERS.
Ah yes, my former cult. It shows up a lot lately...
This is exactly right, as I understand it. I still cannot fathom Mr. Gibbs not ASKING for de novo review when that is why he went to Tampa last Monday.
Who knows. But they did bring it up, and the evidence was rejected by the courts as being not timely presented.
Congress wanted a denovo review. That is a fresh look at ALL the facts/issues.
I hope Terri costs the taxpayers all that they can pay! I have no sympathy for the taxpayer angle of this horror. Didn't Adolf Hitler also cite saving tax money as a reason for his starvation/dehydration murders?
Finding Fact, Justice You cannot be speaking of our Judicial System. O.J., Blake, Lizzie Borden, Terri Schiavo? how many times do you read about some poor schmuck who was wrongly convicted and freed through DNA 20 years later. Often as not with irefutable evidence staring the DA in the face insisting they got the right guy.
From his book "Litigation As Spiritual Practice - George Felos -2002: Chapter Eight, “Soul-Speak” “As I continued to stay beside Mrs. Browning at her nursing home bed, I felt my mind relax and my weight sink into the ground. I began to feel light-headed as I became more reposed. Although feeling like I could drift into sleep, I also experienced a sense of heightened awareness. As Mrs. Browning lay motionless before my gaze, I suddenly heard a loud, deep moan and scream and wondered if the nursing home personnel heard it and would respond to the unfortunate resident. In the next moment, as this cry of pain and torment continued, I realized it was Mrs. Browning. I felt the mid-section of my body open and noticed a strange quality to the light in the room. I sensed her soul in agony. As she screamed I heard her say, in confusion, ‘Why am I still here … why am I here?’ My soul touched hers and in some way I communicated that she was still locked in her body. I promised I would do everything in my power to gain the release her soul cried for. With that the screaming immediately stopped. I felt like I was back in my head again, the room resumed its normal appearance, and Mrs. Browning, as she had throughout this experience, lay silent.” (73)
What a nut!! He thinks people like Terry Shindler are talking to him in his mind. He hears voices. Asking him to kill them.
Most Freepers get it but most people in the country look at you like you have three heads if you start talking about the 'pro-death' lobby.
The MSM keeps repeating the lies that Felos is telling and most normal people think that it would be cruel to make Terri continue living 'like this' when she plainly didn't want to live by 'unnatural means'. They're buying the lies hook line and sinker.
It would have helped if the federal appellate briefs actually raised the de novo questions, rather than arguing just why the lower court was wrong. You don't do that in a de novo appellate situation.
Excuse me but where is there any evidence that any of them knew anything about the case back in the 90's when this case was decided. It was a small time case in backwater Florida. It wasnt until years after the Schindlers made their trial court mistake that anyone ever heard of Terri Schiavo. Their nobel nominated Dr. Hamelfarb was another low budget mistake. The guy is not some super doc. He's borderline quack and he doesnt treat people in PVS. Could be the quality of evidence brought before Greer is what led to his decision and not corruption. The judge is not bound to collect evidence for one side when they are being ill served by their attorney. His job is to weigh the evidence presented to him. Present him with garbage or dont do a good job of challenging Michaels witness and that is your problem.
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