"This person suffering from hereditary
defects costs the people 60,000
Reichmarks during his lifetime.
People, that is your money.
Read 'New People'."
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've always seen that as a mixed bag. On the one hand, you get people who roll over for counsel who claim to be "channeling" the victim. On the other hand, common sense is often the province of the common folk.
George Felos is a clever devil, isn't he?
I figure it would not have mattered how great the attorney had been. Like another poster, the fix was in here. The real "Terri's Law" was the one in 1999, dictated by Felos' goons to a nonsuspecting legislature and Gov.
It is SUCH a travesty. Michael got the money to puruse Terri's DEATH on Terri's back.
"There is nothing that can be done to reverse a "finding of fact" in a trial court. That is one of the travesties of American "justice." But this does not apply to criminals, does it?"
It seems to me the Congress and President gave the Federal courts the right to establish "new finding of facts", but the judge dropped the ball.
While I believe Terri is important enough to fight for there also issues of principal.
We watched "The Passion" last night with our children and the portrayal of Pontious Pilate was eerie. Another man who stood by and let the innocent die. After all, He's only one Man...
11th Circuit Atlanta,WILSON, Circuit Judge, dissenting: I strongly dissent from the majority’s decision to deny the request for an injunction pursuant to the All Writs Act and the request for a preliminary injunction. First, Plaintiffs have demonstrated their entitlement to a preliminary injunction. Second, the denial of Plaintiffs’ request for an injunction frustrates Congress’s intent, which is to maintain the status quo by keeping Theresa Schiavo alive until the federal courts have a new and adequate opportunity to consider the constitutional issues raised by Plaintiffs. The entire purpose for the statute was to give the federal courts an opportunity to consider the merits of Plaintiffs’ constitutional claims with a fresh set of eyes. Denial of Plaintiffs’ petition cuts sharply against that intent, which is evident to me from the language of the statute, as well as the swift and unprecedented manner of its enactment. Theresa Schiavo’s death, which is imminent, effectively ends the litigation without a fair opportunity to fully consider the merits of Plaintiffs’ constitutional claims. We should, at minimum, grant Plaintiffs’ All Writs Petition for emergency injunctive relief. First, I note that there is no precedent that prohibits our granting of this petition. Second, mindful of equitable principles, the extraordinary circumstances presented by this appeal require that we grant the petition to preserve federal jurisdiction and permit the opportunity to give Plaintiffs’ claims the full and meaningful review they deserve. In considering this extraordinary case, I am mindful that “[t]he essence of In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as 1 binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981. 12 equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” Swann v. Charlotte- Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (citations omitted). Keeping those principles firmly in mind, “mercy and practicality” compel us to grant the relief requested. I. All Writs Act, 28 U.S.C. § 1651 The All Writs Act provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651. Federal courts have “both the inherent power and the constitutional obligation to protect their jurisdiction . . . to carry out Article III functions.” Procup v. Strickland, 792 F.3d 1069, 1074 (11th Cir. 1986) (en banc) (emphasis added). Toward that end, the All Writs Act permits federal courts to protect their jurisdiction with regards to “not only ongoing proceedings, but potential future proceedings.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099 (11th Cir. 2004) (internal citations omitted); ITT Comm. Devel. Corp. v. Barton, 569 F.2d 1351, 1359 n.19 (5th Cir. 1978) (“When potential jurisdiction 1 exists, a federal court may issue status quo orders to ensure that once its
A clever devil who doesn't back down. We need a few of those on our side for a change.
Since she's being starved to death, I guess it's a moot question. If you're suggesting she's too expensive to deserve to live, I can't go with you there.
As for your point that hundreds of thousands of other people are dying, so (I infer you to say) why the big deal about her? Well, for one thing she's being KILLED. And also, I assume it's because she's put a face on what may be a larger phenemon (who knows?) of the deliberate starving of disabled people -- a shocking practice if we've quietly allowed it to become commonplace. It certainly wouldn't be the first time one individual whose story touched hearts -- or caused outrage -- merited special attention for that very reason (think Anne Frank - hardly the only victim of the Holocaust, but her personal story is known to every schoolchild); or think Ward Churchill - hardly the only demented leftist professor, but because we became unusually aware of his ravings, he was for weeks the focus of almost Schiavo-like attention (hmm, I don't remember you complaining about that, but I digress.... )
Anyway, when my neighbor is being mugged and I hear her screams, I don't turn up the TV to drown them out, on the grounds that, worldwide, there are thousands suffering a similar fate. I go to her aid because she's a human being, because her fate is an outrage - and because, unlike those thousands of other victim situations, it has been brought to my attention.
WILSON, Circuit Judge, dissenting: I strongly dissent from the majority’s decision to deny the request for an injunction pursuant to the All Writs Act and the request for a preliminary injunction. First, Plaintiffs have demonstrated their entitlement to a preliminary injunction. Second, the denial of Plaintiffs’ request for an injunction frustrates Congress’s intent, which is to maintain the status quo by keeping Theresa Schiavo alive until the federal courts have a new and adequate opportunity to consider the constitutional issues raised by Plaintiffs. The entire purpose for the statute was to give the federal courts an opportunity to consider the merits of Plaintiffs’ constitutional claims with a fresh set of eyes. Denial of Plaintiffs’ petition cuts sharply against that intent, which is evident to me from the language of the statute, as well as the swift and unprecedented manner of its enactment. Theresa Schiavo’s death, which is imminent, effectively ends the litigation without a fair opportunity to fully consider the merits of Plaintiffs’ constitutional claims. We should, at minimum, grant Plaintiffs’ All Writs Petition for emergency injunctive relief. First, I note that there is no precedent that prohibits our granting of this petition. Second, mindful of equitable principles, the extraordinary circumstances presented by this appeal require that we grant the petition to preserve federal jurisdiction and permit the opportunity to give Plaintiffs’ claims the full and meaningful review they deserve. In considering this extraordinary case, I am mindful that “[t]he essence of In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as 1 binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981. 12 equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” Swann v. Charlotte- Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (citations omitted). Keeping those principles firmly in mind, “mercy and practicality” compel us to grant the relief requested. I. All Writs Act, 28 U.S.C. § 1651 The All Writs Act provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651. Federal courts have “both the inherent power and the constitutional obligation to protect their jurisdiction . . . to carry out Article III functions.” Procup v. Strickland, 792 F.3d 1069, 1074 (11th Cir. 1986) (en banc) (emphasis added). Toward that end, the All Writs Act permits federal courts to protect their jurisdiction with regards to “not only ongoing proceedings, but potential future proceedings.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099 (11th Cir. 2004) (internal citations omitted); ITT Comm. Devel. Corp. v. Barton, 569 F.2d 1351, 1359 n.19 (5th Cir. 1978) (“When potential jurisdiction 1 exists, a federal court may issue status quo orders to ensure that once its
That will change.
Link?
This is a big story not only because of one innocent woman but because of the ramifications of what is coming next. It is horrific to think that there are people willing to take care of her including the cost of everything and yet still she must die. All the details regarding her wishes are filled with holes and lies. If you are a person who values life (without a doctor or lawyer qualifying it) you see the importance of this case.
I only took one look at the law, but my memory is that congress directed a new look at the issue of whether her due process rights had been violated, not a new look at the initial findings of facts. Overturning the fact-finding would have been a direct separation of powers violation.
"..........charges against those guilty of killing Terri."
You didn't ask me, but.....it seems to me the fact that this Judge, in determining that she would not want to be kept alive artificially, not only ordered a feeding tube removed, but also ORDERED that she not be allowed food or liquid naturally (by mouth) is the key. It;s one thing to pull the plug on life support, but another to deny an innocent human being food and water by mouth and mandate that person to die!
'
THANK YOU very much for posting this.
I didn't see it.
"The entire purpose for the statute was to give the federal courts an opportunity to consider the merits of Plaintiffs’ constitutional claims with a fresh set of eyes. Denial of Plaintiffs’ petition cuts sharply against that intent, which is evident to me from the language of the statute, as well as the swift and unprecedented manner of its enactment. Theresa Schiavo’s death, which is imminent, effectively ends the litigation without a fair opportunity to fully consider the merits of Plaintiffs’ constitutional claims. We should, at minimum, grant Plaintiffs’ All Writs Petition for emergency injunctive relief. First, I note that there is no precedent that prohibits our granting of this petition. Second, mindful of equitable principles, the extraordinary circumstances presented by this appeal require that we grant the petition to preserve federal jurisdiction and permit the opportunity to give Plaintiffs’ claims the full and meaningful review they deserve."
Wilson is the only sane one, who rules based on the law, in the entire Kangaroo rubber-stamp court.
God bless him.
The law was on Terri's side, the judicial tyrants weren't.
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