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'm with you: I've been thinking all along, what's up with the parents' lawyers? They seem to have fallen down on the job on several fronts.
read the article again.
Torie, I'm recalling a discussion held here back in 2000 (I think it was) when the Florida Hospice program and the inappropriateness of Terri being moved there was raised. I believe Greta's husband is also Scientology and they are listed on the 'magnanimous donors' list. An FR search of Scientology might turn something of a link ... I run see if I can find it.
Having said that, we will never know, because yes the lawyering was weak, and too little too late (per the amended complaint which at that point would have exposed Whittemore as having endangered Terri's life based on a poor pleading, and thus that maybe generated a bias against reversing his ruling), and I would assume based on the poor pleadings, had equally poor briefs.
The sad thing is I suspect, is that the right to life movement in this context, simply does not have access to the best and brightest federal constitutional lawyers. They simply don't have Olson and the Federalist Society types on speed dial. And of course it needed to be on speed dial; there was so little time. Indeed, the whole thing really needed to be prewritten by the right brains in anticipation. Just another guess.
Understand I am not suggesting you are wrong. It is just so rather serious a charge, that it needs to be verified in my view.
to read later
Oh, so true.
It's been all about "abortion" since day one.
And the democrats, the media, and every judge and newscaster, and reporter, and judge appointed by the Clinton's have that.
Now, they aren't saying it, but they know it.
That's where you figure somebody in charge will step in and prevent a court-sanctioned murder. Unfortunately, "somebody" could only shrug his shoulders and say there is nothing he can do. The county probate judge will not be denied this murder, this demonstration of his power over life and death.
Tick....
You are sick......do you HONESTLY think the Schindler's are "taking copious notes for their movie deal"?? Sick....Sick...SICK!
(1) the time pressure they felt they were under because the tube had already been removed; and
(2) the false belief that the district court would read the new law passed by Congress the way they wanted it to be read and not as it could and was read by a judge who wanted no part of all this. Their pleadings make it look like they felt that the district court would accept them with open arms--so they did not prepare a case that would have forced the district case to find that there were realistic questions as to the due procees required when a court is taking someone's life, is involved.
False confidence and euphoria that the Congress passed that law--with not enough good thinking.
Well, I am in Florida and Florida stinks so bad, we cant hardly stand it, down here. A fact. If you're gonna hear any bad news, any weird news, any sad news, it is usually, as a rule, out of Florida.
She brings it up in her book, My Turn At The Bully Pulpit (I think that's the title).
The title for the book about Terri's execution ought to be 'Murder By Court Decree' but the other Florida courts have the deadly 'rubber stamp' to cover Greer's arse ... and Whittemore did his best to abide same, denying a de novo hearing.
The circuit court of appeals judge on the 11th circuit panel that wrote the good dissent was a Clinton appointment--although because he graduated from Notre Dame college and law school, he probably had a greater sensitivity to the life issue than the pro death judges that seem to abound.
That is my current take. But this is a learning process for me. I am not sure I have it quite right even yet.
As usual stinkspur, you feel most comfortable when siding with the forces of darkness.
There were dissenting Federal appellate judges who sided with the Schindler attorney and strongly condemned the majority Judges for ignoring important legal facts the Schindler attornies provided for them.
One Federal appellate Judge from the 11th Circuit also said his fellow judges were overtly ignoring the will of the Congress in rejecting their emergency legislation calling for an FULL appeals hearing, and to keep Terri Schiavo alive in the meantime.
So no matter how you slice it, enough evidence and points of law were provided to satisfy at least some appellate Judges. But it's impossible to mollify the lusts of the death cult.
Pendantic enough for you? :)
Or perhaps not simple enough. The Cruzan case stands for the principal that the state has a right to countermand the orders of the next of kin regarding withdrawing nutrition and fluids. This case involves the state agreeing to go along with that request. Both cases involve the Supreme Court declining to intervene in a state issue.
While some of the facts are similar in both cases, the legal questions raised are not. If anything, Cruzan supports the Supreme's repeated refusal to hear this case.
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