11th Circuit Court Rejects Schiavo Appeal

ABC ^ | Mar 30, 2005 | RON WORD Associated Press Writer

[jpsb]

With time running out for Terri Schiavo, a federal appeals court Wednesday rejected her parents' latest attempt to get the brain-damaged woman's feeding tube reconnected.

The Atlanta-based 11th U.S. Circuit Court of Appeals agreed to consider an emergency bid by Bob and Mary Schindler for a new hearing in their case, raising a flicker of hope for the parents after a series of setbacks in the case. But the court rejected the request 15 hours later.

Three times last week, the court also ruled against the Schindlers.

"Any further action by our court or the district court would be improper," Judge Stanley F. Birch Jr. wrote. "While the members of her family and the members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty."

To be granted, the parents' request would have needed the support of seven of the court's 12 judges. The court did not disclose the vote breakdown.

The Schindlers visited their daughter Wednesday morning at her hospice and urged their supporters to keep trying. "I was pleasantly surprised by what I saw," Bob Schindler said. "So she's still fighting, and we'll keep fighting."

"We know that some of her organs are still functioning. ... It's not too late," he said.

In requesting a new hearing, the Schindlers argued that a federal judge in Tampa should have considered the entire state court record and not whether previous Florida court rulings met legal standards under state law. The Schindlers' motion also said the federal appellate court in Atlanta didn't consider whether there was enough "clear and convincing" evidence that Terri Schiavo would have chosen to die in her current condition.

[ex 98C MI Dude]

The doctors on the Schindler side spent more time with the patient than the Schiavo/Greer side. Hammersfahr, though called quack by many on this board, spent ten hours with her. Cheshire spent an hour. The Schiavo's doctors spent 25 minutes and 45 minutes respectively. That is hardly conscientiously. Matter of fact, Dr Cranford (one of the two Schiavo appointed doctors)once diagnosed a man as in PVS while he watched the man pound shaped blocks into shaped holes. He stated on television that Alzheimer's and PVS patients have no Consitutional rights. Some of the people he has declared in PVS with no hope of recovery have done just that... recovered. Some completely. Yet, you place your faith in such a man. Hammersfahr's patients have actually improved with the treatments he pioneered. Cranfords patients get better in spite of him, not because of him.

[jpsb]

Yes, it's over,
no more fighting for me,
and no more GOP.

[Critter]

Yeah, you. The murder of millions starts with the murder of one.

[Truthsearcher]

What the family is requesting is not relevant.

If the family right now request you to give up all your earthly possession to pay for more legal battles, would you be a bad person if you said, "No, sorry, I can't do that!"?. We all have limits on how far we're willing to go to make a difference on this issue. Jeb Bush's has made a lot of efforts on behalf of Terri. No one whose willingness to act on Terri's behalf is limited to some emails and BBS postings has any moral high ground to criticize him.

[nicmarlo]

here is the important use of the word 'shall' in section 2:

Yes, the important word SHALL.

In law, it means it is imperative, no choice, no option but to do whatever follows SHALL. Not leaving open any wiggle room to defy it.

That's why when you see orders coming from a judge, they also use the word SHALL to distinguish what MUST be followed from MAY, which leaves a choice in the matter.

[libertarianben]

"The murder of millions starts with the murder of one."

The journey of a thousand miles begins but with a single step.

Two wrongs don't make a right, and three rights make a left.

And another I hear so often...

You can't make an omelet without breakin' a few eggs.

I have that book of one-liners, too.

[ninenot]

Reminds me of Southern Indiana.

Judges have a lot of power and influence largely because they know ALL the poop on all the players.

[tomahawk]

I'm not trying anything.

I do not believe her parents are trying to keep her alive if they believe she is "not there". Why should they? No one advocates that.

They believe she is "there", and I trust their judgment on this more than a doctor who advocates killing Alzheimer's patients who spent 45 minutes with her in 1996.

Over three dozen neurologists who have seen her since 1996 have opined that she is not in a PVS. Judge Greer disregards them. I don't. Congress didn't.

[lnbchip]

Let's review:

"AN ACT

For the relief of the parents of Theresa Marie Schiavo.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SEC. 2. PROCEDURE.

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted."

The federal courts were instructed according to this legislation "to determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act". According to this language, the court was required to review the case "de novo" which means "over again or anew". Common sense would tell a person that simply based upon the sheer volume of documentation and evidence related to this case, a court could not review this case from the beginning in as short a time as the federal judges up the ladder did in this case. The Congress assumed that this law would require the feeding tube to be reinserted simply to allow the court the time to rule on the case. The federal courts ignored this order by Congress. To say otherwise is ridiculous.

[Future Useless Eater]

>>>Perhaps you should go back and read WHO shall conduct a de novo review...

I did, and it says District Court, which clearly did not do so.

And since you didn't answer me, that means you couldn't find the keyword "may" which you said was so crucial, right?

[TexKat]

Dan Abrams reporting that the Schindlers will be filing a petition with ths Supreme Court tonight.

[libertarianben]

With the passing of Terri Schiavo, so passes the era of Republicans being actual government conservatives.

Bye, GOP. It was nice knowing you.

[Future Useless Eater]

scratch that lugsoul. I didn't notice that I NEVER asked you anything.

I was waiting for isrul to answer my question.

[Dog Gone]

I guess they wanted to pound the final nail in the coffin.

[jpsb]

"Specify the charges, then"

Conduct unbecoming a human being.
Conspiring to commit murder
Material witness to a attempted homicide
Smoking crack
Whatever, anything will do, then a REAL Judge could have intervened.

That by the way would have worked, Jeb could have removed Greer.

[ninenot]

short of a shootout that apparently would have happened at the hospice had the governor acted with armed force

Right. Shootout at the Hospice Corral.

Jeb PERSONALLY leads the Fl. National Guard infantry unit (the armored accompanies them) up to the local yokel and states: "I am the Governor of Florida and the Chief Law Enforcement officer of the State. Stand down, or you will be taken prisoner immediately."

End of standoff.

[lugsoul]

It is not that obvious. First, the "clearly stated intention" of Congress was that the District Court was NOT - NOT - required to issue a stay. Second, Whittmore did not refuse a 'de novo' review on the merits - he heard a motion for TRO, under the long-standing standards for such a motion. The Schindlers can still get a 'de novo' review - ONLY on claims of deprivation of FEDERAL constitutional rights, not the entire case [read the law] - but you don't get that by filing a motion for TRO and seeking an immediate ruling. The TRO request was to reinsert the tube PENDING a 'de novo' hearing. You are NOT trying to tell me that Congress required that, are you? Because if you are, you need to go have a word with Dr. Frist.

Then, you need to be a little more clear about 'overturn' - if the 11th thought a full-blown 'de novo' hearing on the motion for TRO was required [note: not even Wilson says this], they wouldn't do it - they would send it back for Whittemore to do it.

[GRRRRR]

Excellent, our plan is working...HIllary by a landslide in 2008...

Sheesh...nose cut off to spite the face and all that...

G

[lugsoul]

I didn't answer a question that wasn't posed to me.

I was responding to your claim that THIS court violated the will of Congress. Which didn't happen.