Replies

AndrewC,

I unequivocally share your view that this was a travesty. I want to make a minor correction with regard to your belief that "counsel" automatically implies "lawyer." The law permits a lay defendant to serve as his own counsel. The advocacy before the court known as counsel is therefore not limited to a person of the legal profession.

As I mentioned before, the Florida guardianship statutes contain a chapter that places 15 rights into a specially protected category labeled "retained rights." The right to counsel that you cited is one of these. The office addressed with this term "counsel" is that of the guardian ad litem or guardian before the court. In a majority of instances involving an incapacitated person the court will favor the appointment of a lawyer to that office. As general_re rightly observed, this is not dictated by law. A lay person may serve as the guardian ad litem after undergoing a background check and absolving the required training curriculum.

Your reference to the constitutional right to counsel in a criminal defense does have some bearing on this as well though. An incapacitated person's guardian ad litem could invoke the clause in case he is not himself a lawyer. As the ward's representative before the court the guardian ad litem could show cause for bringing in a lawyer to assist in the adjudication of a matter of serious consequence to the ward. I will show that of all parties to the court, including the court itself, only the guardian ad litem is in a position to bring in an outside lawyer whom the law will recognize as counsel for the ward.

Although the case we are discussing was not a criminal case, it did involve a life or death decision based on the interpretation of laws. The presence of a lawyer on Terri's side was therefore indicated. This need would have been met by either a lawyer/guardian ad litem or by co-counsel hired from the outside by the GAL. The problem was that Judge Greer illegally deprived Terri of her retained right to counsel. By refusing to recognize a guardian ad litem, Judge Greer effectively derailed the bringing in of a lawyer on Terri's side.

It would be a mistake to claim that Terri had a lawyer because the Schindler family provided one. The Schindlers' standing before the court was of an entirely different nature than Terri's standing. From the point of view of the law, the Schindlers had access to the court in only a limited fashion. It did not accrue to the level of "access to the courts" specified as one of Terri's retained rights. Terri's lawyer would have been in a position to tackle legal questions far more freely and comprehensively than was the case with the Schindlers' lawyers.

Neither can it be said that Michael Schiavo's lawyers served in lieu of Terri's counsel. By deliberately adulterating the guardianship statutes Judge Greer ascribed to George Felos the role of serving as counsel for Terri. In his rulings he acted as if Michael Schiavo's lawyer were speaking for Terri while seeking her death. By no stretch of the imagination can this be seen as fulfillment of Terri's retained right to counsel.

Only Judge Greer's illegal denial of Terri's retained right to a guardian ad litem made this charade possible. Judge Greer gave lipservice to the statute by declaring himself to be Terri's de facto guardian ad litem. With a symbolic nod to the law, Judge Greer implied something to the effect of "Terri does have a guardian ad litem, me." I find it inconceivable that the statutes can be misconstrued to mean that the guardianship judge can also be the ward's guardian ad litem.

Yet, even if that were the case, Judge Greer's actions on behalf of Terri were not that of a guardian ad litem. He did not invoke any of the protective mechanisms described in Terri's 15 retained rights. He permitted Michael Schiavo to directly contravene several of Terri's retained rights. In addition, Judge Greer permitted Michael Schiavo to remain as the legal guardian despite the fact that he failed to meet statutory guardianship requirement and was habitually derelict in the performance of mandated guardianship duties.

None of this could have happened had Terri been consistently represented by a guardian ad litem. Judge Greer would have had to dismiss one GAL after another, because each one would have dutifully asked for remedies against Michael Schiavo's chronic guardianship derelictions and failures to qualify as guardian. After the dismissal of a dozen or so GALS Judge Greer might have found it difficult to justify these dismissals. So he did the next best thing: refuse to appoint a GAL at all, or pretend that he himself was filling the role of the guardian ad litem.

There has been some discussion in this thread concerning the relative difference between "counsel" and "guardian ad litem" in the context of guardianship statutes. I have defended the position that the statutes treat them as being identical. Here is the logic: The guardian ad litem is the only person whom the law recognizes as the ward's legal representative in matters before the court. He or she, regardless of whether or not in possession of a law degree, is therefore the only person in a position to hire a lawyer on the ward's behalf.

The incapacitated person's communication deficits prevent her from hiring a lawyer. The legal guardian is not recognized by the law as speaking for the ward in matters before the court. The legal guardian is merely charged with administering the ward's care, finances and everyday affairs. He is supposed to submit a guardianship plan that lists his activities on the ward's behalf for the upcoming year. The guardianship court must review the plan and then approve or strike the items it contains.

For that year the legal guardian's authority is confined to the execution of the items listed in the approved guardianship plan. The language of the statute does not permit him anything beyond this. If he hires a lawyer, the law will treat this lawyer as the legal guardian's counsel, not as the ward's counsel. The legal guardian is therefore not in a position to provide counsel for the ward.

The judge is not in a position to provide a lawyer for the ward either, unlike in a criminal case where the judge can assign a court-appointed lawyer to the defense. The only action permitted to the judge by the guardianship statutes is to test the qualifications of the ward's guardian ad litem. I am uncertain about the number of parties that may nominate someone for consideration as the guardian ad litem. There are ongoing reforms in the Florida guardianship services and it seems that efforts are pointing in the direction of having a pool of qualified professional guardian ad litems.

It is possible that in the future a court will simply tap this pool of prequalified professionals. From my study of Terri's case it appears that each of the two GALS was nominated and appointed by the court. Neither Michael Schiavo nor the Schindlers had a say in these appointments. It thus appears that the guardianship court considers the nomination and appointment of the guardian ad litem to be its own prerogative. There is no need to argue against this, except when the scope of that prerogative is pushed beyond practicality.

The court's prerogative to make decisions about the person of the guardian ad litem does not extend to deciding whether there should or should not be a GAL. That decision was already made by the statutes. It may be reasonable for the court to say "not this GAL," but it is not reasonable for the court to say "no GAL at all." The court certainly cannot say "well, we are not going to give the ward a guardian ad litem, but we will provide a court-appointed lawyer instead." This would raise serious questions about the court's intentions and would moreover contravene the statutes.

I have already mentioned that the Schindler's were not recognized by law as entitled to hire a lawyer for Terri either. They exercised their privilege to hire a lawyer for themselfes, but the court did not view that lawyer as representing Terri. No other party, from the governor to the legislature and to any group with an interest in the case was in a position to provide counsel for Terri.

So, we are faced with a perplexing situation. The law does not recognize any party, including the judge, as qualified to hire a lawyer on the ward's behalf. The ward herself was unable to communicate and could therefore not hire one either. Yet the law made her right to counsel an inalienable right.

"The person determined incapacitated retains the right to counsel," but nobody except the person determined incapacitated (who cannot communicate) has the right to hire a lawyer with standing before the court. Can this Catch-22 situation really be the intent of the law? No, it is not. The solution is in the identity of counsel in the context of guardianship. It is the guardian ad litem who is recognized by law as speaking at court for the ward. If the guardian ad litem hires a lawyer because he or she does not possess a law degree, then that lawyer will be treated as the ward's lawyer. That lawyer will then stand before the court as co-counselor by virtue of his association with the guardian ad litem.

The short of the story is that when Judge Greer refused to recognize a guardian ad litem for Terri, he automatically made it impossible for any lawyer to have standing before the court as Terri's counsel. We can thus lay to rest the issue of distinguishing between "counsel" and "guardian ad litem." In the guardianship court there is none without the other. Is it therefore correct to say that Judge Greer removed Terri's retained right to counsel. Yes. Is it correct to say that Judge Greer contravened Florida guardianship statutes? Yes. Are Judge Greer's actions legally defensible? No. Was Terri afforded due process? No. Is Terri's case a judicial travesty? Yes. Is Judge Greer a renegade judge that must be impeached and barred from law practice? Yes.

Wonderful analysis and explanation, again. Complex subjects can be explained!

If you have a moment, could you comment on the following couple of points? The presumption is that there HAS to be a way to reign in renegade judges as though that were the problem, although I think many people are wondering who wrote the script of which "Terri Schavo 2005" is but one scene.

The Bill of Rights has under Amendment VII: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."

Now it seems clear to me that the writers of the Constitution were quite provocatively declaring that judges are NOT God, since it would be much easier all around to just pick such people with infallible judgment instead of all the bother of letting 12 rather ordinary people decide a verdict which may very well be opposite to that which the judge is inclined.

And what's this in Article III, Section 2? "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme [sic] Court shall have original Jurisdiction. In all the other Cases before mentioned [preceding paragraph], the supreme [sic] Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Why have an appellate jurisdiction at all if lower-level judges WERE infallible and exempt from criticism?

What does it mean that the supreme Court can have appellate jurisdiction as to "Law AND Fact"???? I thought everybody has been saying upper-level courts are forbidden to review the [alleged] FACTS of Terri Schindler (schiavo)'s case and can only deal with legal PROCEDURE?

And then what would have prevented Congress (other than Democrat Party opposition) from voting to declare that this case was in fact suitable for fitting under "with such Exceptions, and under such Regulations as the Congress shall make"?

I believe that one good aspect of this whole judicial murder affair is that more and more people come to realize that the judiciary can be as corrupt and unworthy of trust as any other branch of government, and it is healthy to know that fact.