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The plea filed by the Schindlers' lawyers with the Federal District Court was the most misguided, stupid, incompetent piece of lawyering we shall see for some time. They literally gave the federal judge no 'out.' Even if he had been predisposed to ordering the re-insertion of the feeding tube, they gave him no legal basis for doing so.

I haven't seen the briefs in question, but the law but the Schindler's lawyer in a very bad spot, because he couldn't very well argue that Terri hadn't received due process without impugning Greer, but the arguments which would impugn Greer would be counterproductive for arguing the likelihood of success in a de novo trial.

If the Schindlers merely had to show that a de novo trial would have had a different result, the right plea would have been obvious: that Judge Greer had excluded evidence because of statutory deadlines which might have altered his findings. Even if Judge Greer was technically correct in refusing evidence presented outside the proper timeframes, evaluation of such evidence, as would be permitted in a de novo hearing, would likely cause the court to produce a different finding from Greer's.

Were it not for the necessity of proving a Fourteenth Amendment violation, this would have been the perfect plea. Judges don't like to question the competance or integrity of other judges, but under this pleading Judge Whittemore wouldn't have had to. He could have reached a different finding from Judge Greer without any implication that Judge Greer had done anything wrong. Even if he had found that none of the evidence that Greer found "clear and compelling" was anything close, he wouldn't have had to say so; he could merely say that the new evidence which Greer had unfortunately, though legitimately, excluded tipped the scale in the other direction.

The problem with a plea like this, though, is that it wouldn't satisfy the legislation's requirement of showing that Terri's Fourteenth Amendment rights had been violated. Indeed, as the legislation was written, I don't really know what sort of pleading could have done the trick.

What would you have suggested?

What would you have suggested?

Leave Greer and the entire state court case out of it. Don't even mention it.

The law stated that the US District Court shall have jurisdiction to hear, determine, and render judgement on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of foods, fluids, or medical treatment necessary to sustain life.

As Whittemore himself noted in his decision, "The plain language of the Act establishes jurisdiction in this court to determine de novo 'any claim of a violation of any right of Theresa Schiavo within the scope of this Act.'"

In other words, "Bring me a brand new case premised on a violation of the Constitution of the United States or the federal law(s) of your choice."

But that isn't what Plaintiff filed. Here's Whittemore again:

This court has carefully considered the Act and is mindful of Congress' intent that Plaintiffs have an opportunity to litigate any deprivation of Theresa Schiavo's federal rights. The court is likewise mindful of Congress' directive that a de novo determination be made "not withstanding any prior State court determination." In resolving Plaintiff's Motion for Temporary Restraining Order, however, the court is limited to a consideration of the constitutional and statutory deprivations alleged by Plaintiff in their Complaint and motion. Because Plaintiffs urge due process violations are premised primarily on the procedures followed and orders entered by Judge Greer... their Complaint necessarily requires a consideration of the procedural history of the state court case to determine whether there is a showing of any due process violations.

The Congress wanted there to be a new trial on the facts. The judge was prepared to give it to them. But that isn't what the Plaintiffs asked for. Instead they treated it as a vanilla appeal, alleging procedural errors on the part of Greer and the state courts. The Schindlers' stupid lawyers, not the judge, dragged the whole state court case into what should have been a de novo determination on whether Terri Schiavo's federal rights had been violated.

A federal judge need not accept the substituted judgement of a family member to determine the incapacitated person's wishes concerning removal of life-sustaining food and fluids. In Cruzan, the U.S. Supreme Court held that "The Due Process Clause does not require a State to accept the 'substituted judgment' of close family members in the absence of substantial proof that their views reflect the patient's." One may therefore argue that the Due Process Clause does not require a federal judge to accept the substituted judgement. There being conflicting testimony concerning those wishes, and hence reasonable doubt concerning what those wishes might have been, let's have a trial and determine her wishes de novo by "clear and convincing evidence." And in the meantime, please put the tube back in so this doesn't all become moot.

There is probably another fountain of reasonable doubt in the conflicting testimony of the various doctors who assessed Terri Schiavo's condition. Cruzan is silent on what standard of evidence is appropriate there, but if we assume that it too is "clear and convincing," there's an opportunity to throw affidavits at the federal judge to convince him that there are at least some doctors out there who say the diagnosis of PVS is flawed, or that we'd really need an MRI or PET scan to be sure, and we don't have either. There's another reason to have a months-long trial, and some medical tests to boot, and in the meantime please put the tube back in so this doesn't all become moot.

The trick to getting the tube re-inserted was to convince the judge that there was a reasonable possibility that Plaintiff's claims might succeed on their merits. So you claim we don't know Terri's wishes, and we don't know whether she is really in a permanent vegetative state, and you file whatever the hell evidence you have to support those things. Since the judge is prohibited by the Act from taking the state court proceedings into account, he has to either hold the world's fastest trial, or grant the injunction and schedule a trial on the claims.

Instead, the Plaintiff's lawyers handed him a bunch of muck about procedural errors by Greer, who had been reviewed six ways from Sunday already and found to be procedurally error-free.