Replies

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.

Indeed. The problem is that statute didn't authorize the court to examine the issues of whether Terri in fact made the statements attributed to her with the intention that she be fatally starved and dehydrated, and whether Terri was, in fact, PVS. The only issue the court was allowed to examine was whether or not Terri's 14th Amendment rights were being infringed. I don't see how that could be examined without considering Judge Greer's actions.

To my mind, the only approach I could see that might have worked would have been to focus on a few erroneous actions by the appeals courts. Most notable of these would have been the appeal's courts acceptance of Judge Greer's failure to appoint an independent surrogate for Terri when he was required to do so. Florida statutes clearly required that such a surrogate be appointed in this case and did not allow a trial court judge to play the role. That an appeals court judge didn't think a surrogate would have added anything to the procedings does not excuse the surrogate's absense. I would have argued that Whittmore should disregard the appeals court's acceptance of this action and regard it as a willful violation of due process by Judge Greer indicating probable bias on his part. As a remedy, I would seek a de novo trial on the facts of the case with a new judge.

How would that be as an approach?

The only issue the court was allowed to examine was whether or not Terri's 14th Amendment rights were being infringed.

It doesn't really say that. The court was given jurisdiction to adjudicate any claim arising under the Constitution or laws of the United States. If you wanted to, you could go fish; there has to be some federal law out there that you could bring a reasonable claim under, in addition to the Constitutional issues. You don't need to win the case in this plea. To get the feeding tube back in, all you have to do is get the judge to agree that we need a trial to figure it out. I'll bet you David Boies could have found one.

I don't see how that could be examined without considering Judge Greer's actions.

Simple. You get Congress to pass a law that says "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."

What Judge Greer? There is no such judge in these proceedings. Nothing that happened before counts. And notice that Whittemore is not questioning this; he's prepared to do it. All you had to do was bring him the case.

Think about what the Congress did there. That wording virtually guarantees a months-long, if not years-long, proceeding — during which time Terri's feeding tube is held in place by a federal court order. It took a really stupid lawyer to screw that up. But Schindler found just the lawyer to do it. And screw it up he did.

focus on a few erroneous actions by the appeals courts. Most notable of these would have been the appeal's courts acceptance of Judge Greer's failure to appoint an independent surrogate

Read Whittemore's decision. They tried that, along with a few others. No sale. They had tried all of those, dozens of times before. Greer is clean-as-a-whistle on the procedures. It's his damned findings of fact that are questionable, and here was the one shot to get the facts re-visited. And Schindler's lawyer pissed it away.