[Vicomte13]

Forgive me, but I have noticed in death penalty cases, on review, that the judges themselves, at the appellate level, often start to fiddle around with the findings of fact, citing "constitutional fairness" concerns and other similarly nebulous justifications. Or they just do it without any particular compulsion on their part to much explain their justification (and, so long as the Supremes don't grant cert, those excursions work).

I have watched judges over the year make the law they want to make, when they really want to make it.

So, while everything you've said about procedure and law is true, I don't think it should have taken David Boies hopping on a plane and heading to Florida to change the outcome of this case.

Hell, in death penalty cases, appellate judges practically retry the facts when they decide that they can colorably argue inadequate representation. If they want to, they can do it.

Now, before you point out that this is not a death penalty case, remember that what made death penalty cases death penalty cases, with all of their arcane special law and procedures and limitations, is that courts decided to make up those procedures and common law. Judges decided "death is different", and made law that makes it different.

Had judges wanted to do that in the case of Terri Schiavo, they could have quite irrespective of the lawyers in the case.

Yes, you're right, the judges adhered to the pleadings and therefore ruled as they did. But you also know that when judges really want to do something, they maneuver around the pleadings and the law. That is, after all, how we got Griswold v. Connecticut and Roe v. Wade: shadows of penumbras. That's how we got to the law that says we can't execute murderers who committed their crimes as juveniles.

I note that judges always find great flexibility, it would seem, to do the evil thing. And therefore I am unpersuaded by pleas of tied judicial hands and the inability to shape or make law or penetrate beyond the pleadings in the life-or-death case of Terri Schiavo.

[Nick Danger]

I agree with that. I don't really want to sound like I'm letting Whittemore off the hook for what he did. His decision, while meticulous, is chillingly cavalier in dismissing claim after claim, when he must have known as he was writing it that a human being was going to die as a result. In fact this entire proceeding just reeks of bureaucrats following procedure, while the woman starves to death right in front of them.

Whittemore could have, for example, taken the plea filed by the Schindlers' attorneys as prima facie evidence of inadequate representation, since they totally missed the point of the proceeding. Had he looked at some of the lawyering in the State court proceeding, he would have found equally egregious "inadequate representation." That option was always there, and you're right — he didn't take it.

He could have dismissed the plea for lack of jurisdiction. The law Congress passed did not authorize a federal-level appeal of the State court cases. He could have explained that in his decision in a way that would hit the lawyer over the head with a board, to make him understand what he was supposed to do next.

Instead he kind of acts like a cat playing with a mouse; batting him around easily, while offering clever hints on how to escape. Maybe that's appropriate in a suit over money, but it's a hell of a game to play when a woman is starving to death.

All of that said, I still think the primary blame goes to the attorneys for not knowing what they were doing.