Posted on 07/06/2005 10:50:06 AM PDT by 8mmMauser
Several bloggers have drawn attention to a strange lead in a Washington Post story about the Terri Schiavo autopsy results. The June 16 Post story by David Brown said that "Terri Schiavo died of the effects of a profound and prolonged lack of oxygen to her brain on a day in 1990, but what caused that event isn't known and may never be, the physician who performed her autopsy said…"
(Excerpt) Read more at aim.org ...
Thank you. Impressive. I noted you had been posting to Tahiti in the past. He was killed in an accident. Hope you can stop by to visit that thread.
8mm
For years now, the most popular myth regarding the Schiavo case was that Michael Schiavo decided what should happen to Terri, and the court system simply enforced his right to make that decision. If you're reading this post, you hopefully know that nothing of the sort happened. (Otherwise, please review this site's Terri Schiavo Information Page, particularly the Q&A section.)
Over time, most of the major media figured out that a trial was actually held between Michael Schiavo and the Schindlers. Most. Not all.
Yet even as much of the country learned that a trial had been held and the judge found the evidence clear and convincing that Terri wished not to receive life-prolonging medical care in this sort of situation, another myth began to emerge. And this one never went away. It did not overtake everyone, but host after host, national news channel after national news channel, editorial board after editorial board -- an astounding number of media figures -- seized on, criticized, lamented, praised, or otherwise discussed something that never, ever happened:
That the clear and convincing evidence of Terri's wishes was just Michael Schiavo's word.
There was talk of how a spouse could be expected to know these things, but then how this spouse could not be trusted. There was talk of how spouses should be believed, but then how "hearsay" testimony from someone with something to gain should be ignored. There was talk of, well, lots of talk. About Michael.
How is it possible that none of these people -- or at least the folks who feed them information -- ever read what the trial judge actually said about the evidence he relied on?
Look back at Judge Greer's February 2000 order. He explained that the clear and convincing evidence did not come from Michael's testimony alone. In fact, the judge acknowledged, without necessarily accepting, a guardian ad litem's position that Michael's testimony could not amount to clear and convincing evidence.
Looking at the trial judge's ruling, he did rely on Michael's testimony, but he also placed tremendous weight on Michael's brother and sister-in-law, Scott Schiavo and Joan Schiavo. The trial judge found their testimony and that of one of the Schindlers' witnesses to be so significant that he had their trial testimony transcribed after the trial so he could review it again. The trial judge explained:
As with the witness called by the Respondents [the Schindlers], the court had the testimony of the brother and sister-in-law transcribed so that the court would not be hamstrung by relying on its notes. The court has reviewed the testimony of Scott Schiavo and Joan Schiavo and finds nothing contained therein to be unreliable. The court notes that neither of these witnesses appeared to have shaded his or her testimony or even attempt to exclude unfavorable comments or points regarding those discussions. They were not impeached on cross-examination. Argument is made as to why they waited so long to step forward but their explanations are worthy of belief.
The court also pointed to an expert witness who testified that the oral statements reported by Scott and Joan were consistent with statements of a person Terri's age:
The testimony of Ms. Beverly Tyler, Executive Director of Georgia Health Discoveries, clearly establishes that the expressions made by Terri Schiavo to these witnesses are those type of expressions made in those types of situations as would be expected by people in this country in that age group at that time. They (statements) reflect underlying values of independence, quality of life, not to be a burden and so forth. "Hooked to a machine" means they do not want life artificially extended when there is not hope of improvement.
Later in the decision, the court explained that Terri made different types of statements during her life, including statements where she spoke of what she would want for other people, and statements where she spoke of what she would want for herself. The court said:
There are some comments or statement[s] made by Terri Schiavo which the court does not feel are germane to this decision. The court does not feel that statements made by her at the age of 11 or 12 years truly reflect upon her intention regarding the situation at hand. Additionally, the court does not feel that her statements directed toward others and situations involving others would have the same weight as comments or statements regarding herself if personally placed in those same situations. Into the former category the court places statements regarding Karen Ann Quinlan and the infant child of the friend of Joan Schiavo. The court finds that those statements are more reflective of what Terri Schiavo would do in a similar situation for someone else.
Finally, Judge Greer's order discussed the testimony on which he ultimately relied. He said:
The court does find that Terri Schiavo did make statements which are creditable and reliable with regard to her intention given the situation at hand. Initially, there is no question that Terri Schiavo does not pose a burden financially to anyone and this would appear to be a safe assumption for the foreseeable future. However, the court notes that the term "burden" is not restricted solely to dollars and cents since one can also be a burden to others emotionally and physically. Statements which Terri Schiavo made which do support the relief sought by her surrogate (Petitioner/Guardian) include statements to him prompted by her grandmother being in intensive care that if she was ever a burden she would not want to live like that. Additionally, statements made to Michael Schiavo which were prompted by something on television regarding people on life support that she would not want [a] life like that also reflect her intention in this particular situation. Also the statements she made in the presence of Scott Schiavo at the funeral luncheon for his grandmother that "if I ever go like that just let me go. Don't leave me there. I don't want to be kept alive on a machine" and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise reflective of this intent. The court specifically finds that these statements are Terri Schiavo's oral declarations concerning her intention as to what she would want done under the present circumstances and the testimony regarding such oral declarations is reliable, is creditable and rises to the level of clear and convincing evidence to this court.
(emphasis added).
These findings show that Michael's testimony was not the clear and convincing evidence the court relied upon -- Michael's testimony was only part of that evidence. Two other witnesses who were not impeached gave what the court found to be specific, reliable, and creditable statements about her wishes. One of them was, as I understand it, Terri's best friend in the years before her collapse.
It is unfortunate, to say the least, that so many people -- particularly media figures -- who have publicly doubted the result of the trial do not appear even to have been aware of these other witnesses' testimony, let alone viewed it live or even reviewed it in transcripts.
I'll repeat now what I've said before regarding my own views. I did not attend the trial, and I do not know whether the trial judge reached the decision that Terri herself would have made. I hope he did, but I'm not willing to second-guess the result either way. We have trials to make decisions, and whether the factfinder is a judge or jury, the result is reached based on the evidence presented there.
I'll offer one final thought in this area. I remain befuddled that while hundreds of documents and other items concerning Terri and Michael have been replicated time and again across the Internet, prompting people around the world to second-guess the trial's result, the transcripts of the trial itself are not among the items in circulation. How can that be? Surely the parties have copies of the trial transcript. Shouldn't it be the one thing everyone should want to see before attempting to cast judgment on the propriety of the trial's result?
...posted by Matt Conigliaro For years now, the most popular myth regarding the Schiavo case was that Michael Schiavo decided what should happen to Terri, and the court system simply enforced his right to make that decision. If you're reading this post, you hopefully know that nothing of the sort happened. (Otherwise, please review this site's Terri Schiavo Information Page, particularly the Q&A section.)
Over time, most of the major media figured out that a trial was actually held between Michael Schiavo and the Schindlers. Most. Not all.
Yet even as much of the country learned that a trial had been held and the judge found the evidence clear and convincing that Terri wished not to receive life-prolonging medical care in this sort of situation, another myth began to emerge. And this one never went away. It did not overtake everyone, but host after host, national news channel after national news channel, editorial board after editorial board -- an astounding number of media figures -- seized on, criticized, lamented, praised, or otherwise discussed something that never, ever happened:
That the clear and convincing evidence of Terri's wishes was just Michael Schiavo's word.
There was talk of how a spouse could be expected to know these things, but then how this spouse could not be trusted. There was talk of how spouses should be believed, but then how "hearsay" testimony from someone with something to gain should be ignored. There was talk of, well, lots of talk. About Michael.
How is it possible that none of these people -- or at least the folks who feed them information -- ever read what the trial judge actually said about the evidence he relied on?
Look back at Judge Greer's February 2000 order. He explained that the clear and convincing evidence did not come from Michael's testimony alone. In fact, the judge acknowledged, without necessarily accepting, a guardian ad litem's position that Michael's testimony could not amount to clear and convincing evidence.
Looking at the trial judge's ruling, he did rely on Michael's testimony, but he also placed tremendous weight on Michael's brother and sister-in-law, Scott Schiavo and Joan Schiavo. The trial judge found their testimony and that of one of the Schindlers' witnesses to be so significant that he had their trial testimony transcribed after the trial so he could review it again. The trial judge explained:
As with the witness called by the Respondents [the Schindlers], the court had the testimony of the brother and sister-in-law transcribed so that the court would not be hamstrung by relying on its notes. The court has reviewed the testimony of Scott Schiavo and Joan Schiavo and finds nothing contained therein to be unreliable. The court notes that neither of these witnesses appeared to have shaded his or her testimony or even attempt to exclude unfavorable comments or points regarding those discussions. They were not impeached on cross-examination. Argument is made as to why they waited so long to step forward but their explanations are worthy of belief.
The court also pointed to an expert witness who testified that the oral statements reported by Scott and Joan were consistent with statements of a person Terri's age:
The testimony of Ms. Beverly Tyler, Executive Director of Georgia Health Discoveries, clearly establishes that the expressions made by Terri Schiavo to these witnesses are those type of expressions made in those types of situations as would be expected by people in this country in that age group at that time. They (statements) reflect underlying values of independence, quality of life, not to be a burden and so forth. "Hooked to a machine" means they do not want life artificially extended when there is not hope of improvement.
Later in the decision, the court explained that Terri made different types of statements during her life, including statements where she spoke of what she would want for other people, and statements where she spoke of what she would want for herself. The court said:
There are some comments or statement[s] made by Terri Schiavo which the court does not feel are germane to this decision. The court does not feel that statements made by her at the age of 11 or 12 years truly reflect upon her intention regarding the situation at hand. Additionally, the court does not feel that her statements directed toward others and situations involving others would have the same weight as comments or statements regarding herself if personally placed in those same situations. Into the former category the court places statements regarding Karen Ann Quinlan and the infant child of the friend of Joan Schiavo. The court finds that those statements are more reflective of what Terri Schiavo would do in a similar situation for someone else.
Finally, Judge Greer's order discussed the testimony on which he ultimately relied. He said:
The court does find that Terri Schiavo did make statements which are creditable and reliable with regard to her intention given the situation at hand. Initially, there is no question that Terri Schiavo does not pose a burden financially to anyone and this would appear to be a safe assumption for the foreseeable future. However, the court notes that the term "burden" is not restricted solely to dollars and cents since one can also be a burden to others emotionally and physically. Statements which Terri Schiavo made which do support the relief sought by her surrogate (Petitioner/Guardian) include statements to him prompted by her grandmother being in intensive care that if she was ever a burden she would not want to live like that. Additionally, statements made to Michael Schiavo which were prompted by something on television regarding people on life support that she would not want [a] life like that also reflect her intention in this particular situation. Also the statements she made in the presence of Scott Schiavo at the funeral luncheon for his grandmother that "if I ever go like that just let me go. Don't leave me there. I don't want to be kept alive on a machine" and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise reflective of this intent. The court specifically finds that these statements are Terri Schiavo's oral declarations concerning her intention as to what she would want done under the present circumstances and the testimony regarding such oral declarations is reliable, is creditable and rises to the level of clear and convincing evidence to this court.
(emphasis added).
These findings show that Michael's testimony was not the clear and convincing evidence the court relied upon -- Michael's testimony was only part of that evidence. Two other witnesses who were not impeached gave what the court found to be specific, reliable, and creditable statements about her wishes. One of them was, as I understand it, Terri's best friend in the years before her collapse.
It is unfortunate, to say the least, that so many people -- particularly media figures -- who have publicly doubted the result of the trial do not appear even to have been aware of these other witnesses' testimony, let alone viewed it live or even reviewed it in transcripts.
I'll repeat now what I've said before regarding my own views. I did not attend the trial, and I do not know whether the trial judge reached the decision that Terri herself would have made. I hope he did, but I'm not willing to second-guess the result either way. We have trials to make decisions, and whether the factfinder is a judge or jury, the result is reached based on the evidence presented there.
I'll offer one final thought in this area. I remain befuddled that while hundreds of documents and other items concerning Terri and Michael have been replicated time and again across the Internet, prompting people around the world to second-guess the trial's result, the transcripts of the trial itself are not among the items in circulation. How can that be? Surely the parties have copies of the trial transcript. Shouldn't it be the one thing everyone should want to see before attempting to cast judgment on the propriety of the trial's result?
...posted by Matt Conigliaro Û 4:52 PM Û #
Hi Halls.
Considering that I've been on FR for five years longer than yourself, I find your accusation of my being a 'liberal troll' amusing. And about on par with your accuracy on everything else.
Oh, and someone else reminded highball just above, please have the courtesy to ping me when you mention me in your post.
Then why do you believe this one thing he said to be true?
Satists? HMMM, LOL!!
Go away liberal troll!
I believe there was foul play involved in her collapse, just as i believe there is foul play in N Hollaway's disappearance.
I dont believe anything MS has said.
" It was 'testimony' by witnesses who heard what Terri said first-hand."
What do you think hearsay is??!
THAT is hearsay.
When you are buying a pickled ham in a barrel -- that's what a "pig in a poke" means, iirc -- you are obviously there at that time to buy that kind of thing. You are paying attention to the verbal offer of the seller and he is paying equal attention to you -- the contextual framing, the desire of both parties in that transaction at the time to be completely understood is obvious. That's why the buyer's tesimony that the seller verbally offered a "pig on a poke" rises above hearsay to the status of a "verbal act".
The informal and off-hand context of Terri's claimed remarks have none of that framing. They remain hearsay and should have been ignored by the court for what they are -- mere hearsay.
That's all without examining Micheal's motives or veracity.
Yet -- I said "both" or your final paragraph's cases apply. There is obvious reason to question Micheal's motive, and reasonable suspicion as to his veracity.
Now please provide a Constitutional argument that supports your position. BTW, I had to look at your page to see the wisdom behind such wit. When did you personally let Terri down? Are you channeling too?
Sorry to hear that. Thank you for letting me know.
I've seen some people take a hard position that testimony from witnesses regarding what Terri (or anyone else in Terri's position) once said is not evidence of her wishes. People taking this position seem to believe that the only acceptable evidence regarding the person's wishes should come directly from the hand or mouth of the incompetent person herself.
That's simply not correct. Evidence in the form of testimony regarding an incompetent person's oral statements is admissible to prove whether the person would choose to continue receiving life-prolonging treatment.
That's not to say such testimony must necessarily be believed: it's up to the trier of fact to determine the credibility of the testifying witness and how much weight that witness's testimony should receive.
Now, back to the question. In the 1994 case In re Davey, the Florida Supreme Court approved the following definition of the clear and convincing evidence standard:
There must be more than a "preponderance of the evidence," but the proof need not be "beyond and to the exclusion of a reasonable doubt." This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
MS might have been believable if he had remembered Terri's wishes before he collected monies for her rehab. Why did it take years for him to remember this?
You fairly and accurately stated the level of proof required, but it is still a fact that greer made his decision based on heasay testimony, and it was disputed.
BTW, didnt TS go to mass within a day or two of her collapse?
She was a practicing Catholic.
Correct. That right, when it needs to be exercised, is reserved for our legal guardian.
As it should be.
Unlike the U.S. constitution, Florida's constitution expressly includes a right of privacy, and the Florida Supreme Court held in In re Browning that the right of privacy includes the right to refuse medical care, particularly life-sustaining medical care. Including a feeding tube. That's every Florida citizen's right.
Because this right is considered fundamental, by virtue of its inclusion in the constitution, it is not very difficult to exercise. Indeed, In re Browning decided that, for Floridians, the right could be exercised by a written or oral statement. If the right could be exercised only in writing, then it would be a weaker right, requiring you to jump through procedural hoops to exercise it. By comparison, a decision-making right that allows you to make a decision by announcing it is a stronger right. At least, that's the logic.
Now, if you can exercise this right orally, can an oral statement negate a prior written wish? Yes. In fact, if you read the facts of the Browning case, you will see that Estelle Browning had executed a document in which she declared she did not wish to be maintained by a feeding tube under certain circumstances, and the state government intervened in her case and argued that her written wishes should not be followed because it was possible that, later, she orally made a decision to the contrary.
Think about that. She said no to a feeding tube. The state embraced the notion she could have revoked that wish through oral statements and argued that because she may have done that, her written wishes should not be followed.
That didn't work -- the court made it clear that it would not indulge presumptions someone did or did not say something. But had such oral statements been made, and been proved, they could have controlled the outcome.
So, yes, written wishes regarding end-of-life care can be orally revoked. At least in Florida. They just need to be proved by clear and convincing evidence.
For those who would rather look at a statute than dwell on constitutional principles, take a look at the Florida statute that governs this area. Section 765.104(1)(c) explains that an advance directive -- including a living will -- or the designation of a health care surrogate decisionmaker may be revoked "[b]y means of an oral expression of intent to amend or revoke." Now, keep in mind that the statutes enacted by the legislature cannot conflict with the rights provided in the state constitution, but it is certainly meaningful to see that the legislature has affirmatively recognized the signicance of oral declarations.
Of course in writing the Law the State Legislature had to take into account Floridians constitutional right to privacy and although there is no express right to privacy in the Federal constitution, State Law makers had to also craft the laws around what the U.S. Supreme courts opinion was in CRUZAN v. DIRECTOR, MDH where JUSTICE O'CONNOR, wrote this opinion:
As the Court notes, the liberty interest in refusing medical treatment flows from decisions involving the State's invasions into the body. Because our notions of liberty are inextricably entwined with our idea of physical freedom and self-determination, the Court has often deemed state incursions into the body repugnant to the interests protected by the Due Process Clause. See, e.g., Rochin v. California, 342 U.S. 165, 172 (1952) ("Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his [497 U.S. 261, 288] stomach's contents . . . is bound to offend even hardened sensibilities"); Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891). Our Fourth Amendment jurisprudence has echoed this same concern. See Schmerber v. California, 384 U.S. 757, 772 (1966) ("The integrity of an individual's person is a cherished value of our society"); Winston v. Lee, 470 U.S. 753, 759 (1985) ("A compelled surgical intrusion into an individual's body for evidence . . . implicates expectations of privacy and security of such magnitude that the intrusion may be `unreasonable' even if likely to produce evidence of a crime"). The State's imposition of medical treatment on an unwilling competent adult necessarily involves some form of restraint and intrusion. A seriously ill or dying patient whose wishes are not honored may feel a captive of the machinery required for life-sustaining measures or other medical interventions. Such forced treatment may burden that individual's liberty interests as much as any state coercion. See, e.g., Washington v. Harper, 494 U.S. 210, 221 (1990); Parham v. J.R., 442 U.S. 584, 600 (1979) ("It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment").
The State's artificial provision of nutrition and hydration implicates identical concerns. Artificial feeding cannot readily be distinguished from other forms of medical treatment. See, e.g., Council on Ethical and Judicial Affairs, American Medical Association, AMA Ethical Opinion 2.20, Withholding or Withdrawing Life-Prolonging Medical Treatment, Current Opinions 13 (1989); The Hastings Center, Guidelines on the Termination of Life-Sustaining Treatment and the Care of the Dying 59 (1987). Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed "medical treatment," it is clear they all involve some degree of intrusion and restraint. Feeding a patient by means of a nasogastric tube requires a physician to pass a long flexible tube through the patient's nose, throat and esophagus and into the stomach. Because of the discomfort such a tube causes, " many patients need to be restrained forcibly, and their hands put into large mittens to prevent them from removing the tube." Major, The Medical Procedures for Providing Food and Water: Indications and Effects, in By No Extraordinary Means: The Choice to Forgo Life-Sustaining Food and Water 25 (J. Lynn ed. 1986). A gastrostomy tube (as was used to provide food and water to Nancy Cruzan, see ante at 266) or jejunostomy tube must be surgically implanted into the stomach or small intestine. Office of Technology Assessment Task Force, Life-Sustaining Technologies and the Elderly 282 (1988). Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.
Fl. Law was crafted to pass constitutional muster at the State and Federal level and succeeded...as was shown in the Schiavo case. Progressives should quit trying to use Fl. as their "issues" battleground.
They always end up looking foolish. Just ask Algore.
The testimony in this case establishes that Theresa was very young and very healthy when this tragedy struck. Like many young people without children, she had not prepared a will, much less a living will. She had been raised in the Catholic faith, but did not regularly attend mass or have a religious advisor who could assist the court in weighing her religious attitudes about life-support methods. Her statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her.
In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.
Hearsay is hearsay is hearsay.
A pig is a pig is a pig.
Most people understand this concept, and certainly almost every Conservative (of note and otherwise,) does, and has come out strong and steady, across the board, that it was wrong to kill a defenseless innocent (and) based on it...and to do so in such a barbaric manner to boot.
Juan Williams, the rest of the Leftists and the Lamestream Media do not understand the basic concept of (the meaning of) hearsay and what one* has power to do with it. I'm talkin' real world here. They just don't "git it." And at this point, they never will. But that's OK, as Stuart Smalley would say whilst looking in the mirror. LOL.
* "One," in this case, having a double meaning to include the *ruling* of ONE (and one alone,) lowly probate judge.
Death by hearsay is what went down here, plain and simple. A small faction doesn't understand this real world concept....
8mm, I would love it if I could be added to your ping list. Thank you in advance.
KDD:The testimony in this case establishes that Theresa was very young and very healthy when this tragedy struck.
The tragedy of her collapsing at the hands of the man who petitioned the court to put her to death?
You are deceiving yourself into believing the cult of death.
And whenever I hear the talking point "clear and convincing evidence," I want to laugh and hurl at the same time.
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