Replies

Try reading the decisions of the Second District Court of Appeal- all four of them.

One of the major misconceptions about the appeals-court system in this country is that it serves as a backup fact-finder. It does not. If a trial court declares something to be true, even if that finding is contradicted by 99.44% of the available evidence, an appeals court will almost never go against that finding of fact. If there is evidence that was not properly considered, an appeals court may direct a trial court to consider the appropriate evidence, but if the trial court judge claims to have done so, the appeals court will not challenge his judgement.

In the cases related to Terri Schindler Schiavo, there are at least two findings of fact which the trial court made which defy common sense. Unfortunately, trial court findings of fact which are 'procedurally correct' cannot be challenged on the basis of being just plain wrong. Since Judge George Greer has been the only finder of fact in these cases, his blindness (literal and figurative) renders the appeals court system useless.

First dubious finding of fact: that Michael Schiavo's contradictory hearsay testimony constitutes "clear and compelling" evidence that Terri wishes to be starved to death in her current situation. The "clear and compelling" standard is the same standard applied in criminal cases when juries are instructed to find a defendant guilty "beyond a reasonable doubt". Judge Greer may not see any room for doubt, but it seems pretty clear to me that there's lots of room for doubt:

Michael could be lying, as it would be in his best interest to do so.
Michael could simply be misremembering things, since at least eight years had elapsed between Terri's alleged remarks and Michael's recollection of them, especially since the remarks would not have been noteworthy at the time they were made.
Michael's two relatives who corroborated his statement would have had even less reason to remember it than Michael himself. Whether they are lying or merely mistaken, I would not expect anyone's memory of an apparently-unremarkable event eight years in the past to be reliable.
One of Terri's relatives (brother I think) claims to have heard Terri's remark, and claims that she said something very different from what Michael et al. claim. If, as he recalls, the remark was confrontational that would have made it more memorable for him.
Even if Terri had said the things she's alleged to have said (and that's hardly a given), that would still not prove that she made such statements with the intention that they result in her being starved and dehydrated. If someone sees a homeless person and says "I'd never want to live like that", that doesn't mean the person would want to be killed if he lost his home.

An appellate court may not be allowed to question Greer's judgement, but it sure looks to me as though he's willfully ignoring lots sound reasons for doubt. As outrageous as his findings of fact there are, however, he's made another that's even more outrageous: he has declared that there exists no potential conflict between Michael's interests and Terris. This after Michael's lawyer asked Greer to dismiss a guardian ad litem who sought to point out that such conflicts clearly existed.

Here again, the appeals court merely notes that since Judge Greer didn't find there to be a potential conflict of interest, he must have had a good reason for so finding. Never mind that:

Michael is living with a woman whom he calls his "fiancee" and by whom he has fathered two children, but whom he cannot marry unless or until Terri dies.
Michael stands to inherit a trust fund upon Terri's death.
Terri's death avoids the possibilities of a trust-fund audit by a future guardian, and of Michael's having to pay allimony in the event that a future guardian seeks (and gets) a divorce for Terri.
Michael is actively working to get Terri put to death.
Felos, the attourney who claims to be representing Terri's interest, has been taking money which was supposed to fund her therapy, and has instead accepted such money to try to get her put to death.
Felos is working on a book about this case, and has his own reasons for wanting Terri dead.

One might reasonably argue whether such facts demonstrate sufficient conflict-of-interest to absolutely disqualify Michael Schiavo as a guardian. On the other hand, to suggest that there isn't even a potential conflict of interest sufficient to justify appointing a guardian ad litem is absurd. Note that the court wouldn't have to find any wrongdoing to require a guardian ad litem in a case like this; the potential alone is sufficient to mandate that a guardian ad litem be appointed to ensure that Michael is acting reasonably as guardian. Of course, the fact that such a guardian ad litem would find Michael's actions very unreasonable is probably the reason Terri has gone for years without one.

Yes, Terri's case has gone through lots of appeals. But since the appeals courts are effectively forbidden from examining the key facts of the case and are instead bound by Judge Greer's findings, it really doesn't matter. Fundamentally in this case Judge Greer has made findings of "fact" which go against the clear letter and spirit of existing statutes, and so the legislature and governor have acted to try to have the law carried out in the manner they intended and directed in the first place.