| This case was argued repeatedly over many years in Florida.
The first concerns Terri's wishes in the event she were to become incapacitated. She left no written instructions. We are therefore left with a dispute within her family concerning what she would have wanted. The husband says this, the parents say that, off to court we go. It the job of judges to decide these things, and this judge decided — based on the word of the husband — that it is a "fact" that Terri would have preferred death in this circumstance. So far as I know, once a judge has determined this to be a "fact," the appellate courts do not ever look at it again. So all appeals proceed on the basis that it is a "fact" that Terri Schiavo would prefer death here. But is it a fact that withstands any scrutiny? The husband has a million dollars awarded in a malpractice suit, ostensibly to provide for medical treatment for his wife; but it's all his to do with as he pleases were she to die. And there might be life insurance as well; we don't know. But we do know that the husband has a powerful financial interest in seeing his wife dead. And without any written will, it's a "he said/they said" between the husband and the parents as to her wishes. So the decision that it is a "fact" that Terri would prefer death, based on the husband's testimony, contradicted by the parents, strikes many people as extremely controversial. At best it is arbitrary... making a decision for the sake of making a decision. Granted that is what we pay judges to do. But we shouldn't lose sight of how weird this decision is. The second "fact" concerns the likelihood that Mrs. Schiavo's condition might improve. The press has described her as everything from "brain dead" to "in a coma." There are doctors who say she in a "persistent vegetative state" and there are doctors who say they've seen worse cases that were rehabilitated. There is testimony from nurses — apparently ignored by the judge — that she says things like "help me." For sure, her eyes are open, she moves around, she smiles, and she makes noises. We've seen the videos. Once again, the judge "decides" and so it becomes a "finding of fact" that she is in a "persistent vegetative state." Given the two "facts," the judge's decision to pull the feeding tube makes perfect sense from a legal standpoint. The problem is with the "findings of fact." In both cases, the testimony is contradictory. The judge, quite arbitrarily, came down on the side that leads to her death. A lot of people are uncomfortable with that. This judge is not qualified to decide for himself whether Mrs. Schiavo is in a "persistent vegetative state." He heard testimony that she is, and he heard testimony that she isn't. In doubt, this judge erred on the side of death. He did the same thing in deciding whether to believe the husband or the parents concerning Terri's wishes. Both times, he came down on the side that leads to an ineluctable legal decision that she should die. Yet everyone can see that he was basically making two arbitrary decisions concerning whom to believe. Judges do that every day. It's their job. But when two rather peculiar arbitrary decisions lead to starving someone to death, maybe it's time to call in the replay official. It is common for criminals sentenced to death by state courts to get a federal review of their cases. When the government is going to kill someone, you would like to make sure it's not making a mistake. Surely this woman deserves a review that a convicted criminal could get. |
True, but there are two extremely peculiar decisions — findings of fact — about the case that really do cry out for someone else to take a look.