Posted on 03/26/2005 1:34:45 AM PST by Destro
March 25, 2005
COMMENTARY
Why Schiavo's Parents Didn't Have a Case
By Andrew Cohen, Andrew Cohen is CBS News' legal analyst.
Terri Schiavo's parents did not lose their federal case because they didn't try hard enough. They didn't lose their case because everyone conspired against them. They didn't lose it because Congress ticked off the judiciary over the weekend with its over-the-top custom-made legislation. They didn't lose it for lack of money or because they failed to file a court paper on time. They didn't lose it because the laws are unfair or because bureaucrats sometimes can be arbitrary and capricious.
The Schindlers lost their case and their cause — and soon probably their daughter — because in the end they were making claims the legal system has never been able or willing to recognize. They lost because they long ago ran out of good arguments to make — those arguments having been reasonably rejected by state judge after judge — and thus were left with only lame ones. And they lost because in every case someone has to win and someone has to lose. That's the way it works in our system of government. It isn't pretty, and sometimes it's unfair. But it's reality.
Especially during this final round of review, orchestrated by Congress' extraordinary attempt at a "do-over" for the couple, Schiavo's parents lost appeal after appeal specifically because they were asking the federal courts to declare that their constitutional rights had been violated by the Florida state court rulings in the case. They were arguing, in other words, thanks in part to their custom-made congressional legislation, that the federal Constitution gave them the right as losers in state court to get a new, full-blown trial in federal court.
(Excerpt) Read more at latimes.com ...
Punk judge Greer was also a guardian in contravention of Florida law. I think Greer is Terri's guardian as litum as of today
02.21.05
Guardianship Issues In Greer’s Court Call For Feds To Move In
analysis situs
by The Empire Journal
Follow the money is no longer just a pervasive slogan when it comes to guardianships in Florida. Karleen F. DeBlaker, clerk of the Circuit Court, Pinellas County, Florida in 2004 stated, “This [guardianship] is an area ripe for fraud and where most fraud abuse has in fact occurred." The Terri Schindler-Schiavo case has heightened awareness to the judicial abuses those entrapped in court battles over guardianships experience, with one major exception--Terri was given a judicial decree to die.
The infirmed and elderly are perfect targets for abuse from the courts, in that their civil rights are grossly denied and replaced with greed and power by those whose responsibility it is to shield them from abuse. E. Bentley Lipscomb, AARP's Florida state director stated, 'This problem is going to get bigger and bigger.”
In examining the Schindler-Schiavo case, the court allowed monies earmarked for her care and rehabilitation to be diverted to George Felos, Terri’s estranged adulterous husband’s lawyer. As the exposure on the corruption within the 6th Circuit Court unravels, it would appear that perhaps the agenda is to take one’s civil rights, one’s assets, and when all financial resources dry up, the court then issues the death sentence as is the case with Terri Schindler Schiavo.
The glaring violations of judicial canons, Florida Statutes and the US Constitution that have transpired in the Schiavo case demand an immediate federal investigation. It would appear that players such as State Attorney Bernie McCabe, [who is alleged to have been a sideline campaign manager for Judge Greer], and Florida Attorney Charlie Crist allow their professional peers to violate not only law, but ethics. Their absolute silence on the horrid situation the court created is deafening and would certainly lead to speculate that perhaps in some manner they are or intend to profit from Felos’ campaign to murder Terri after raping her finances with a wink and nod from George Greer.
In response to perhaps political pressure and wanting to appear proactive in resolving guardianship problems, the Florida Committee on Guardianship Monitoring, an extension of the Florida Courts, has recognized the need for Issues Preliminarily Identified for Study. The committee makes note of:
“Court expectations of guardians. Guardians don't know what to do, so their paperwork is often incorrect and incomplete.”
It is worth noting that Michael Schiavo has failed to even file the paper work that is mandated by law and Greer, who is a member of the Guardianship Monitoring Committee, has allowed Schiavo to continue violating the laws. Greer has allowed Schiavo to violate Florida statutes on abuse of those most vulnerable like Terri.
The committee also mentions, “Courts and lawyers need to do a better job of advising guardians of the court's expectations. This lack of training seems to account for most problems.”
It could be surmised that Greer lacked training considering he jumped from Pinellas County Commissioner to Probate Judge and self appointed himself as Terri’s guardian ad litem.
To add more fodder to the appearance of doing the right thing, the committee notes, “Nonfeasance vs. malfeasance. Discipline of guardians. Follow-up on wrong doing by guardians, such as filing of elder abuse complaints, prosecution, etc.”
Given Greer’s track record, it appears the committee is nothing more than smoke and mirrors to fool the citizens of Florida. Will the committee recognize in time, the gross violations of law in the courtroom of committee member Greer?
At the center of the guardianship fiasco in Florida is none other than Pinellas County. Honorable David A. Demers, Chief Judge Sixth Judicial Circuit conducted an audit on the Final Accounting of the guardianship of Timothy Corwin. The audit discovered, “a lack of compliance with state law and court orders, as well as inappropriate practices and questionable expenditures.” While the court conducted the audit and should be somewhat praised for doing so, it’s important to note that it was a little too late, and keep in mind if the same court goes through with the intent to starve and dehydrate Terri Schindler Schiavo to death, it is irreversible. An audit conducted on Terri’s case will be of no value to her family, friends or to the state of Florida as evidence proves an audit changes nothing.
"Why is it not a violation in this case?"
Because the Judge says so that's why! (/sarcasm)
Destro, in order to prove whatever silly point you are trying to make you have committed the logical error of creating a false dichotomy.
There are a lot of other possible beliefs in this matter besides the two you have tried to force everyone into. First, some of us are horrified at the Kafkaesque triumph of process over justice. Second some of us are also horrified over the fact that the courts have not followed the process laid out in law and have thumbed their nose at the congress.
Many good conservatives might argue that a system of laws that goes against the basic tenants of not just Christianity but every major religion on God's earth, isn't much of a system. Some of us even feel that socalled conservative justices who upheld this travesty are not in fact conservatives, have overreached the powers granted to the judiciary and ought to have their wings clipped by the other branches of government.
Some of us also believe that life should trump death, and if her parents, in particular, want to keep her alive under their care, well that ought to end the matter right there. My constitution and my religion do not recognize a right of the state to decide when a life has ended.
Whether or not she is PVS, I don't really know, nor do I need to know. I would leave that to her parents and medical doctors.
Those are the easy and clear reasons why she is dying. Besides those, one must remember at no time were any of the courts willing to go back and protect Terri's constitutional rights. They obfuscated by saying "she had a right to die" when, indeed, they were saying the state had a right to "kill her for reasons of mercy."
One could be a nonbeliever and still see the above. The question is whether there is political will to do anything. Be assured a tort will not solve this problem since if the court was operating in good faith all members to the killing are protected and that includes the husband.
We need a first rate book from someone. Then political action to take our lives and property back from the liberal courts. Presently, when the liberals want to change our habits and beliefs all they need to do is find a sympathetic judge.
A change in the law that better defines HOW a court goes about deciding what an individual may or may not want--and that allows for a "good samaritan".
As I posted earlier, here are at least three ways I want the law "tightened" when there are no written instructions from the patient:
1.--The patient must have separate legal representation to protect his or her right to due process; 2. --The definitions of "terminal" and "disabled" must be unbound and the disabled individual must be afforded all protections under the Americans with Disabilities Act; and 3.--When the patient's wishes are not clear, the law must allow for guardianship by an individual other than spouse, or even family, if someone capable of accepting the responsibility petitions the court.
Exactly! This needs to be trumpeted from the rooftops.
Yikes! ;)
But that still does not protect a person that the court has decreed "wants to die." Yes, it may make the hurdle touger to cross (it is now easily crossed, see Schiavo case), and I agree there is room for improvement. I will watch things unfold. I never did have faith in the system, but this case still rattles me to my core.
I saw references to that, but I didn't find anything substantive regarding that.
Terri's guardianship is such a central issue to her situation, and I'm quite non-plussed how the press seems to have as a whole ignored as full a reporting on the history of her guardianships as possible.
I would think a good reporter would've done a historical background piece detailing every guardian's period of guardianship, etc. So far, I have only found references that are favorable to the husband's case, with little or no criticism or unfavorable press from the mainstream media.
"I would think a good reporter would've done a historical background piece"
Therein lies a huge problem in this whole case where my brother journalists are concerned.
Consider
Florida State law
FS756.101 Definition of "persistent vegetative state""
(12) "Persistent vegetative state" means a permanent and irreversible condition of unconsciousness in which there is:
(a) The absence of voluntary action or cognitive behavior of any kind.
(b) An inability to communicate or interact purposefully with the environment.
Both requirements have been disputed under oath by licensed medical professionals who examined Terri or cared for her at length.
FS765.401 Responsibilities of a health-care proxy:
[A] proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent.
This also has been disputed under oath. There are even claims Michael explicitly stated he DID NOT know what Terri's wishes were. The ONLY testimony that these were Terri's wishes was a hearsay claim made by Michael Schiavo only after becoming engaged to his mistress and substatiated only by his relatives. Hardly "clear and convincing."
These two points stand at the heart of the case. If either is not true then Michael Schiavo has NO RIGHT under Florida law to remove the feeding tube. They have been brought into question by sworn statement. If the basic facts of a capital case were brought into question, there is little doubt that at a minimum a stay of execution would be granted - by any court up to and including the U.S. Supreme Court - until the claims could be investigated. It is not unreasonable to imagine a completely new trial being ordered. NO person may be deprived of life without due process. The LA Times article effectively claims this applies only to those who have committed a crime. That is a blatant violation of the 14th Amendment, which explicitly claims no state may deprive a citizens of their life, liberty or property without due process nor may they deny equal protection of the law. The only possible remedy for such a violation would be federal intervention of some kind.
Part of the Schindler's case rested on the claim that the state - by allowing her husband to act - was not properly protecting Terri's right to due process by failing to take or allow certain actions (too numerous to list here), nor providing equal protection of laws by failing to grant protection similar to convicted felons when the basic facts of the case were in dispute.
Article III of the Constitution grants the U.S. Congress the authority to determine the composition and jurisdiction of all federal courts other than the U.S. Supreme Court. The law passed by Congress merely gave federal courts jurisdiction in this specific case - a point to which the very courts denying the Schinder's requests agreed. This is well within the stated scope of congressional power. Losers are NOT able to "walk into federal court and declare a federal constitutional violation." They have to petition Congress for the right to do so. So much for judicial "free for alls."
The federal courts DID look at it "de novo". They performed a de novo review of the law.
That being said, they did not perform a de novo trial. A new trial would be almost unheard of -- including death penalty cases. The only time I can think of a de novo trial is in the case of an appeal of a small claims court ruling.
The law said "de novo" but never specified which type.
It's unfortunate that liberals are espousing traditional conservatism to bash conservatives. But the article raises effective arguments.
Unfortunately, that is becoming the mantra of conservatives as well.
Good point. Any change would have to better define what is needed for the courts to divine the individual's wishes. Certainly more than "my wife once told me".
I never did have faith in the system,
I know, it is a quantum leap. But, I continue to hope that citizens will wake up and remember that "the system" is ultimately our own creation.
The law applies to any government taking of life, taking of liberty, and taking of property.
Government must have a compelling interest in any of these cases.
Yet, we can set that aside, for now, because the parents' attorney's were not up to the appeals tasks on several occasions, recently, and all along, back through the histories of many proceedings.
Leaving, the matter of the Congress and its act, which it did well in accordance with its Constitutional authority to control the federal courts. The Congress has the power to adjust the jurisdiction of all the federal courts. The Congress has the power to decide what types of cases may be heard and by what courts. The Congress has the power to remove judges, etc.
The Congress did not break any laws.
The leftists and their liberal allies, are instead very worried about the Congress using its power to reign in the Judiciary.
So, in the same manner that the Clintons' tried to strike fear into the country, by claiming that the Impeachment of "President" Clinton was a "coup" and "attempting to reverse the election" and "trying to make a new Parliamentary Government" --- none of which was true --- now comes the same leftists and their liberal allies again.
Now, another bogus series of cries, such as misrepresenting the act of Congress to be "judicial activism."
As you know, the leftists and their liberal allies will cluck mightily, and the cacaphonus echo will grow to crisis proportions, because the leftists and their liberal allies "legal experts" are all left-wing-nut judicial activists with TV "face time" guaranteed by the liberal media; and Cohen is just such a nut.
"But, I continue to hope that citizens will wake up and remember that "the system" is ultimately our own creation"
Then some peopl ein this country also need to realize that this system of our own creation is also NOT the system our Founding Fathers created.
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