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 ...
My bad (I'm probably reading too many of these threads)
Good to know we'll be in this fight together ;^)
I understood that the current guardian is Judge Greer himself.
"Pinellas-Pasco Judge George Greer concluded in a 2000 ruling ordering Mrs. Schiavo's feeding tube removed that the argument was about money."
So swamp 'judge' Greer tried to finish Terri off by removing her feeding tube previously as well, then what? No more problems over money or anything else? The 'judge' is real piece of work...This creep thinks he has so much power over life and death and nobody can prevent his 'rulings', neither the President, the Governor, Congress, nor the direct family members, forget the public since to Greer we are just peasants...
"It is clear to this court that (the argument) was predicated upon money and the fact that Mr. Schiavo was unwilling to equally divide his ... award with Mr. and Mrs. Schindler," Greer wrote. "Regrettably, money overshadows this entire case and creates potential of conflict of interest for both sides."
It seems 'dear Michael' had a monetary driven metamorphoses after the big dough came rolling in. 'Dear Michael' boy and his lawyer have a 'right to die' agenda for Terri (not themselves of course) which is pure ACLU.
All those which want Terri dead can start 'celebrating' real soon, maybe even just in time for Easter Sunday, won't that be nice?....
I could be wrong, but I think Congress passed a weak law regarding the Federal review, and they knew it. When the Senate first passed their bill, some of our Rep senators were making the talkshow rounds accusing the House of holding up the bill. I saw Senator DeLay and Congressman Sensenbrenner arguing about it on Fox News a day or two before the debate on the House floor. DeLay was accusing Sensenbrenner of obstructing the bill. Sensenbrenner disagreed. He said the bill the Senate had passed was flawed because it said the Federal courts "MAY" order a de novo review. Sensenbrenner had written his own bill for the House, materially the same, except for changing one word. Instead of "MAY" order a de novo review, he changed it to "SHALL" order a de novo review. Essentially, he said the Federal Courts could refuse a de novo review if the legislation gave them that option by using the word "MAY".
I don't know what happened after that, but as far as I've seen the weaker version of the bill is the one the President signed, stating that the Federal courts "MAY" order a de novo review. Apparently they may, but they chose not to and it wasn't required of them according to the legislation.
If this is accurate, then congress was merely grandstanding by signing a weak piece of legislation that they knew would be ignored, as evidenced by the DeLay/Sensenbrenner dispute on Fox News.
What I didn't realize as a physician was that what I had perceived as an interesting academic distinction (PVS vs SMC), one important to patient and family of course, could become the pillar of a legal argument for or against court ordered euthenasia. Once a fuzzy diagnostic term is placed into statute, and it's applicability to a case is enshrined by a single judge's 'finding of fact' it becomes transformed to the immutable. Neither burgeoning knowledge, common sense, humane arguments, nor crowbars can change it through the appeal process. It, the state and functionality of brain tissue inside the head of one poor patient, becomes a matter of lawyering.
I engaged in some argument here knowing a good bit about this field (neuroscience), struck by the inanity of medical statements in the lay press and by forum members, by the lack of solid information, the legal blocks to obtaining information, and the obvious bias in interpretations (Hemlockers vs Vitalists).
I learned a lot about my own naivete.
Great post. This case has caused many of us to learn something about ourselves, and our naivete, and to confront our ethical bases.
Well, if that isn't process to the max! If she meets the criteria of FS765.305, kill her!
My point was, there's no such thing as PVS. "PVS" is a term that was invented to designate a subset of severely brain-injured patients to allow them to be killed. There is no bright line between "PVS" and "almost PVS" which can either be reproduceably identified or, certainly, which can justify killing vs. non-killing.
The whole distinction between "PVS" and "almost PVS" is phony, non-biological, and impossible to administer when observers disagree.
If you think brain-damaged people should be killed, fine. If you don't, also fine.
But don't justify the killing because some phony law resting on some phony disease allows it.
Who says we have to keep a person alive in a terribly disabled state..when half their brain has liquified and they have no chance of becoming a whole person again?
Please try to be factual. What evidence do you have to support your statement that "half their brain has liquified"? Maybe none of the person's brain has liquified.
Or maybe one tenth.
Also, by your standard, would you classify any and all mentally challenged individuals as having "no chance of becoming a whole person again".
What should society and/or the courts do in these instances - humanely (sarcasm) starve them all to death?
Happy Easter!
Just a note to say I've appreciated the posts from both of you. If we could've ever seen an informed discussion without the bomb throwing and namecalling from both sides, I think we could have all learned and gained from it.
Thank you very much for the public compliment. It is sincerely appreciated. As for a wish for informed discussion without bomb throwing and name calling, put that in the pile of things to wish for, that aren't destined to come true.
Finally, I think that's something we can all agree is true. Sadly, we're the lesser for it.
Apparently the state appeals courts, as well as the Federal appeals courts and the U.S. Supreme Court believe that Greer has acted correctly. All of them have had the power and opportunity to reverse his rulings.
That's it! It's a conspiracy! They're all afraid of it!
/sarcasm
Get real. The courts weren't afraid to rule on the 2000 presidential election, and they aren't afraid to rule on abortion, yet they are afraid to rule on this one case?
The business of appeals courts, particularly the U.S. Supreme Court, is ruling on controversial and volatile cases.
You are really stretching now. The U.S. Congress passes legislation that effects one person all the time. Show me where, in the Florida Constitution it says the legislature can't pass a law that effects only one person. The fact is, if the legislature and governor pass a law, it doesn't matter if the judge doesn't like it, it's law.
It's the civil equivalent of a Bill of Attainder and raises all kinds of Amed XIV Equal Protection problems.
Are you really saying that with a straight face? The way the courts ignore stare decisis and every other legal concept? That's rich. It still wouldn't apply, the legislature passed the law.
Yeah... rules like res judicata would have precluded the Schindlers' from their repeated appeals ad nauseum.
"The courts weren't afraid to rule on the 2000 presidential election, and they aren't afraid to rule on abortion, yet they are afraid to rule on this one case?"
IMHO yes. I think the judges in that part of the country are still revieving the wrath of West Palm Beach over 2000 and NONE of them are about to incur anymore by going against the grain in this case.
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