Yet, both Judge Whittemore and the Eleventh Circuit failed to come to grips with the fact that Judge Greer issued an order instructing Michael Schiavo to remove Terri's feeding tube, even specifying the exact date and time when he should do so. The state court did not merely stand idly by while permitting Michael to take such action; the court affirmatively mandated the disconnection. That ought to have counted as state action by a state actor--Judge Greer--who was a named defendant in the federal court lawsuit.
Ding! Ding! Ding! We have a winner! The STATE (as represented by Judge Greer) ORDERED the feeding tube removed! What does this mean? It means that Terri's constitutional rights were violated, since no one in government can deny someone LIFE without due process. This dude argues that Terri did receive due process, but in actuallity, it was only her husband's wishes that were under consideration, not Terri's. Judge Greer is WAY OUTA BOUNDS here. (As most of us already know.)
For those of you blaming Jeb Bush for Terri's death, the blame can be more appropriately placed right at the feet of the Schindler's lawyers.
Well -- I don't agree with the decision -- though I never sat with all the facts before me as did the judge. (Remember, one reason we don't over-turn findings of facts by judges or juries very easily, is a recognition within the system that only the finder of fact can judge the credibility of the witnesses having had the opportunity to see them in Court and to have them subject to cross examination. That is why jury and factual findings by a judge sitting as fact finder are accorded such weight -- and rightfully so). Having said all that -- the determination in this case was NOT what did Michael want.
Indeed, the determination was what did Terri Schiavo want. In making that finding, the Court certainly did rely on the witness statement of Michael -- but it is important to understand the posture of the case. In this case, the Court has determined that Terri Schiavo did not want to be kept alive. So, in that sense, the Court has made a finding of fact on what it believes to be her wishes, and denying those wishes would be to deny Ms. Schiavo her right. In the end -- the Court applied Florida law, letting the husband serve as the guardian. It then made a factual determination that Terri wanted to die -- and in doing so is now upholding Terri's desire. (All the other Courts merely held that the judge did not abuse his discretion. Which, in essence, means that even if they don't agree with him, the facts were such that as a reasonable fact-finder he could have reached his conclusion based on the facts.)
The Schiavo family needed expert appellate advocates, and they desperately needed someone who understood the import of the Congressional legislation. They did not have that. In essence, Congress passed a law to help her -- and the Schindler attorney went to the Middle District and asked for something other than what the statute provided. The Court, of course, found that the cause of action was weak, and did not warrant the injunctive relief requested. It was a major blunder.
Just remember -- in the end, the only entity that could have saved her without a successful appeal, was the Florida legislature. They had a bill pending to that would have made it against Florida law to end the life of any person without an express written medical directive. In addition, the legislation could have been applied to the Schiavo case. The legislature voted it down. (Florida Senate 21-18). Several republicans voted against it, and when it died they went home for Easter to let Terri die. They are the parties who really stopped this thing.
So far as I can tell -- the Trial Judge made his decision on the only facts before him at the time. He rigorously applied Florida law -- even when we did not want him to. Then, the Federal Courts declined to overturn his finding, as they properly found no abuse of discretion and no properly plead Federal cause of action. The Court system worked perfectly. It was the system of laws enacted by the legislature that failed. The Congress should have mandated a de novo review, and applied the right to all cases like this in each state. That broad law would have been Constitutional, and it would have eliminated discretion. They were too chicken to do so. And, of course, the Florida legislature failed miserably at their task.