Terri Schiavo has passed away

CNN ^ | 3/31 1005 | CNN

[general_re]

Now that you are dispensing with invectives...

Considering that your very first post to me was to suggest that I was engaging in an obfuscatory discussion of irrelevancies, I really think that you abandoned any high ground on that score some time ago. If you do not care for my manner here, I suggest you begin by tending to your own house.

I wish though that you would not find it necessary to presume upon my motives.

See, I would find that much more worthwhile if you hadn't started out - again, in your very first post - by questioning my motives. You put motives on the table. If you do not wish to discuss your motives, perhaps you should forego an investigation of mine. You haven't exactly been sitting on your hands here - we've had us a fine little pas de deux, you and I, which is why the naif thing just really isn't working right now.

As for history, we could probably engage in another long and likely fruitless discussion. What survives is usually the version sanctioned by the dominant side. Applied to the judicial travesty known as Terri's case, it is possible that the final tale will wind up being close to the one you seem to favor.

Errr, well, I wasn't planning in insisting that you stick around so that we can come to a meeting of the minds, but I can't resist pointing out that there doesn't seem to be much room for the truth in our new Zinn-esque paradigm of competing narratives. Nevertheless, the truth is there somewhere, and with me it begins by separating legal correctness from moral correctness - shame you didn't back all the way up to see that.

[terrasol]

Having dealt at length with wrongful judicial denial of retained rights and infractions of the guardianship requirement, I want to revisit the statutes that definitively prove that Terri's death did not meet the standards of Florida's end of life legislation and was in fact judicially sanctioned murder in ethical terms, judicially sanction mercy killing in moral terms or judicially sanctioned assisted suicide in legal terms. I briefly touched on this in a previous post, but it was in a different context and the topic did not receive detailed treatment at that time.

Prior to 1999 an order to discontinue life-supporting procedures meant turning off a respirator. The electrical apparatus performed the air exchange of which the patient was not autonomously capable any longer. It thus performed the bona fide role of a life-extending apparatus because it prevented the systemic organ failure known as death that would otherwise have been in progress.

Advocates of the dying with dignity movement had rightly held that dying persons should be given the choice to not be prevented from dying by the operation of surrogate apparatus. When a respirator was turned off, the organ activity it had mimicked ceased and the interrupted dying process resumed. Death usually followed within minutes. The laws putting the use of a respirator at the option of the patient or, in cases of mental incapacitation, at the options of doctors and/or family found widespread support. Few did not understand the rationale of honoring the natural process of dying after all restorative medical treatment failed.

In 1999 the Florida Legislature amended its life-end statutes to include feeding tubes in the category of life-sustaining procedures and permitted their withdrawal as a means of facilitating natural death. Feeding tube removal is not as simple to rationalize though as was the turning off of respirators. Why? Because feeding tubes are widely used with patients who are not in danger of imminent death, nor are they electrical apparatus that serves as a surrogate for dysfunctional organs.

A feeding tube is a gravity-operated device that bypasses temporarily or permanently impaired swallowing musculature. Feeding tubes are often used in the aftermath of operations to allow parts of the patient's body to heal before resuming normal eating. On the other hand, there are countless patients in hospitals and nursing homes suffering from irreversible conditions or feebleness who are being kept alive by a form of force-feeding via the feeding tube, when left to their own devices their bodies would simply shut down for lack of desire for or ability to ingest food and water. The dying with dignity movement began to lobby state legislatures to make it possible for those sufferers to naturally die as well.

The 1999 amendment to the Florida statutes permitted the withdrawal of feeding tubes predicated upon the patient's expressed wishes. Avenues of court-ordered feeding tube withdrawal were also being explored for cases where the patient's deficit in consciousness made it impossible to convey consent. In all cases, however, the presumption was that the feeding tube served as an artificial hindrance to the body's readiness to die. In most cases of feeding tube withdrawal intravenous hydration and comfort measures were provided to alleviate unnecessary suffering by the patient.

Despite the inclusion of feeding tubes under the definition of life-prolonging procedures, Florida law does not permit medical hastening of death by other means such as drugs or the withholding of oral feeding and/or hydration. If a patient is capable of ingesting liquids by mouth, there is no provision in the law to permit the discontinuation of oral hydration. The assumption is that the presence of a feeding tube automatically implies the patient's inability to hydrate by mouth. This is not always the case, and it was not the case with Terri.

Florida law declares anything other than the authorized discontinuation of life-prolonging procedures mercy killing or euthanasia and forbids it:

"765.309 Florida Statute: Mercy Killing or Euthanasia Not Authorized; Suicide

Distinguished. -- (1) Nothing in this chapter shall be construed to condone, authorize, or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act of omission to end the life other than to permit the natural process of dying."

The statute says that ONLY the natural process of dying is to be permitted. It does not allow a "deliberate act of omission" to expedite death. What does this mean in the context of a feeding tube removal? It means that if anything has to be done or omitted in addition to the feeding tube removal, it is forbidden and will be viewed as assisted suicide or mercy killing.

This includes the withholding of nutrition or hydration, which the patient is able to ingest without the use of a feeding tube. It must be remembered that the feeding tube is the critical item here. The law's assumption is that the natural process of dying was interrupted through the insertion of a feeding tube and would resume upon its removal, just as is the case with turning off a respirator. This assumption fails when the patient does not depend on the feeding tube as a life-prolonging procedure.

The deliberate refusal to provide oral hydration to a patient capable of receiving it thus falls under the prohibition of "any affirmative or deliberate act of omission to end the life," and is prohibited. Such an act cannot be construed as meaning to "permit the natural process of dying." Instead, it is an act of deliberate omission designed to bring about a death that would not otherwise have occurred.

Although it is possible that the patient may die from malnutrition despite continued oral hydration, the law as it stands does not condone the deliberate withholding of it. The law only condones honoring the patient's wish to not have nutrition and hydration forced into his or her body by means of a feeding tube. The law considers it suicide if a person dies from deliberately refusing to eat or drink. By extension, the law considers it assisted suicide if someone helps a person to accomplish dying in that way. The law considers it murder if food and water are withheld from a person who does not reject it and does not wish to die.

"(2) The withholding or withdrawal of life-prolonging procedures from a patient in accordance with any provision of this chapter does not, for any purpose, constitute a suicide."

The law makes it clear that only NATURAL DEATH resulting from the withdrawal of life-prolonging procedures is covered by the statute respecting the patient's wishes, and that any additional measures to hasten a desired death are SUICIDE and prohibited.

What does all of this mean when applied to Terri's situation? It is known that Terri was capable of swallowing her own saliva because there was no evidence of drooling. Terri's full swallowing capacity was not known because her guardian Michael Schiavo forbade the administration of a standard swallowing test, even after it was recommended by the second guardian ad litem, Jay Wolfson. It is also known from affidavits by nurses that Terri had been previously fed by mouth and that the feeding tube had been inserted at her guardian's orders. At the very least, Terri was at the time of her feeding tube removal capable of swallowing fluids in small quantities.

Terri died from organ failure brought about by dehydration. This was NOT A NATURAL DEATH since it involved the "affirmative or deliberate act of omission to end the life," i.e. the withholding of fluids that her body was capable of ingesting by mouth.

If we accept that Terri had indeed expressed the wish to die, then the act of depriving her of oral hydration must be considered assistance with suicide, according to the letter and intent of the statutes. Did Terri express the wish to die? Judge Greer ruled that she did, but what was this ruling based on? It was based on Michael Schiavo's statement that Terri had told him sometime in the mid-1980s that she would not want to be kept alive "by anything artificial."

Is this statement equivalent to an expression of the desire to die? No. It only means that Terri did not want to be kept alive artificially. At the time of her alleged statement that meant a respirator. Feeding tubes were at that time NOT considered life-prolonging procedure. Terri is supposed to have made this statement after watching a TV hospital series. At that time the turning off of respirators was already permitted by law, but the possibility of withdrawing a feeding tube was not. If Terri's alleged statement is put into context, it means: "If I am ever on a respirator, have it turned off."

Terri knew nothing of the Florida statute amendment of 1999 that made feeding tubes legally removable as well. It is not possible to assume that Terri could have intended "If I am ever fed through a feeding tube, have it withdrawn." She could not have imagined such a scenario in the mid-1980s, because that was simply not done. It is safe to assume that the only scenario Terri truly rejected was to be kept alive artificially by means of a respirator. She never expressed a desire to be made to die from lack of water and food. If this is true, then the subsequent denial of oral hydration from which she died must be seen as murder.

However, Judge Greer ruled that Terri's wish DID include having her feeding tube withdrawn and we are bound to accept this. Even so, Judge Greer's finding could not include the idea that Terri also wanted to be refused nutrition and hydration by mouth. Why not? Because Florida law does not permit it. We are therefore forced to conclude that Terri's death was the result of illegally assisted suicide. Judge Greer ruled that Terri wanted to die and the people that refused her oral hydration illegally helped her accomplish a death other than the natural death permitted by the statutes. This is the most charitable view of what was done. Terri's death was not the result of the feeding tube removal but of the refusal, albeit desired, to give her fluids by mouth.

In the view of most people not familiar with the sordid chronology of Michael Schiavo's treatment of his disabled wife, it was best "to let her go." Few people took the time considering the mechanics of this. They simply assumed that Terri was "a vegetable" and was being kept alive by some sort of machine. Others realized that she was capable of living, but did not think that she would want to live with her condition. In this mindset the act of "letting her go" translated into some sort of vaguely imagined mercy killing, colloquially put "putting her out of her misery." This is what Florida law says about mercy killing.

"458.326 Florida Statute: Intractable Pain; Authorized Treatment. -- (4) Nothing in this section shall be construed to condone, authorize, or approve mercy killing or euthanasia, and no treatment authorized by this section may be used for such purpose."

What does this say about the people who refused Terri oral hydration after her feeding tube was removed? It says that they perpetrated the prohibited act of euthanasia. This includes the judge who ordered it, the medical personnel that executed it, the guards that prevented interference with it, Michael Schiavo and George Felos who desired it and the State of Florida that permitted it.

As I said before, the most likely legally sustainable interpretation of what happened is that Terri's death was the result of an assisted suicide. Will any of the participating individuals ever be taken to task for it? I don't know, but if they do, this is the pertinent statute:

"782.08 Florida Statute: Assisting Self-Murder. -- Every person deliberately assisting another in the commission of self-murder shall be guilty of manslaughter, a felony of the second degree, punishable as provided in s.775.082, s. 775.083 or s.775.084."

[terrasol]

general_re,

I believe that your points are well taken. I apologize for any rush to judgment on my part. I do believe that a dialogue predicated upon "separating legal correctness from moral correctness" is worthwhile. I suggest that neither one of us categorically reject an unpleasant opinion by the other but focus instead on the scope of supporting material. Deal?

Warm regards,
TS

[Life4Terri]

George Felos stated, upon being asked about the family not being allowed in the room, that Michael was generous to allow them all the time with the body that they wished! How pathetic is that?

[AppyPappy]

Not to be slow but are you saying that we don't know who was paying for her care?

[AndrewC]

Not to be slow but are you saying that we don't know who was paying for her care?

I'm not sure, since Terri received $750,000 for the purpose of rehabilitation and that amount apparently still exists since Michael testified he would give up all claims to it if he could kill Terri(this occurred during the initial request for tube removeal In response to Mr. Pearse's report, Michael Schiavo filed a Suggestion of Bias against Mr. Pearse. This document notes that Mr. Pearse failed to mention in his report that Michael Schiavo had earlier, formally offered to divest himself entirely of his financial interest in the guardianship estate. . That rehab stopped(probably was not even started) within 3 months of the award. So who payed? You must ask Michael Schiavo since he was the guardian.

[AndrewC]

Payed =paid


Learn English

[terrasol]

By order of the awards jury the $750,000 had been put into a trust reserved to pay for Terri's rehabilitative therapies. Not one dollar out of this fund was used for the intended purpose.

Michael Schiavo successfully petitioned Judge Greer for permission to break the trust and to use it instead for legal expenses, meaning that it would pay for George Felos' and Barbara Bushnell's services in having Terri's feeding tube removed. George Felos received in excess of half a million dollars of Terri's trust money, and Barbara Bushnell in excess of $100,000.

Interestingly, some of the billable hours George Felos submitted were for "dealing with the press." In other words, the press campaign Felos conducted to weigh public opinion in favor of the feeding tube removal was financed out of Terri's medical trust fund. Felos, by the way, received other payment as well. It seems that when Terri's trust money ran out, the ACLU provided funds for George Felos to continue litigating in re Terri's feeding tube removal. The extent of those payments is unknown.

Michael Schiavo also got Judge Greer's permission to pay himself out of Terri's medical trust fund for expenses incurred in the effort of getting the feeding tube removed. In addition, he obtained permission to use trust money for paying off an old loan he had taken out during the time that he was still living with a healthy Terri.

It seems that it did not occur to Judge Greer to ask Michael Schiavo why he had not used the $300,000 + that he himself received as part of the malpractice award. That money presumably had gone toward purchasing the house in which he still lives with his fiance Jody Centonze and their two children.

To the question about who paid for Terri's upkeep since the 1982 malpractice award, the simple answer is the taxpayers. With characteristic disingenuousness Michael Schiavo answers press questions as to whether the trust money was wiped out by medical costs in the affirmative. (See recent interview with Larry King.)

[Cboldt]

*bump*

I had the same sense of legislative intent on a summary ready of the statute. Thank you for the detailed analysis.

[AndrewC]

This is just an incredible travesty.

Here is what the Constitution state concerning counsel.

In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.

Now I have not heard, nor would I expect from any rational person, that the above right would be met by anything other than an attorney working directly for the accused. People have be set free even having this assistance because that assistance was judged faulty.

This, as we know, is what the Florida Law states.

744.3215 Rights of persons determined incapacitated.-- 

(1) A person who has been determined to be incapacitated retains the right: 

...

(l) To counsel. 

Somehow this was met by some invisible entity when Judge Greer pronounced the death sentence on Terri.

[terrasol]

AndrewC,

I unequivocally share your view that this was a travesty. I want to make a minor correction with regard to your belief that "counsel" automatically implies "lawyer." The law permits a lay defendant to serve as his own counsel. The advocacy before the court known as counsel is therefore not limited to a person of the legal profession.

As I mentioned before, the Florida guardianship statutes contain a chapter that places 15 rights into a specially protected category labeled "retained rights." The right to counsel that you cited is one of these. The office addressed with this term "counsel" is that of the guardian ad litem or guardian before the court. In a majority of instances involving an incapacitated person the court will favor the appointment of a lawyer to that office. As general_re rightly observed, this is not dictated by law. A lay person may serve as the guardian ad litem after undergoing a background check and absolving the required training curriculum.

Your reference to the constitutional right to counsel in a criminal defense does have some bearing on this as well though. An incapacitated person's guardian ad litem could invoke the clause in case he is not himself a lawyer. As the ward's representative before the court the guardian ad litem could show cause for bringing in a lawyer to assist in the adjudication of a matter of serious consequence to the ward. I will show that of all parties to the court, including the court itself, only the guardian ad litem is in a position to bring in an outside lawyer whom the law will recognize as counsel for the ward.

Although the case we are discussing was not a criminal case, it did involve a life or death decision based on the interpretation of laws. The presence of a lawyer on Terri's side was therefore indicated. This need would have been met by either a lawyer/guardian ad litem or by co-counsel hired from the outside by the GAL. The problem was that Judge Greer illegally deprived Terri of her retained right to counsel. By refusing to recognize a guardian ad litem, Judge Greer effectively derailed the bringing in of a lawyer on Terri's side.

It would be a mistake to claim that Terri had a lawyer because the Schindler family provided one. The Schindlers' standing before the court was of an entirely different nature than Terri's standing. From the point of view of the law, the Schindlers had access to the court in only a limited fashion. It did not accrue to the level of "access to the courts" specified as one of Terri's retained rights. Terri's lawyer would have been in a position to tackle legal questions far more freely and comprehensively than was the case with the Schindlers' lawyers.

Neither can it be said that Michael Schiavo's lawyers served in lieu of Terri's counsel. By deliberately adulterating the guardianship statutes Judge Greer ascribed to George Felos the role of serving as counsel for Terri. In his rulings he acted as if Michael Schiavo's lawyer were speaking for Terri while seeking her death. By no stretch of the imagination can this be seen as fulfillment of Terri's retained right to counsel.

Only Judge Greer's illegal denial of Terri's retained right to a guardian ad litem made this charade possible. Judge Greer gave lipservice to the statute by declaring himself to be Terri's de facto guardian ad litem. With a symbolic nod to the law, Judge Greer implied something to the effect of "Terri does have a guardian ad litem, me." I find it inconceivable that the statutes can be misconstrued to mean that the guardianship judge can also be the ward's guardian ad litem.

Yet, even if that were the case, Judge Greer's actions on behalf of Terri were not that of a guardian ad litem. He did not invoke any of the protective mechanisms described in Terri's 15 retained rights. He permitted Michael Schiavo to directly contravene several of Terri's retained rights. In addition, Judge Greer permitted Michael Schiavo to remain as the legal guardian despite the fact that he failed to meet statutory guardianship requirement and was habitually derelict in the performance of mandated guardianship duties.

None of this could have happened had Terri been consistently represented by a guardian ad litem. Judge Greer would have had to dismiss one GAL after another, because each one would have dutifully asked for remedies against Michael Schiavo's chronic guardianship derelictions and failures to qualify as guardian. After the dismissal of a dozen or so GALS Judge Greer might have found it difficult to justify these dismissals. So he did the next best thing: refuse to appoint a GAL at all, or pretend that he himself was filling the role of the guardian ad litem.

There has been some discussion in this thread concerning the relative difference between "counsel" and "guardian ad litem" in the context of guardianship statutes. I have defended the position that the statutes treat them as being identical. Here is the logic: The guardian ad litem is the only person whom the law recognizes as the ward's legal representative in matters before the court. He or she, regardless of whether or not in possession of a law degree, is therefore the only person in a position to hire a lawyer on the ward's behalf.

The incapacitated person's communication deficits prevent her from hiring a lawyer. The legal guardian is not recognized by the law as speaking for the ward in matters before the court. The legal guardian is merely charged with administering the ward's care, finances and everyday affairs. He is supposed to submit a guardianship plan that lists his activities on the ward's behalf for the upcoming year. The guardianship court must review the plan and then approve or strike the items it contains.

For that year the legal guardian's authority is confined to the execution of the items listed in the approved guardianship plan. The language of the statute does not permit him anything beyond this. If he hires a lawyer, the law will treat this lawyer as the legal guardian's counsel, not as the ward's counsel. The legal guardian is therefore not in a position to provide counsel for the ward.

The judge is not in a position to provide a lawyer for the ward either, unlike in a criminal case where the judge can assign a court-appointed lawyer to the defense. The only action permitted to the judge by the guardianship statutes is to test the qualifications of the ward's guardian ad litem. I am uncertain about the number of parties that may nominate someone for consideration as the guardian ad litem. There are ongoing reforms in the Florida guardianship services and it seems that efforts are pointing in the direction of having a pool of qualified professional guardian ad litems.

It is possible that in the future a court will simply tap this pool of prequalified professionals. From my study of Terri's case it appears that each of the two GALS was nominated and appointed by the court. Neither Michael Schiavo nor the Schindlers had a say in these appointments. It thus appears that the guardianship court considers the nomination and appointment of the guardian ad litem to be its own prerogative. There is no need to argue against this, except when the scope of that prerogative is pushed beyond practicality.

The court's prerogative to make decisions about the person of the guardian ad litem does not extend to deciding whether there should or should not be a GAL. That decision was already made by the statutes. It may be reasonable for the court to say "not this GAL," but it is not reasonable for the court to say "no GAL at all." The court certainly cannot say "well, we are not going to give the ward a guardian ad litem, but we will provide a court-appointed lawyer instead." This would raise serious questions about the court's intentions and would moreover contravene the statutes.

I have already mentioned that the Schindler's were not recognized by law as entitled to hire a lawyer for Terri either. They exercised their privilege to hire a lawyer for themselfes, but the court did not view that lawyer as representing Terri. No other party, from the governor to the legislature and to any group with an interest in the case was in a position to provide counsel for Terri.

So, we are faced with a perplexing situation. The law does not recognize any party, including the judge, as qualified to hire a lawyer on the ward's behalf. The ward herself was unable to communicate and could therefore not hire one either. Yet the law made her right to counsel an inalienable right.

"The person determined incapacitated retains the right to counsel," but nobody except the person determined incapacitated (who cannot communicate) has the right to hire a lawyer with standing before the court. Can this Catch-22 situation really be the intent of the law? No, it is not. The solution is in the identity of counsel in the context of guardianship. It is the guardian ad litem who is recognized by law as speaking at court for the ward. If the guardian ad litem hires a lawyer because he or she does not possess a law degree, then that lawyer will be treated as the ward's lawyer. That lawyer will then stand before the court as co-counselor by virtue of his association with the guardian ad litem.

The short of the story is that when Judge Greer refused to recognize a guardian ad litem for Terri, he automatically made it impossible for any lawyer to have standing before the court as Terri's counsel. We can thus lay to rest the issue of distinguishing between "counsel" and "guardian ad litem." In the guardianship court there is none without the other. Is it therefore correct to say that Judge Greer removed Terri's retained right to counsel. Yes. Is it correct to say that Judge Greer contravened Florida guardianship statutes? Yes. Are Judge Greer's actions legally defensible? No. Was Terri afforded due process? No. Is Terri's case a judicial travesty? Yes. Is Judge Greer a renegade judge that must be impeached and barred from law practice? Yes.

[AndrewC]

The law permits a lay defendant to serve as his own counsel. The advocacy before the court known as counsel is therefore not limited to a person of the legal profession.

Please note that I always included the words "right to".

In any case,

Ferguson chose to defend himself. Kunstler and Kuby opposed his decision, and had the court make a preliminary determination of his psychological competency to stand trial; in effect, they asked the court to determine whether or not he was sane enough to be making such a fundamental decision about his own defense. The court determined Ferguson was indeed competent, and the trial proceeded. Kuby sat in as an assistant, but Ferguson directed his own defense.

Terri did not have this "luxury", the court would not allow it.

[wildandcrazyrussian]

Wonderful analysis and explanation, again. Complex subjects can be explained!

If you have a moment, could you comment on the following couple of points? The presumption is that there HAS to be a way to reign in renegade judges as though that were the problem, although I think many people are wondering who wrote the script of which "Terri Schavo 2005" is but one scene.

The Bill of Rights has under Amendment VII: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."

Now it seems clear to me that the writers of the Constitution were quite provocatively declaring that judges are NOT God, since it would be much easier all around to just pick such people with infallible judgment instead of all the bother of letting 12 rather ordinary people decide a verdict which may very well be opposite to that which the judge is inclined.

And what's this in Article III, Section 2? "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme [sic] Court shall have original Jurisdiction. In all the other Cases before mentioned [preceding paragraph], the supreme [sic] Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Why have an appellate jurisdiction at all if lower-level judges WERE infallible and exempt from criticism?

What does it mean that the supreme Court can have appellate jurisdiction as to "Law AND Fact"???? I thought everybody has been saying upper-level courts are forbidden to review the [alleged] FACTS of Terri Schindler (schiavo)'s case and can only deal with legal PROCEDURE?

And then what would have prevented Congress (other than Democrat Party opposition) from voting to declare that this case was in fact suitable for fitting under "with such Exceptions, and under such Regulations as the Congress shall make"?

I believe that one good aspect of this whole judicial murder affair is that more and more people come to realize that the judiciary can be as corrupt and unworthy of trust as any other branch of government, and it is healthy to know that fact.

[NewLand]

Deal?

The evofreep gang that is traveling together on this thread is not interested in 'deals'. It's not taught by Adam Graham... How To Win Online Debates .

This link should help you and others recognize who you are debating with, and why you need not bother.

[general_re]

I suggest that neither one of us categorically reject an unpleasant opinion by the other but focus instead on the scope of supporting material. Deal?

Love to, but I'm "not interested in deals". Or so I'm told ;)

Let us begin by stipulating that what happened in the Schiavo case was an immoral outcome, and proceed from there.

[terrasol]

wildandcrazyrussian,

In my opinion you hit the nail on the head with the phrase "the script of which "Terri Schavo 2005" is but one scene." I also concur with your view that renegade judges are not the sole problem. They are functionaries in a long-range subversion of constitutional government.

Establishing legal precedent is part of a process by which the Judiciary becomes a type of backdoor Legislature. Practices too controversial to be touched by lawmakers are elevated to the level of law while directly contradicting existing statutes. If it is done via subtle enough increments, the creep is hard to spot. After years the good legislators finally revise written laws to conform with those long legislated from the bench. The law's integrity is restored and all is well.

District court judges could not accomplish the task all by themselves. They need the support of the appellate division because extrastatutory rulings are bound to be challenged before they become established opinion. You asked, "What does it mean that the supreme Court can have appellate jurisdiction as to "Law AND Fact"????" Well, obviously the Appellate is not limited to observing legal propriety but can very well examine facts too. That this is hardly done says more about judicial bureaucracy than it does about limitations.

Judges maintain friendships and associations like any other professional fraternity. They share law schools and practices and often entertain symbiotic political ambitions. An appellate judge is naturally biased toward reluctance when it comes to overturning a ruling. For this reason appeal courts often take a minimalist approach.

Appellate judge calls lower court judge on the phone: "Hey Mike, how's the wife? Good." "Say, on this case, did you stay on the pavement?" "Good, just needed to hear it. Anything major iffy? No? Good. OK then, we'll let it sail. Time for a few holes on Sunday? See you then." In reality the process has a few more components, but it largely boils down to the appeals court's taking the lower court's word for it that due process was observed. Is it difficult to imagine that certain rulings might be directed by a powerful network?

There are no doubt judges who take their work seriously and seek to live up to the standard of impartiality. Even they are not impervious to political and social pressures. There are also judges who will bend rules with few compunctions. Judges are human beings, and it would be utopian to think that the range of human traits is oddly different in them.

Judges can and are being bought all the time. Appeals can be steered to the right desk. Political favors can be called in. Political promises can be made. If push comes to shove, blackmail can be used. The press can be made to say whatever is expedient. We do not live in a world dominated by clean living and high thinking, despite the serial fables offered through the bread and circuses culture. The idea that officials operate in a vacuum and follow exclusively their own ideals is not supported by reality.

Discovering agendas and exposing connections is a thankless and therefore rare task. If you are an official you will be branded a whistleblower and find your life taking turns for the worse. If you are a private person you will be labeled a conspiracy nut. If you are a journalist your editor will gently steer you away from stories that are unpopular higher up. Everyone likes to preserve the cozy image of things being basically honest and benevolent. Where one draws the line is a personal choice and collectively translates into the degree public complacency.

[terrasol]

NewLand,

Thanks for the tip. I'll polish up the old 45 and watch the windows.

general_re,

Excellent premise. Now, if we can nail the mechanics of immorality in the Florida Sixth Circuit we'll be celebrated villains or heroes, depending on who is listening.

[general_re]

Too late - I'm already hidden right under your bed, tapping away on the old laptop...

I don't know that we're in for a ticker-tape parade as a result of anything that happens here, and it may turn out that resolution is effectively impossible. Nonetheless, I suspect that if we see a trend towards modifying the laws on guardianship at the end of life, it will constitute a tacit admission that the law itself was the problem.

[terrasol]

general_re,

Given the climate of polarized opinions in this case agree with your prognosis for the likelihood of a solution. The tightening of guardianship laws would certainly be a welcome response from legislative quarters. My personal hope is that Florida lawmakers will look into Judge Greer's chronic mocking of the law and impeach him. As I stated before though, I see little hope for more than a symbolic censure at this time.

It may well be that we must settle for consensus on the immorality of this case. I have read reports that a TV movie about the Terri saga was negotiated with Michael Schiavo. It seems that the loving husband will earn some $2,000,000 from this. In view of the likelihood that it will portray him as a reluctant but principled hero, I think it appropriate to focus on his activities that show otherwise. I'll repost something I wrote in response to another poster's questions. To preserve privacy, I'll omit the poster's personal references.


You wrote: "Again, if the many people on FR who felt Greer made a mistake in interpreting Florida statutes never brought that issue to the very forefront, my logic tells me that maybe that wasn't an issue."

How many of the tens of thousands of post about Terri on FR have you had a chance to read? This issue WAS brought to the forefront repeatedly, not just by me but by many other posters. I wrote about it here as far back as 2003, and at that time there were already mega-threads on FR about Terri, many posts of which dealt with detailed analyses of the pertinent statutes.

"It has nothing to do with my expectations of how things should be. The law, in great part, sets my expectations of how these things should be."

What I meant was that your expectations seem to be that the law is being automatically followed by officials, or that it will be automatically questioned in the press when that does not happen. Laws are being broken all the time in government, and only a fraction of the instances receive attention.

"...states recognize living wills, and my wife and I have had ours for years, powers of attorney, living trust. I (we) believe that having control over end-of-life decisions should remain with us....not children, in-laws, et al."

Excellent. Same here. I found though that the standard forms lawyers use for drawing up a living will are insufficient and leave many ambiguities that could be exploited. It pays to read the text very closely and to amend it in those places, or to personally compose the entire Living Will. Many lawyers are reluctant to depart from the standard form, but the text of a Living Will is no less under a person's control than is the text of any bequeathement.

It is also important to not automatically sign all forms presented at admission to a hospital. Some of these are holding-harmless consents and will be insisted on, but there are others pertaining to end-of-life issues that could be used to supersede an existing Living Will.

"I viewed the Schiavo matter from that frame of mind. However, if Florida had foreclosed Michael from making that decision, I would have had no argument with that."

Neither would I. Had there been a Living Will it would, however, have been a Living Will attested during the late 1980s and would read quite differently from a current one. Nevertheless, I am in total support of honoring a person's wishes specified in a Living Will. I am not even opposed to bona fide testimony by relatives and friends about what the patient may have told them with regard to his or her wishes. I think that there are cases where such testimony should be accepted.

"Please answer this question for me, as it has nagged at me from early in the case: If Terri had signed a living will dictating that she didn't want to be kept alive under those conditions, would your efforts have been the same as they have been?"

Neither I nor most other people would have ever taken issue with this had that been the case. We need to remember though that life-end matters are still governed by law. Honoring someone's express wishes does not include skirting the law. When you say "would not want to be kept alive," that does not imply for instance that it would be OK to drive a bullet into the person's head or to administer a lethal drug. Until the statutes allow such things, they would take precedence over the mandate of a Living Will. Actions on a patient's behalf need to remain within the parameters of existing law.

You could, for example, not specify in your own Living Will that you want your wife to strangle you under certain circumstances. If she did, she would be prosecuted regardless of your written instructions. The State of Orgegon now has a provision for physician-assisted suicide involving the administration of lethal drugs. It still does not permit the administration of such a drug by anyone other than a physician. The invocation of a Living Will is conditioned on the attestation of medical futility, the patient's written consent and the execution of the Living Will within parameters of existing law.

If you have a rudimentary knowledge of how Terri's case developed, you will realize that it does not meet the standards of a Living Will. It also does not meet the standards of medical futility, simply because Michael Schiavo since 1982 forbade all therapies or tests. Had all the tests been performed and the therapeutic repertoire been exhausted, I would not even have a problem with the vagueness of Michael Schiavo's claim about his wife's expressed wishes. But, neither tests nor therapies were permitted, despite their falling under the mandate of retained rights specified by Florida statutes.

The opinion of PVS was rendered by a physician paid by George Felos, a physician making a living testifying in court for whatever party pays him. He did not administer MRI and PET scans, which are standard neurological instruments in the assessment of brain damage. Neither was a standard swallowing test performed to ascertain the actual necessity of a feeding tube.

Terri's room was stripped to bare white walls. Michael Schiavo forbade any decoration, pictures or other items that could have a stimulating effect. When well-wishers sent Terri birthday cards, Michael Schiavo expressly forbade their display in Terri's room. He forbade having Terri's picture being taken, thus ensuring that there would be no pictorial record of Terri's deterioration. The photos widely published in the press are five years old and were smuggled out of the hospice in defiance of a court order by Greer.

It is well known that sensory stimulation is a critical ingredient in brain rehabilitation. MS also forbade Terri being taken outdoors in a wheelchair, or even to have her be seated in a wheelchair indoors, something that is routinely done with neurologically impaired patients. He forbade standard joint mobilization, which also is routinely performed with bed-bound patients of cognitive impairment. Nurses were fired from facilities for lodging written complaints against this singling out of Terri for sub-standard treatment. They have voluntarily given affidavits attesting to Terri's being deprived of therapies and comforts available to all other patients with similar conditions.

You should realize that it is these things, along with dozens of other oddities or illegalities in this case, that attracted my and others' attention. It was not the absence of a Living Will. There are feeding tubes being removed daily all over the country. Do you see me protesting this? Do you see huge waves of public sentiment about any of these? You should ask yourself what makes Terri's case different from these others. Look for the differences and you'll see that it is not about a Living Will or its absence.

Before Michael Schiavo received the malpractice award money in 1982, Terri was being treated nicely. Like other patients in her condition, she sat in a wheelchair during the day. She was being fed by mouth. She was taken outside into the fresh air and sunshine. She had her hair done and was even taken on shopping trips to the mall. Photos from that time show a Terri that looked vital and beautiful. All that ended when the malpractice check was in the bank.

As a show to demonstrate his sincerity to the award jury ("I'll devote the rest of my life to Terri's recovery"), Michael Schiavo took Terri to California for an experimental therapy involving the implanting of electrodes. After bringing Terri back, he did not have the electrodes removed from her brain. In other words, they remained in her brain until her death as a constant source of irritation leading to the pooling of cerebrospinal fluid. Please don't assume that this was a mere oversight.

Shortly after receiving the malpractic money, Michael gave a "do not rescucitate" order to the nursing home. When she developed a urinary tract infection, he tried to forbid the administration of standard antibiotics. A urinary tract infection can quickly spread to the kidneys and be excruciatingly painful. Michael Schiavo was, of course, hoping that it would lead to fatal sepsis. He was stopped by medical personnel from carrying this out. This was in 1982, the year that he received the money, and shortly after he swore to devote the rest of his life to Terri's care.

Neither during the 1981/1982 malpractice trial, nor for another six years until the first hearing before Greer did Michael Schiavo remember his wife's having said anything about not wanting to be kept alive "by anything artificial." To the contrary, testimony by one of Michael Schiavo's girl friends and by one of his co-workers holds that he said Terri and he had never discussed such things.

He remembered Terri's alleged statement only after associating with George Felos and beginning to litigate Terri's feeding tube removal. That feeding tube, by the way, had not been there during the early days. It was inserted at the urging of Michael Schiavo, presumably so that he would later have something to remove.

When Judge Greer indicated that he needed corroborating witnesses for Terri's alleged mid-1980s statement, it took Michael Schiavo another two years to produce them. When he did, the witnesses that also claim to have heard Terri say it turned out to be Michael Schiavo's brother and his brother's wife.

By contrast, an opposite statement remembered by Terri's best friend was not allowed by Judge Greer. The rejection of that testimony was based on a misunderstanding by Greer, to which he later admitted. Despite the judge's acknowledgement of his own error, he continued disallowing the wrongly excluded testimony.

The first two brain scans upon Terri's initial admission after her mysterious collapse read normal. This is inconsistent with Michael Schiavo's later claim that Terri had been exposed to prolonged oxygen deficiency during her collapse. Nurses found an insulin syringe after one of Michael Schiavo's visits. A nurse's affidavit states that she had become suspicious and took Terri's blood sugar reading before and after Michael Schiavo's visits. The after readings indicated that Terri had been given high doses of insulin. It should be remembered that Michael Schiavo was at that time attending nursing school and would be familiar with the potentially deadly effects of insulin injections.

Nurses routinely place a washcloth into patients' hands when they suffer from neurological impairment that causes their fingers to curl. The idea is to prevent the fingernails from digging into the palms, causing painful lacerations that could lead to infections. Michael Schiavo forbade the placing of the washcloth. Why?

..., if there were just one thing wrong with Michael Schiavo's behavior during these many years, nobody would have ever bothered with the case. It is the amazing string of sordid details that makes this stand out as the fishy case that it is. Forget about the media hype that this is about the religious right's resistance to feeding tube removal. Look at the court transcripts yourself and then decide what it is about.

Ask yourself whether you expect your own spouse to engage in behavior like this in case of your incapacitation: Immmediately upon Terri's initial admission after her collapse, Michael Schiavo had Terri's two beloved cats put to sleep. Is that what a loving husband does while his wife is in the hospital? Remember, this was long before there was any medical controversy over Terri's relative chances of recovery. At that time the presumption had to be in favor of eventual recovery, since it was not even known yet what Terri's condition was. What was Michael Schiavo planning to tell his wife? "Oh, honey, I was so upset about what happened to you, I killed your two cats."

The inconsolable husband then took Terri's wedding and engagement rings (shouldn't they have been on her fingers?) and had them melted down and turned into jewelry for himself. "Oh, honey, I was out of my mind with sorrow and melted your rings down. But luckily I still have the gold. Here, we'll go and have them make you new wedding and engagement rings." You can read about these and other strange things in the actual court transcripts.

Do you find such incidents consistent with the behavior of a caring spouse? Remember, what I am citing here took place very early in the story, at a time when Michael Schiavo was trying to convince a jury to award malpractice money based on a life expectancy of at least 50 years for Terri. You are obviously troubled by some aspects of this case, so why not take the time to read real records? If you just rely on the media's glib soundbites to inform you about what happened, you'll be out of luck. The media almost exclusively took its information from press briefings given by George Felos.

I hope that these notes can be of use to you.

Warm regards,
TS

[terrasol]

I would like to say a few words about the one party to the Terri saga that, in my opinion, has acted in a more reprehensible fashion than even the inner circle of murderous agents: the national media. If there were any doubts about the conspiratorial nature of this campaign, the media's nearly flawless mass deception would lay them to rest.

It is difficult to describe the revulsion I feel at the willful distortions propagated by these self-proclaimed purveyors of public fact. With few exceptions, the usually ultraliberal Village Voice among them, the media has betrayed the public trust in this matter with a ferocity bordering on the demoniac.

Only those who have taken the time to look at all of the available material can appreciate the extent to which the media put itself into the service of public deception about this case. Only those whose own investigation made them stumble onto mountains of existing hard data can assess the lengths to which the media went hiding it from the public. There is no possibility that this could have been anything other than intentional.

I wish there were a way to punish the overpaid professional liars by drying up the slime of their advertising revenue, but the gullible public at large will likely continue providing undeserved comforts and benefits for these parasites in the body of decency. I am not speaking of the mindless parrots that screech at us as the so-called local anchors. They are little more than powdered deviants with a talent for gossip. The nationally syndicated news-gangsters are another story, however. They and their shadowy employers in the corporate headquarters should be taken, one and all, and put to hard labor in a stone quarry on a remote island. Even that would be excessively charitable treatment, in my opinion.

I pray for a true revolution, not one with gun powder as in the time of the American patriots, but one in which the sucking heads of these vile media worms get stuffed with public scorn and ridicule instead of with pathetic self-defacing adoration. When will America tire of paying the horde of grinning sociopaths for the ooze and stench of their awful lies?