shotbanner.jpeg

March 31, 2005

Schiavo

Terri Schiavo passed away within the past hour or so:

Terri Schiavo, the severely brain-damaged woman whose 15 years connected to a feeding tube sparked an epic legal battle that went all the way to the White House and Congress, died Thursday, 13 days after the tube was removed, her husband's attorney said. She was 41.

Schiavo died at the Pinellas Park hospice where she lay for years while her husband and her parents fought over her fate in the nation's longest, most bitter right-to-die dispute.

Her death was confirmed to The Associated Press by Michael Schiavo's attorney, George Felos, and announced to reporters outside her hospice by a family adviser.

Inconvenient people nationwide are watching their backs today.

Posted by Mitch at March 31, 2005 09:16 AM | TrackBack
Comments

My MSN homepage proclaims that her 15 year COMA has come to an end.

*sigh*

Posted by: mike at March 31, 2005 09:21 AM

Terry Schiavo died 15 years ago. It's just now the semblance of life has left. At least the Schindlers can stop living in the cruel illusion they've built up around them. Even better, maybe our government can move on with issues that aren't dictated by a radical know-nothing fringe.

Posted by: Jeff S. at March 31, 2005 09:31 AM

Terri Schiavo died by order of the court, guilty of no crime, but upon her husband's petition.

Beware the new god.

Posted by: Eracus at March 31, 2005 09:34 AM

Look! Look! Jeff S. is the new god!!

Posted by: Eracus at March 31, 2005 09:36 AM

"Terry Schiavo died 15 years ago. It's just now the semblance of life has left."

a) And yet she breathed on.

b) The definition of "semblance of life" is now in the hands of whomever has more to spend on lawyers.

"maybe our government can move on with issues that aren't dictated by a radical know-nothing fringe."

So to oppose euthanasia is "know-nothing?"

Hm.

Posted by: mitch at March 31, 2005 09:41 AM

Some day, Mitch will explain where, if not in the judicial system established by the Florida and federal constitutions, we are supposed to resolve factual disputes about, say, whether Terri had no cerebral cortex left or whether she had expressed a wish not to be kept alive in such circumstances.

Because according to the 30 or more court decisions by a majority of GOP appointed judges, Terri has finally gotten her wish.

Her death should be mourned, the rule of law should be welcomed.
/jc

Posted by: Slash at March 31, 2005 09:48 AM

Really? Then PROVE that was Terri's wish, Slash. If you can't prove her wish to die, then you have no law but tyranny. Afterall, nobody would wish to live with Down's Syndrome, cerebral palsy, or schizophrenia either. And based on this "welcomed" new precedent, shall we now ask the court to starve them and let them die of thirst? Based on their guardians' sworn testimony, of course, and so the rule of law can prevail?

The function of law in society is to protect the weak and defenseless. The law just killed the weak and defenseless. We should welcome this??

Posted by: Eracus at March 31, 2005 10:15 AM

And, while we're at it, why "mourn" her death? If, as the omniscient judge believes, she wanted to be starved to death over the course of two weeks, why not be happy for her?

Posted by: Sav at March 31, 2005 10:20 AM

Should politics be based upon principles... or are principles determined by politics? I'm in favor of the rule of law, and I know 10 very good ones. The rule of lawyers, however, does not lead to justice.

Posted by: Night Writer at March 31, 2005 10:26 AM

Should politics be based upon principles... or are principles determined by politics? I'm in favor of the rule of law, and I know 10 very good ones. The rule of lawyers, however, does not lead to justice.

Posted by: Night Writer at March 31, 2005 10:26 AM

Slash,

I've taken great pains to acknowledge your repeated statements about the bases of this case in Florida law. You seem to be dead-set on ignoring that acknowledgement, and use that ignorance to not only continue a pointless tangent to the argument, but to repeatedly insult me in our other mutual forum. I'm not exactly sure what reasonable means are left to get you to drop that half of the argument. Acknowledging that you are correct *as re Florida law* doesn't seem to work. Saying "you win" that part doesn't seem to be sinking in. Any suggestions?

Is it that I don't write clearly enough? I dunno - other commenters seem to have gotten my point.

Which is that *the law* needs to tighten up to prevent the sort of back-door euthanasia that this case has amounted to. Schiavo may have lost her cerebral functions, but she was not brain dead; her heart beat, her lungs worked, she had reflexes, her Medulla Oblangata at the very least was working just fine. You may call that "dead", or "not worth living". I may or may not. and Florida law aside, I think that the wishes of the patient need to be much more clearly established before taking an action as drastic as starving someone to death.

By the way, Slash; your constant references to "the record" obscure one key point; "the record" reflects "the truth" only to the extent that the various lawyers involved can engineer it. Findings of fact are *highly* affected by the relative capability of the lawyers involved. The "record" shows that OJ Simpson is innocent of murder - remember? It's a fact that most people don't realize when they get a divorce; the record from the initial trial is going to dog your life eternally.

So, Slash, how do you answer the claim (and by the way, I insist that you DO answer it, and I'd much prefer that you do it without resorting to lawyer/weaselspeak) that Michael Schiavo was able to afford hundreds of thousands of dollars worth of legal representation, while the Schindlers had to work with an inexperienced pro bono lawyer who neglected to depose several key witnesses? You know better than most, Slash - if you fsck up the first trial, the "facts" that are on the "record" are the ones that you'll have to live with through all the subsequent appeals (and are the ones that know-it-all lawyers will smugly cite to try to trump all argument while kibitzing about the case forever more, as we've found in this and our other mutual forum).

Deferring to "the record" is what the law is about. But it's casuistry to say that "the record" is "the truth", especially for purposes of analysis as opposed to legal rulings, and demand that everyone leave it at that.

I'm all about the rule of law, Slash, and I'd appreciate you knocking off the insults - because on this blog, I AM the law.

Posted by: mitch at March 31, 2005 10:31 AM

The last paragraph of the AP article Mitch quotes:

"Brother Paul O'Donnell, an adviser to Schiavo's parents, Bob and Mary Schindler, said the parents and their two other children ``were denied access at the moment of her death. They've been requesting, as you know, for the last hour to try to be in there and they were denied access by Michael Schiavo. They are in there now, praying at her bedside.''"

Posted by: JamesPh at March 31, 2005 10:40 AM

scum. government people are scum. denying the parents access to their daughter. if i were there i'd strangle them myself.

i hope they all die. hopefully of starvation.

Posted by: brent at March 31, 2005 10:45 AM

Eracus requests: "PROVE that was Terri's wish, Slash. If you can't prove her wish to die, then you have no law but tyranny."

How do we prove such things in this country when there's a dispute? Do we have a duel? No. Do we consult a psychic? No. Do we take an opinion poll? No. Oddly enough, we don't even hold a vote in the legislature. If you'll all take out your copies of the U.S. and Florida constitutions, you'll notice that we have a third branch of government precisely for the purpose of resolving factual disputes and applying the law. It's called the judicial system. For some reason, you consider this tyranny, as if it's some kind of alien artifact superimposed on an unsuspecting pubic, instead of the result of the constitution and laws adopted by the people and their elected representatives.

The court held a trial. Michael Schiavo and the Shindlers called all the witnesses they wanted, the court heard their testimony, and made a decision. A decision upheld in an almost infinite number of appeals. That decision was that Terri expressed the wish not to be kept alive in such a circumstances.

Eracus, perhaps you'd like to suggest another way of resolving the dispute? Trial by combat, perhaps?

Mitch, on the other hand concedes that the law (enacted by the GOP controlled Florida legislature and signed by Jeb Bush) has been properly applied in this case, and yet continues to insist that by declaring that this isn't about the law or the record, he can ignore the facts established by the courts (i.e., that Terri was in a persistent vegetative state and that Terri expressed the wish not to be kept alive in such circumstances), and argue that aside from the law, the outcome was unjust.

So Mitch, I fully understand your disclaimer. It's just that it makes no sense. The law and facts aside, sure, whatever conclusion you draw in your little made-up universe is I'm sure very well thought out.

Our constitutional system of government has established that Terri WAS in a persistent vegetative state and would NOT want to be kept alive.

If you dispute those facts, then you have somehow concluded that the judicial system is illegitimate. Take that up with the Constitution.

If you accept those facts, then Terri got her wish, and I ask what the problem is?

So Mitch, BE the law all you wish, BE the facts if you wish, BE the law of gravity if it makes you happy.

I'll be the Walrus,
/jc

Posted by: Slash at March 31, 2005 10:52 AM

Slash,

"So Mitch, I fully understand your disclaimer."

No, you do not. You never do.

The question is not "was the law properly applied". The question is "Is the law right?"

You can condescend and insult all you want - "the record" shows that is indeed what you excel at - but you can not seem to answer THAT question, preferring to skitter away saying little grade-school trifles like "your made-up universe".

We are not slaves to the law; we, THE PEOPLE (as opposed to the DOJ) have the right to debate *whether the law is right*. Which I'm sure, given your job, pisses you off to no end.

Posted by: mitch at March 31, 2005 11:02 AM

By the way, Slash - before you go tossing off little Clodfelteresque cutiepies like "...your made-up universe", you really ought to provide that proof that John Kerry was in (not near, not in sight of, but in) Cambodia that you so insultingly insisted was on the way lo those seven months ago.

Posted by: mitch at March 31, 2005 11:05 AM

"some kind of alien artifact superimposed on an unsuspecting pubic"

OMG! I don't think I'll laugh any harder at any point today. Tears in the eyes. TEARS, I tell you!

Then again, I'm mentally 12 years old like that.

Posted by: Ryan at March 31, 2005 11:25 AM

Ryan: The RECORD has spoken!

Slash: One more bit here: "For some reason, you consider this tyranny, as if it's some kind of alien artifact superimposed on an unsuspecting pubic, instead of the result of the constitution and laws adopted by the people and their elected representatives"

And you seem to consider it alien that we - those people who elect the representatives - might debate the effects of the law. Why?

Posted by: mitch at March 31, 2005 11:51 AM

In Browning, the Florida Supreme Court ruled that "the surrogate would bear the burden of proof if a decision based on purely oral evidence is challenged." In the only disposition hearing Terri Schiavo received, in which only oral evidence was presented, the lower court did not meet that legal standard. The Florida appellate court simply upheld the lower court ruling by denying all appeals. The court then ordered Terri Schiavo to be starved to death.

The sane resolution of this dispute, Slash, would have been for the Florida judiciary to enforce its own ruling. It did not. Instead, it ordered the death of an invalid woman to establish legal precedent for lowering the standard of evidence so as to create new law, IN THE ABSENCE OF LEGISLATION, to permit euthanasia killings based beyond the legal standards of evidence in Florida's own courts.

That is not government of the people, by the people, and for the people; it is judicial tyranny.

You are wrong on the facts, you are wrong on the law, and you are wrong on the principle. All you've done is state your personal preference and selectively argue the facts, a child's game and parlor trick. But if you looked at the facts of the case and followed the law, it would be abundantly clear that for all your passion and devotion, you are arguing not for the Rule of Law, but for the right of the courts to ignore it.

Are we to understand that you mean to save the village, we must destroy it?

Posted by: Eracus at March 31, 2005 12:05 PM

Eracus,

The trial court decision applying the Browning standard:

http://abstractappeal.com/schiavo/trialctorder02-00.pdf

The appellate court ruling upholding the trial court's application of the Browning standard:

http://abstractappeal.com/schiavo/2dcaorder01-01.txt

Federal trial court ruling upholding the Florida court's application of the law and findings of fact:

http://abstractappeal.com/schiavo/fedctorder032205.pdf

Federal appellate court decision affirming the federal trial court's decision regarding the Florida court's proper law and procedure:

http://www.ca11.uscourts.gov/opinions/ops/200511556.pdf

Posted by: Slashjc at March 31, 2005 01:22 PM

Court decisions duly noted. For the fourth time.

Now: I asked quite a number of questions above, Slash, questions that are *philosophical* rather than legal, questions that I/we as citizens (or whatever government employees call us) are asking about the proceedings that led to those decisions, as well as about Florida law.

Heck, you can even ignore the Brinkley question if you want. Again.

Garbage in, garbage out.

Did any decision on the record rule on whether the intention of a law was right or wrong? If I know the law, I'd suspect not. Which is fine, but that's the nature of my inquiry at the moment.

Posted by: mitch at March 31, 2005 01:39 PM

I'm leaving early today. I'll have a separate post, "inspired" by this comment thread, later today or tomorrow.

Posted by: mitch at March 31, 2005 01:41 PM

As for "The Record" being the be all and end all, just because the trial judge made findings of fact does not mean they are, in reality, facts. As one example, JUdge Greer's dismissal of the testimony of one of Terri's friends who described her reaction to the withdrawal of support from Karen Anne Quindlen. Judge Greer erroneously "found" that since KAQ died in 1977, then Terri and her friend (14 years old in 1977)either could not have had this conversation or because of their youth, Terri's proclamation could be ignored. He was wrong about KAQ's date of death, and if he were honest about his reasoning, he would have recognized his error and re-examined the issue. Rather, he simply said it made no difference anyway, and moved on.

That's "the record." It makes it the law, but it does not make it right.

Posted by: JamesPh. at March 31, 2005 01:41 PM

Did you notice how insensitive President Bush's remarks were this morning about Terri Schiavo? He used her death as a segway to talk about homeland security...

Posted by: J. Mark English at March 31, 2005 01:51 PM

Slash,

ca·su·ist·ry

NOUN:
1. Specious or excessively subtle reasoning intended to rationalize or mislead. 2. The determination of right and wrong in questions of conduct or conscience by analyzing cases that illustrate general ethical rules.

FACT: The Florida court ordered the death by starvation of an invalid based on the uncorroborated testimony of third parties.

You need proper documentation to drive a car, open a bank account, and keep a pet, but verbal assurances alone are now enough to starve to death an inconvenient human being.

It is the law, though no elected representative proposed it, none debated it, not one voted for it, and the people did not consent.

Is this your rule of law?

Or is this just the rule of men in robes up in their temples, deciding now how best to rid themselves of this latest inconvenience? And why starvation? Why not lethal injection? Is not your rule of law tempered with mercy? Does it not protect even the wicked from cruel and unusual punishment? Or does it only starve the innocent to preserve the social order?

The findings you cite are a catalog of cowardice, because all the appellate courts did was defer to the trial judge's discretion in his initial finding and nothing more. Hard cases make bad law, and what your citings really prove is that no one wants their name on this one.

Why do you?


Posted by: Eracus at March 31, 2005 02:56 PM

“It is the law, though no elected representative proposed it, none debated it, not one voted for it, and the people did not consent.”

That’s completely untrue of course. The elected representatives of the State of Florida did in fact propose legislation, debate the legislation, and pass with a majority in both legislative houses legislation that was signed by the governor of Florida which said that in the case of a person who was PVS who did not sign an advance directive (“living will”), that a proxy for that person (with preference given to their spouse) would be able to make decisions about whether to continue life-prolonging procedures.

And that’s exactly what happened. If you don’t like, move to Florida and try to convince a majority of your fellow citizens to change the law but don’t blame the courts for doing their job.

Posted by: Thorley Winston at March 31, 2005 03:52 PM

Thorley :

What many would object to is the perception that in this case one of our would be judical masters didn't follow the law (or at least procedure).

There was a difference of opinion as to what Ms Schiavo would want done in this instance.

The perception is that the medical doctor that the judge placed a preponderance of faith and credence in is a right to die advocate and a bit of a hired gun for those who believe as he does.

The perception is that this action was precipitated by a husband who won his initial case because he lawyered up better than the Schindlers and since that time has taken a common law wife and fathered 2 children with her. The perception is that perhaps he's not the person who was best suited to be a dispassionate decider of her fate

So congress steps in and passes a narrowly defined law asking for a re-hearing of the case. Perhaps they did a poor job of it. No lawyer I

But the initial judges ruling that Ms Schaivo would not want to be sustained that way was accepted down the line by his brethren.

Whats the old saw "Cops don't rat out cops" ?

How about "Judges don't reverse other judges"

Wouldn't do for us peasants to get "uppity"

Posted by: Fish at March 31, 2005 04:39 PM

“There was a difference of opinion as to what Ms Schiavo would want done in this instance.”

This might be interesting except that the LAW (you know that pesky thing passed by the legislature and signed by the governor) was clear that the decision was left up to her proxy rather than a battle over what different members of her family wanted. In other words, the LAW says that since Ms. Shiavo chose NOT to get sign an advanced directive before she went into a PVS, it was left up to one person, her proxy to make that decision.

As far as the crack about “our judicial masters” goes, save it for a case in which a judge actually does legislate from the bench. This wasn’t it although it is telling how many “conservatives” have decided that the definition of “judicial activism” is now “any decision we don’t like.’

Almost as telling as how many “conservatives” decided to scrap the Tenth Amendment and have Congress intervene in what was pretty clearly a State issue. I’m sure we’re going to hear all about it, the next time some of us get try get serious about rolling back the federal government to its constitutional limits. Thanks for selling us out on that one.


Posted by: Thorley Winston at March 31, 2005 05:26 PM

Not germane, Mr. Worley.

Did the elected representatives of the State of Florida propose the legislation, debate the legislation, and pass with a majority in both legislative houses a law that was signed by the governor of Florida to make it legal to starve a human being to death? They did not.

The intent of the law, as generally established in all 50 states, is to preserve the parental or marital bond in exigent circumstances and to protect the profession of medicine. To accept your distorted interpretation suggests it would be legal in the State of Florida, as elsewhere, for court-appointed guardians, spouses, or parents to withhold medical care and/or nutrition from an invalid patient years after the injury and assorted medical malpractice litigation, without definitive proof of a permanent vegetative state, based on the testimony of an estranged fiduciary with an inherent conflict of interest with the patient. Surely, you jest.

By definition, a person in a permanent vegetative state is unresponsive to pain, yet Terri Schiavo was apparently given morphine to ease her "death process." By definition, an adulterous husband is in breach of his fiduciary responsibility, not to mention the marital bond, and yet the court accepted his petition to end his wife's life.

The law requires the court to protect not just the fiduciary's interests, but the interests of the patient and society as well, to be or not to be, as it were. Clearly, there is a cloud over nearly every aspect of this case, yet the court nonetheless ruled not only to remove the feeding tube, but that the patient must receive "nothing by mouth" and (implicitly) die of starvation.

That is not enforcement of Florida law, but the subversion of Florida law to advance a political objective consistently rejected by the people and their elected representatives.

Otherwise, there would be no debate and Jack Kevorkian would not be in jail doing 10 to 25.

Posted by: Eracus at March 31, 2005 06:17 PM

One question (perhaps not relevant but I'm curious) The mother of Michael's children has been referred to as his "common law wife" Does Florida law permit the establishment of a common law marriage when one party already has a spouse? Or is the term used to avoid such alternatives as "live-in girl friend" or "mistress"? Does this relationship overcome the Florida bigamy statute? Just wondering

Posted by: Don Lokken at March 31, 2005 08:41 PM

Eracus asks: "Did the elected representatives of the State of Florida propose the legislation, debate the legislation, and pass with a majority in both legislative houses a law that was signed by the governor of Florida to make it legal to starve a human being to death? They did not."


Actually, they did:

"Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function."

Section 765.101(10), Florida Statutes.

Silly activist judges, enforcing the law and all.
/jc

Posted by: Slash at April 1, 2005 09:42 AM

Oh, and no, Florida law does not recognize common law marriages. It has no legal significance whatsoever.

Leaving aside the fact that according the Guardian ad Litem appointed by Jeb at the Shindler's request, it was the Shindelers who, after many years of Terri's incapacity, encouraged Michael to see other women.

http://abstractappeal.com/schiavo/WolfsonReport.pdf

This is of course, only in the world where the facts and law matter.
/jc

Posted by: Slash at April 1, 2005 09:44 AM

Oh, and no, Florida law does not recognize common law marriages. It has no legal significance whatsoever.

Leaving aside the fact that according the Guardian ad Litem appointed by Jeb at the Shindler's request, it was the Shindelers who, after many years of Terri's incapacity, encouraged Michael to see other women.

http://abstractappeal.com/schiavo/WolfsonReport.pdf

This is of course, only in the world where the facts and law matter.
/jc

Posted by: Slash at April 1, 2005 09:45 AM

Oh, and no, Florida law does not recognize common law marriages. It has no legal significance whatsoever.

Leaving aside the fact that according the Guardian ad Litem appointed by Jeb at the Shindler's request, it was the Shindelers who, after many years of Terri's incapacity, encouraged Michael to see other women.

http://abstractappeal.com/schiavo/WolfsonReport.pdf

This is of course, only in the world where the facts and law matter.
/jc

Posted by: Slash at April 1, 2005 09:46 AM

Sorry, having a few computer issues this morning.

My bad.
/jc

Posted by: Slash at April 1, 2005 09:48 AM

Eracus said:
"Look! Look! Jeff S. is the new god!!"

I gave up believing in gods a long time ago. The whole "playing god" angle doesn't work so well when your premises rest on mythology.

However, the whole cult thing has seemed to work out financially well for a few people, so if you want to start a pyramid scheme to worship me and get me rich, we can talk.

Mitch said:
"a) And yet she breathed on.

b) The definition of "semblance of life" is now in the hands of whomever has more to spend on lawyers."

Breathing is a laughable criteria here. It's rather irrelavant when everything that made you "you" is irretrievably gone and turned to cerebral fluid. I guess as long as you can keep a corpse warm, it's still a person eh? Culture of Life sounds more like the Culture of the Undead to me. Amazing.

Mitch also said:
"So to oppose euthanasia is "know-nothing?""

Depends on your argument. It's pretty pathetic that your parting shot on this entry was "inconvenient people nationwide are watching their backs today". Only in your wildest dreams could you think this situation leads us directly (or even indirectly) to offing nursing home residents or the handicapped. Terry Schiavo was way beyond "handicapped", and apparently had stated desires to not live that way. The so-called Christian right's clamor on this betrays a lot of "know-nothingness".

Posted by: Jeff S. at April 1, 2005 10:24 AM

Amend the statement "...offing nursing home residents or the handicapped" to "...offing nursing home residents or the handicapped against their will." I firmly believe that if someone want to check out of life and is of sound mind when the decision is made, they should be allowed to. That includes refusing any and all medical intervention.

Posted by: Jeff S. at April 1, 2005 10:27 AM

Slash,

What the Schindlers said to Michael about other women is completely irrelevant to the question of whether or not he violated his marital vows and committed adultery. If a married individual has sex with someone other than their spouse, it is adultery. Period. Even if the Pope himself had encouraged him, Michael is still responsible for his own actions.

Comments like that one are what have lead others in this thread to accuse you of casuistry.

You also appear to have blind faith in the rulings of judges as if there is some kind of "judicial infallibility" as a contrast to "papal infallibility". Our history if full of judicial abominations (e.g. Dred Scott), but legal "experts" steadfastly say that we all should just grab the ankles and chant "thank you, sir, may have another".

I'm sure that you or someone else will have some brilliant legal argument about how Dred Scott and its kindred miscarriages were all justified under THE LAW. But for this layman, I don't get it.

Posted by: Eric at April 1, 2005 10:36 AM

Dear sweet smokin' Jesus on a stick.

A daughter (person, human, friend, wife) has died and a family torn up. Life has been ended with the willing intervention of the court.

And here we are, quibbling about legality and hurling smartass insults.

There is blood on all our collective hands gentlemen, explain it away any way you wish, but it doesn't get rid of the stain.

Posted by: Kaptin Marko at April 1, 2005 10:56 AM

So, what exactly does Michael's screwing other women have to do with this?

Posted by: Jeff S. at April 1, 2005 10:57 AM

Michael's guardianship of Terri was based solely on his marriage to Terri and the implicit assumption that a spouse will act in the best interests of the other spouse. When one spouse starts up a new family with someone else, it is reasonable to question whether that person still has the other's best interests in mind.

Personally, I don't care how many women he wants to shack up with. That's his business and most people don't blame him for wanting to move on with his life. But his actions do represent a conflict of interest that should have disqualified him from guardianship and from the absolute power that position afforded him.

Posted by: Eric at April 1, 2005 01:55 PM
Post a comment









Remember personal info?
hi