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March 22, 2005

JUDGE WHITTEMORE, I'M PUZZLED

Topics: News

- By J. Grant Swank, Jr. MichNews.com
I'm not confused. I already have come to my philosophical and ethical conclusion regarding Terri Schiavo. It's that we must preserve all life at all costs. Pulling the thread from life's fabric at any one level means that anybody can decide the thread and level. It's back to relativism, in other words.

Further, if we think this is a general issue, I figure just each of us wait till the time when the issue becomes quite personalized - like pointed at each of us. When will we be incapacitated? When will you be undone in a nursing home? When will we be unable to talk, to walk, to swallow? It can happen to "them." It can also occur in each of our lives. Life is unpredictable - for pleasure and for pain.

So I'm for championing life for the disabled, the baby in the womb, the Alzheimer's patient, and so forth. Once we start playing deity over another's existence, we move into a terrain not permitted mere mortal. Though there are some egocentrics "out there" who think they can play god, they can't. Wait till the medical tables are turned on them to see how willing they are to submit to another's divine authority.

But what puzzles me is what US District Judge James Whittemore said to the press moments ago: "I will not tell you when, how or how long it will take.

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Comments

This is an outrage. I have it on good authority that Terri's life insurance policy is with Michael's live-in's company. Does this surprise any of us? Maybe Mike can clarify it for all of us. Let's not hold our collective breaths.

Posted by: CeCe at March 22, 2005 8:59 AM

JUDGE WHITTMOORE YOU HAVE A JOB TO DO ! THAT JOB WOULD BE TO MAKE SURE, WITHOUT A SHADOW OF DOUBT THAT TERRI SCHIAVO LEFT SPECIFIC INSTRUCTIONS TO NOT BE FED BY A FEEDING TUBE!!!!!!!!!!!!!!!!!!
OBVIOUSLY THERE HAS BEEN A DARK SHADOW OF DOUBT CAST OVER THE WORDS AND WISHES OF MICHAEL SCHIAVO...

THERE IS NOT A LIVING WILL.

Posted by: Linda at March 22, 2005 9:01 AM

CeCe--I heard that before but couldnt find the name of the insurance company--can you provide? There is just too much collusion going on in this case--how can they be so blind

Posted by: Barbara L. Russell at March 22, 2005 9:06 AM

if in fact Terri has a life insurance, I just hope the insurance company denies payment if Terri is starved to death!

Posted by: starvation at March 22, 2005 9:08 AM

I know this case is very emotional - and they many many people are very disturbed by this case.

But, please understand - Terri's death will not be the result of judicial corruption. The judge ordered as he should - he followed the law. (Please read his order).

What y'all want the judge to do is absolutley define the definition of an activist judge - supplanting one's personal opinion over the Legislature, statutes, and the Constitution.

That is precisely the type of act that religous conservates rail against.

Pray for Terri, her parents, her husband, the lawyers, and the judge. Hope for the best.

But don't attack the judge's integrity - he is doing his job. And he is doing it well.

Posted by: Brad at March 22, 2005 9:21 AM

We've gotten to the point of being sooo concerned with the law that we're forgetting about the people it's supposed to be helping.

Posted by: Amy at March 22, 2005 9:25 AM

Linda,

I forgot the name and will research. I know I saw it on the blogs someplace. Very unbelievable. It might take me a little time, and it anyone can help, I'd appreciate it as I have toddler twins and it is very hard to stay connected. This information needs to shouted from the mountain tops!

Posted by: CeCe at March 22, 2005 9:27 AM

Which is why you have a representative legislature.

The judiciary is constrained by positive law, precedent, standard of review, and jurisdiction. A judge requires a legal predicate to act - if not exists, it's not his fault.

The federal Terri's law is nothing more than an additional appeal. It should not be surprising that Judge Whittemore's opinion parallels the prior decisions of some very talented appellate jurists.

Posted by: Brad at March 22, 2005 9:31 AM

Judges stick together.

Posted by: Karen at March 22, 2005 9:32 AM

starvation,

What the judge has the duty to do and the parents have a right to expect him to do it, is make sure that Terri's civil rights have in no way been violated. He has not done this. I suspect he knew what his ruling would be last night. Why drag your feet when time is of the upmost importance? I think Judge Greer was a complete incompetent who has an agenda. I think Judge Whittemore shares that agenda. They are activists judges.

There is much information, some coming out now publicly for the first time, that points to terrible injustices done to this woman. God bless Terri's parents for not giving up.

Posted by: CeCe at March 22, 2005 9:33 AM

CeCe good work. Michael said on CNN that he wouldn't comment on the life insurance policy.

I'm feeling the hate for MS, and for this judge, who is a Democrat and a Clinton appointee.

I'm not surprised he's part of the Kill Terri club.

Posted by: Ruth at March 22, 2005 9:33 AM

On Fox & Friends this morning was a nurse who stated that she had made a police report on Michael Schiavo back in the 90's when Terri was apparently given insulin injections. What are the chances of getting ahold of that police report and making it public?

Posted by: Karen at March 22, 2005 9:34 AM

Listen to Carla Iyer's interview

http://www.thedavidallenshow.com/guests/iyer.carla.20050309

Posted by: sujata at March 22, 2005 9:36 AM

No Karen - they don't. But trial judges get the law correct more often than they get it wrong. So it's natural that appellate courts affirm more than they reverse. Judge Whittemore is, essentially, acting as a further appellate court.

The Eleventh Circuit will follow. And the Supreme Court will either deny certiorari - or they will take it for the sole purpose of declaring the Federal Terri's Law unconstitutional.

To me it's sad you have so little faith in those people who serve the greatest legal system in the world.

Posted by: Brad at March 22, 2005 9:36 AM

I could not disagree more with starvation's comments. No on is asking any of the judges to be activist judges. Everyone wants the case to be decided fairly. If you focus on the alledged wishes of Ms. Schiavo, you run into extremely murky waters.

Mr. Schiavo's recollection of her wishes are questionable at best. In addition, there was testimony to the contrary, namely that Ms. Schiavo expressed disagreement with someone who was taken off of life support. However, because Judge Greer got the facts wrong, he threw out this testimony. In other words, there has been a presumption toward death. This is the crux of the problem. Reasonable evidence has been denied in court because of a bias toward death. (There is a whole separate issue of abuse and neglect against Ms. Schiavo by Mr. Schiavo.)

In addition, simply because someone expresses a wish to die does not mean that it should be honored. People intervene to prevent somone from committing suicide. Jack Kevorkian was punished for killing people who claimed they wanted to die.

With reference to being aided to live whether with simple means such as a feeding tube or more extreme means such as a ventilator, most people in casual conversation would say that they would not want to live like that. Who would say that they would? That does not mean that this is a person's desire if truly faced with that situation.

Finally, I would add that what is being denied Ms. Schiavo is food and water. It is almost ludicrous to call that care. Everyone needs food and water. It most certainly is not medical care any more than your breakfast was medical care.

Posted by: djw at March 22, 2005 9:39 AM

Brad (sorry, starvation, I'm new to this),

Our legal system is probably the best available, which may not really be saying much. But societies are judged by how they protect the rights of those most vulnerable. Unfortunately, our society is failing on that score in this case.

Posted by: CeCe at March 22, 2005 9:41 AM

DIW:

I took the time to read your analysis. It's excellent.

Thank you.

Posted by: Ruth at March 22, 2005 9:46 AM

Judge Whittemore is the appointed legacy of the Clinton administration.......this is why it is so very important that we pay close attention and research the values of our elected officials who appoint our federal judges......

IMO, this case is the ultimate example of spousal abuse........and he's going to get away with murder.....

This is also the result of our society allowing abortions......

Posted by: psalm116 at March 22, 2005 9:53 AM

The Government should not be allowed to decide whether or not someone lives or dies. Terri's parents brought her into this world and they should have the say on her fate not her husband and not the Government. Parents know best and they should be allowed to save the life of their daughter. How can we allow that to be taken away from that family? What happens next, the courts decide whether or not you or I live or die?

Posted by: Karen at March 22, 2005 9:57 AM

For all you who wish to observe every punctillio of the law without regard to the moral issues, I'd recommend you read up on the events surrounding the Civil Rights Act of 1957. If Eisenhower hadn't federalised the Arkanas National Guard - against his better judgement - school segregation would still be in place.

Posted by: moge at March 22, 2005 9:59 AM

It is time to take extraordinary measures, this legal wrangling is taking far too much time!!!

We may have the best legal system in the world; however, in this case, its flaws are abundantly clear. and at times when such flaws will take the life of an innocent victim, something must be done!!

Jeb Bush should use his power as governor of the state of Florida and ignore the court rulings. He should use his state troopers or his national guard to force the reinsertion of Terri's feeding tube.

He should dare the state legislature to impeach him. The votes would not be there. The legislature would also lack the political will to do it.

"Extremism in defense of liberty is no vice!"

Posted by: Warren at March 22, 2005 10:07 AM

psalm116 I agree with you 110%.

Posted by: Karen at March 22, 2005 10:09 AM

Oh, five'll getcha ten, he's a Demoncrat.

Posted by: moge at March 22, 2005 10:09 AM

Oh, five'll getcha ten, he's a Democrat.

Posted by: moge at March 22, 2005 10:09 AM

Warren,

What you propose is on the slippery slope to anarchy. Perhaps you would raid state prisons to prevent state executions? Or, perhaps you would raid abortion clinics - destroy the equipment and burn them to the ground? Perhaps you would arrest federal judges who declare anti-gay marriage laws unconstitutional?

Ours is a system of laws and representative government. If people feel so strongly about this issue were are the laws or constitutional amendments that prohibit ending life-supporting medical care? Or that give parents final say over the status of PVS children (Karen?)? Or that give the governor the power to veto judical determinations?

In this case (the federal one) the plaintiffs HAD to prove that they were likely to suceed at trial - but, their arguments lacked legal authority and, in fact, had been ruled on before.

Posted by: Brad at March 22, 2005 10:21 AM

Clinton judges were all vetted very carefully, they are ALL strongly pro-death.

There is no question, if you had even the slightest respect for life, except that of a darter snail ot baby seal, you could not get nominated by the previous administration.

Posted by: Warren at March 22, 2005 10:21 AM

Brad

Perhaps Harriet Tubman should be remembered as a criminal, she was in clear violation of the Law of the land.

And how about george Washington and thomas Jefferson, disgusting in their disregard for the law!!!

Perhaps blacks should have stayed in the back of the bus, it was lawful, they must have been anarchists?

The courts in florida are in violation of the law or do you thing any judge can collude with health care workers to violate a congressional order?

Posted by: Warren at March 22, 2005 10:25 AM

Who will judge the judges?

Psalm 82
A psalm of Asaph

God presides, standing among the divine multitudes
judging those who judge, those "gods" among men:

"How long will you render perverse judgement
and show favor to the wicked?

(pause silently)

Defend the cause of the lowly and orphaned!
Be righteous, just and true with the poor and oppressed!
Rescue the weak and needy - deliver them from the cruel clutches of the wicked!"

They don't know or understand, they wander in darkness.
All the foundations of the earth stagger for this reason.

I say,
"You are all divine - truly 'gods',
all of you are sons of the Most High,
but you shall die as mortals - as men,
like Adam,
like any other authority that has ruled the earth".

Arise O God and judge the earth,
for all the nations are yours alone!

Posted by: Chris at March 22, 2005 10:37 AM

An annalogy of civil disobedience to disregarding separation of powers is no analogy, indeed.

The judicial, legislative, and executive branches are co-equals. I modern example is former-Alabama-Supreme-Court-Chief-Justice Roy Moore. The judicial branch is the final arbiter of constitutional law - and has been for two hundred years.

When the Eleventh Circuit affirms will you also view them as liberal-activist judges? What about when the Supreme Court denies certiorari in a per curium opinion?

The truly "activist" decision would have been for Judge Whittemore to grant the TRO. Understand I am not passing opinion on Judge Greer, Michael, Terri, or her parents. I am only pointing out the correctness of the appellate courts that have heard this case.

The principle argument in front of Judge Whittemore was due process - it's hard to see how anyone could get more due process than has been had in the years of this litigation.

Posted by: Brad at March 22, 2005 10:37 AM

You've GOT to be kidding about Michael and the life insurance policy.

Oh, my God, if that's true.

But then again, there's a blatant conflict-of-interest between Felos/Schiavo and the hospice where Terri is living.

Posted by: Susan Nunes at March 22, 2005 10:47 AM

Brad,

We can re-argue the merits of Marbury vs. Madison; however, there is something more pressing at hand right now.

The court has ignored a subpeona from the Congress of The United States. Is this not anarchy?

Does congress no longer have the power to subpeona witnesses at its discrection? Or do state jusdges now have the right just to ignore the orders, if it suits their purposes?

I have little faith in judges to legislate, and so should you, it is just not their job.

Let Jeb throw a little weight around, constitutionally, there is a remedy, if our ELECTED officials decide to act.

Posted by: Warren at March 22, 2005 10:48 AM

The judges don't need our wrath - they need our mercy.
They need the gospel of Jesus Christ.

Those who don't have Christ are in the dark.

And in this darkness they are only able to rend decisions of their master - Satan. They need to be freed from this bondage of sin. Only Christ has the authority to grant this freedom and he has overcome the world. It is his and his alone.

Posted by: Chris at March 22, 2005 10:53 AM

What moge proposes is neither unconstitutional nor leading toward anarchy. Governor Bush has adequate authority to intervene in this case. Several legal societies and individual lawyers have investigated what his options are. They are not limited. Unfortunately, he seems to have lacked the will to act to save this innocent, disabled woman.

Even through the Department of Children and Families, he could have requested that Ms. Schiavo be taken into custody based under allegations of abuse. Independently, the department does this for children all of the time. He could justify this under his sworn duty to protect all Floridians, including disabled ones as is stated in the state constitution.

Notwithstanding, Judge Greer's ignoring Mr. Schiavo's behavior, there is ample evidence for Governor Bush to act on behalf of Ms. Schiavo through direct intervention. He could order a reprieve of the death sentence in oder to allow the legislature to continue its work to save Ms. Schiavo's life.

Finally, there are the congressional subpoenas which have been flagrantly ignored. This is not directly under Governor Bush's authority, but as the chief executive of the state, he should be concerned that a state judge has overriden a congressional subpoena.

(I am not including the action that could have been taken to investigate the circumstances surrounding Ms. Schiavo's "collapse" which merited an investigation by the police which was never completed. I have read that there might be a statute of limitations on such an investigation.)

Posted by: djw at March 22, 2005 10:53 AM

I have not read Judge Greer's order regarding the congressional subpoena. Certainly, there are jurisdictiional versus constitutional issues regarding Congress's act. (I.e. its jurisdiction versus separation of power - quite clearly the subpoena is an attempt to subvert the orders of the courts, and nothing more). But I do not know what legal predicate Judge Greer relied upon regarding the subpoena.

Again, it's a legal issue. Not every Congressional subpoena is valid and enforceable.

Similarly, that issue was not before Judge Whittemore. The Supreme Court refused to act on the subpoena and the Eleventh Circuit has not yet acted - I believe. So until the issue is vetted, we simply don't know what effect the subpoena ploy has.

Posted by: Brad at March 22, 2005 11:02 AM

Judge Whittemore has ruled.

The case is being presented to the 11th Circuit Court of Appeals in Atlanta.

Posted by: Chris at March 22, 2005 11:03 AM

They often allow criminals to roam free during their appeals process, They do not execute mass murderers without giving allowing them an appeals process. For god's sake, feed this woman, at least until she has exhausted the appeals process!!!

Posted by: Warren at March 22, 2005 11:08 AM

A TRO is an extraordinary measure that requires, among other things, a likelyhood of success and irreparable harm.

Clearly the harm is there - but without the first requirement a TRO cannot be granted. Thus, the PEG tube must remain out.

To do otherwise would establish the precedent that ANYTIME a life was in danger a TRO must be granted - regarless of the weakness of the underlying legal position. Such a legal rule would be unworkable.

Posted by: Brad at March 22, 2005 11:13 AM

Jeb did intervene. Remember he had FL pass Terri's law, which has since been declared unconstitutional. A govenor does not have that kind of authority. He cannot declare himself dictator of Florida.

Posted by: Cristy at March 22, 2005 11:15 AM

Why is it that, in a murder trial, if there is any "reasonable doubt," a murderer cannot be given the maximum sentence, and still maintains his rights of appeal. BUT, a defenseless, brain-DAMAGED (not DEAD) woman has been given the death sentence, and is being denied her civil rights of the appeal process, even though there is a CONSIDERABLE amount of reasonable doubt in this case?

Posted by: Rebekah at March 22, 2005 11:18 AM

Folks, let's not put blame on political parties. There were many Democrats who voted for to support Terri. There are also oodles of pro-choicers who are supporting Terri. Let's not pin one against the other. Let's support those who support Terri and not put blame on a party. Pointing fingers and playing the blame game isn't going to save Terri.

We must urge Jeb to act. And call the Whitehouse. Keep fighting for her rights as a U.S. citizen. And spread the word...

Posted by: Sirena at March 22, 2005 11:19 AM

Does anyone know if we have any HUMANe judges on the 11th Circuit Court of Appeals?

Posted by: Tress at March 22, 2005 11:25 AM

Tress, I don't know... :-(

Posted by: Sirena at March 22, 2005 11:25 AM

What gets me, is why when at least 33 doctors can say she is not PVS and Dr. Hammesfahr who is a world-reknowned neurologist, and spent over TEN hours with Terri (isn't that more than the other "approved" doctors even spent with her) did a complete report on her, why didn't Judge Greer or the federal judge even take that into consideration? Why does everyone want to be rid of her? Oh yeah, I forgot, she is a burden to all those involved.

Give me a break.

Posted by: Sirena at March 22, 2005 11:30 AM

"BUT, a defenseless, brain-DAMAGED (not DEAD) woman has been given the death sentence, and is being denied her civil rights of the appeal process, even though there is a CONSIDERABLE amount of reasonable doubt in this case?"

Unfortunately, that's just the ways the statutes have been drawn up by the legislature.

Posted by: jpe at March 22, 2005 11:32 AM

Well, we all know, not all that is legal is moral or right. Just because the courts give Michael the legal okay to kill her, doesn't mean it's moral or right.

Posted by: Sirena at March 22, 2005 11:41 AM

God's "will"?

If the Christian Bible God, herein refered to as "CBG", is both omniscient and omnipotent---not to mention "mercyful"---then that means that "He" would've not only known the outcome of this case IN advance, but "He" would've also had COMPLETE control of this tragic "lose-lose" situation(and still does, for that matter). In turn, that means that if Terri Schiavo dies because a plastic tube is removed---a tube that keeps her organs, and what is LEFT of her brain functioning---then YOU must ACCEPT that THAT is the way that CBG wanted it.(remember...God's "will" is GOD'S "will"...whether it fits what YOU want, or not) Plus, reason tells me---and should tell you--- that if CBG can create an entire universe, then SURELY "he" could've figured out a way to let Terri keep existing, if that's in fact what "he" wanted.

But all mythology aside, the fact that people sit back and SUBJECTIVELY use only "snippets" of the information and facts to fit THEIR own personal paradigms and agendas, CLEARLY shows that most people don't know where the line is between a "life"....and an "existance". It's terrible that Terri's in this situation, but it boils down to QUALITY of life...NOT quantity.

Posted by: Boomslang at March 22, 2005 11:51 AM

Who are we to judge quality of life? I'm not going to. I know of many disabled people who are happy to be alive despite their disabilities, rather than be dehydrated to death because society deems them "unworthy" to live.

Posted by: Sirena at March 22, 2005 12:03 PM

Boom,
Who are we to question God's ways or will? I'll be the first to admit I am among the worst of Christians, and often fall waay short of what He asks me to be, but I also recognize that even His "foolishness" is wiser than our wisdom.

As hard as it is for me to just sit here impotent to do anything but pray, I have to believe there is some purpose in allowing our collective prayer and suffering (albeit none so much, none so deep, none so profound as the Schindlers) to go on as it has.

This has already been said here: He has some purpose in all of this. What it is, we may never know. We may not even know if we stumble upon it.

As to "Quality of Life," who are we to judge another's quality of life? Sometimes I think my life pretty much sucks, being partially confined to a wheelchair because my knees are shot. And yet, even so, my quality of life is as good as, or better than, so many others. It's all subjective, and I cannot see how my perception of life's quality can possibly apply to another.

As Tiny Tim said, "God bless us, every one." We need it...

Posted by: Snowy Owl at March 22, 2005 12:05 PM

Snowy Owl,

Exactly.

~Sirena

Posted by: Sirena at March 22, 2005 12:06 PM

Hm, I seem to contradict myself in that next-to-last paragraph, so let me rephrase.

It's my opinion that my QoL is better than some. And I may be completely wrong, too. Like I said, it's subjective. And it's personal, too. It really doesn't matter what I think about someone else's quality of life - I'm not living their life, so I have no clue how someone else perceives their own QoL.

Posted by: Snowy Owl at March 22, 2005 12:11 PM

Amen.

Can't track down the name of the insurance company Mike's live-in has and I will sign off for now.

Posted by: CeCe at March 22, 2005 12:14 PM

It is true that Christian teaching is that God is indeed all-knowning, all-powerful, and merciful. At the same time, after a person's life, the next greatest gift is free will. Free will allows each of us to choose to do good or to do evil. The fact that evil is committed by people upon other people is an outcome of free will. Just as the fact that people do good to one another is an outcome of free will.

God never wills or performs evil. He may permit it to occur. And, yes, he knows everything, so he knows what will occur to Ms. Schiavo and you and me. The question is how will we respond.

The broader answer is that God permits evil to bring about a greater good. Christian teaching makes this abundantly clear. The greatest act of evil brought about the greatest good. Jesus Christ who is both God and man was put to death by the creatures He had created. From this most evil act, came about the greatest good which is reconciliation between God and man.

In Christian teaching, that God became man underscores God's love for man and man's life. Life is the most precious gift which God gives. To take a person's life through depriving them of food and water is a grave evil which has been recognized throughout all of history by many cultures. Accordingly, today, we do not dehydrate and starve convicted criminals or prisoners. Even animals are treated with better care. A human being has been given the gift of life no matter what state they are in. How much more Ms. Schiavo who is not in a coma, PVS, or terminally ill?

Posted by: djw at March 22, 2005 1:37 PM

And why didn't jesus just take himself off the cross? Does the fact that God left his son to die on the cross absolve those who put him there? of course not!

We do not know why there is suffering, we do not know god's plan but we do know that when we see it happening, like someone being starved to death, we are obliged (see "the Good samaritan") to take action to help.

Enough theology, although I agree that this issue has religious implications it is better fought on a constitutional level. I believe law dictates that she must be saved!

Posted by: Warren at March 22, 2005 2:59 PM

Thank GOODness.
We do live in america, where i, as power of attorney have the right to decide what my spouse, if sick would have done to him. There decisions are made everyday and yes, they are hard but it is a personal decision. TOO bad if you don't agree, you have no business passing judgement on a situation you know from the biased media and internet. HOpefully she will finally rest, IN Peace, intead of being made a political pawn by our congressmand

Posted by: susan at March 22, 2005 10:03 PM

Why isn't Michael Schiavo being prosecuted as a polygamist? If he is still Terri's husband as he so vehemently claims, why does he have a common law wife with whom he has two children? He should be prosecuted for violating the law by having two wives, and be removed as Terri's "guardian". It is obvious he wants to be her guardian just long enough so he can kill her and get the rest of the insurance money, and everyone is just standing around and letting him do it. Why isn't he being arrested?

Posted by: J.M. at March 22, 2005 10:12 PM

Remarkable. Instead of worrying about whether Michael Schiavo is polygamist, or why Jesus didn't take himself off the cross, let's figure out why in the state of Texas a person can be taken off life support because they have run out of money. Game's up, Bush.

Posted by: Boomslang at March 22, 2005 11:12 PM