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March 22, 2005

Regarding This Morning's Terri Schiavo Ruling

Topics: News

- Thanks to the reader that sent this in.
This article is important, and should be passed around so that as many people as possible have the opportunity to read it.

- By K.J. Lopez, "The Corner on National Review Online"
O. Carter Snead, who is general counsel for the Council on Bioethics and has previously written about the Schiavo case e-mails (Note: His comments are his own and don’t reflect the views of the council, which has varying views on varying things:

The state of Florida, through its judiciary, has ordered the termination of Terri Schiavo's life. This is an interest clearly protected by the due process clause of the 14th Amendment. Thus, before Florida can order such action, it must accord Schiavo with the full measure of process that is due to her. Unfortunately, a review of the record shows that such process was never provided.

The courts in Florida were charged, first and foremost, with discerning what T. Schiavo would have chosen under the present circumstances ("substituted judgment"). Florida law provides a complex system of procedural safeguards for this determination, including a "clear and convincing" evidence standard (the highest in all of civil law), and a presumption that the now-incapacitated patient would choose to live, in exercising her constitutional right to accept or refuse life-sustaining treatment. Moreover, Florida law requires that a guardian be appointed in circumstances such as these to represent the interests of the patient...

...The procedural irregularities that tainted the handling of Ms. Schiavo's case include...:

The court's failure to appoint a guardian ad litem (following 1998);
The court's usurpation of the guardian's role (in direct violation of Florida law);
The court's reliance upon insufficient evidence regarding T. Schiavo's wishes (namely, the recollection of her husband that T. Schiavo's had made ambiguous, casual remarks about "not wanting to be a burden" many years prior, in a wholly unrelated context);
The court's refusal to consider probative evidence of T. Schiavo's wishes (namely, witness testimony that Mr. Schiavo was lying and that he had never, in fact, discussed end-of-life care with T. Schiavo); and
On remand, the court's shifting of the burden to the Schindlers to demonstrate that T. Schiavo would have wanted treatment under the present circumstances (inverting the logic of the Florida laws).

These irregularities make it impossible to conclude that T. Schiavo's wishes under the present circumstances were proven by "clear and convincing" evidence, particularly in light of the presumption (under Florida law) that she would have chosen to receive life sustaining treatment. Any claim, therefore, that re-insertion of the tube is contrary to Terri's wishes (and thus an encroachment upon her right to refuse treatment) is groundless. We simply do not yet know what her wishes would have been.

The recently passed S.686 gives the Middle District of Florida jurisdiction to hear a suit or claim by or on behalf of T. Schiavo "for alleged violation of any right of T.M. Schiavo under the Constitution or laws of the US relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." It gives third parties the standing to bring such claims. And, most importantly for present purposes, it empowers the federal court to determine, DE NOVO, "any claim of a violation of any right of T. Schiavo within the scope of this Act, NOTWITHSTANDNG ANY PRIOR STATE COURT DETERMINATION AND REGARDLESS FO WHETHER SUCH A CLAIM HAS PREVIOUSLY BEEN RAISED, CONSIDERED, OR DECIDED IN STATE COURT PROCEEDINGS."

Thus, its seems highly improper for the federal court to determine on the basis of a two hour hearing that the Schindler family would not likely be successful on the merits in an entirely new trial, complete with extensive discovery, etc.

Source: Corner, The Corner on National Review Online

Posted by richard at March 22, 2005 10:50 AM


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Comments

Having Michael Schiavo as Terri's guardian is a clear conflict of intrest. It's so obvious!

Posted by: MoFiZiX Gr4FiX at March 22, 2005 11:41 AM

He has been in a adulterous affair for 10 yrs and fathered 2 children, he should have been disqualified as Terri's guardian a long time ago. Why are the judges not seeing that?

Posted by: adrienne at March 22, 2005 11:50 AM

You Texans crack me up. You have a law on the books in Texas that allows hospitals to pull the plug on anyone who cannot pay their hospital bills if recovery is not predicted regardless of the wishes of the patient or family. Get your house in order before telling others what to do.

Posted by: Jim at March 22, 2005 11:57 AM

This is exactly what I thought... This judge's ruling is akin to another appeal...I thought the whole purpose was a de novo case....We need all the information to come out..not just a review of what has been done..Also why don't they look at the number of issues that still have not been ruled upon by Greer??? How can they kill her when there are still outstanding decisions regarding guardianship?

Posted by: Crystal Clear at March 22, 2005 11:58 AM

Does Michael Schiavo stand to gain anything if his wife dies? Does he stand to lose anything if she recuperates? Why did he have children with another woman? Why is he so interested in seeing the death of his previous wife? Is everyone aware of the fact that he was abusive to the nurses attending her and had a restraining order put on him? Has anyone interviewed the woman he is committing adultery with? If he is really interested in Terri Schiavo's will, why is he interested? Shouldn't he take the same interest in giving legitimacy to his two children? Doesn't he know this could cause them emotional harm in the future? Again, what does he stand to gain from Terri Schiavo's death? These are moral questions that don't seem to be raised.

Posted by: Pola Muzyka at March 22, 2005 11:58 AM

"Having Michael Schiavo as Terri's guardian is a clear conflict of intrest. It's so obvious!"

Judge Greer was, for present purposes, the guardian (or proxy). So MS's conflicts don't enter the picture, IIRC. The question of Greer's potential conflict was raised and dismissed by the federal judge.

"This judge's ruling is akin to another appeal...I thought the whole purpose was a de novo case."

The statute only gave the judge the authority to rule on *federal* claims. So he looked to Florida's legal procedures to see if they were adequate and if they were followed, but he wasn't supposed to rehear the case, or make any decisions about Florida law.

Posted by: jpe at March 22, 2005 12:05 PM

Has anyone considered feeding her by hand? Since she can swallow, I would think she could eat with some assistance. After all, the rulling only said to remove the feeding tube, right?

Also, has the militia been contacted about doing a rescue?

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

I think Michael went his merry ways soon after Terri went into coma. He was already having another girl friend (who by the was stalked by him) when he swore at the court that he will take care of Terri all her life and sued and got $1 million for Terri's therapy and not a penny was used for that.

Posted by: sujata at March 22, 2005 12:07 PM

Ken, Judge Greer ordered no food or water whatsoever. It isn't the feeding tube, it's Terri starving to death.

Posted by: Amy at March 22, 2005 12:10 PM

Jim, that's just the spin, not the truth. Check your facts.

http://justoneminute.typepad.com/main/2005/03/righttolife_hyp.html

Posted by: sara at March 22, 2005 12:12 PM

Ken, I was thinking the same thing. The order was for the tube to be removed, I dont remember hearing anyone say they couldnt try to feed her by hand. If she can swallow then why cant they try?

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

He got 1.6 million,and get 800,000 if Terry die,
I say they should give him a lie dector test to
help verify his motives.

Posted by: Donald Champagne at March 22, 2005 12:25 PM

jpe:

Actually, he *was* supposed to rehear the case. The law took Terri's case to the federal level, and gave her (through her parents) standing to have the particulars of her case heard again, regardless of what the state courts had decided. That this judge simply decided he didn't think they could win, that he didn't give Terri relief while he took the time to thoroughly investigate, is outrageous. I hope the appeals court smacks him down.

Posted by: sara at March 22, 2005 12:27 PM

Ron Panzer hosted a Highway2Health interview with a very special guest, Carla Iyer, RN. Carla cared for Terri Schiavo in 1995 - 1996!
After Michael Schiavo visited, Carla checked Terri's blood glucose level and found it to be very low. Terri was shaking, pale, and showed symptoms of hypoglycemic shock!

Carla filed a police report in 1996 detailing the vial of insulin found in Terri's room! Carla filed and affidavit detailing her concerns that Terri might have been injected with insulin! An attorney advised her at the time in how to make the affidavit! At that time, the detail of the vial was left out of the affidavit, even though Carla mentioned it to everyone! Why was that detail left out of the first affidavit? Why would an attorney not make sure that detail was part of the first affidavit?

Why has the detail about the insulin vial not been brought up by the attorneys representing the Schindlers? Carla was fired for filing the police report in 1996, even though nurses are required by their license to report what they believe to be crimes against individuals! Listen to Ron Panzer interview Carla Iyer, RN - Tuesday night! 9-10 PM Eastern/6-7 Pacific time.

Providing information the major media withholds from the public! See: http://www.highway2health.net Click on Links to Radio Show - Listen at scheduled times only OR listen to recorded shows in the Show Archive

Posted by: sujata at March 22, 2005 12:27 PM

Carla Iyer Affidavit

http://www.propertyrightsresearch.org/2004/articles3/carla_sauer_iyer_affidavit.htm

. When I came into her room and said “Hi, Terri”, she would always recognize my voice and her name, and would turn her head all the way toward me, saying “Haaaiiiii” sort of, as she did. I recognized this as a “hi”, which is very close to what it sounded like, the whole sound being only a second or two long. When I told her humorous stories about my life or something I read in the paper, Terri would chuckle, sometimes more a giggle or laugh. She would move her whole body, upper and lower. Her legs would sometimes be off the bed, and need to be repositioned. I made numerous entries into the nursing notes in her chart, stating verbatim what she said and her various behaviors, but by my next on-duty shift, the notes would be deleted from her chart. Every time I made a positive entry about any responsiveness of Terri’s, someone would remove it after my shift ended. Michael always demanded to see her chart as soon as he arrived, and would take it in her room with him. I documented Terri’s rehab potential well, writing whole pages about Terri’s responsiveness, but they would always be deleted by the next time I saw her chart. The reason I wrote so much was that everybody else seemed to be afraid to make positive entries for fear of their jobs, but I felt very strongly that a nurses job was to accurately record everything we see and hear that bears on a patients condition and their family. I upheld the Nurses Practice Act, and if it cost me my job, I was willing to accept that.

Posted by: sujata at March 22, 2005 12:29 PM

Damnit Jim. I'm a Canadian not a Texan.

Couldn't resist that Star Trek joke.

But seriously, what's with the "you Texans?"

Posted by: Eileen R at March 22, 2005 12:32 PM

Under the De Novo designation, can't the Schindlers challenge the finding of fact that Terri is indeed PVS? I mean, if she isn't PVS, then she can't be killed. There seems to be some doubt concerning the original PVS designation based on the biased testimony of Cranford who is a right to die activist as well as the affadavits from over 30 doctors that the Schindlers have now gathered challenging that designation and the fact that the MRI and PETS and other dispositve tests for PVS have never been performed. If Florida has erroneously designated her as PVS, than that is a violation of her right to life since it then basically allows the state to kill her. So does anyone know if this is part of the Schindlers' case at this point?

Persistent vegetative state means a permanent and irreversible condition of unconsciousness in which there is:

(a) The absence of voluntary action or cognitive behavior of ANY kind.
(b) An inability to communicate or interact purposefully with the environment.

Posted by: John Klemick at March 22, 2005 12:36 PM

"Actually, he *was* supposed to rehear the case."

Here's the relevant excerpt from the law:

"The...District Court...shall have jurisdiction to hear, determine, and render judgment on a...claim...for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States"

The judge was clearly limited to hearing only those claims that arose under federal law. Every single issue that's really disputable (the factual determination of PVS, most importantly) is wholly a matter of state law.

Posted by: jpe at March 22, 2005 12:42 PM

I live in Spain and I am a catholic. I cannot think of someone else deciding on another person´s life. Does the judge not have any children? How would he feel if she were his daughter? She moves, she wants to smile, her eyes "can talk"... what else does he need? SHE IS A HUMAN BEING, MY GOD. If we do not respect people, we are becoming a sort of monsters. SHE IS STILL ALIVE! She will die when she has to, like the rest of us. BUT IT SHOULD NOT BE BEFORE!
I just can pray for Terry, wherever she is. God bless her!

Posted by: Rosa at March 22, 2005 12:42 PM

Yes, John. That's exactly why I was disgusted by the judge referring to Greer's findings as reasoning for saying it's unlikely the Schindlers can win their case. Rather circular reasoning there.

Posted by: Eileen R at March 22, 2005 12:42 PM

regarding feeding Terri by mouth...

http://www.mediaculpa.com/comments.php?id=336_0_1_0_C

Posted by: Amy at March 22, 2005 12:44 PM

jpe, I don't think you're correct, but as I'm not a lawyer, I'll ask you to address why you're so absolutely sure that O. Carter Snead above, who is, is obviously mistaken about a rather basic point of law.

Posted by: Eileen R at March 22, 2005 12:47 PM

O. Carter Snead is saying that there were so many irregularities in the state's procedures that Ms. Schiavo was denied her federal right to due process.

It's a very small and annoyingly legalistic distinction. It's not that the state court messed up, it's that the state court *system* was so messed up that Ms. Schiavo was denied the benefit of proper procedure. To put it differently: no one has a federal right to have a judge give the right answer; one only has a right to have that wrong answer be the result of proper procedure.

If the procedure is OK and followed correctly, but the judge messes up the answer anyways, you're out of luck as far as the feds are concerned.

We have a pretty strange legal system, I think.

Posted by: jpe at March 22, 2005 12:56 PM

This is from the great investigative team at The Empire Journal:

Not only has Greer unlawfully become a party to the action by acting as both jurist and guardian ad litem in the case but he, like Michael Schiavo and his attorney, George Felos, may need to insure that Terri Schiavo dies and her body immediately cremated in order to destroy evidence of not only the alleged criminal wrongdoing of Michael Schiavo but perhaps by Greer himself in impeding and interfering in valid abuse investigations.

And, yes, as unbelievable as it may seem, Judge Greer has ordered that no one is to attempt to feed her. And this, after the nurse, Carla Iyer's affidavit stating they were feeding Terri pudding, jello, juice which she enjoyed...until Michael forbade it, insisting only on feeding through the tube.

Posted by: chris K at March 22, 2005 12:56 PM

The three Death-a-teers (Michael, Felos, and Greer) want her dead, no ifs, ands, or buts. It's utterly disgusting...

Posted by: Sirena at March 22, 2005 1:01 PM

jpe, I quite agree about the strangeness of the legal system. However, it must be noted that the important bit of the law congress passed, which Snead points to is this.

The recently passed S.686 gives the Middle District of Florida jurisdiction to hear a suit or claim by or on behalf of T. Schiavo "for alleged violation of any right of T.M. Schiavo under the Constitution or laws of the US relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." It gives third parties the standing to bring such claims. And, most importantly for present purposes, it empowers the federal court to determine, DE NOVO, "any claim of a violation of any right of T. Schiavo within the scope of this Act, NOTWITHSTANDNG ANY PRIOR STATE COURT DETERMINATION AND REGARDLESS FO WHETHER SUCH A CLAIM HAS PREVIOUSLY BEEN RAISED, CONSIDERED, OR DECIDED IN STATE COURT PROCEEDINGS.

This means that the federal court CAN make new judgments on findings of fact such as the PVS diagnosis. In fact, Judge Whittmore has not denied this or indeed legal hearing for the Schindlers on this things.

What he has done is judged that these hearings would have no great chance of success, therefore there's no compelling reason to keep Terri alive in the meantime.

However, he's judged that these hearings would have no great chance of success using previous judgments from state courts that wouldn't be the basis of these new hearings.

Posted by: Eileen R at March 22, 2005 1:06 PM

"no great chance of success" is no reason to kill Terri.

Imagine how many cancer patients receive a 20% survival diagnosis (it is a "no great chance of success") are they denied treatment?? Do some of them survive? Should they get a shot at that 20% chance?

Posted by: sujata at March 22, 2005 1:10 PM

Yes, Judge Greer denied a Motion by the parents to be able to offer her food and water orally.

How in HE** he has any legal grounds to deny oral sustenance (which was never an issue which had been adjudicated as one of Terri's "wishes") astounds me... and seems to be in clear violation of state law and Terri's civil rights.

But what's the recourse?? Ask Greer to review HIS decision because it's Wrong and Illegal?!

Posted by: Raquel at March 22, 2005 1:10 PM

I am just amazed that all this can be happening! How is a judge able to get away with this?! I dont understand what all judge greer has said and done considered fair to Terri's rights as a disabled human being. I hope they will look into this judge after Terri has passed on.

Posted by: adrienne at March 22, 2005 1:10 PM

Patients of Dr. Hammersfahr

http://www.hni-online.com/patient_thoughts_and_words.htm

Posted by: sujata at March 22, 2005 1:39 PM

"This means that the federal court CAN make new judgments on findings of fact such as the PVS diagnosis."

No. Let's look at the statute again. What is the judge entitled to look at?

"any claim of a violation of any right of T. Schiavo within the scope of this Act"

What's within the scope of the act?

"alleged violations of any right of Theresa Marie Schiavo under the Constitution or laws of the United States"

So, the judge can look at two things:

- federal statutes. None apply.

- the U.S. constitution. The Schindlers say that TS's right to proper procedure under the 14th amendment was violated. So the court looks at the procedures of the state court to see if they were adequate.

That's all the statute allows for.

Posted by: jpe at March 22, 2005 1:46 PM

I am completely amazed taht all this is happening in such a pro-bush, pro-life state. I am pro-choice, but where are all these pro-life attitudes when you need them!!!!

Posted by: Wendy at March 22, 2005 1:49 PM