Ann Althouse and Glenn Reynolds are surprised that conservative bloggers believe the Federal Court in Florida flouted the Schiavo statute passed by Congress. I’m included in that group, and frankly, I’m surprised that they are surprised. While I have great respect for both, they are wrong.

Here’s the main point of Ann’s argument starting with the legislation:

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

Those procedures outlined in Section 2, including the authority rehear claims de novo, apply to the “suit or claim” provided for in Section 1. Read the boldface text: the statute only authorized the parents to bring federal law claims. It gives no authority to redo the state law claims, which is what the state courts relied on in appointing the husband as the decisionmaker and so forth.

The parents’ complaint in federal court had only a few skimpy federal claims to make, and the federal court denied preliminary relief because there was very clearly no “substantial likelihood of success on the merits” on these federal claims. The main federal claim was a violation of due process, which had to include consideration of the quality of the state court’s work.

Ann’s argument has a significant flaw. A trial de novo at the Federal level is a completely new action from the trials at the state level. It is not a review of the state’s record. Witnesses will be called, documents tendered, expert opinions given – perhaps some will be the same as those called at the state proceedings but some undoubtedly will not be. While Ann is correct that the claim for violation of due process would include consideration of the state level proceedings it would not by any means be exclusive to those proceedings. Indeed if the purpose of the claim is, in essence, to scrutinize the prior state proceedings with a view to determining if due process has been violated, extrinsic evidence would certainly be required. Ann’s is a circular argument which ignores the purpose of a trial de novo.

In denying temporary injunctive relief, the court did not “technically” deny a trial de novo, but denied a stay pending such a trial. Of course the court denied the stay knowing with absolute certainty based on the laws of science that Terri would be dead long before any trial could be heard, and thus practically denied the trial contrary to the clear spirit and intent of the legislation. It appears that those who agree with the court’s decision justify this on the basis described above – that a trial de novo would add nothing more than what is already on the record. But as shown above they are not the same.

Furthermore, the factors that one considers in determining whether to grant a stay – the crucial ones in this case being the “irreparable harm” and the strength of the merits of the case – are to be given the appropriate weight as the circumstances of the case so require. I can think of no case where “irreparable harm” should be more highly weighted than in the Schiavo case. This is particularily so when such concepts were largely developed with respect to the protection of property rights such as patent infringements.

One more thought. I’m surprised at the shock expressed by Ann and Glenn as if conservative bloggers were grasping at straws. Not only is the above a sound argument, but one of three judges was in agreement with this position.

UPDATE: For more substantive arguments in favor of Terri, here is Andrew McCarthy’s opinion that Terri’s rights have been violated by virtue of the fact that she is being put to death by the state on a civil burden of proof, not “beyond a reasonable doubt.” I have been arguing for some time that this is the appropriate standard in the circumstances.

Welcome Polipundit readers.

A simple comparison of the facts about Terri Schiavo being discussed on the internet with the story being told on the news reveals a truth crunch that will dwarf anything we’ve experienced to date. What’s a truth crunch you ask? It’s the point at which the actual facts of a story become so widely known that its impossible for the media to sustain its preconceived narrative. In the case of Terri Schiavo not only did the media lead the public to believe this was just another typical right to die case, they actively solicited the public’s complicity in their narrative through the use of unfairly worded polls. What will make this truth crunch particularly devastating to old media though is that it will also involve a corresponding conscience crunch on the public. With Rathergate or even the coverage of the Iraqi war, the media was exposed as being overtly biased, but in the end their coverage didn’t really have an effect on the outcome. Rathergate was uncovered prior to the election and the incessant “quagmire” story line didn’t stop the liberation of millions. But the Schiavo coverage is different. Sadly, the truth crunch will almost surely happen too late, at which point the public will be confronted with the realization that they were made to be unwitting participants in one of our society’s greatest injustices.

People will ask why the media reported Terri being in a persistent vegetative state (PVS) as if this fact was as immutable as the earth being round, when other experts, Terri’s nurses and videos of Terri that they’d never seen or heard of indicated otherwise. They will learn that some studies show that upwards of 43% of the cases of PVS are incorrectly diagnosed and ask why this was not disclosed in the neatly packaged news segments.

After being led to believe that Michael Schiavo was acting out of sheer respect for Terri’s wishes, the public will learn of a different Michael – one that denied Terri a chance at rehabilitation or even basic diagnostic tools such as an MRI. They will hear how Michael moved on to start another family while Terri’s parents continued their familial commitments and vows to keep treating her. They will learn of the “pre legal settlement Michael”, promising to be her “rock” who would take any step necessary to help Terri improve, and the “post settlement Michael” who, after receiving considerable sums of money for her rehabilitation, focused on Terri’s purported desire to no longer live. A desire that, logic dictates, would have been expressed by Terri well prior to the settlement, before Terri’s “heart attack.” Worse, they will learn of multiple allegations of abuse at the hands of this “guardian.”

The public will learn that judges are not all knowing, all wise immortals, who can see absolute truth amidst the confusion, but are fallible humans that make mistakes and have fears, biases and egos just like the rest of us. They will learn that sometimes the judiciary stubbornly applies old law to new facts resulting in grave injustices.

Whether people will choose to believe some or all of the above when the truth crunch happens remains to be seen. At a minimum they will see that we weren’t really sure if Terri Schiavo was vegetative or merely disabled, and that we weren’t in the least bit sure if removing the feeding tube was what Terri wanted. Without really being sure of these things at all, we went ahead and slowly starved Terri to death.

Who will wash Terri’s feet?

Jeff asked me to post on this story: Cabot farmer serving reparative sentence for cow deaths From the Barre – Montpelier Times Argus in Vermont. Christian DeNeergaard, from Cabot, VT was convicted of not feeding or watering his 75 cows, allowing 11 of them to die as a result of this neglect. He was supposed to rectify the situation, but on a subsequent inspection, 15 more cows were found dead of starvation. PETA, of course, wanted him to go to jail. He was not sentenced to jail because of technical issues in the search of the property.

Of course, this man’s behavior is abhorrent and should be punished. But where are PETA now? There is a term “The Human Animal” isn’t there? Get all up in arms for starved cows, but not for a starved human being? Maybe it’s because the cows didn’t tell the bull that they wanted to die.

Anchoress has another story on starving cows: O Irony! FL rancher charged with starving cattle

Welcome Polipundit readers.

I was watching a talk show the other day and a civil rights advocate was on. The host was attempting to ask him a very simple question: does it matter that feeding’s being denied on the word of one individual, the husband. He refused to answer the question directly and went on to attack those supporting Terri being kept alive for not respecting her “wishes”. The question was asked again, and then yet again, and each time he attempted to avoid the question with proclamations of her right to choice being violated accompanied by attacks on the motives of those supporting Terri.

The problem I have had all along with this, as have so many others that support Terri being kept alive, is that the above interaction seems to be playing out in the broader sense. We’re skipping right to the defence of the “right to choose” without answering the hard FACTUAL questions as to whether she did choose, whether she is really in a PVS and what is sufficient evidence to make that determination having regard to the fact that if we’re wrong were killing an aware person who doesn’t want to die.

The fear that many “right to choice” people have about their cause being questioned appears to have led many to willfully ignore the facts in their support of Schiavo’s death. What is reprehensible is the media’s complicity in all of this. The result is that the mainstream population are also left with similar impressions. Very few of the startling facts we have seen in the blogosphere are being reported. Instead we get condescending images of those poor ignorant parents that just “can’t let go”, the throwing up of the hands and declaring both the parents and the husband’s love for Terri and desire to do what’s best for her. The media also seems to be playing Terri in a PVS as a certainty. As for the courts, they’re copping out, pleading “the law is the law” in applying standards that are largely designed for the protection of property, not the protection of life.

It is so wrong.

The Florida Department of Children and Families has filed a petition to intervene after receiving reports of abuse, neglect and exploitation of Terri Schiavo. The petition cites 30 “detailed allegations of abuse.” Here is the PDF Petition.
Hat tip PoliPundit reader Catherine.
UPDATE: Here is the Affidavit in PDF of the expert (Dr. Cheshire). Read it all, its remarkable. Hat tip NRO.
Welcome Polipundit readers.

According to Junk Yard Blog:

The Hapless Misadventures of the Pinellas County Court System keeps getting stinkier and stinkier and scarier and scarier. Michael Schiavo’s attorney George Felos took his case and then filed the petition to introduce HB 2131 in 1999. Then the law in Tallahassee gets changed. Then the Schiavo case gets heard. In that order.

In April 1999 – House Bill 2131 was introduced in the Florida legislature by the Florida Elder Affairs & Long-Term Care Committee to amend Section 765 (Civil Rights) of the Florida Statutes. The amendments to Section 765.101 were the legal definition of “life prolonging procedures” to add: “INCLUDING ARTIFICIALLY PROVIDED SUSTENENCE AND HYDRATION, WHICH SUSTAINS, RESTORES, OR SUPPLANTS A SPONTANEOUS VITAL FUNCTION”. It becomes law on October 1, 1999.

Go read the rest.

Need someone dead? Get a law passed that will assist you in your endeavor.

Welcome Polipundit, Wizbang, & Myopic Zeal readers. There is a list to the right of other Terri stories at this site.

Apparently two more nurses have come forward to substantiate Carla Iyer’s claims about Michael Schiavo. Our friends at OpiniPundit are all over it. Below we provide the video and transcript of Carla’s damning revelations.

It was interesting when I saw a similar interview of Carla Iyer on CNN (which, not surprisingly, was more hostile than the Fox interview we linked to) the host asked in an accusatory manner why other nurses hadn’t come forward.

We just reached 10,000 on our sitemeter. Thanks to all our visitors and referrers.

Also just to put our growth in perspective, while we had 2000 hits last month, this month we’re approaching 6,000. It’s been great working with kimsch and we really appreciate all of our visitors and……….and………there I go……I promised myself I wouldn’t cry……………..talk amongst yourselves. (Jeff)

From Fox News:

TAMPA, Fla. — The 11th U.S. Circuit Court of Appeals in Atlanta has denied a request by the parents of Terri Schiavo to reinsert the severely brain-damaged woman’s feeding tube. The three-judge panel ruled 2-1 to deny the request, a day after a federal judge in Florida rejected a similar appeal.

In its ruling, the panel said the woman’s parents “failed to demonstrate a substantial case on the merits of any of their claims.”

“There is no denying the absolute tragedy that has befallen Mrs. Schiavo,” the ruling reads. “We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law.”

From the dissenting judge:

But in the dissenting opinion, Judge Charles R. Wilson expressed concern that Schiavo’s “imminent” death would end the case before it could be fully considered.

“In fact, I fail to see any harm in reinserting the feeding tube,” he wrote.

I find it objectionable that the majority would cast itself as slaves to “the law” while at the same time acknowledging the “absolute tragedy” Terri Schiavo faces. As for the dissenting opinion, many of our current laws today have arisen from dissenting opinions of judges who had the courage to see that the state of the law as it was, could not equitably be applied to the facts before them. I can think of no case where this applies moreso than the case of Terri Schiavo.