Greer rejected the Schindler’s appeals once again.
Bob Schindler was just on, and said that Terri is doing remarkably well considering the circumstances. She is FIGHTING TO LIVE….
Can’t they see this? Put the tube back, or at least allow oral water and food.
I’ve just finished listening to another commentator talk about the number of hearings that have taken place over Terri Schiavo as an example of how she has received “due process.”
This is one of the biggest misperceptions out there and one that is giving false moral comfort to proponents of putting Terri Schiavo to death. There are two basic legal systems in place in North America. The civil legal system deals primarily with economic rights. Breaches of contracts, torts, personal injury suits and family law matters are all governed by civil standards. Then there is the criminal legal system which has its own set of procedural safeguards that are much more stringent than the civil standards. The reason is simple. Criminal courts deal with basic rights to life and liberty and the ability of the state to deprive individuals of those rights. As such, the entire system is designed to overwhelmingly err on the side of life and liberty.
Terri Schiavo’s case has proceeded, and continues to proceed, under the civil legal system. When you hear opponents of Terri’s death cry out that criminals and terrorists are afforded more rights than Terri Schiavo, this isn’t just emotional rhetoric. This is absolutely correct. This is an emerging area of the law, and the facts of the Schiavo case are quickly revealing that the civil system should best be left for the determination of property rights, not life and death decisions. To put this in context, the procedural due process that Terri’s received is about the same or perhaps slightly higher than what you’d find in a hotly contested patent infringment case, but nowhere near what someone charged with something as minor as petty theft would receive, let alone a prisoner on death row. Below I posted a concrete example of the absurdity that results: the Federal Court relying on a case dealing with the sale of discount gasoline in determining whether to grant a stay to save Terri Schiavo’s life. Exemplifying my point, the discount gasoline case falls under the heading “Applicable Standards.” But I point to another passage of the court dealing with the issue of “cruel and unusual punishment” that gets to the heart of the issue:
The Eighth Amendment’s prohibition against cruel and unusual punishment only applies “subsequent to and as a consequence of a person’s lawful conviction of a crime.”
There it is in clear print for all the world to see. If Terri were convicted of some horrible act against humanity or simply of pick pocketing, she would have rights. But she’s an innocent woman and so she cannot be protected by the constitution so says the court. Now, what was that about Terri Schiavo receiving full due process again?
I haven’t commented on this subject yet as I’ve been pretty consumed with the direct injustice of putting Terri Schiavo to death, but Michelle Malkin is all over the talking points story. She has the goods on the specifics and I suggest you check out her site if you haven’t done so already. I’d like to take a look at the lowest common denominator in this issue: whatever the “truth” may be regarding the source of the memos, the MSM’s one sided coverage is yet another clear sign that they continue to abuse their position as society’s news tellers by advocating rather than informing.
The memo was portrayed by the MSM as a damning indictment of GOP political opportunism on the back of a starving woman. When obvious suspicions regarding the memo arises there is silence in the media. What is particularily aggregious is impact that this failure to report has on public opinion. Not only do the suspicious aspects of the memo obviously lessen the validity of the original charges against the GOP, they may evidence precisely the opposite of what the original story portrayed- that while the Republicans (and some Democrats) where doing everything they could in their power to help Terri Schiavo, the Democrats were in the back rooms scheming for ways to capitalize politically on the Republicans’ efforts to save Terri. Yet the public is left with the original reporting as if nothing new has arisen.
The MSM is advocating not informing, and they are doing so under the pretense that they are the trusted purveyers of information.
In determining what weight to give the irreparable harm that will come to Terri in the latest stay application to keep her alive (at the heart of an injunction proceeding the court must weigh the irreparable harm versus, among other things, the strength of the potential case) guess what type of case the court principally considered. An accused on death row? A terrorist about to be deported to a state where he’ll be put to death?
Nope. The court in Schiavo relied on a case about a gas dealer regarding the sale of below cost gasoline. That’s right folks. In seeking guidance regarding the ending of a human life, the court looked to how another court weighed the harm that would result from the improper sale of a petroleum product. Here is the PDF copy of the latest Federal Court decision which cites the Home Oil case also in PDF.
I’ve said below here and here how the courts are utilizing the wrong standards in the Schiavo case. Seeing Terri’s life compared to gasoline, can there be any doubt about this?
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.
