[Mithras]

Originally posted by Millennium:
No, you're not. But I believe you were mistaken for such. You assume too much intelligence from people who sling around the word "nazi" as an insult. They saw "Germany" in your profile, which you'll note is right next to every post you made and made unfounded assumptions. They don't have a monopoly on unfounded assumptions, but that doesn't make it right to make them, does it?

Now that my comment has been the subject of several posts from you, I might as well chime in. I did not sling around "Nazi" as an insult; I objected to roberto's use thereof.

My meaning, to be utterly clear, was this: someone from Germany, of all places, should be able to distinguish what qualifies as a "Naziland" and what does not. As much as I dislike what our government is doing in this case, modern America certainly and clearly does not qualify as "jesusnaziland." And hence roberto's casual use of that term, along with his reference to understanding why people drive planes into buildings, were out of line.

Let me add that I generally really like roberto and his posts, agree with him often, and appreciate his contributions to the forum.

Okay? Let's all breathe deeply. Back on topic now.

[Tarambana]

Originally posted by Cody Dawg:
What "state?"

She is not comatose.

Maybe Terri didn't want to be kept alive COMATOSE.

She is not comatose.

She is interacting with people and her environment.

The two posts preceding this one have already restated the obvious which you insist to negate.

She is in a persistent vegetative state. There is no point on denying it.

[zigzag]

Originally posted by Millennium:
Which, incidentally, directly conflicts with the wishes he now claims that she told him. If her wishes are truly in his heart, then why did he not pull the plug many years ago?

Another interesting point, because the court would have no authority to do this. If he has the authority, then he must make the decision himself; that's the way these laws work.

Because his arguments smell every bit as sketchy as those of her relatives.

1. Under Florida law, before a surrogate can pull the plug, he has to be satisfied that the tripartite test set forth in the trial court's opinion is met. That includes a determination that there is no chance of recovery. Here, the husband spent years exploring treatments, even taking Terri to California. Only after a number of years did he decide, upon the advice of the doctors, that nothing more could be done and that he could, in good conscience, pull the plug. Surely we should not condemn him for not doing it sooner.

2. In Florida, a surrogate like the surviving spouse can petition the court to make a determination in his stead. Surely we should not condemn him also for asking for an independent determination that could have gone against him?

3. Another tidbit that I gleaned from reading the opinions is that at one time, Michael Schiavo offered to forfeit the money in the guardianship estate. You're also overlooking the fact that the trial judge did not primarily rely on Michael's testimony as to Terri's intent - he relied on the testimony of two other parties. He found that Michael's testimony alone was insufficient. How many times does this fact have to be repeated before you guys absorb it?

The trial court's opinion is only 10 pages long. I would ask that people read it before making judgments about it.

[Mithras]

For SimeyTheLimey:
You've commented several times that the appeals court could only consider Greer's procedures, but faced a high hurdle in reconsidering his findings of fact.

I finally read the 2001 Appeals Court decision. They seem, to this untrained legal eye, to have quite explicitly considered the facts of the case.

I'll transcribe a few passages:
Introduction

We have carefully reviewed the record. The trial court made a difficult decision after considering all of the evidence and the applicable law. We conclude that the trial court's decision is supported by competent, substantial evidence and that it correctly applies the law. Accordingly, we affirm the decision.

Terri's state:

The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state. It is important to understand that a persistent vegetative state is not simply a coma. She is not asleep. She has cycles of apparent wakefulness and apparent sleep without any cognition or awareness. As she breathes, she often makes moaning sounds. Theresa has severe contractures of her hands, elbows, knees and feet.

Over the span of this last decade, Theresa's brain has deteriorated because of the lack of oxygen it suffered at the time of the heart attack. By mid-1996, the CAT scans of her brain showed a severely abnormal structure. At this point, much of her cerebral cortex is simply gone and has been replaced by cerebral spinal gluid. Medicine cannot cure this condition. Unless an act of God, a true miracle, were to recreate her brain, Theresa will always remain in an unconscious, reflexive state...

Guardianship:

Since the resolution of the malpractice lawsuit, both Michael and the Schilders have become suspicious that the other party is assessing Theresa's wishes based upon their own monetary self-interest. The trial court discounted this concern and we see no evidence in this record that either Michael or the Schilders seek monetary gain from their actions. Michael and the Schindlers simply cannot agree on what decision Theresa would make today if she were able to assess her own condition and make her own decision...
In this case, however, Michael Schiavo has not been allowed to make a decision to disconnect life-support. The Schindlers have not been allowed to make a decision to maintain life-support. Each party in this case, absent their disagreement, might have been a suitable surrogate decision-maker for Theresa. Because Michael Schiavo and the Schindlers could not agree on the proper decision and the inheritance issue created the appearance of conflict, Michael Schiavo, as the guardian of Theresa, invoked the court's jurisdiction to allow the trial court to serve as the surrogate decision-maker.

Conclusion:

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten yeares in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did. Affirmed

[roberto blanco]

Originally posted by Millennium:
...and that there is no such thing as a universal concept of dignity.

you are kidding, right?

Originally posted by Millennium:
...and by doing so I've taken away your right to assume as much as I've taken away mine.

no, i'm not "assuming" anything. i am making an educated guess based on common sense. by "doing so" you have just open up a philosophical pandora's box which in this case (at least in your mind) would work for your side of the argument.

Originally posted by Millennium:
Can you honestly say that you've covered that angle?

no, but i can honestly say that most people would rather have a nice 5 course dinner than getting their head split open with a chainsaw while being raped by a gang of wild baboons (even if they couldn't expplicitally say so)

hey, maybe somewhere on this planet there is somebody who would choose proposition 2. quit frankly, i don't know that somebody.

Originally posted by Millennium:
Both sides claim this for their side, and neither can be trusted.

i HIGHLY doubt her parents can claim with a straight face that she explicitly stated to be kept alive a vegetable circus act!

Originally posted by Cody Dawg:

She is interacting with people and her environment.

No, she isn't.

Every report I have seen has explained this is an unconscious reaction to lower-brain stimuli.

Did you see a report that we didn't?

[bstone]

Originally posted by hayesk:
No, she isn't.

Every report I have seen has explained this is an unconscious reaction to lower-brain stimuli.

Did you see a report that we didn't?

Cowdy Dawg has a problem of hold an objective, rational debate. Makes it rather difficult to go through the issues.

[SimeyTheLimey]

Originally posted by Mithras:
For SimeyTheLimey:
You've commented several times that the appeals court could only consider Greer's procedures, but faced a high hurdle in reconsidering his findings of fact.

I finally read the 2001 Appeals Court decision. They seem, to this untrained legal eye, to have quite explicitly considered the facts of the case.

I'll transcribe a few passages:
Introduction:

Reread those passages:

We have carefully reviewed the record. The trial court made a difficult decision after considering all of the evidence and the applicable law. We conclude that the trial court's decision is supported by competent, substantial evidence and that it correctly applies the law. Accordingly, we affirm the decision.

The terms are key: The record is what appellate courts have to go on. It consists of the motions and briefs of the parties, and the trial transcript and exhibits. It's a big heap of documents. It does not involve examining the witnesses. Only the trial court does that.

Now focus on the conclusion:

We conclude that the trial court's decision is supported by competent, substantial evidence and that it correctly applies the law.

This is a very standard statement a court makes when it reviews the decision by a trial court according to the usual standard of review. Break it down as the court does into its two componants -- findings of fact, and findings of law. "The decision was supported by competant substantial evidence" means that the trial judge had some basis for his findings of fact. He didn't abuse his discretion and make a decision that no rational trier of fact could make (these are all buzzwords). That is the standard, extremely deferential, standard of review for fact determinations. Courts of appeal almost never overturn the finder of fact on the findings of facts. It's just not their place to do so, and they often say so.

The second part "and that it correctly applies the law" is the part where an appellate court reviews the lower decision de novo on the questions of law. That means it will look at what the trial court did on the legal questions, but isn't obligated to give it any deference at all.

I can see how this isn't obvious, but it doesn't in any way contradict what I have been saying.

[Mithras]

Interesting, thanks Simey.
I see what you're saying from the legal standpoint, that the ultimate job of an appeals court is to determine whether there was "competent , substantial evidence" to support the trial court's decision, rather than reweighing the evidence de novo.

Nonetheless, I would say -- as zigzag suggested earlier -- that they appear to have gone out of their way in the other paragraphs to have affirmed the clarity and strength of the evidence contained in the record. I assume it's not appeals-court-buzzword to say "The evidence is overwhelming that Theresa is in a permanent or persistent vegetative state", or "we see no evidence in this record that either Michael or the Schilders seek monetary gain from their actions."

[SimeyTheLimey]

Originally posted by zigzag:
Oh come on - it's only become a matter of "federal rights" because the Congress has specially acted, after the fact, to create jurisdiction where there otherwise was none. A federal court already denied jurisdiction once. But for this new act, it would not be before the federal courts.

I'm not the one who gets sanctimonious about states' rights around here - like I said, if it's what people want, so be it. I've said many times that the states' rights argument is usually a hollow one on both sides. I'm just trying to get people to be honest about it.

You are confusing the existance of federal rights, with the forum to adjudicate those rights. Those are separate questions.

What I gave you was a basic statement of federal court jurisdiction. To reiterate: All federal rights fall within Article III whether there is subject matter jurisdiction in federal court or not.

Subject matter jurisdiction, or original jurisdiction, is narrower than Article III. Where there is a federal right but that right can't be brought in federal court because there isn't subject matter jurisdiction, it is brought in state court. But it is still a federal right. That's why the Supreme Court can hear appeals on federal issues from state supreme courts (as impractical as that is).

Congress can grant original jurisdiction over federal issues in federal court by statute. That is all Congress did here. Yes, they did it far more narrowly than usual, but no more improperly than Congress has in many other statutes.

Unless you want to repeal the civil rights acts, the ADA, Title VII, and so on, then I'd drop this argument. Congress hasn't created underlying rights, or taken any rights away from the states. These are federal issues under the federal constitution. All that Congress did was allow a venue other than state court.

I shouldn't have to tell you this, and you shouldn't be bringing up states rights as an argument when you know as well as I do that they aren't implicated. It's a Nancy Pelosi type argument.

[zigzag]

Originally posted by SimeyTheLimey:
Reread those passages:

The terms are key: The record is what appellate courts have to go on. It consists of the motions and briefs of the parties, and the trial transcript and exhibits. It's a big heap of documents. It does not involve examining the witnesses. Only the trial court does that.

Now focus on the conclusion:

This is a very standard statement a court makes when it reviews the decision by a trial court according to the usual standard of review. Break it down as the court does into its two componants -- findings of fact, and findings of law. "The decision was supported by competant substantial evidence" means that the trial judge had some basis for his findings of fact. He didn't abuse his discretion and make a decision that no rational trier of fact could make (these are all buzzwords). That is the standard, extremely deferential, standard of review for fact determinations. Courts of appeal almost never overturn the finder of fact on the findings of facts. It's just not their place to do so, and they often say so.

The second part "and that it correctly applies the law" is the part where an appellate court reviews the lower decision de novo on the questions of law. That means it will look at what the trial court did on the legal questions, but isn't obligated to give it any deference at all.

I can see how this isn't obvious, but it doesn't in any way contradict what I have been saying.

I think the point is that, as a practical matter, it amounted to a de novo factual review. In other words, it wasn't just a matter of reviewing matters of pure law.

What we're trying to dispel is the suggestion that was made earlier that the trial was somehow inadequate but that the appellate courts were hamstrung because there were no clearly reversible errors of law. The truth is that everyone along the way has looked at the evidence carefully and thoroughly and has come to the same conclusions, repeatedly. If that weren't so, the appellate court wouldn't have sent it back for another hearing on her medical condition. The Florida courts have bent over backwards in this case.

The notion that it all turned on Michael's unreliable testimony, and that the appellate courts just couldn't do anything about it, was wrong. The trial judge relied on other testimony and evidence. One can argue with his conclusions but it's misleading for people to suggest that the case received inadequate consideration.

[Millennium]

Originally posted by roberto blanco:
you are kidding, right?

[in response to my assertion that there is no universal concept of dignity] No, I am quite serious. Each person decides for himself or herself what is "dignified". Your average college professor, for example, is likely to have a very different personal definition of dignity than your average rock star. To attempt to create a universal definition is nothing more than hubris, a denial of the very thing that makes us what we are: our individuality.

no, i'm not "assuming" anything. i am making an educated guess based on common sense.

"Common sense", meaning anything you think? It's a sad fact of life that no definition of "common sense" is terribly common. If any were, there wouldn't be any need for warning labels. The same applies here. You assume -wrongly- that everyone sees PVS as being literally a vegetable, or sees this as an undignified state.

Actually, this makes for an interesting question: what's undignified about PVS? I have my own ideas concerning this matter, but I'd like to hear yours.

no, but i can honestly say that most people would rather have a nice 5 course dinner than getting their head split open with a chainsaw while being raped by a gang of wild baboons (even if they couldn't expplicitally say so)

Probably. However, it's not relevant, because you are trying to compare your example -a strong positive versus a strong negative- versus two grand uncertainties: death and PVS.

hey, maybe somewhere on this planet there is somebody who would choose proposition 2. quit frankly, i don't know that somebody.

I doubt anyone would choose proposition 2 as you word it, but your wording is so heavily loaded as to be unfair. Although I share your view of PVS as being literally no better than a vegetable, I do not harbor any illusions that this is some kind of universal, "common sense" view.

i HIGHLY doubt her parents can claim with a straight face that she explicitly stated to be kept alive a vegetable circus act!

It's highly doubtful that she said it as you did; I will concede this. I already said that her parents' claims are almost as sketchy as her husband's. At the same time, you have this idea that everyone sees PVS as a "vegetable circus act". If someone were to not share this idea, then being kept alive would not be as unattractive for that person as for you. It almost certainly wouldn't ever be attractive, per se, but neither is death.

It is a grave injustice to project the desires of one individual onto another. Assumptions like that -particularly in the case of life and death- are extraordinarily dangerous. You are not the only one projecting your own desires; Schiavo's parents are as guilty of projecting their desires onto Terri as you are. Don't think I support them out of agreement with their beliefs. I support them only because the course of action they desire can be reversed in the event that they are wrong, whereas Mr. Schiavo's desired course of action cannot.

[zigzag]

Originally posted by SimeyTheLimey:
You are confusing the existance of federal rights, with the forum to adjudicate those rights. Those are separate questions.

What I gave you was a basic statement of federal court jurisdiction. To reiterate: All federal rights fall within Article III whether there is subject matter jurisdiction in federal court or not.

Subject matter jurisdiction, or original jurisdiction, is narrower than Article III. Where there is a federal right but that right can't be brought in federal court because there isn't subject matter jurisdiction, it is brought in state court. But it is still a federal right. That's why the Supreme Court can hear appeals on federal issues from state supreme courts (as impractical as that is).

Congress can grant original jurisdiction over federal issues in federal court by statute. That is all Congress did here. Yes, they did it far more narrowly than usual, but no more improperly than Congress has in many other statutes.

Unless you want to repeal the civil rights acts, the ADA, Title VII, and so on, then I'd drop this argument. Congress hasn't created underlying rights, or taken any rights away from the states. These are federal issues under the federal constitution. All that Congress did was allow a venue other than state court.

I shouldn't have to tell you this, and you shouldn't be bringing up states rights as an argument when you know as well as I do that they aren't implicated. It's a Nancy Pelosi type argument.

Yes, due process (if that's what this comes down to, as opposed to a retrial) is a federal right (I agree that my terminology was imprecise), but my point was that one does not have an automatic right to federal jurisdiction. That's why Congress intervened - to create jurisdiction where there otherwise was none; indeed, where jurisdiction has been specifically denied. It's a political end-run. If the civil rights cases were also political end runs, which I don't dispute, so be it, but you can't tell me that this isn't a highly unusual maneuver for a type of case that otherwise gets decided every day in state courts without notice. To suggest that there's "nothing to see here" is a bit much, IMO.

Like I said, I'm not the one who gets sanctimonious about states' rights - I'm just trying to be honest about what's happening here.

[SimeyTheLimey]

Originally posted by zigzag:
I think the point is that, as a practical matter, it amounted to a de novo factual review. In other words, it wasn't just a matter of reviewing matters of pure law.

I never said it was just a matter of reviewing matters of pure law. I said it was the normal type of appellate review of the facts -- clearly erroneous, which as I know you know is highly deferential. It certainly wasn't as a practical matter de novo review because the courts of appeals certainly did not examine Michael Schiavo.

What we're trying to dispel is the suggestion that was made earlier that the trial was somehow inadequate but that the appellate courts were hamstrung because there were no clearly reversible errors of law. The truth is that everyone along the way has looked at the evidence carefully and thoroughly and has come to the same conclusions, repeatedly. If that weren't so, the appellate court wouldn't have sent it back for another hearing on her medical condition. The Florida courts have bent over backwards in this case.

It is inadequate. But as I said earlier, I think it is inevitably inadequate because it is an action essentially in equity. What hamstrings the courts of appeals isn't their inability to find error in the application of law, it is the fact that they have to defer to the findings of facts.

Secondly, you keep confusing the two issues I am trying to keep apart. For me this isn't about disputes about her medical condition, so the fact they sent the case back for another hearing on that issue is irrelevant. That is only the predicate question. The second, and much harder question is what her views were about how she would want to be treated (i.e. the federal issue that comes out of Cruzan). That turns on the hearsay evidence that I regard as being tainted.

So please, maybe you are falling into the trap of thinking that everyone who reaches a conclusion does so on the same grounds. But it isn't the case. I don't dispute her medical condition. I don't think it would hurt to look at her again, but I doubt the verdict would be different. It's the second question -- the examination of the witness -- where i want a second opinion.

[roberto blanco]

Originally posted by Millennium:
To attempt to create a universal definition is nothing more than hubris, a denial of the very thing that makes us what we are: our individuality.

now THAT is hubris if i ever heard it. "individuality" is a cultural concept. - being "human" is what makes us who we are...

Originally posted by Millennium:
You assume -wrongly- that everyone sees PVS as being literally a vegetable, or sees this as an undignified state.

no, i assumed that everybody with "common sense" would see PVS as being figuratively a "vegetable".

Originally posted by Millennium:
Actually, this makes for an interesting question: what's undignified about PVS? I have my own ideas concerning this matter, but I'd like to hear yours.

being more dead than alive. that's what's not dignified about it.

Originally posted by Millennium:
It almost certainly wouldn't ever be attractive, per se, but neither is death.

that's exactly my point though. given the choice, anybody with common sense would choose death. and given the state she is in, "death" seems like quite an attractive option.

Originally posted by Millennium:
It is a grave injustice to project the desires of one individual onto another.

right, and if it wasn't such a clear cut case, i wouldn't either. but this is just too easy. and this is NOT about what she wants, but about her not being able to communicate what her intentions are. THAT'S the big problem here.

WHO gets to decide what action to take? that's all there is to it.

[SimeyTheLimey]

Originally posted by zigzag:
Yes, due process (if that's what this comes down to, as opposed to a retrial) is a federal right (I agree that my terminology was imprecise), but my point was that one does not have an automatic right to federal jurisdiction. That's why Congress intervened - to create jurisdiction where there otherwise was none; indeed, where jurisdiction has been specifically denied. It's a political end-run. If the civil rights cases were also political end runs, which I don't dispute, so be it, but you can't tell me that this isn't a highly unusual maneuver for a type of case that otherwise gets decided every day in state courts without notice. To suggest that there's "nothing to see here" is a bit much, IMO.

Like I said, I'm not the one who gets sanctimonious about states' rights - I'm just trying to be honest about what's happening here.

Sure, it is unusual in the sense that it doesn't happen much. But it is not unusual in the sense that it is in any way an improper exercise of Congressional authority. To hear some people argue it, you would think that Congress directed the courts to reach a decision and change Florida law. It has done nothing like that.

If Michael Schiavo had lived in Georgia we wouldn't even be talking about this because there would be diversity jurisdiction and it could have gone to federal court on that basis. Given that I think it is hogwash to fixate on the initial question of jurisdiction. After all, the basic issue is the one the Supreme Court looked at (and pretty much punted) in Cruzan back in 1989.

[Millennium]

Originally posted by roberto blanco:
now THAT is hubris if i ever heard it. "individuality" is a cultural concept. - being "human" is what makes us who we are...

And what does it mean to be "human", then? Circular definitions are hubris. All I do is define individuality to be the defining factor of humanity, by which I mean to say that it is our existence as individuals -neither a hive-mind nor an inability to suppress instinct- which is unique to humans as opposed to other life forms. This concept might also be called free will.

no, i assumed that everybody with "common sense" would see PVS as being figuratively a "vegetable".

That assumes that "common sense" is a) common and b) defines what PVS is. Why do you make this assumption?

being more dead than alive. that's what's not dignified about it.

Why? What's undignified about being dead, or about being alive for that matter?

This is an honest question. I do not think that you will be able to come up with some great universal concept of dignity, but I'm willing to give you a chance to disprove me.

that's exactly my point though. given the choice, anybody with common sense would choose death.

Only if common sense is what you think it is, and it argum

and given the state she is in, "death" seems like quite an attractive option.

To you, yes. Not necessarily to everyone, or even everyone with common sense. You're projecting your own beliefs onto this "common sense" concept.

right, and if it wasn't such a clear cut case, i wouldn't either. but this is just too easy. and this is NOT about what she wants, but about her not being able to communicate what her intentions are.

But if she cannot communicate what she wants, then how are we to know? There are several people who would theoretically be able to speak authoritatively on this matter -notably her husband and her family- but every last one of the bunch has been compromised in one way or another. No one is left who can truly be said without any reasonable doubt to be speaking for her.

WHO gets to decide what action to take? that's all there is to it.

She does. In her absence, no one does. In this case, the best one can hope for is to do nothing irreversible. This does not necessarily mean that she will continue to live, though it would mean not taking her off of life support. It means that if she's going to die, then she will die without anyone intervening to alter the situation as it stood the moment it became clear that there was no hope of curing her. At that time, she was on life support, and so this ought to continue.

[Mithras]

As a break from the legal questions:
You can read a very interesting interview with the guardian ad item appointed by Jeb Bush in 2003; he began a top-down, de novo review of the case, until the Florida Supreme Court ruled that the "Terri's Law" that Jeb signed was unconstitutional.

Note that he was charged with determining Schiavo's "best interests", not her original wishes. So Simey's concerns about the confidence we have in the testimony from Michael and his sister about Terri's wishes would be moot under his construct.

Wolfson

This makes Wolfson one of the very few people to have spent extended time with Schiavo and gauged her level of awareness without having a vested interest at stake....

Wolfson was appointed Schiavo's guardian after the Florida Legislature passed "Terri's Law" in 2003, a move that allowed doctors to reinsert her feeding tube, despite a judge's ruling that it should be removed. The law has since been struck down as unconstitutional.

Wolfson, who has a law degree and a PhD and is a distinguished service professor of public health and medicine at the University of South Florida, was asked to decide whether Schiavo's feeding tube should be removed and whether more tests should be done to assess her ability to swallow.

Terri's condition

In the end, after long hours at Schiavo's bedside and after poring over 30,000 pages of legal documents, Wolfson concluded that Schiavo was indeed in a permanent vegetative state.

It wasn't the conclusion he'd hoped to make.

"You want to weigh in on life as opposed to death," Wolfson said. "You want some way to elicit a response."...

He put his face close to hers and tried to make eye contact, pleading desperately, trying to will her into giving him any kind of sign.

"I would beg her, `Please, Terri, help me,'" he said. "You want to believe there's some connection. You hope she's going to sit up and bed and say, `Hey, I'm really here, but don't tell anybody.' Or, `I'm really here, tell everybody!'"

But Schiavo never made eye contact. When Wolfson visited her when her parents were there, she never made eye contact with them either, he said. And for all of Wolfson's pleadings and coaxing, he never got what he most wanted: a sign.

"I felt like there was something distinctive about whoever Terri is," said Wolfson. "But I was not clear that it was there, inside the vessel."

Michael

One thing Wolfson never doubted was that for all their intense, mutual antagonism, both Michael Schiavo and Terri's parents love and adore her.

She was cared for incredibly well, Wolfson said. Her hair was always combed, and after 15 years of being incapacitated, she never developed a bedsore. In fact, Wolfson said until about seven years ago, Michael Schiavo had Terry's makeup and hair done regularly, and her clothes changed every day - to the point that hospice staff protested that he was being overly demanding about her care.

[zigzag]

Originally posted by SimeyTheLimey:
I never said it was just a matter of reviewing matters of pure law. I said it was the normal type of appellate review of the facts -- clearly erroneous, which as I know you know is highly deferential. It certainly wasn't as a practical matter de novo review because the courts of appeals certainly did not examine Michael Schiavo.

It is inadequate. But as I said earlier, I think it is inevitably inadequate because it is an action essentially in equity. What hamstrings the courts of appeals isn't their inability to find error in the application of law, it is the fact that they have to defer to the findings of facts.

. . . It's the second question -- the examination of the witness -- where i want a second opinion.

These are some of your previous statements on the matter:

. . . as far as I know there is only one piece of evidence and that is hearsay related by the plaintiff in the suit -- an interested party who has, frankly, displayed a less than stellar concern for the wellbeing of the patient. For example, refusing medical care for his wife, barring her relatives from seeing her, all while moving in with another woman and fathering children by that other woman. That doesn't strike me as the behavior of a person motivated only be disinterested concern.

. . . from where I am sitting I am pretty amazed that a life could be decided by one piece of hearsay evidence that is that tainted . . . As for the courts of appeal passing on the judge's decision, this is an issue of fact. They may disagree with his decision pretty strongly, but still be unable legally to overturn the trier of fact's fact determination . . . The problem is, there is really no way to check the power of the judge here. You said he has been reviewed, but that is on questions of law.

. . . .

In the state courts, one judge looked at the facts. All the appeals were only empowered to review him on his application of the law.

You were wrong on the facts of the case, and were obviously concerned that the trial was woefully inadequate and that the appellate courts had only considered matters of law. Surely you can understand why Mithras and I have been trying so hard to dispel this notion?

A de novo review on appeal usually involves a review of the entire record - the taking of testimony would be a retrial. This was effectively a de novo review. The appellate court doesn't see the witness but can otherwise consider the credibility of the testimony. After extensive review, no one, including the GAL appointed by Jeb Bush, has found any reason to question the trial judge's findings.

You're also still referring to "the witness," as if you still believed that this all turned on the testimony of a single warped human being. Is there any point at which we can stipulate that this isn't the case? How many times do I have to point this out before you acknowledge it?

You also said this:

I don't see a federal question.

Noted.

[deej5871]

Originally posted by Cody Dawg:
You brought up an important point: Fresh eyes reviewing this case.

If the federal courts deem her "brain dead" after reviews then I am willing to accept their decision. I may not agree with it, but I would accept it. I cannot accept that a blind judge (Judge Greer) ruled to end her life.

You think that just because he's blind he isn't qualified to be a judge? Do you really hold such a discriminatory opinion, or has this case taken such a hold on you that anything that might make the judge's ruling wrong you go right ahead and exploit?

----------------
# of times "right-wing" has been said in this thread: 1 + 1 + 2 = 4 (plus a few times where someone only said "right" rather than "right-wing")
# of times "fundamentalist" has been said in this thread: 2 + 2 + 1 = 5
# of times "Christian" has been said in this thread: 5 + 3 + 1 + 3 + 7 + 3 = 22
(not including quotes of course; and yes, a few (5, at most) of the "Christian"'s were in reference to the soul discussion)

I think we get it.

[slow moe]

What is Vulcan mind meld?

Correct.

I'll take 'Talking to Terry' for $800.

Daily Double!!

[Cody Dawg]

I think I should plead the 5th on this one.

But, let's just say that a LOT of people are questioning this judge's capacity to make good judgements, yes.

[Mithras]

Originally posted by Cody Dawg:
But, let's just say that a LOT of people are questioning this judge's capacity to make good judgements, yes.

Not including the appellate panel, of course.

After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.

[Cody Dawg]

Remember when I said that her religious beliefs were being violated?

Well, apparently that is the tack that their attorney is taking also:

During the hearing, David Gibbs, an attorney for the parents, said that forcing Terri Schiavo to die by starvation and dehydration would be "a mortal sin" under her Roman Catholic beliefs.

"It is a complete violation to her rights and to her religious liberty, to force her in a position of refusing nutrition," Gibbs told Whittemore.

This is very significant. It is like making an orthodox Jew eat pork or a Hindu eat beef or another religious violation.

I think he has a good chance (the attorney). This case is ALSO about religious freedom.

[Millennium]

Originally posted by Cody Dawg:
Remember when I said that her religious beliefs were being violated?

Well, apparently that is the tack that their attorney is taking also:

This is very significant. It is like making an orthodox Jew eat pork or a Hindu eat beef or another religious violation.

Although this would be a grave injustice, it would not put her soul in any danger. Most faiths -including the Levantine religions- do not blame someone who is forced to sin, but instead hold the one who forced the issue liable.

End result: even if the plug is pulled, her soul is in no danger even by her own beliefs, and so her religious freedom is not affected. The only thing that this would affect is whether or not a wish to not be resuscitated would be congruent with those beliefs. In turn, this would require an examination as to just how devout she was, and whether she agreed with the Church's platform on this issue. That's going to be very difficult, if not impossible, to prove either way. For that reason, the argument won't stand up in court.

[Mithras]

The religious argument is a pipe dream on the parents' part.
Incidentally, from the appeals court decision:

She had been raised in the Catholic faith, but did not regularly attend mass or have a religious advisor who could assist the court in weighing her religious attitudes about life-support methods

So as Millenium notes, that line of argument goes out the window.

[waxcrash]

63% of Americans support the removal of the feeding tube.

70% of Americans call it inappropriate for Congress to get involved in this way.

http://www.abcnews.go.com/Politics/P...=599622&page=1

[Cody Dawg]

Did you know that 73% of all statistics are made up on the spot?

[goMac]

Originally posted by Cody Dawg:
Did you know that 73% of all statistics are made up on the spot?

Do you just like doing this? A lot of your posts are entirely baseless.

[Cody Dawg]

I was attempting to inject a little humor into the discussion.

Lighten up. Go buy a new PowerBook or something.

[d4nth3m4n]

you're not taking this lightly cody except when you have no leg to stand on but simply are too bored to leave the thread alone.

can i get a lock? it's been 3 pages.

[bstone]

linky

Doctors work to understand vegetative states

Mon Mar 21, 6:28 AM ET

By Rita Rubin, USA TODAY

A Scottish neurosurgeon who helped coin the term "persistent vegetative state" said Sunday that Terry Schiavo's parents' belief that their daughter can respond to them is "wishful thinking."


"We've all met families like this, and you can't do much about it," said Bryan Jennett, an emeritus professor at the University of Glasgow.

In 1972, Jennett and Fred Plum, now an emeritus professor of neurology at Cornell University, co-authored a paper for a British medical journal: Persistent Vegetative State After Brain Damage: A Syndrome in Search of a Name.

In a frequently broadcast videotape, Schiavo's eyes are open and she appears to be smiling. "A lot of these can be just reflex reactions," Jennett said.

Part of the problem, says Dartmouth neurology professor James Bernat, is that the average person is unfamiliar with the features of a persistent vegetative state. Bernat estimated that perhaps 10,000 Americans alive today are in a persistent vegetative state, mainly because of head injuries.

"Just looking at a videotape of someone propped up in bed, with their eyes blinking and so on, it looks like they're aware," Bernat, co-chairman of the Dartmouth-Hitchcock Medical Center, said Sunday.

Patients in a persistent vegetative state continue to have periods of being awake, but there is no presence of awareness, he said. Because their brain stem is still intact, people in a vegetative state can follow things with their eyes, but only slightly to the left or to the right, Bernat said.

"It's common for family members to make the claim that they believe the person is aware and knows they're there," Bernat said. In such cases, he said, a neurologist will examine the patient in the presence of the family members. "It does make sense to me that a person would respond more to a loved one than to a doctor," Bernat explained. "We want to give them every possible chance, every benefit of the doubt."

Neurologists check whether the patient looks into their eyes when spoken to, he said. "We move and we see if their eyes follow us. We ask them questions. We give them commands to do. We present pictures or photographs ... to see if there's any kind of reaction."

If a patient does appear to respond, he said, the neurologist will repeat the stimulation a number of times to make sure the response was not just a well-timed but random movement. To make a diagnosis of persistent vegetative state, Bernat said, "there really has to be zero evidence of any responsiveness that suggests awareness."

It's uncertain how long Schiavo can survive without a feeding tube, Bernat said. "Usually, it's in the one- to two-week range," he said. The timing depends on how well hydrated she was before the tube was removed and whether her doctors, concerned about potential suffering, are giving her painkillers in intravenous fluids.

[quietjim]

[QUOTE]Originally posted by Cody Dawg:

No one wants to let people REALLY try to rehabilitate Terri Schiavo. Her bigamist and adultering husband heard Terri mention once during a television show that focused on a disabled person, over 15 years ago, that she "wouldn't really want to live that way.

This is so cute.....you really think this has something to do with Terri Schiavo? I love it that there is someone so naive, so innocent, truly: I hope you never lose that quality it's wonderful.

The rest of the world knows this has nothing to do with a dead woman in florida; it's really simply a distraction from the losing Social Security battle in the Senate and the Tom DeLay ethics melt down in the House. Much better for DeLay to talk about a dead woman and raise money from it than to have to actually answer questions about his possible indictment for felonies.

[Wiskedjak]

Originally posted by waxcrash:
Have any medical doctors working on her case actually said this?

Please. Those doctors are obviously part of some vast bleeding-heart left-wing conspiracy and clearly have a secret agenda to end this woman's life. I suspect the husband must have something on these doctors, and perhaps even the Florida courts involved, that he is using as blackmail. Why else would they agree to end this woman's life.

[lurkalot]

Originally posted by asd:These laws are specifically designed to allow a surrogate to make end of life decisions, icluding the withdrawal of witholding of life saving treatment.

Originally posted by SimeyTheLimey:
Apparently that is not the law in Florida unless the patient designates a person to make that decision in a living will.]

As several people have pointed out several times in this and previous threads on the topic, the law in Florida does not require either a living will or the a prior designation of a surrogate.

765.101 Definitions
(15)__"Proxy" means a competent adult who has not been expressly designated to make health care decisions for a particular incapacitated individual, but who, nevertheless, is authorized pursuant to s. 765.401 to make health care decisions for such individual.

PART IV

ABSENCE OF ADVANCE DIRECTIVE


765.401_ The proxy.

765.404_ Persistent vegetative state.

765.401_ The proxy.--

(1)__If an incapacitated or developmentally disabled patient has not executed an advance directive, or designated a surrogate to execute an advance directive, or the designated or alternate surrogate is no longer available to make health care decisions, health care decisions may be made for the patient by any of the following individuals, in the following order of priority, if no individual in a prior class is reasonably available, willing, or competent to act:

(a)__The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been authorized to consent to medical treatment, if such guardian has previously been appointed; however, this paragraph shall not be construed to require such appointment before a treatment decision can be made under this subsection;

(b)__The patient's spouse;

(c)__An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation;

(d)__A parent of the patient;

(e)__The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation;

(f)__An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar with the patient's activities, health, and religious or moral beliefs; or

(g)__A close friend of the patient.

(h)__A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the provider's bioethics committee and must not be employed by the provider. If the provider does not have a bioethics committee, then such a proxy may be chosen through an arrangement with the bioethics committee of another provider. The proxy will be notified that, upon request, the provider shall make available a second physician, not involved in the patient's care to assist the proxy in evaluating treatment. Decisions to withhold or withdraw life-prolonging procedures will be reviewed by the facility's bioethics committee. Documentation of efforts to locate proxies from prior classes must be recorded in the patient record.

(2)__Any health care decision made under this part must be based on the proxy's informed consent and on the decision the proxy reasonably believes the patient would have made under the circumstances. If there is no indication of what the patient would have chosen, the proxy may consider the patient's best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.

(3)__Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest.

(4)__Nothing in this section shall be construed to preempt the designation of persons who may consent to the medical care or treatment of minors established pursuant to s. 743.0645.

History.--s. 5, ch. 92-199; s. 12, ch. 94-183; s. 32, ch. 99-331; s. 15, ch. 2000-295; s. 7, ch. 2001-250; s. 136, ch. 2001-277; s. 13, ch. 2002-195; s. 5, ch. 2003-57.

The persistent vegetative state is one of the medical conditions specifically mentioned in the Florida Statutes for which these procedures absent a living will apply;

765.305_ Procedure in absence of a living will.--

(1)__In the absence of a living will, the decision to withhold or withdraw life-prolonging procedures from a patient may be made by a health care surrogate designated by the patient pursuant to part II unless the designation limits the surrogate's authority to consent to the withholding or withdrawal of life-prolonging procedures.

(2)__Before exercising the incompetent patient's right to forego treatment, the surrogate must be satisfied that:

(a)__The patient does not have a reasonable medical probability of recovering capacity so that the right could be exercised by the patient.

(b)__The patient has an end-stage condition, the patient is in a persistent vegetative state, or the patient's physical condition is terminal.

History.--s. 4, ch. 92-199; s. 28, ch. 99-331; s. 13, ch. 2000-295.

From Chapter 765. Florida Satutes. Link

There is also the Browning decision which addressed not what Estelle Browning wanted since Mrs Browning was in fact dead by the time the Supreme Court of the State of Florida took the case to address a question of great public importance beyond merely the specific details of the Mrs Browning's situation.

The browning case doesn't merely affirm the decision that Mrs Browning's written will gave sufficient weight to the decision requested to be made on her behalf, it addressed several methods and procedures a court may rely on when making a decision in a similar case. These include determinations on oral expressions of intent.

The partial dissent of Justice Overton in Browning describes almost to the letter what happened in Schiavo. The Florida Statutes were also adjusted to accomodate precisely a situation like the one in Schiavo. Not by making it clear that a living will is the only acceptable evidence but on the contrary by recognizing the wide variety of circumstance s surrounding end of life decisions it was drafted with the required flexibility. It was adjusted to facilitate the determination of a person's wishes based on clear and convincing evidence in absence of a living will. Florida law does not require a written will but properly requires that a judge evaluates other evidence of a person's intentions at trial that may likewise reach the clear and convincing standard.

Is the corroboration the court found in the testimony of Scott and Joan Schiavo insufficient, in your opinion, or do you oppose any determination of the person's own intentions absent a living will?


----------
Side note:

These procedures described below were not followed in the Schiavo case but may be interesting to point out for the broader discussion:

765.404_ Persistent vegetative state.--For persons in a persistent vegetative state, as determined by the attending physician in accordance with currently accepted medical standards, who have no advance directive and for whom there is no evidence indicating what the person would have wanted under such conditions, and for whom, after a reasonably diligent inquiry, no family or friends are available or willing to serve as a proxy to make health care decisions for them, life-prolonging procedures may be withheld or withdrawn under the following conditions:

(1)__The person has a judicially appointed guardian representing his or her best interest with authority to consent to medical treatment; and

(2)__The guardian and the person's attending physician, in consultation with the medical ethics committee of the facility where the patient is located, conclude that the condition is permanent and that there is no reasonable medical probability for recovery and that withholding or withdrawing life-prolonging procedures is in the best interest of the patient. If there is no medical ethics committee at the facility, the facility must have an arrangement with the medical ethics committee of another facility or with a community-based ethics committee approved by the Florida Bio-ethics Network. The ethics committee shall review the case with the guardian, in consultation with the person's attending physician, to determine whether the condition is permanent and there is no reasonable medical probability for recovery. The individual committee members and the facility associated with an ethics committee shall not be held liable in any civil action related to the performance of any duties required in this subsection.

History.--s. 33, ch. 99-331.

Quotes from Chapter 765. Florida Satutes. Link

[lurkalot]

Originally posted by Cody Dawg:
I was attempting to inject a little humor into the discussion.

Lighten up. Go buy a new PowerBook or something.

If you really want to humor me -and I assume quite a few of the people who have participated in these threads about Terri Schiavo- you'd go read up on the Schiavo case.

Your information about this case is so inaccurate it would be laughable if you were the only one spreading these falsehoods. These same deceptions and misrepresentations have now persuaded the United State's lawmakers in DC. This is disgusting. In my opinion.

Unfortunately not only the details of the case were unknown to the "ladies" and "Gentlemen" lawmakers but the misinformation about the death resulting from the cessation of feeding and hydrating were also echoed there. Ignorance or willful deception were at the foundation of this and again you gloat. Because the ends apparently justify the means. Terri Schiavo "lives". What a joke.

Personally I can say that your little jokes doe not amuse, they inflame. Please consider that if a civil, informed discussion of the Schiavo topic is indeed what you strive for.

[lurkalot]

Originally posted by Cody Dawg:
Remember when I said that her religious beliefs were being violated?

Well, apparently that is the tack that their attorney is taking also:

This is very significant. It is like making an orthodox Jew eat pork or a Hindu eat beef or another religious violation.

I think he has a good chance (the attorney). This case is ALSO about religious freedom.

No, it is about trying to get a court order denying an orthodox Jew his ham sandwhich after he asked for that sandwich himself.
It's about denying a Hindu his steak after he himself ordered it.

It's about attempting to deny a woman her freely made choice to forego unwanted medical treatment.

The courts of the United States do not force people to adhere to religious dogma these people themselves by their words and actions choose not to follow to the letter.

This issue as well was previously addressed properly in Schiavo.

Review several of the most famous right to refuse unwanted medical treatment -which by law includes feeding tubes- and you'll see that each and every one of them was a Christian who saw no conflict between his personal decision to forgo treatment and his/ or her religious beliefs.

Some not so random names:
Norma Wons
Karen Quinlan
Paul Brophy
Nancy Cruzan (aka Nancy Davis)
Estelle Browning

[roberto blanco]

Originally posted by Millennium:
I mean to say that it is our existence as individuals -neither a hive-mind nor an inability to suppress instinct- which is unique to humans as opposed to other life forms.

no, it's not. most higher primates can develope a keen sense of individuality, and in addition, are just as able, - or inable, to suppress their "instincts".

Originally posted by Millennium:
That assumes that "common sense" is a) common and b) defines what PVS is. Why do you make this assumption?

well, faiw, you could take a world wide poll about what people consider "dignified" and see what answers you'll come up with. i've studied enough comparative anthropology to have quite a good idea what it means to be "dignified". things like the geneva convention and other international laws are based on this, - even if some POWs actually enjoy being tortured in prison!

Originally posted by Millennium:
Why? What's undignified about being dead...?

nothing. your side of the argument seems to have a problem with "death", not me.

Originally posted by Millennium:
... but I'm willing to give you a chance to disprove me.

see my answer above. it is something you cannot arrive at philosophically, but which you can determine through research and questioning.

Originally posted by Millennium:
But if she cannot communicate what she wants, then how are we to know?

again, this is not about a philosophical paradox, but about a situation where people have to act (or not act). because, you know what, if people hadn't taken ANY action at all, - she'd be long dead.

Originally posted by Millennium:
She does. In her absence, no one does. In this case, the best one can hope for is to do nothing irreversible.

everything anybody does is "irreversible". if they would keep her alive for the next 10 years, - that would be irreversible as well.

it is the same stupid religious argument as with "abortion", and ultimately one based on a completely outdated and flawed view of what "life" (worth living) is. this whole political move on the part of the neocons was nothing but a sickening (abuse of) power trip, to force religious dogma into the public sphere.

as a matter of fact, if her parents had any "dignity", they would remove themselves from this planet for creating such a spectecal.

[SimeyTheLimey]

Originally posted by lurkalot:
As several people have pointed out several times in this and previous threads on the topic, the law in Florida does not require either a living will or the a prior designation of a surrogate.

That seems to be an incorrect summary of the statute you posted. Specifically

(3)__Before exercising the incapacitated patient's rights to select or decline health care, the proxy must comply with the provisions of ss. 765.205 and 765.305, except that a proxy's decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the patient would have chosen had the patient been competent or, if there is no indication of what the patient would have chosen, that the decision is in the patient's best interest.

You cannot read this clause out of the statute. It qualifies what the surrogate may do. Reading further, what are the two sections referred to in this subclause.

Section 765.205 says in relevant part (feel free to look up the rest)

(1) The surrogate, in accordance with the principal's instructions, unless such authority has been expressly limited by the principal, shall:


(a) Have authority to act for the principal and to make all health care decisions for the principal during the principal's incapacity.

And section 765.305 says (again, in relevant part)

(1) In the absence of a living will, the decision to withhold or withdraw life-prolonging procedures from a patient may be made by a health care surrogate designated by the patient pursuant to part II unless the designation limits the surrogate's authority to consent to the withholding or withdrawal of life-prolonging procedures.

In summary, the patient can before incapacity write a living will, or, under 765.305 appoint a surrogate. If not, the law appoints a surrogate according to a decending list.

But, and most critically, the hands of that surrogate are not completely untied. The surrogate has to act in accordance with the patient's wishes, supported by clear and convincing evidence. This is what the question in this case is all about: what were her wishes?

What I said didn't appear to be the law in Florida was the statement that the surrogate is free to decide on his or her self what to do. That didn't seem to square with what the court is doing here, and based on the statute you yourself posted, it seems I was right.

The browning case doesn't merely affirm the decision that Mrs Browning's written will gave sufficient weight to the decision requested to be made on her behalf, it addressed several methods and procedures a court may rely on when making a decision in a similar case. These include determinations on oral expressions of intent.

The partial dissent of Justice Overton in Browning describes almost to the letter what happened in Schiavo.

I haven't read Browning, but you are describing dicta and dissents. They aren't binding law, you know that.

[SimeyTheLimey]

Originally posted by zigzag:
You're also still referring to "the witness," as if you still believed that this all turned on the testimony of a single warped human being. Is there any point at which we can stipulate that this isn't the case? How many times do I have to point this out before you acknowledge it?

The key question for me (and for Florida law, see above) is what her wishes were. As an evidentiary matter, it does just turn on the hearsay evidence presented. There is no objective source for that information in this case.

It's true, I did say i didn't see a federal question. I was specifically thinking that the due process bar as an objection to the Florida process is awfully low. I wouldn't change that statement, but I would amend it to say that as a prima facie matter, there are of course federal constitutional rights presented here. Terri Schiavo has constitutional rights, we all do. Had there been a statutory basis for federal subject matter jurisdiction (say, diversity jurisdiction), then of course, the federal courts could have heard the case from the outset (assuming standing, etc).

Since you seem to see this new federal case as a review of the Florida courts, rather than what I see it as (a new action), let me ask you the obvious analogy: what is your view of federal habeas review of state court convictions?

[Tarambana]

Looks like things might end up in the Supreme Court (I hope by the time they get to review the case, Mrs. Schiavo is already dead), as the Federal Judge has refused to reinsert the feeding tube.

Here and here among many other sources.

[Cody Dawg]

I saw that. May the karma come back to him.

[dcmacdaddy]

Originally posted by Cody Dawg:
I saw that. May the karma come back to him.

Be careful when talking about Karma, Cody. It works both ways.
You wishing (implied) bad karma on the judge is in fact an act of bad karma on your part as well. Be careful what you wish for!

[Wiskedjak]

Originally posted by Cody Dawg:
I saw that. May the karma come back to him.

I thought you said you would accept the rulings of the federal court?

Originally posted by Cody Dawg:
You brought up an important point: Fresh eyes reviewing this case.

If the federal courts deem her "brain dead" after reviews then I am willing to accept their decision. I may not agree with it, but I would accept it. I cannot accept that a blind judge (Judge Greer) ruled to end her life.

[Cody Dawg]

I already have bad karma.



I'm not REALLY wishing bad karma on anyone. I am not like that.

However, I don't understand why this judge sits and waits. Oh well. It will be interesting to see what happens next in this saga.

I heard that they are going to take it to the Supreme Court today.

[dcmacdaddy]

Originally posted by Cody Dawg:
I already have bad karma.



I'm not REALLY wishing bad karma on anyone. I am not like that.

However, I don't understand why this judge sits and waits. Oh well. It will be interesting to see what happens next in this saga.

I heard that they are going to take it to the Supreme Court today.

Umm, the US Supreme Court ALREADY refused to over-turn the ruling of the Florida Supreme Court when it was petitioned to do so. (Actually, the SCOTUS just refused to hear the case which leads me to believe that they found nothing worthy of merit to review in the petition to over-turn.)

[asd]

I wanted to add some of my personal experiences as a physician to this discussion.

I have dealt with end of life issues many times. Many patients who are "brain dead" i.e. NO ELECTRICAL ACTIVITY on EEG still have primitive spinal cord or brain stem reflexes. For example, they may squeeze your hand in response to touch, may turn their head in response to sound. Sometimes families want to believe so much that their loved one is responding to them, that they misinterpret these reflexes as signs of awareness. This in fact is a very common situation.

Now obviously I have not examined Terri myself, so I am in no position to opine on her medical condition. I just think it is incredibly irresponsible for Bill Frist, a physician, to look at that video tape and say that Terri may be aware and responsive. It's bad enough when non-medical members of congress do it, but his opinion has much more weight (as it should) and it is reckless and irresponsible for him to abuse that power for political gain.

I urge everyone reading this to make a living will, appoint a medical POA or at least talk about these issues with your family. It is amazing to me the number of patients I have taken care of with terminal cancer who have not discussed these issues with their family.

[SimeyTheLimey]

Originally posted by dcmacdaddy:
Umm, the US Supreme Court ALREADY refused to over-turn the ruling of the Florida Supreme Court when it was petitioned to do so. (Actually, the SCOTUS just refused to hear the case which leads me to believe that they found nothing worthy of merit to review in the petition to over-turn.)

I believe that the Fl Supreme Court's ruling was on the constitutionality of the Florida legislature's statute ("Terri's law"). The Supreme Court denial of cert on that issue doesn't mean it was ever asked to consider the underlying case.

More broadly and just as a general principle, denials of certiorari should never be taken as a sign that the Supreme Court of the US either agrees or disagrees with the merits of any case. Certiorari is entirely discretionary, and the Supreme Court takes only about 90 cases a year out of the thousands of petitions it receives.

[dcmacdaddy]

Originally posted by SimeyTheLimey:
I believe that the Fl Supreme Court's ruling was on the constitutionality of the Florida legislature's statute ("Terri's law"). The Supreme Court denial of cert on that issue doesn't mean it was ever asked to consider the underlying case.

More broadly and just as a general principle, denials of certiorari should never be taken as a sign that the Supreme Court of the US either agrees or disagrees with the merits of any case. Certiorari is entirely discretionary, and the Supreme Court takes only about 90 cases a year out of the thousands of petitions it receives.

OK. Thanks for clearing that up.
So, what, if anything, would the US Supreme Court be able to rule on now? The merits of the original case?

[SimeyTheLimey]

Originally posted by dcmacdaddy:
OK. Thanks for clearing that up.
So, what, if anything, would the US Supreme Court be able to rule on now? The merits of the original case?

I don't think so. All that was argued before the federal district court yesterday was whether or not the federal courts should order the feeding tube to be replaced as an emergency measure to preserve her life pending further proceedings. According to reports I have read, the federal district judge expressed skepticism about whether the family could win if the matter goes to a new trial. That's just based on news accounts of the hearing, I don't believe the judge has ruled yet.

Assuming he rules against the family, the family's next step would be an emergency appeal to the 11th Circuit. I think it is fair to say that each step of the way, the decisions of the courts below get harder and harder to overturn. So assuming the 11th Circuit rules against them, they could petition for a rehearing by the full 11th Circuit, and/or they could petition the Supreme Court -- but only on the narrow issues they are litigating at this stage.

The odds are heavily against the Supreme Court intervening in any case no matter what the merits of it. I'd say the odds of it intervening in a politically charged case are even slimmer. The last time the Supreme Court deal with this, it split 5:4 and issued a very narrow opinion. That was in 1989 and the makeup of the court has changed a bit, but I'd still doubt they would want to weigh in on this. Most particularly not because the real matter in dispute is basically factual. The Supeme Court intervenes in legal controversies, not factual ones.

I think the thing to emphasise is that appeals don't retry the case. Appeals deal with much narrower issues than trials. The odds of the family winning were always slim once the Florida trial judge ruled that he believed Michael Schiavo. It's not as some seem to assert that the appeals courts endorse and vindicate the trial judge, it is just the distribution of responsibility in our system. Courts are human, and no system of justice promises infallibility.

I'm happier knowing that there is at least some federal review taking place. Just like habeas review of a death penalty case, I don't see how anyone can argue that there is anything inherently wrong in more due process before a life is ended. I'd be happier still if in this case there were a federal retrial. But I'd be surprised if that happens.