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Judge Won't Order Schiavo Tube Reinserted

Given yesterday's reports on the two hour hearing before U.S. District Judge James Whittemore this shouldn't be a surprise.

TAMPA, Fla. (AP) - A federal judge on Tuesday refused to order the reinsertion of Terri Schiavo's feeding tube, denying an emergency request from the brain-damaged woman's parents.

U.S. District Judge James Whittemore said the 41-year-old woman's parents, Bob and Mary Schindler, had not established a "substantial likelihood of success" at trial on the merits of their arguments.

Whittemore wrote that Schiavo's "life and liberty interests" had been protected by Florida courts. Despite "these difficult and time strained circumstances," he wrote, "this court is constrained to apply the law to the issues before it."

Rex Sparklin, an attorney with the law firm representing Terri Schiavo's parents, said lawyers were immediately appealing to the 11th Circuit Court of Appeals in Atlanta to "save Terri's life." That court was already considering an appeal on whether Terri Schiavo's right to due process had been violated.

While I'm not privy to the Schindler's lawyers arguments, from the reports I've read it appears that their arguments focused on due process rights. In my opinion, given the time constraints, this seems like a strategic error. I continue to believe that the only viable issue on the table (worth arguing in court) is that the "clear and convincing evidence" standard regarding Terri's wishes has not been met. That directive was established in the Cruzan case before the Supreme Court, and given the new federal standing of the parents seems to be the clearest path to plow in fertile legal territory.

In a new case in the federal courts the burden of proof would be on Michael Schiavo, and a very strong argument could be made that Michael Schiavo has never met the standard in state court where he claimed Terri did not want to be kept alive by machines.

As todays ruling showed, everything else is superfluous.


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Comments (70)

My one and only question ha... (Below threshold)
nmgolfer:

My one and only question has always been why doesn't her husband just give custody of her to her parents? Let them sign the divorce papers he needs so he can marry his girlfriend, and then let her parents pick up the $80,000 a month bill that the state of Florida has been paying for the last 14 years.
The woman's cerebral cortex is liquid, she is never going to come out of the vegatative state she is in, all the doctors who have examined her from the beginning have said the same thing, she will never recover, I feel for her parents, but at some point you have to face the reality of the situation.

If the tragic case of Terri... (Below threshold)
T:

If the tragic case of Terri Schiavo shows nothing else, it shows how easily "the right to die" can become the right to kill. It is hard to believe that anyone, regardless of their position on euthanasia, would have chosen the agony of starvation and dehydration as the way to end someone's life.

A New York Times headline on March 20th tried to assure us: "Experts Say Ending Feeding Can Lead to a Gentle Death" but you can find experts to say anything. In a December 2, 2002 story in the same New York Times, people starving in India were reported as dying, "often clutching pained stomachs."

No murderer would be allowed to be killed this way, which would almost certainly be declared "cruel and unusual punishment," in violation of the Constitution, by virtually any court.

Terri Schiavo's only crime is that she has become an inconvenience -- and is caught in the merciless machinery of the law. Those who think law is the answer to our problems need to face the reality that law is a crude and blunt instrument.

Make no mistake about it, Terri Schiavo is being killed. She is not being "allowed to die."

She is not like someone whose breathing, blood circulation, kidney function, or other vital work of the body is being performed by machines. What she is getting by machine is what all of us get otherwise every day -- food and water. Depriving any of us of food and water would kill us just as surely, and just as agonizingly, as it is killing Terri Schiavo.

Would I want to be kept alive in Terri Schiavo's condition? No. Would I want to be killed so slowly and painfully? No. Would anyone? I doubt it.

http://www.townhall.com/columnists/thomassowell/ts20050322.shtml

I can think of no other per... (Below threshold)

I can think of no other person in the US who has had more due process involved in their case in recent history. Poor argument.

I can think of no oth... (Below threshold)
been there:

I can think of no other person in the US who has had more due process involved in their case in recent history. Poor argument.

If you really believe that you have not been paying attention.

The facts are out there. If you only care to read USA Today and watch CNN you are no better off than if you were reading The Weekly World News and watching QVC.

Perhaps an even better education might come from asking a few disabled people around you about thier expreiences with medibiz and the killing machine.

A great many people have an unreasonable fear of disability and the disabled. They claim that thier desire to have these people out of thier sight and in the ground is based on compassion or a desire to give them dignity. If this bigotry was focused based on race or nationality rather than ableism though few would accept the lie.

I can think of no other ... (Below threshold)
Julie:

I can think of no other person in the US who has had more due process involved in their case in recent history. Poor argument.

What an ignorant remark to make. Stick to what you know and leave opinions on appellate review to the experts.

I hear these dumbass remark... (Below threshold)
Julie:

I hear these dumbass remarks that dying of starvation is "peaceful" and "painless." Tell that to the families who have had to watch love ones die of anorexia. Plus, she will not die of starvation but dehydration which is also NOT peaceful and painless.

What beenthere wrote (^^).<... (Below threshold)
-S-:

What beenthere wrote (^^).

Even in my own family, my mother's comments (about which I wrote a while ago, regulars here may rememeber the story from about a week ago), that "(she) (didn't) want to be a burden to anyone" (and therefore that she wanted everyone/anyone to end her life if she was ever in an incapacitated state, required life support measures inorder to maintain her life).

That comment alone was never part of the family lexicon. No one ever suggested that she (or anyone else) would "be a burden" if and when they were incapacitated. It was my own mother's prejudice speaking and one that she was applying to her own case, suggesting that anyone ELSE would, in fact, "be a burden" to her should they ever be in that situation, circumstance.

Because, that opinion of hers, held so staunchly, used for such an iron-clad demand upon the rest of the family by my mother never arose from or among any of the rest of us, who all treated her with regard, caring and concern throughout her life.

I think that the entire euthanasia, suicide/murder/abortion as solution to a problem mentality is responsible for a terrible devaluation of human life (and all life, at that) and although it's managed to rule to an extent in places like the Netherlands, people forget that the Netherlands and region suffer the highest level of schizophrenia and suicide on the planet. The trend there that is seeping outward just may indicate a higher level of insanity than elsewhere, not solution.

In all due respect to any reader of this suffering from schizophrenia, it IS an insanity, a psychosis, so no insult intended, just making a point about the illness, the gravity of the illness and the far higher than usual numbers of occurences of that illness in the Netherlands and nearby areas and all the many problematic demands for certain social changes that originate there. Should be taken into consideration that the area is remarkable for a high occurence of mental illness, is my point, particularly of schizophrenia which is among the most severe of psychoses.

Yeah, Julie, agreed: those... (Below threshold)
-S-:

Yeah, Julie, agreed: those comments arise from those who rationalize that, as long as they don't hear Terri Schiavo formulate her level of pain and suffering, that there is no level of pain and suffering involved, that as long as they can dismiss -- however inaccurately -- Terri Schiavo as "having nothing but fluid in her head," that that means that there is no suffering involved in a death by dehydration and starvation.

Just because a person, specifically Terri Schiavo, has loss of brain as organ, loss of mind as reasoning capacity, does not mean that she experiences nothing, feels nothing, is devoid of pain and suffering while undergoing painful methods that involve suffering.

Dogs, cats, horses, pet turtles even, all of these, they don't have the same ability to reason, think and feel as do us humans and yet we would not consider allowing any of those to die by the same process that is being set upon Terri Schiavo.

The rationalizations in these circumstances is astounding, by those who need to think that Terri's just-being-gradually-erased-away-into-happy-oblivion-where-she'll-find-nothingness-soon...it is barbarism, the failed reaonsing of the barbaric who postulate as that.


About the "fluid in her head" complaint (that is being used by some to dismiss her worth as a human being, to assign an inaccurate state of "death" to a living person with diminished brain capacity as has Terri Schiavo), there's even argument to support that that complaint is false, given what is supposedly Terri Schiavo's MRI, and since a CT scan of her head has been disallowed by Michael Schiavo.

Michael Schiavo is going to hell. I've never written that about anyone before, but in this case, the man has committed mortal sin and many times over.

...and is unrepentent and i... (Below threshold)
-S-:

...and is unrepentent and incessant about the commitments.

Never thought I would see t... (Below threshold)
LJD:

Never thought I would see the day when conservatives would spew nonsense on a level equal to the moonbat left. Comparing murder of animals and the pain of starvation by anorexia with this Sciavo "thing". Do any of you know what you're talking about? Do any of you have any medical experience?

First, her brain is mush. She does not "feel". Second, she is in hospice, and if she shows signs of distress (a natural, reflexive response from the human body, not a conscious response) she will be medicated.

I would think that those who want to make this a pro-life debate would be concerned about mankind interfering with God's decision to take this woman. What of her soul, trapped in limbo for 15+ years?

Google up some info on hospice. This is nothing new; such decisions are made every day. This is not a debate about abortion. Get over it.

LJD: Why are you against le... (Below threshold)
Bill:

LJD: Why are you against lethel injection of Terri? Why do you insist on starving her to death?

I have heard all of these a... (Below threshold)
patrick:

I have heard all of these arguements of the burden of proof being on the husband and why doesn't he let the family take over and I can only think of my case. My wife is my best friend and closest confidant, I have told her repeatedly that if I am in that state that I want to go and meet my maker. I have not filled out a living will and this may prompt me to do it but if my family, who hardly knows me, imposed their catholic views on my wife and dragged her through the kind of hell that Terry's husband is going through I would never forgive them. My wife knows me best, is my next of kin and makes those kinds of decisions period. I made a statement to my family, my friends, and my wife when I said "I do". I don't understand why no one can see this.

The following excerpted fro... (Below threshold)
Old Coot:

The following excerpted from an article by Thomas Sowell:

"If the tragic case of Terri Schiavo shows nothing else, it shows how easily "the right to die" can become the right to kill. It is hard to believe that anyone, regardless of their position on euthanasia, would have chosen the agony of starvation and dehydration as the way to end someone's life.

No murderer would be allowed to be killed this way, which would almost certainly be declared "cruel and unusual punishment," in violation of the Constitution, by virtually any court.

Terri Schiavo's only crime is that she has become an inconvenience -- and is caught in the merciless machinery of the law. Those who think law is the answer to our problems need to face the reality that law is a crude and blunt instrument.

Make no mistake about it, Terri Schiavo is being killed. She is not being "allowed to die."

She is not like someone whose breathing, blood circulation, kidney function, or other vital work of the body is being performed by machines. What she is getting by machine is what all of us get otherwise every day -- food and water. Depriving any of us of food and water would kill us just as surely, and just as agonizingly, as it is killing Terri Schiavo.

Would I want to be kept alive in Terri Schiavo's condition? No. Would I want to be killed so slowly and painfully? No. Would anyone? I doubt it.

Every member of Terri Schiavo's family wants her kept alive -- except the one person who has a vested interest in her death, her husband. Her death will allow him to marry the woman he has been living with, and having children by, for years.

Legally, he is Terri's guardian and that legal technicality is all that gives him the right to starve her to death. Courts cannot remove guardians without serious reasons. But neither should they refuse to remove guardians with a clear conflict of interest."

Anyone want to disagree with those words?

patrick: We will remember t... (Below threshold)
Bill:

patrick: We will remember this when your wife kicks or beats you to death. What...dying in agony isn't what you REALLY want? What you really want is to die in a dignified and humane fashion?

Well tell you what "Mr. Compassionate" -- dying by starvation and dehydration is undignified, cruel, painful and inhumane. Is that really how you want to go?

patrick--I am very... (Below threshold)

patrick--

I am very glad of your strong bonds to your wife, and I certainly feel the same way towards mine. Terri, however, has not enjoyed that sort of bond since Michael warehoused her and became engaged to the woman by he currently has two children. His "I Do" seems to ring a little hollow--or maybe that "in sickness and health" part was left out of their vows.

been there: I like that word: "ableism." it speaks to the trend to deny personhood to someone who arrives at this state, who, if they were only gay, or a racial minority, would enjoy the full complement of legal defense at any expense.

My wife kicks or beats me t... (Below threshold)
patrick:

My wife kicks or beats me to death? Since I don't own a gun that would be her method I guess but I don't think so, Bill you only seem to think in violent terms. My wife has worked for twenty years taking care of alzheimers patients and knows what is and is not a vegetative state and knows how people feel when they have no control over their lives or dignity so I married a compasionate person who would fight to the death to see that my plug were pulled and that I met death humanely, why does the family not ask for morphine if she is truly suffering pain why does the court not order that? BoDiddly, I would not deny my wife human companionship if I were in avegetative state with no hope for so many years, nor would she ask that I sacrifice and face the pain that Terry's husband has faced for years agonizing over this.

LJD: I hate to burst your ... (Below threshold)
-S-:

LJD: I hate to burst your omnipotence thought bubble, but Terri Schiavo's brain is not "mush." That's a ready argument by some to sidestep the "worthiness" of Terri Schiavo as human being to life and to avoid suffering.

You've taken the Road to Moonbattery by concluding that "Terri's brain is mush," because that helps you remain comfortable in the "I'm devoid of human compassion and empathy" secure corner.

To the contrary, there is MEDICAL evidence via MEDICAL opinion by MEDICALLY trained-read-licensed-medical-doctors to indicate that although Terri Schiavo has reduced brain capacity, she most certainly does not have "mush" inside her head to the nonexistence of upper brain function. She's suffering limited brain capacity, yes, no one argues with that, but the idea that she has "mush" and nothing more inside her head is one that is useful for Michael Schiavo's argument that other humans dismiss Terri to death based upon her "inhuman-ness". If she's got mush inside her head, she's "already dead" and she's "not human" or no longer human, all that, and so removing her feeding tube doesn't pose a problem to others' human consciences.

But, unfortunately and to wake you up, you can easily find current commentary on the internet by licensed medical doctors who reason that, even based upon what has been represented by Michael Schiavo (in court, no less) as being an MRI of Terri Schiavo's head, that that alone indicates that she is gravely disabled but not entirely "mush" but poses actual capacity instead. I'm guessing that Michael Schiavo and supporters are the persons who have disallowed medical opinions about this, not the rest of us.

The woman's cerebral ... (Below threshold)
TnTexas:

The woman's cerebral cortex is liquid,

My understanding is that no one knows that for certain. The medical test that could prove that claim conclusively has not been done.

she is never going to come out of the vegatative state she is in, all the doctors who have examined her from the beginning have said the same thing, she will never recover .....

No, they haven't. The ones that have spent the most time with her have said that not only is she not in a PVS state but also that she could possibly recover to one degree or another if given proper therapy.


" Bill you only seem to thi... (Below threshold)
Bill:

" Bill you only seem to think in violent terms"

Nope, but you are Patrick and you are also hiding the truth from yourself. Deliberatly depriving someone of food and water is the same immoral plane as kicking or torturing someone to death. This isn't "pulling the plug," it is killing an innocent human being in a cruel inhumane fashion.

As evil and disgusting as it is, terrorists chopping a person's head off is more humane than what the State of Florida and Mr. Schiavo are doing to Terri. However, both actions are about equally undignifed and cruel.

Deliberately killing by starvation and dehydration is a horrible way to die and an insult to humanity.

patrick:Terryu Sch... (Below threshold)
-S-:

patrick:

Terryu Schiavo left no written, recorded testimony as to what it was she thought, wanted, valued, opined as to her care should such a thing take place that did. And, thus, all that exists is the husband's opinion about what he says Terri wanted, and even that has been represented inconsistently by Michael Schiavo, even recently so.

But what IS available, aside from Michael Schiavo's, are these facts: friends and family of Terri Schiavo all say that she was not happy in her marriage to Michael Schiavo, that she was "a devout Catholic" (and, therefore, because of that, there is suggestion, if not outright indication, that Terri was/is a person who would not want to have her life terminated other than by her natural death, that she never wanted to have her life terminated by Michael or by anyone else, despite what Michael Schiavo says she said but cannot evidence that she did).

To my view, there is more indication that Terri Schiavo would not want her life ended by Michael Schiavo or anyone else, should she have some directive in that case (other than by accident or crime and at this point, Michael's insistence on her death suggests criminal behavior/intent to me)...based upon comparing what Michael says she said and what the other greater numbers of persons who knew Terri well said she said and what she valued, what her values and beliefs were.

The ONLY person who counters these statements is Michael Schiavo and about him various persons have already indicated that Terri Schiavo, prior to her onset of disability, had her own moral and ethical and emotional and reasonable doubts.

That's the issue for me, that Terri indicated earlier in life that she did not have full confidence and trust in Michael Schiavo as mate/spouse and whatever she did or may have said to him at some earlier time -- perhaps during a time of trust -- is dismissable to my view based upon what confidants/friends said Terri felt and reasoned and shared with them.

The spousal bond is paramount, yes, when the trust, the spousal relationship, actually exists. In this case, it appears to not have existed and Michael Schiavo has not acted as if he held any bond with Terri as sacred. At least, since she was incapacitated and there is even evidence to indicate that he didn't prior to her incapacitation (there is suggestion that he was abusive toward her).

IF Terri Schiavo had left a recorded directive that left Michael Schiavo with her confidence and requests, then there'd be a non-issue here and he would not be quite so questionable. But, she didn't and he has only his own sense of willful demand to support what he says he believes ought to be done. And has displayed a very long list of denials of even basic humane treatments on Terri's behalf, to the extent that Terri has actually suffered abuse by denial of care.

Those aren't the indications of a caring spouse, non or all of those. Married or not, Michael Schiavo appears to have devoted a great deal of conscious, determined energy to bringing about both the death of Terri Schiavo but also increased suffering be delivered to her. Just because he says so.

LJD:Do any of y... (Below threshold)
Julie:

LJD:

Do any of you have any medical experience?

Yes. Do you?

This is not a debate about abortion. Get over it.

Who said it was? Learn to read or get over it.

this Sciavo "thing"

Thank you. This says it all about you.

Hmmm."Her brain is... (Below threshold)
ed:

Hmmm.

"Her brain is mush"

Really? You have first-hand knowledge of this? You have proof?

Or are you just repeating what you've read *other* people have written.

This is the central core problem with this case. What is at dispute ARE the facts.

patrick: so, then, if your... (Below threshold)
-S-:

patrick: so, then, if your wife restrains you in a closed, sealed room devoid of any possible contact from others in society unless they are controlled strictly as to their touching and interactions with you (they can't remove your restraints, they can't remove you from your circumstances, they can't engage others inorder to aid your situation, you can't speak or vocalize what it is you want because your mouth is forcibly closed and no one is allowed by your spouse to remove the force involved, or to in any way evaluate what it is you may need or to provide you with any other helps other than to stand and speak and wave balloons over your head)...

And you are prevented from receiving any water and food and left in your restraints by your wife -- who comes and goes but says that she is determined to stay by your side inorder to ensure that no one interfere -- and you think that would be alright because she's your wife?

Me, I'd think I was being held hostage by a murdering maniac. Perhaps married to the murdering maniac, but still a murdering maniac. A marriage license doesn't change the fact that the person is still a murdering maniac, but being restrained and held helpless in a closed room without the possibility of having anyone rescue me, assist me in changing the circumstances, wouldn't change the fact that the circumstances had been brought about and were being maintained by a murdering maniac.

RE: -S-'s post (March 22, 2... (Below threshold)
AnonymousDrivel:

RE: -S-'s post (March 22, 2005 10:18 AM)
Dogs, cats, horses, pet turtles even, all of these, they don't have the same ability to reason, think and feel as do us humans and yet we would not consider allowing any of those to die by the same process that is being set upon Terri Schiavo.

You bring up an intersting point. Now, admittedly, I'm not up on my animal neurophysiology, but some would argue that we don't know the reasoning/thinking/sensing abilities of others in the animal kingdom. To the extent that their cerbral cortex is proportioanlly smaller than homo sapien is valid, and that is where higher functions materialize. I would assume with limited knowledge, an incomplete understanding, and perhaps some arrogance that our cortex is the most vital in the world. However I have learned this, it remains that science in its limitations cannot know this with absolute certainty though the evidence seems obvious.

Having acknowledged that the cortex is the pertinent center of those things to which you mentioned, it is that very tissue that is lacking (or heavily compromised) in the Schiavo case. If indeed she has lost those loci of reasoning/thinking/sensing, I wonder how much of Terri is really there.

That doesn't discount your following point:

Just because a person, specifically Terri Schiavo, has loss of brain as organ, loss of mind as reasoning capacity, does not mean that she experiences nothing, feels nothing, is devoid of pain and suffering while undergoing painful methods that involve suffering.

Ultimately, we cannot know (using current technology) with absolute certainty when sensation of "experience" ends. This grey area will persist longer than humanity though we may strive to understand, define, and quantify it.

And, returning to that hypo... (Below threshold)
-S-:

And, returning to that hypothetical situation, patrick, your situation of being held in restraints and unable to vocalize your preferences would explain your limitations, but would not offer any explanation or even justificaition, much less rationalized acceptance, about the behavior by that murdering maniac, err, spouse.

You know, I could almost un... (Below threshold)

You know, I could almost understand the left's insisting that she be starved since they have long ago decided that the value of human life is not of utmost importance. I could almost understand it if this was Michael Shavio against the courts. But how can anyone with an ounce of compassion not want to allow her parents to take care of her.

This is the one thing I will never understand.

AnonymousDrivel: as to my ... (Below threshold)
-S-:

AnonymousDrivel: as to my own conclusions about what I have accepted as understanding about other animal and even plant life, I do believe that there is far more intelligent thought on our planet than the common human standard describes.

Having grown up for some of my youth and spent even some adult years on ranches and farms and other rural areas, I can easily say that, based upon my many experiences with other lifeforms other than humans, that there is a great deal of sensitivity, reasoning, awareness and 'thought' going on in our living world and a lot of that is by other species other than humans.

That whole "horse whisperer" thing is entirely and easily shared by most who are familiar with equines, for example, and most of us who have spent time with and around horses in herds easily understand the intelligence, awareness, 'feelings' and emotions and reasoning and more that they display and do so every single hour of every single day. As with other species of life. I've even had fish that knew who I was when other humans were present...they'd respond t me as food source and by familiarity and flee from others.

By the very present commitments to cats by many among the Left, I'm amazed that they can assume so much about the personalities and needs and wants (and most even about the "thoughts") of their cats, and yet assume that Terri Schiavo has "mush" for "brains" and therefore is less than human and that suffering and death are meaningless in her case. Whoops, and yet the cat is called Mr. or Ms. Whatever and can be described in numerous websites and millions of words as to the thinking and feeling displayed on Tuesday and woulnd't want it's paws hurt or harmed or to be cold or lost or not fed or unloved or not brushed or chased by the mean dog or...

Well my wife (AKA done that... (Below threshold)
been there:

Well my wife (AKA done that) knows my wishes and knows first hand the inherent injustices built into the system that supposedly protects the disabled. I say supposedly as the only true protection seems to be for those who wish to protect their right to be killed in the most economical method available.

Undoubtedly she could made my wishes quite clearly known in the event of serious illness or disability. She has the intelect even though her detractors would prefer that you only see her disability.

Here's the tricky part though. When it came to the point where she needed a lawyer to help protect my life she would be hard pressed to find one unless she could find one who was willing to donate their time based on a dedication to the concept of human and/or disability rights. Why? Because a brain injured, working class person has very little cash value. The average Attorney is going to view the bottom line as the bottom line.

Ask yourself what your cash value is.

Now ask yourself how much an advanced directive requesting full care is really going to help you.

If your are not profitable, you are dead.

Quote: If you really believ... (Below threshold)

Quote: If you really believe that you have not been paying attention.

The facts are out there. If you only care to read USA Today and watch CNN you are no better off than if you were reading The Weekly World News and watching QVC.

Perhaps an even better education might come from asking a few disabled people around you about thier expreiences with medibiz and the killing machine.

A great many people have an unreasonable fear of disability and the disabled. They claim that thier desire to have these people out of thier sight and in the ground is based on compassion or a desire to give them dignity. If this bigotry was focused based on race or nationality rather than ableism though few would accept the lie.
Posted by: been there

What does any of that have to do with her due process? Perhaps an education on basic law would help you respond correctly, instead of some unrelated tangent about the disabled.

Ask the disabled because so... (Below threshold)
been there:

Ask the disabled because so many of them have been deneyed due process again and again.

Ask the lawyers and judges that deneyed them due process and they will tell you everything was done properly. Same with the people that gained from the above denial of due process.

Clear enough?

What due process was denied... (Below threshold)

What due process was denied in this case?

All you "killers" out there... (Below threshold)
Ted:

All you "killers" out there should grow a set and advocate lethal injection. You want her dead, so don't be a coward about it and end it quickly and in a more dignified matter. Dogs and cats are not humans, yet we put them to sleep in a painless, more dignified manner than this. Even if she is "dead" she was still once a human being. Starving her to death is a slap in the face to those who loved her and to all of humanity.

Gabriel Chapman wrote:... (Below threshold)
Sue Dohnim:

Gabriel Chapman wrote:

What due process was denied in this case?

Just one example: one and only one judge acting as a finder of fact.

The federal judge was supposed to review the case de novo, but since didn't order any of the tests done requested by at least two of the three Guardians Ad Litem, he obviously didn't.

Time to move the goalposts, snap to it.

Ignore that "done" in my pr... (Below threshold)
Sue Dohnim:

Ignore that "done" in my previous post. I got in a hurry during editing.

Sue, you do realize that mu... (Below threshold)

Sue, you do realize that multiple courts have overseen this case and have ruled time and time again against Terri's family.

Go read through the timeline, note the multiple court decisions about this case, note the number of judges who have had something to do with the various decisions (numbering close to 20 judges as it stands right now), then tell me that due process has not been afforded.

http://abstractappeal.com/schiavo/infopage.html

<a href="http://www.discove... (Below threshold)
been there:

BEYOND TERRI'S LAW click this link to read in context

The Myth of 19 Judges: Supporters of Terri's dehydration often argue that Terri's rights have been fully protected through extensive judicial oversight. Michael Schiavo put it this way on “Larry King Live”: “Nineteen judges have come to the conclusion that this [dehydration] was Terri's wish.” His attorney George Felos then added, “This case has gone from the trial court to the appellate Court to the Florida Supreme Court, to the U.S. Supreme Court, to the Federal District Court. All of those judges have looked at this case, have looked at the facts, and have found that Mike acted properly.”

Well, bunk. The case has been shunted back and forth between the Sixth Judicial Circuit Court and the Florida Second District Court of Appeal, where the rulings have been repeatedly replayed like a looping audio tape. Only one trial judge and one appellate court actually reviewed the evidentiary record. Moreover, contrary to Felos's assertion, the Florida Supreme Court and the U.S. Supreme Court did not look at the facts. Rather, both declined to review the case. Refusing to rule is not the same thing at all as studying the record.

This is a crucial point because many important and highly relevant facts have never been fully litigated. For example, because the Schindlers could not afford to hire a neurologist to examine Terri at the time of the original trial, Judge Greer heard only one perspective about Terri's medical condition.

This situation has now changed. Several doctors and rehabilitation experts have signed affidavits asserting not only that Terri is conscious, but also that she could be weaned off her feeding tube with rehabilitation. Judge Greer refused to permit this evidence to be presented fully in open court, however, because to do so, he said, would be to retry the case.

you're wrong been there:</p... (Below threshold)

you're wrong been there:

The second court of appeals reviewed the evidence provided and concluded:

Since 1990, Theresa has lived in nursing homes with constant care. She is fed and hydrated by tubes. The staff changes her diapers regularly. She has had numerous health problems, but none have been life threatening.

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 fluid. 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, totally dependent upon others to feed her and care for her most private needs.

They then went on to rule add later:

Although the physicians are not in complete agreement concerning the extent of Mrs. Schiavo's brain damage, they all agree that the brain scans show extensive permanent damage to her brain. The only debate between the doctors is whether she has a small amount of isolated living tissue in her cerebral cortex or whether she has no living tissue in her cerebral cortex.

Additionaly, the Second ruled:

[T]he Schindlers argue that the testimony, which was conflicting, was insufficient to support the trial court's decision by clear and convincing evidence. We have reviewed that testimony and conclude that the trial court had sufficient evidence to make this decision. The clear and convincing standard of proof, while very high, permits a decision in the face of inconsistent or conflicting evidence. See In re Guardianship of Browning, 543 So. 2d at 273.

Just because you do not like the courts rulings doesn't mean they are wrong. Accept that this case has been reviewed by multiple parties, and the conclusion has been the same, thats why there have been what 5 different rulings to remove the tube.

Gabriel Chapman,Th... (Below threshold)
Sue Dohnim:

Gabriel Chapman,

The number of courts means nothing. The operative phrase was de novo.

Move 'em again, tiger.

5 different rulings from th... (Below threshold)
TnTexas:

5 different rulings from the same judge; no?

If you want you can read Ju... (Below threshold)

If you want you can read Judge Whitmores response, which pretty much lays out exactly why this case is going nowhere: http://abstractappeal.com/schiavo/FederalComplaint032105.pdf

Plaintiffs' argument effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme. By fulfilling his statutory judicial responsibilities, the judge was not transformed into an advocate merely because his rulings are unfavorable to a litigant. Plaintiffs' contention that the statutory scheme followed by Judge Greer deprived Theresa Schiavo of an impartial trial is accordingly without merit. Defendant is correct that no federal constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow.

Wow, sounds like an appeal ... (Below threshold)
Sue Dohnim:

Wow, sounds like an appeal and not a new finding of facts. Imagine that.

I'm never going to DisneyWorld again, that's for sure. If I had an accident and became disabled, they'd find a way to off me as long as they found someone in my family to agree with it. Just ask Marjorie Nighbert or Terri.

Plaintiffs' argument eff... (Below threshold)
Tammy in Texas:

Plaintiffs' argument effectively ignores the role of the presiding judge as judicial fact-finder and decision-maker under the Florida statutory scheme.

And that right there is the catch. The law may give the judge the right to determine the facts, but that doesn't mean that he determined them correctly. It doesn't even ensure that he made a good-faith effort to do so. From Starving for a Fair Diagnosis:

Given the difficulty of diagnosing PVS, the high rate of error, the obvious bias of the doctor whose judgment forms the basis of the judge’s ruling that Terri is PVS, and the growing outcry from the neurological community, how is it that Judge Greer’s ruling has been sustained? The answer is that in our legal system, once a judge has ruled on a matter of fact, it is very difficult to revisit such a ruling. The lawyers’ rule of thumb is that trial courts hear and rule on questions of fact, and appellate courts rule on questions of law; it’s unusual for an appellate court to overturn a lower court’s ruling because of an issue of fact.

That’s why, at every turn in this case, the Schindlers have had to try to undo the faulty rulings of fact previously issued by Judge Greer. They’ve had to go back before Judge Greer himself and try to convince him that he was wrong, and should undo his own rulings. Judge Greer has proven unwilling to do so. The higher courts, unwilling to overturn a trial judge’s rulings of fact, have no interest in granting new hearings. Michael Schiavo and George Felos have no interest in revisiting Terri’s diagnosis, as that ruling provides the whole legal basis of their ability to end her life. Dr. Cranford has no interest in seeing his own diagnosis called into question. Dr. Bell lamented that at this point, "medical realities are no longer governing this case." He added that it seemed to him that medical issues concerning the care of the patient had been subsumed by legal issues. In our courts, he added, "once a decision is made they don't want additional information."

The whole history of Terri’s case over the past few years can be summed up as the efforts of the Schindlers, and those who value Terri’s life, to try to introduce additional information before the courts and other authorities. Some of this information consists of facts and arguments that were ignored or dismissed without adequate consideration; some has been the result of advances in the diagnosis and treatment of brain injuries over the last five years. On the side of Michael Schiavo, George Felos, and Judge Greer, their efforts have consisted almost entirely in trying to prevent any new information from being presented or considered.

So I take it that the Jim C... (Below threshold)
been there:

So I take it that the Jim Crow laws having been approved by many courts were right? How about sodomy laws? Blue laws? Internment of Japanese Americans during WWII?

How about other countries? Is a Chinese court dealing with a Tibetian trouble maker as valid as Greer?

How about a small town Judge who fines you $500 when his brother the Chief of Police catches you speeding. Still in the right?

I wish I could have found someone as trusting as you when I had old cars for sale.

RE: Gabriel Chapman's post ... (Below threshold)
AnonymousDrivel:

RE: Gabriel Chapman's post (March 22, 2005 02:13 PM)
Just because you do not like the courts rulings doesn't mean they are wrong. Accept that this case has been reviewed by multiple parties, and the conclusion has been the same, thats why there have been what 5 different rulings to remove the tube.

You are now disposing of nitrogenous matter with concomitant salts/toxins in solution against a forcefully and locally aggregated atmospheric disturbance. The sides are intractable and I fear you will soon become part of the swirling vortex with the accompanying masses whacking your noggin. Be prepared to see the same material fly at you over and over again - maybe to the point that you start recognizing the fingerprints.

Wear your hardhat and have fun...

The Congress created this d... (Below threshold)
Stan25:

The Congress created this district court and now they show their balls by getting rid of it. I want to see the Congress do this to all of the liberal districts. That would retire a bunch of the Clintoon and Peanut Carter appointees.

AD: good point indeed. In t... (Below threshold)

AD: good point indeed. In the lexicon of the Flame Warriors, many on the Schiavo family side are indeed Stone Deaf and no amount of legal precedent, medical analysis, etc will make a dent in their armor.

Lets disregard that most of them do not comprehend what "de novo" means and will argue ad nausea under false pretenses regarding its application. Lets also ignore that most legal opinion does not side with the Schindler family, as proven by countless rulings.

Once agin, you have people railing against a ruling simply because they do not like the result, not because there was a flaw in the conclusion. The Second District court mentions this as does the latest ruling. When one removes the odd emotional attachment to the issue, and actually looks at the case with an objective viewpoint, its pretty clear to see what the end result should be.

Of course very few will see the hypocracy of trying to save a brain dead woman, yet have no problem executing a retarded man. Go figure.

Reinsert the tube, then wha... (Below threshold)
Clash City Rocker:

Reinsert the tube, then what? She gets to lay in a if not permanent vegatative state a semi VS, then what, the great state of Fla. gets to keep footing the 80k a month to keep a person alive that according to most doctors has little to no cognative abilities, her muscles have athropied, her brain is nearly gone, what is she going to do, miracously jump up and do a jig. No I am sorry, she should be allowed to pass in peace, a long slow morphine needle, and just let her pass. I really and truly feel for her parents and siblings, they do not want to let her go, but sometimes you just have to face the facts, life begins and life ends, not always the way we want it to, but it does. I also have no qualms about laying a lot of this mess at the feet of the right to lifers, you want to preserve her life, you pick up the tab.

Clash City Rocker:... (Below threshold)
Julie:

Clash City Rocker:

Obviously, you don't feel sorry for her family because your proposed solution will never happen because it is against the law. Thanks for wasting bandwidth.

RE: Gabriel Chapman at Marc... (Below threshold)
AnonymousDrivel:

RE: Gabriel Chapman at March 22, 2005 03:48 PM

Great site by the way.

I was introduced to it once, and only once, before when I ventured into a rabidly Left domain. One threw this at me as I tried to engage on topic. I, forced to respond in like manner (hey, it was a bladder-emptying process at that point), tagged the accuser with equal abandon. I should have reconsidered but this was already rustling. Eventually a real response came but the exercise, in retrospect, was pointless.

I'd be curious how posters would (mis-)characterize themselves? That might be entertaining.

If she is isn't legally a p... (Below threshold)
Serious Question:

If she is isn't legally a person (i.e. she's a corpse or piece of meat), how can it be illegal to give her a lethal injection?

Aferall, the State wouldn't be killing her (since the State says she is already dead).

If it's illegal to give her a lethal injection, which means she's a person, how can the State deprive her of substance when it is clearly illegal under Florida law to deprive someone of food or water?

how can the State depriv... (Below threshold)
Brian:

how can the State deprive her of substance when it is clearly illegal under Florida law to deprive someone of food or water?

Food and water delivered in an assisted fashion is considered "life support" by the Florida state legislature. And they further say that it is legal, when appropriate, to withdraw life support.

JulieYou'd be surp... (Below threshold)
Clash City Rocker:

Julie

You'd be surprised how many times that long slow morphine needle is given on a yearly basis in hospices, nursing homes, and private care facilities.

Oh well, Gabriel Chapman is... (Below threshold)
Sue Dohnim:

Oh well, Gabriel Chapman is so much smarter than I am, since he's just devastated my point by showing me how I was wrong about the definition of de novo.

Oh wait a minute, no he didn't. Sorry, my bad.

You can start dancing and celebrating soon, Gabe, Terri will be dead in a day or two.

By the way, who did you have iced? Mom? Grandma?

One need not “ice” anyone t... (Below threshold)

One need not “ice” anyone to understand how congress has overstepped its role in this particular case. Drop the emotional aspect of the case and what do you have, a very vocal pro-terri segment that pushes conspiracy theories, uses “experts” with questionable credentials (who’s opinions fly in the face of not only conventional wisdom, but generally accepted medical principles), and generally seem incapable of looking at the issue from an objective standpoint. Driven by an odd religious ideology that is highly ignorant of science (not fully unexpected when dealing with zealots), their case for interference falls flat when looked at from a legal standpoint, that’s exactly why the Schindler family has lost nearly all court challenges.

Congress in my view has no right to order a de novo (essentially a “do over” taking into account new evidence) review in this case, as Judge Whitmore correctly ruled, because there is no new evidence, at least none that would change the outcome of Terri’s condition. There are no findings of fact that are in dispute, unless you believe the tinfoil hat crowd who seems to think that Terri will one day rise and recover, or the other idiots who are outright lying about the husband choking her to death, or wanting her dead for the money (what money?) LA Times did a pretty extensive review about PSV today and noted that there is at last count, a single case of a PVS patient recovering and that was back in 1979 with the case of a police officer who had choked on his own vomit, resulting from a gunshot wound to the neck, who later came out of a PSV like state 20 months later. The key being there, 20 months, not 180 months.

As I have said before, just because you don’t like the ruling, doesn’t mean that it was incorrect or that it came to the wrong conclusions. From an ideological standpoint, I don’t like many court rulings, but that doesn’t mean they are incorrect in the eyes of the law. You seem incapable of separating your emotion driven ideology from logic, fact, and law.

If you want to continue to live in this fantasy world where Congress bends the law for pure political gain (at this point I dispute the gain) then by all means please do so, remain one of the brainwashed masses being told how to think instead of thinking for yourself. God forbid you actually challenge your narrow world view that has put you into this groupthink cocoon that allows you to ignore logic and rational thought.

gaBRIel chapmAN</... (Below threshold)
been there:

gaBRIel chapmAN

Clash City Rocker:... (Below threshold)
Julie:

Clash City Rocker:

And you'd be surprised how fast you would be prosecuted for murder. If you haven't figured it out yet, whether *she* wants to die or not is a contested issue.

Unfortunately Clash is righ... (Below threshold)
been there:

Unfortunately Clash is right. Morphine is used quite often to euthanize patients.

Still euthanasia though and still against the law. A law seldom enforced.

been there:does yo... (Below threshold)

been there:

does your response have a purpose?

think Gabe, think... (Below threshold)
been there:

think Gabe, think

BEen THere</p... (Below threshold)
Brian:

BEen THere

Gee, that was fun. Shall we do anagrams next?

Why do people need mulitple... (Below threshold)
-S-:

Why do people need mulitple I.D.s is my question. To show (false) "reinforcement" for thier opinions? If so, it indicates weakness, someone in need of a circle that doesn't, in fact, exist.

My ID is my own. Unlike mos... (Below threshold)

My ID is my own. Unlike most people I don't hide behind a false name. Click my name, and you can find out who I am. I don't know who Brian is, nor Beth. Regardless, your petty attempt to derail the debate is pointless.

RE: Gabriel Chapman post (M... (Below threshold)
AnonymousDrivel:

RE: Gabriel Chapman post (March 23, 2005 08:30 AM)
My ID is my own. Unlike most people I don't hide behind a false name. Click my name, and you can find out who I am. I don't know who Brian is, nor Beth. Regardless, your petty attempt to derail the debate is pointless.

GAbriel Chapman, they're on to us. Pack your bags and let's go raid another site. Our arrows cannot penetrate such armour any more - we have been discredited, utterly.

Your colluding schizophrenic, AnonymousDrivel.

Ha, "Gabriel Chapman," I do... (Below threshold)
-S-:

Ha, "Gabriel Chapman," I don't know who you allege is "atempting to derail the debate" and/or is "pointless" but that's enough, right there what you've written, to say that you're off the track, far off in the fifty acre field adjacent to the track, and are facing away from the track.

What is "false" is behavior. And pretense. And, a lot of times, one person detracked will then engender others and you get the phenomenon of a group of users off the track, lost in the field, all wandering in a non productive direction away from the track.

I took the earlier suggestions about permutations of user I.D.'s to indicate that there was a noticable similarity in tone shared or mutually by yours and those by "Brian," who also, as do you, display more than a trackless regard to others here. So, some of us marvel that you're trying to run along in the field so far away from the track while the rest of us are actually on the train. And, we can see you from the windows.

Brian is just another howle... (Below threshold)
been there:

Brian is just another howler monkey like you. I was making sport of the simularities in your maner not accusing you of being him. As you pointed out all anyone has to do is click on your name to find out who and what you are.

Sorry to upset you, feel free to go back to screaching and throwing your feces.

I have no idea who beth is.... (Below threshold)
been there:

I have no idea who beth is. If it's all the same to Brian I'll go with a John Cleeseish house wife type female alter ego named Mrs Euphamism.

The van dyke beard should make for quite a nice finishing touch.

"Oooooooooooo, I'm glad I saw you Brian. It reminded me I've got to call the plumber about the loo"

I just love drag racing. Th... (Below threshold)
Mrs Euphamiasm (been there):

I just love drag racing. There's just something about putting on a frilly frock and driving really fast.

To bad TS-S and her family can't just hang out and watch old Monty Python movies today.

RE: been there post (March ... (Below threshold)
AnonymousDrivel:

RE: been there post (March 23, 2005 10:53 AM)
John Cleeseish house wife type female alter ego named Mrs Euphamism.

Classic comic personality. I, of course, preferred the sarcasm and "sledgehammer wit" of B. Faulty. I'll bet you're surprised. ;)

Many is the time my wife ga... (Below threshold)
been there:

Many is the time my wife gave me a sharp BASIL!

There was one time when the... (Below threshold)
been there:

There was one time when the person we were unable to protect from murder by dehydration was watching Jhon Clesse "How to Irritate People" with us. She was not only getting all of the jokes she was anticipating them based on the lead in.

Two of the creatures that claimed she had no mind did not even get many of the jokes when the punch line hit. Go figure.




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