Good Points. In my opinion this case is one of those aberrations that stretch the limits of the legal system and push the boundaries of the law. The people who are now calling for judges to be arrested and Michael Schiavo to be prosecuted for murder should probably consider the issues for another couple weeks, after the case is not on the news every night. It is worh pointing out that the laws that made this possible have served fairly well for a number of years. In the case of Michael being Terri's guardian it is actually based in the book of Genesis. (I forget the exact quote but basically it directs a man and wife to become one flesh and is the basis for our modern marriage laws). In conclusion lets take some tome for some quiet contemplation then think about what if anything needs to be changed.

"But exactly what laws do you want changed, and how?"

Two things that would make me feel more comfortable about this case.

#1 In cases like this where there is a dispute between family members as to the wishes of the incapacitated person, I would like to see an attorney appointed by the court to represent that person throughout the court proccess. This is something Terri didn't receive. Her attorney was michael's attorney, and whether anyone wants to admit it or not Michael did have some conflicts of interest (he stood to ineherit 700,000 dollars and he had a live in girlfriend he already announced his intention to marry when Terri was dead). The money can also be viewed as a conflict for her parents as well.

#2 A part of me would like to see cases like this decided either with a higher standard of law (reasonable doubt rather than clear and convincing evidence) or maybe by a jury rather than one single judge. Don't know for certain about this one though.

I do agree that in this case the charge of activist judges doesn't apply. The judges in this situation acted within the law, although I am not convinced that Greer's decisions were alway the right ones, even if they were within the law (the issue of the GAL, and there not being a permanent one in place, and appointed himself as her legal representative bothers me).

I am also very bothered by Michael's having a girlfriend/fiance when he decided to pull the tube-I don't know that I neccessarily want guardianship removed, but I know that if I was in Terri's place, I wouldn't want my husband making those decisions any longer, since having a girlfriend he wants to marry, and a disabled wife in a medical center turns into an automatic conflict of interest for him. Just not sure if we want the law to automatically remove decision making rights, but I think it can certainly be used along with other facts to determine who gets to make these decisions.

I have to say that what Michael is doing right now, confirms that while he may not be the monster the Schindlers have painted him, he certainly is a vindictive asshole.

What a bunch of hooey, Jay.

By law, when a person is incompetent to make such decisions on their own behalf, and has not made prior arrangements, that power passes to their next of kin. By law, a spouse is considered "next of kin."

By law, solely because one is next of kin does not grant one the absolute right to be appointed guardian.

By law, Michael Schiavo was Terri Schiavo's spouse right up until her death.

One, he had a conflict of interest, two, they were defacto separated.

By law, Michael Schiavo had the right to order the discontinuance of her feeding tube and any other medical care.

No, he didn't. It was an abuse of discretion to not remove him as guardian.

And by law, her parents had absolutely no legal standing in that matter.

Yes they did. It was an abuse of discretion not to grant them guardianship.

The people who make the law -- the legislatures of the several states -- are, in theory, accountable to the people through elections. Get your legislators to change the law.

She was denied fundamental due process. That is what the courts, especially the federal courts are suppose to guarantee. They fucked up.

But exactly what laws do you want changed, and how?

Glad you asked:
1. When contested must be in writing and it must be an informed consent. Ha;f ass coments while watching "Love Story" don't count.
2. M. Schiavo shd have been relieved of guardianship. However, if the laws on the books, public and legal policy, had been applied correctly, they would not have to be changed. Obviously, too much wiggle room, so tighten them up.
3. Make easier to grant trial de novo.
4. Increase the burden of proof. Clear convincing is too low.
5. She shd have been granted her own atty throughout the entire proceedings.
6. Others, but I will have to think about it.

If you think the Schiavos should have been given custody of Terri, you need to change the very nature of marriage itself.

Why?

You need to grant parents the right to initiate a divorce proceeding . . .

I do, why?

And do you really want to weaken the bonds of marriage that tie two people together?

He's shacked up with another woman who has born him two children. That already makes for a pretty damn weakening of the bonds of marriage.

It's a truism in legal circles that tough cases lead to bad laws. And this is one of the toughest. Those who are calling for wholesale shakeups of some of the most fundamental components of our society today aren't thinking things through enough. It's one of the reasons why laws passed in regards to a single person or situation are such a bad idea.

Oh, yeah? How about not denying the most basic and fundamental rights of due process to the disabled or others who can not speak for themselves? That's a pretty fucking fundamental component of our society.

You think huge shakeups don't happen? The USSC has made sweeping changes this past year as to a criminal defendant's rights. One of those sweeping changes is that defendants now have the right to a jury finding beyond a reasonable doubt any fact used to increase a sentence. This is huge. Previously, only a judge using the clear and convincing evidence standard determined any facts. Not anymore.

It's a due process violation to deny a criminal defendant that right, yet, you would deny that right to an innocent woman who is getting the ultimate sentence.

(And no, I am STILL not taking sides on the matter. I'm simply analyzing the potential consequences of some of the proposed actions of one side.)

Now your just insulting our intelligence.

Since an attorney is an advocate for their client and is bound to carry out the wishes of the client it is inappropriate to appoint an attorney to someone who is incapable of expressing those wishes. Terry did have a court appointed Guardian Ad Litem but they have little power under the law because in order to be an advocate for someone you have to actually know what it is they want, all the GAL could really do and all an attorney could do is work to make sure that the concerns of all interested parties were properly addressed, which happened as far as I can tell by reading the report of the GAL to governor Bush.

But if you want a law like this, go for it. I can’t wait to see the courts start to appoint an attorney to every woman who gets pregnant to make sure that the rights of their unborn child are properly addressed, that will be really entertaining.

Also if you really want to give “shaking up” legal standing under the law, go for it and congratulations, you have just codified in law civil unions, unless you want to explicitly exclude same sex partners from being getting legal standing under the law by said shacking.

No, there will be some really bad laws being proposed over what was essentially a family dispute.

By law, when a person is incompetent to make such decisions on their own behalf, and has not made prior arrangements, that power passes to their next of kin.
By law, a spouse is considered "next of kin."

You should read this week's Time magazine. They had extensive coverage of this issue and included a map showing the laws in various states. In some states, if there is no clear directive, the law says that a group of "interested persons" or the spouse and parents together make the call.

http://www.time.com/time/covers/1101050404/schiavo_webguide.html

But exactly what laws do you want changed, and how? If you think the Schiavos should have been given custody of Terri, you need to change the very nature of marriage itself.

Hmm... so "marriage" is having children with a mistress while your wife is hospitalized? No, this is a great argument for adultery laws, not "changing the very nature of marriage itself."

By law, if Michael Schiavo did to his dog what he did to his wife, he would go to jail.

I wish I had written this, but someone beat me to it...

Like many of you, I have been compelled by recent events to prepare a more detailed advance directive dealing with end-of-life issues. Here's what mine says:

In the event I lapse into a persistent vegetative state, I want medical authorities to resort to extraordinary means to prolong my hellish semiexistence. Fifteen years wouldn't be long enough for me.

I want my wife and my parents to compound their misery by engaging in a bitter and protracted feud that depletes their emotions and their bank accounts.

I want my wife to ruin the rest of her life by maintaining an interminable vigil at my bedside. I'd be really jealous if she waited less than a decade to start dating again or otherwise rebuilding a semblance of a normal life.

I want my case to be turned into a circus by losers and crackpots from around the country who hope to bring meaning to their empty lives by investing the same transient emotion in me that they once reserved for Laci Peterson, Chandra Levy and that little girl who fell into a well.

I want those crackpot strangers to spread vicious lies about my wife.

I want to be placed in a hospice where protesters can gather for weeks on end, so they can bring further grief and disruption to the lives of dozens of dying patients and families whose stories are sadder than my own.

I want all those people who attach themselves to my case because of their deep devotion to the sanctity of life to make death threats against any judges, elected officials or health care professionals who disagree with them.

I want the medical geniuses and philosopher kings who populate the Florida Legislature to ignore me for more than a decade and then turn my case into a forum for weeks of politically calculated bloviation.

I want total strangers - oily politicians, maudlin news anchors, ersatz friars and all other hangers-on - to start calling me "Bobby," as if they had known me since childhood.

I'm not insisting on this as part of my directive, but it would be nice if Congress passed a "Bobby's Law" that applied only to me and ignored the medical needs of tens of millions of other Americans without adequate health coverage.

Even if the "Bobby's Law" idea doesn't work out, I want members of Congress - especially all those self-described conservatives who claim to believe in "less government and more freedom" - to trample on the decisions of doctors, judges and other experts who actually know something about my case. And I want members of Congress to launch into an extended debate that gives them another excuse to avoid pesky issues such as national security and the economy.

In particular, I want House Majority Leader Tom DeLay to use my case as an opportunity to divert the country's attention from the mounting political and legal troubles stemming from his slimy misbehavior.

And I want Senate Majority Leader Bill Frist to make a mockery of his medical training by misrepresenting the details of my case in ways that might give a boost to his 2008 presidential campaign.

I want Frist and the rest of the world to judge my medical condition on the basis of a snippet of dated and demeaning videotape that should have remained private.

Because I think I would retain my sense of humor even in a persistent vegetative state, I'd want President Bush - the same guy who publicly mocked Karla Faye Tucker when signing off on her death warrant as governor of Texas - to claim he was intervening in my case because it is always best "to err on the side of life."

I want the state Department of Children and Families to step in at the last moment to take responsibility for my well-being, because nothing bad could ever happen to anyone under DCF's care.

And because Gov. Jeb Bush is the smartest and most righteous human being on the face of the Earth, a man who has never made a mistake or allowed his judgment to be sullied by personal or political concerns, I want any and all of the aforementioned directives to be disregarded if the governor happens to disagree with them. If he says he knows what's best for me, I won't be in any position to argue.

Robert Friedman is editor of Perspective. He can be reached at friedman@sptimes.com.

Jay--

You shine a wonderful spotlight of the failings of the judiciary in this case. I've said before, any fool can read the law. The constitutional responsibility of the judicial branch is to interpret the law. In this case, the letter of the law was followed, but there was a distinct lack of any vision for the spirit of the law. The law establishing that hierarchy of control through the spouse, then adult children, and only then to the parents was never intended to be inclusive of an obviously alienated and estranged spouse.

Exacerbating my aggrivation with the judiciary is the fact that they have never hesitated to claim their right to interpretation when creating law, whether on abortion or homosexual marriage, but when an opportunity arose for them to exercise constructive powers of interpretation, they balked.

If the SCUS can rule that laws assigning the death penalty don't apply to minors, they could have just as easily ruled that the guardianship laws don't apply to a spouse who has forsaken his incapacitated wife for another woman.

If anything weakens the bonds of marriage in this case, Jay, it's the fact that adultery and spousal murder were given a green light by the courts.

I could be on Michaels side up and until he started living with his new "wife" in 1995 and then had two children by her. To me, at that point, I do not believe he had Terri's best interests at heart. Also, can you imagine the conversations with his future wife where she would probably say often "you told me we would be married by now. Can't you do anything?

Hmmm.

At issue is the "clear and convincing" standard. A standard that I don't believe Judge Greer met with his dismissal of witnesses for the parents.

Frankly all of the other issues stem largely from that one.

Posted by: Mac Lorry

Only a few changes are needed to prevent such a case in the future. Florida is one of only a few states that doesn't require a written document (living will) for medical treatment to be withheld from someone unable to express their will. All that needs to be done is for all States to require living wills in order to pull the plug on someone.

One more change that would be helpful is a law that allows any close relative of an incapacitated person to initiate divorce proceedings when the spouse has in effect remarried. The details need to be worked out, but having children with someone other than your incapacitated spouse would certainly be grounds for such action.

Under the current situation, I agree with Jay that the law was followed. Many will disagree with the particular rulings, but the laws that were in effect at the time were followed as intended.

When there are disputes within a family, who decides the resolution? If it's the courts, on what basis should they make their decision? If it's the law, who should make laws? If it's elected representatives, who should elect them? If it's the people, who's to blame for outcomes -- is it not our very form of government? When foreign powers have threatened our form of government, this nation has sent thousands upon thousands of young men to die on the battlefield to preserve our form of government. Let us not be too quick to damage what was purchased with the blood of hundreds of thousands of lives for the sake of one life; as precious as that life was to those who loved Terri.

Rick I have read Wolfson's report, although his position was dissolved, when the law creating it was declared unconsitutional.

What I read in the report is what convinced me that Terri deserved to have somebody advocating for her interests-that attorney may have found Michael's and his siblings statements believable, and interpreted that to mean she wanted to die, but if the attorney disagreed with them, then he wouldn't be Michael's attorney either. The problem here is that the attorney Terri's money was paying for was chosen by Michael and acted more as Michael's attorney than Terri's in all this.

Michael had conflicting interests, and the actual GAL appointed by the court for the fact finding part of the trial recommended against removal of the tube, believing that the evidence didn't amount to clear and convincing evidence.

Wolfson recommended that Terri have a full time GAL appointed to represent her (his recomendation became moot of course, just as his report did).

Dava A-
That doesn't make sense. If a dog was in the same condition as Terri, he would have put the dog to sleep. It would have been more humane if he were allowed to put Terri to sleep rather than withholding food from her. But for some silly reason thats not allowed.

BY LAW - in 50 out of 50 states - a married person who takes up residence with (cohabits) and has children with another person has legally abandomed their spouse.

BY LAW - in 50 out of 50 states - the state of abandoment is grounds for divorce.

THEREFORE:

(1) BY LAW Michael abandoned Terri.

Coindicentally this LEGAL ABANDONMENT occured after he received the setllement,

and coindicentally this is when he FIRST ASSERTED (7 years after Terri's "incident") that Terri would not want to be kept alive.

The only LAW which needs to be changed is that people who ABANDON their spouses SHALL forefiet legal guardianship.

LOOK AT IT THIS WAY:

would you want your life int he handfs of an EX-wife or ex-husband?

I think not.

I think you wouldn;t want a relative of yours to have their life in the hands of an EX either.

Judge Greer could have removed Michale as legal guardian.

He should have been removed as legal guardian by Greer - this is a point made by renown JONATHAN TURLEY.

Instead, Greer left Michael as guardian - and once substituted himself, in direct violation of Florida LAW.

Several of your commenters have substantiated the truth of the truism you cite, Jay: tough cases really do lead to bad laws.

Writing laws isn't nearly as simple as some folks think. One has to spend much more time considering the unintended consequences than the intended purpose of the law.

Curtis-
You're right; it doesn't make sense. Why should the law afford more protection against cruelty to animals than to humans?
J's point (in part) was that this was all done by the book.
My point was/is: just because something is "by law", that doesn't mean it's right.

I can't believe people think this is an issue as to whether the spouse or the parents have 'next of kin' privileges.

The aspects that makes this an issue is whether or not she was euthanized or not. And whether or not that was the right thing to do or not.

As an almost seperate issue, what evidence is required to ensure those are your wishes. The question is whether a spouse or any 'next of kin' can always be trusted to make those decisions. I say this in light of the rate of domestic abuse & murder that takes place in this country.

I realize so many people are simply tired of discussing this issue. But I find it really important. Reading others' thoughtful opinions on this matter has helped refine the debate. I guess the thing that bothers me the most - and I am not unique in this regard - is the so called reference to Terri's wishes by her husband Michael. I accept that he went to extraordinary measures initially in his efforts to facilitate his wife's recovery. If reports are accurate, he kept up hope when doctors told him there was no hope. Then things suddenly changed to the point where, if the information is to be believed, he didn't even want his wife to have antibiotics to treat a urinary tract infection. I mean, antibiotic administration in that context is hardly heroic therapy. It's not like UTIs are uncommon in hospitals with all the prodding and poking going on. It just seems to me that when he was able and ready to accept moving on (a new lover and even a family), Terri's personal wishes suddenly became important. Like, OK your going no where honey, I've done my best but I'm tired of all this plus I've got better things to do now so maybe you were right in the first place and I shouldn't have eeven gone this far. So good by, I'm outta here. I am also one who believes that the timing and manner in this change in behavior, monetary benefits or not, made him a suspect advocate for his wife.
I also agree with BoDiddly that the courts failed. I have read so many letters to the editor in my local paper about Congress and the President threatening the checks and balances system of our government by their attempts to intervene in this affair. For some reason, people seem very comfortable giving that branch of government with the least direct electoral mandate the most power. In addition to judicial impeachment another check on the judiciary is the constitutional right of Congress to rewrite or introduce new legislation that they feel would pass judicial review. I think the legislation that Congress expedited and the president signed was not heavy handed at all and well within constitutional guidelines. It wasn't like Bush tried to push through one of those executive directives or sent in the National Guard or a militia.
Lastly, from a political standpoint, the editorial in today's WSJ by Taranto describes the perspective some disabled individuals have on this so called circus.

Reliapundit -

Interesting. Your facts are actually arguments made to support a suit for divorce. The responding party can claim "condonantion," and then it becomes an issue for judicial determination. Have you handled many divorce cases?

The abuses of discretion pointed out by Julie are, I think, what allowed this miscarriage of justice to play out the way it did and come to its shameful end.

In part, this is due to the problem of Judicial Tyranny which we can put a stop to. The action of many of the major players in this story might also be explained by some Suspicious Dealings in Pinellas.

Also, Michael Schiavo failed to comply with mandatory reporting requirements by state law, which should have disqualified him as guardian of Terri or at least launched an investigation.

Curtis,
I am not sure whether this helps but in most States, despite laws on the books for animal welfare (and I mean welfare not rights) the animal is considered personal property much like a car. So therefore, the owner is always the agent for the pet in decisions for its care. Obviously we have a caring enough society to accord animals a high level of humane treatment under the law. With people in our own society we give primacy to the individualacting as an agent for his/her own life's decisions. That is why I see a valid argument in this case over who best represents the individuals true interests and dignity. Maybe this statement is not relevant to your argument.

Here! Here!

You're right on the money J.

'nuff said.

I've said it before and I'll say it again:

Jay Tea, you rock.

I hope you will be at the New England blogger bash if there's one this summer.

"The only LAW which needs to be changed is that people who ABANDON their spouses SHALL forefiet legal guardianship."

I think for the most part the law worked in this case, but I have a real problem with a husband who has moved in with a second woman and had two children with her still legally acting as a husband to the first woman. This is a case of generally good laws that did not work in a hard case.

Reliapundit:

In addition to the issue of “condonation” as a defense to a divorce action in a “fault” jurisdiction, generally “non fault” jurisdictions don’t allow evidence of infidelity as a basis for divorce.
In Indiana you don’t need a reason for a divorce beyond the fact that you want one. Indiana takes yet another further step and says that marital infidelity is not a basis for departing from a presumed 50-50 split of marital assets. Personal moral conduct is largely irrelevant in a divorce case in this state other than how it might affect child custody or visitation (now called “Parenting Time”).
A post script: Some states have laws the come from the common law tradition and some from the civil law tradition. Every state has a somewhat different history and geography. As a result, it is almost never the case that all 50 agree on anything.

It's the parents who should be shot for their cruelty. Terri had rights and it was proven in a court of law (over, and over, and over, and over) that she did not want to live like that. The parents NEVER refuted that. It's amazing how the "moral" right talk about the sanctity of marriage when it suits their issue du jour (i.e. the rights of gay people to marry) but when it doesn't suit them, suddenly they want those rights refused and overturned. The law says as a part of marriage you agree to give guardianship to your spouse. The sick and twisted right wing do-gooders would like to add the caveat: "unless we don't like your spouse".

And by the way, if any of the "right-to-lifers" spent time with people who are dying, they would find that it is very natural for people to stop eating and drinking before they die.

Even if Michael Schiavo stood to get a million dollars if Terri passed, which he doesn't, why would anyone continue such a fight for 15 years??? It's not worth it. You'd make that money earning $66K/year. Not a real high paying job and hardly worth the stress. Doesn't make sense.

Since an attorney is an advocate for their client and is bound to carry out the wishes of the client it is inappropriate to appoint an attorney to someone who is incapable of expressing those wishes.

One, an attorney can do more than a GAL. Two, someone doesn't have to know what you want in order to protect your rights by ensuring all legal procedures are followed correctly. And by protect your rights, I mean the rights of the patient, not all interested parties. Facts could show what the patient wanted was not advocated by either side, in this case, - Schiavo or Schindler. And, the judge isn't there to advocate for the patient. And if it is unclear what the patient wanted, then it is the duty for the atty to argue that.

[snip dire, unrealistic consequence - woe is you]

Also if you really want to give “shaking up” legal standing under the law, go for it

I'm not advocating shaking up anything. What I am advocating is because it might shake things up is no excuse for denying fundamental rights of due process. Personally, I don't think it's much of a shaker.

and congratulations, you have just codified in law civil unions, unless you want to explicitly exclude same sex partners from being getting legal standing under the law by said shacking.

Codified in law?? Huh, where? Oh, brother! Any other red herrings you want to inject into this thread? Sorry, I don't buy the EP argument.

No, there will be some really bad laws being proposed over what was essentially a family dispute.

There are already bad laws on the books. And for so long beating the shit out your wife and having sex with your daughter were treated as “essentially a family dispute.”

you said:
"But exactly what laws do you want changed, and how? If you think the Schiavos should have been given custody of Terri..."

I think you meant the Schindlers, her parents.

LYSANDER et al:

can anyone name a state in which abandonment is NOT grounds for divorce.

according to JONATHAN TURLEY it is in EVERY state, and he argued that this was why Greer should have REVOKED guardianship from Michael Schiavo.

Julie spewed:

By law, solely because one is next of kin does not grant one the absolute right to be appointed guardian.

The first on many rants within your post that are untrue, or you just choose to rant about the j