via FOXNews
I’ve said on numerous occasions now that were Terri Schiavo my daughter, I’d be storming the hospice with a bottle of Gatorade and a box of donuts. I’d force the cops to shoot me or put me down with a taser gun, if only to draw more attention and sympathy to my cause. But in so doing, I’d be aware that I am breaking the law, which ruled, you’ll remember,in favor of Terri  that is, it purported to rule on her wishes, based on a review of the evidence and testimony offered by both sides.
I have not attacked people of faith; in fact, I have argued that the vast majority of those involved in this drama have acted out of conviction and not expedience; and I have tried very hard to examine this case dispassionately, in order that I might better understand its potential ramifications—be they social or legal.
End of story. De-link me at your leisure.
****
update: story
How come when I click on the Say Anything ad her bikini doesn’t come off?
Nosir. I’m delinking Fox News immediately!
As soon as I link them. Right after I get a blog. I mean it.
Your position…too complex…brain…hurting…must delink…to err…on side…of caution
opinion is here. rehearing denied. two judges dissent (including the one who previously dissented from the panel)
http://www.ca11.uscourts.gov/opinions/ops/200511628reh2.pdf
The “Say Anything” gals are waaaay to hot to stop coming by this joint. Plus, I gotta know what the scissors are gonna say next.
Gripping.
Ok, I haven’t even figured out the VCR and I’m gonna “de-link” you? Where’s the instruction manual?
Oh thats it, your getting de-linked NOW!
If I delink you, does that mean I still can’t cuddle with my Jeff Goldstein edition Beanie Baby? Because that’d be just too harsh.
Dude, I think you’re as wrong as two boys fucking, but I’ll keep yo ass on the roll… bitch.
You gotta think given a little time and perspective, Malachy will regret delinking those who support the rule of law. But maybe not, in light of your statement, “I have tried very hard to examine this case dispassionately…” Malachy and other ‘Christophiles’ seemingly cannot view this dispassionately and thus may feel that anyone who can is morally impaired or some such.
But maybe he’s delinking you because of your commenters, who don’t necessarily share all of your same views and convictions. Though Malachy’s own comments section is full of dissenters, so he’d have to delink himself were that the case.
As an aside, Ostrichs don’t really stick their heads in the sand when danger approaches – that’s a myth. Ostrichs wouldn’t have survived long as a species if that were true. Certain species of bloggers, however…
JWebb, Delink them from the Earwax Chronicles.
Personally, I’m torn (torn…. torn like an old sweater). My legal mind tells me everything legally has been done but as a semi-compassionate person, I hate the fact that not only might Teri be aware but she might be aware that she is starving to death and not be able to tell anybody.
Its a tough issue for conservatives, who value life but also respect the law. Unfortunately, in any gaggle of conservatives, there’s ususally a few nutjobs (greetings, Randal Terry) and those nutjobs seem to get most of the airplay.
I do have to say I’m ready for it to be over- Tampa talk radio is consumed with the issue, as are the nationals (I usually enjoy Hannity but these two weeks, he’s been hard to take).
I’m waiting for you to put me on your blogroll … then I’ll strike decisively and remove you from mine.
But not a minute earlier.
I hate to be the bearer of bad tidings, but “The Becker-Posner Blog” apparently delinked you, too.
swimdad
Bastards.
They did the same thing to me because of my position vis-a-vis Chapter 7 of the Bankruptcy Codes. Trust me, you do not want to get on the wrong side of those fuckers.
They look like they’d kick your ass in a fight.
Let’s stop dwelling on these boring questions of morality and move on to the exciting questions of who will be in the made-for-TV movie.
Chevy Chase is a big doofus, so he’d be natural for Michael Schiavo. Winona Ryder for Terri—although she may not be animated enough. Anne Bancroft and Burt Reynolds for Mr. and Mrs. Shindler and of course, Ben Stiller, a dead ringer for Terri’s brother.
We don’t know what Schiavo’s common-law wife looks like, so we can use our imagination and cast someone like Haile Berry and the two kids can be as adorable as the cherubs in a Rueben’s painting.
For Schiavo’s lawyer how about a little creep like Tom Cruise. That would be a little ironic twist since he’s supposed to be a bit of a religious nut himself.
Now isn’t this more fun than worrying about how so many of your fellow countrymen and women could be gleefully watching an innocent woman who isn’t hurting anybody or anything die a long and horribly painful death. The kind of death these same people would rise up against should it be happening to a convicted terrorist or a serial killer of little children.
There will be political repercussions when Terri is safely dead and people come to their senses to realize what our leftwing judicial system has sunk to. Democrats want to use this tragedy as a cudgel to bring down the Bush administration, but instead I think it will be the final blow to the credibility of the lunatic left.
I like it..I like.. but I’m seeing Penelope Cruz as Teri.. and in the movie, they could give her some kind of rare skin sensitivity that would necessitate her sleeping naked all the time… I mean, you have to consider box office potential here ….
Social and legal ramifications. OK, as far as it goes. But what of the moral angle. As in, “Of or concerned with the judgment of the goodness or badness of human action and character”? Cuz wasn’t there a time when socially it was OK and certainly legal to treat particular folks as if they weren’t even people? Then they got promoted to 2/3 of a person. Legally. I caught Dershowitz saying something I actually agreed with. He was more concise but it went a lot like this. The legal rights we have come from neither a high court nor some specter. They come from our observation of the the effects of people’s actions. We judge these acts. In an attempt to spare people the effects of acts we consider bad acts, we establish a right for people. Then we get a legal system. But first is the moral judgment, untidy as that may sometimes be. Social ramifications are uh,… often arbitrary. I think, Jeff, that we basically agree. The law needs to be respected but one must never genuflect to it. Judges and courts can commit bad acts. While it’s legal for a court to determine the state of a woman’s brain without an MRI, PET scan, etc. it’s just wrong. That’s my moral judgment. It should be illegal. That’s my opinion. I think our judiciary has grown a bit too precious about itself and needs to be snagged by the ear and taken to the woodshed. But how? Who? When? Dunno.
I’ve likewise mentioned that I’d like to see a PET scan, but the decision is not mine—and more importantly, the vast majority of medical opinion I’ve read says the cerebral cortex is gone, and so further testing isn’t necessary.
I don’t blindly genufleck before the law; I think there are plenty of bad laws, and I’m not averse to speaking about them. But in this case, given what I know, I’m comfortable that Terri Schiavo received due process, and that—the decision having been made—I accept the judgment of the courts.
From a moral standpoint, my position involves not believing the worst about Michael Schiavo, Judge Greer, and anyone else who may not hold with the beliefs of Terri’s parents, siblings, and their many supporters.
No, no, no, no, no.
Don’t y’all understand? This is about handing a defeat to the Bush brothers and all those redneck, inbred bible-thumpers that are trying to foist their morals on the country. The fundies have got to be stopped, even if it takes judges making up law on thew spot and ignoring the people’s elected representatives.
This bitch has got to die, man! Fight the power!
I agree with Jeff on both points: the courts have gone through this case for fifteen years with over 19 trials if I am reading it correctly, and not one ever sided against the husband. Wrong or not, it’s the best judicial system available, and if they can’t see a reason to overturn it, I don’t see how anyone else could.
But again, as Jeff said, if it was my daughter, they would need an elephant gun to stop me from showing up with applesauce and gatorade to put in the tube.
On a further note, Rachel Lucas has noted another angle in which I agree that this slow starving to death thing is abhorrent. Everyone saying it’s “dignified” and “painless” while her eyes are shrinking in and her lips are bleeding-it’s torture folks, plain and simple. No one knows for sure if she is feeling it, but the doctors have been giving her morphine for other reasons anyways. If they really want to let her go, isn’t there a more dignified and less painful way to go? Somehow starving someone to death seems rather evil.
what’s de-linking?
Oh, and who’s Terri?
Jeff, Tman:
When you say you’d try and force your way in to feed her, is that based on the belief that she would have wanted the tube to stay in?
In other words, what if your daughter had told you, “If I ever end up like that, pull the plug”, or put words to that effect in writing—would you try to override her wishes?
If I truly disbelieved the doctors, sure.
I’m not sure I would, however.
As to trying to override her wishes, I made this argument to my wife when the Schiavo case first broke big: that if she were in the condition Schiavo is purported to be in, what would she care (and how would she know) if I overrode her wishes?
Her answer was that she’d hope that I would carry out her wishes for her, given her inability to do so for herself. In short, I was her proxy and she trusted me to do protect what she thinks of as her dignity—regardless of my feelings on the matter.
Terri’s parents, sadly, haven’t received the same kind of assurances—which is why of the reasons why I feel so badly for them.
Brendan,
I hate to sound like a syncophant, but again I’m with Jeff. The parents seem to truly believe only the words of their doctors, and not the ones who have termed her brain dead. And what I feel bad about is that I can only imagine the number of opinions they have received concerning their daughter, and the difficulty reaching a consensus. The courts had the advantage of not being emotionally involved, thus their opinions are as non-biased as one could hope for.
That being said, if I had even the slightest inkling that anyone in my family -daughter or otherwise- could feel the pain of being starved to death, they would have to physically prevent me from feeding her. And again, it’s easy to say this from my perspective, it’s not my family we’re talking about.
And on top of that, I’ve had the conversation with most of my family about what to do if we were in Terry’s shoes, and all of them (myself included) would want to die peacefully and painlessly. I somehow don’t see being starved to death as either painless or peaceful. If that means using an other extreme form of ending the suffering so be it, but I would not allow anyone to starve a member of my family to death. I don’t buy the stories about it being “painless”.
I still fail to see why anything dicussed here has any bearing on Terri’s case. The matter boils down to one simple principle: Michael Schiavo’s testimony regarding Terri’s wishes is not sufficient for it to have the legally binding force of a living will.
As in the case of all wills, a living will is a legally binding and enforceable statement of a person’s intentions. As such, a living will must, in order to be enforceable, be subject to the evidentiary rules as established by a legislature.
It may be the case that Michael Schiavo is accurately representing his wife’s intentions. Whether he is, however, is completely irrelevant. In fact, his wife’s intentions are themselves completely irrelevant. The ONLY germaine question is this:
Did Terri Schiavo establish a living will under the applicable evidentiary rules such that the will can be enforced by a court of law?
One man’s unwitnessed testimony of a passing, unconsidered comment does not constitute sufficient evidence for the courts to enforce her will. Therefore, the courts CANNOT legally enforce her “living will” such as it exists, namely, according to the testimony of Michael Schiavo.
It’s simple, and I fail to understand how Terri’s intentions, Michael’s intentions, Terri’s painful or pain-free state, her PSV or lack thereof, or any other consideration is of any relevance whatsoever.
“Did Terri Schiavo establish a living will under the applicable evidentiary rules such that the will can be enforced by a court of law? “
According to multiple judges and court systems, Federal and State levels, the answer is yes. You may disagree with the decision, but that was the decision. Multiple times.
Timan,
You are incorrect. The courts have not ruled that Terri has an enforceable living will. Rather, they first ruled that Michael has the right to order the tube removed because Terri is in a PSV. The recent legal developments have not actually been instances of Terri’s case being reviewed. Rather, they have been requests for legal injunction which have been denied because they failed to meet one of 4 requirements, namely, that the case have a reasonable chance of being overturned on its merits.
The courts have repeatedly ignored the heart of the issue, turning rather first to the facts of her physical state (which are, again, irrelevant) and secondarily to whether the case has a likelihood of success under appeal.
In fact, not one court on any level has ruled on the question of enforceability.
Matthew,
You’re half right. She did not have a living will, but none of the courts are saying that she did or trying to enforce an imaginary living will on the basis of Michael’s testimony.
Without a living will, the ultimate decision on what she would want falls to Michael as her husband, next of kin, and presumably the person who knows her best. That is the law pretty much everywhere. All the courts are saying is that the Schindler family does not have legal standing to interfere with medical decisions that Michael makes in Terri’s place.
If the law worked as you say then it would be impossible to make medical decisions for an incapacitated person.
“The courts have not ruled that Terri has an enforceable living will. Rather, they first ruled that Michael has the right to order the tube removed because Terri is in a PSV. “
And why did they rule that Matthew? Could it have anything to do with the fact that Michael proved to the court that this was the will of Terry? Or the fact that the family was unable to prove otherwise?
Again, I’m not saying I agree with this decision, I’m just defending the judicial process of this case. I fail to see what the courts did wrong in terms of the law.
Jeff, I don’t see where I disagree with you except maybe in questioning Michael’s intentions. But I do realize the rule of law was followed.
Now, it needs to be changed.
This is getting gruesome. Even the left is shutting up. But they are thinking…”When the hell is this natural death going to happen????”
Tman, you keep saying that multiple courts came to the same decision. But that misrepresents the legal process. And it is a misrepresentation that is beign repeatedly made. One judge came to a decision and multiple appellate courts decided that the decision he made was not an “abuse of discretion”, i.e., so far wrong that they would overturn.
That is not the same thing as all the courts making the same factual decision.
Anyway, you know when Jesse Jackson jumps over to Randall Terry’s side we have entered the polticial twilight zone.
Now, back to the deathwatch…..
RR,
Perhaps I wasn’t clear enough. I agree with you that the subsequent courts did not retry the case but examine the previous courts decision and decide whther or not there should be another trial. You can say that in effect yes, they didn’t make a judgement on the facts of the case but whether or not the judge ruled correctly.
However, in order to examine the judges decision, they too must examine the evidence presented so that they could make a judgement on whether or not the previous court ruled in accordance with the law. So you can mix it up in semantics if you want, but the bottom line is that multiple sets of judicial eyes examined the case and none found reason to overturn the original judges decision.
OK, goddammit! I am now dubbed, “That Matt Who Isn’t One Of The Others”. Too many allah-be-damned Matts around here.
Fuck. Now I forget what I was going to say.
Spam word, “like”. As in, I’d like it if the other Matts would go elsewhere.
Sorry, Randall Terry was on TV and I lost my mind.
Spam word, “control”. How fitting.
I agree that Terri hasn’t been tested enough. Not only has she not been tested for PETs, she hasn’t taken the LSAT. Given that all of the moronic lawyers on teevee the last few days took it did pretty well, it’s a good general test of brain activity.
And I’d like to see Janene Garafolo play Terri in the movie.
Janeane Garafalo? Did you not see The Truth About Cats and Dogs? I mean, there’s vegetables and then there’s vegetables.
Spam word, “market” as in Farmer’s Market.
Tman,
Again, you are mistaken. The appelate district courts & all of the federal courts in recent news did NOT review the evidence,because they were not reviewing the case as in a court; they were reviewing whether or not to TAKE the case, just as the Supreme Court reviews whether or not to take cases without actually looking at evidence.
One of the four criteria for an appeals court to look at a case is that it has a reasonable chance at success; the judges in recent news have all ruled that this case doesn’t have that chance based on the merits of the case. They have not reviewed the evidence, nor have they claimed to.
Matt,
In order for the subsequent courts to review whether or not to admit the case, they have to find fault with the previous court. Therefore, they HAVE TO examine the evidence. How else could they determine whether or not the case should be resubmitted?
Please edumacate me on how the courts would decide to review the case without examining the proceedings?
Hey, moron. Educate yourself on the American judicial system before speaking to me in that preachy, condescending fashion. Just as an indictment is a judicial consideration of whether there is enough evidence for a case to go to trial without itself being the actual consideration of that evidence, so a court of appeals can review whether a case ought to be heard (“on the merits”) without actually hearing the case or formally reviewing the evidence. And, as I mentioned before, one of the 4 criteria in a federal appeals court is “substantial likelihood of success”, which can be judged in many ways not at all related to the evidence itself.
And so, as many people have said, the courts did NOT review or confirm the decision, nor is the distintion semantic in nature. It flows from a real difference in the manner in which the courts treat of matters that come before them.
Read a book. Hell, just Google “American Judicial Process”. But do SOMETHING before you come in here, guns blazing, yapping your ignorance.
Settle down there Matthew, no need to get all riled up.
Let’s review- appeals court reviews the “merits” of the case (I like how you put that in parentheses by the way-nice touch). Appeals court decides whether or not there is a “substantial likelihood of success” if the case is retried. They decided no, there is not a “substantial likelihood of success”.
So, why did the appeals court decide there wasn’t a “substantial likelihood of success”?
why did the appeals court decide there wasn’t a “substantial likelihood of success�
Because there was nothing wrong in the way that the lower court ran the trial. It has nothing to do withe evidence, and everything to do with crossing t’s and dotting i’s.
And also because judges don’t like saying other judges were wrong about something. Much like the brotherhood of unions, and not crossing picket lines. Same principle.
Tman, you continue to misrepresent how an appellate court reviews the actions of a trial court. To oversimplify a bit, for almost all kinds of appeals, appellate courts assume that the trial court’s evaluation of the credibility of witnesses and determination of factual matters is correct. Appellate courts focus upon procedure and the correct definition of the law and legal standards but generally refuse to retry evaluate factual conclusions of the trial court.
The federal judge Wittemore did not state that the Schindler’s had no likelihood of success on the question of retrying the factual determinations of Judge Greer – rather the issue was solely whether or not to grant a temporary restraining order in anticipation of a full trial on the merits. And for that, he had to make a determination of the likelihood of success of the Schindler’s on the questions presented as to whether or not there were violations of constitutional rights of due process – not whether nor not Wittemore would have made the same factual determinations.
So the question of what Terry Schiavo would have wanted, and her actual medical condition were not examined anew by the appellate courts. For that reason, it is not honest to claim that all “19” or whatever judges all “agree” with the conclusions of Judge Greer. And that is why there are people who are not amused at the misrepresentations being made about the judicial process that has occurred.
Ok, the main crux of the save Terri bunch appears to be making Michael Schiavo out to be a money grubbing creep whose only interest is in offing his ball and chain so he can cash in on the money he won.
I have not heard a SINGLE CREDIBLE source of what has happened to the supposed $ 4 million that he was supposed to have won on Terri’s behalf and his own “consort”. It is my understanding that Terri is on Medicaid and that her yearly care cost $ 880K. Are these correct facts? I would think that the money he won should have been used up long ago caring for his wife – can anybody provide CONCRETE PROOF that this is (or is not) the case.
There is so much innuendo and abject bullshit flowing about this and frankly it has caused me to turn off Fox News more often than I would like. I am so goddamned tired of Randall Terry and Sean Hannity et. al. preaching to me and the world and I just cannot look at Terri’s parents anymore grasping at straws that they know aren’t there.
In fact, the only time that evidence in a case EVER comes up prior an appeals court actually going to trial is if alleged “new evidence” arises. Even then, however, it is simply that new evidence that is reviewed – not the old evidence. Otherwise, the reviews consist of legal process.
Can you imagine the nightmare if every appeals court had the responsibility & authority to re-review the evidence presented in lower courts prior to going to trial? Not only is the way you represent American jurisprudence false, but it is also highly impractical, even in theory.
As far as this Christer is concerned, delinking ain’t happening, JG. You don’t have to agree with me to get listed on my blogroll, which is here, by the way:
http://mcj.bloghorn.com/
Buy my stuff.
Until very recently, after a jury came back guilty, a judge using the clear and convicning standard, could make findings of fact and increase a defendant’s sentence.
This past year, there have been a number of recent USSC opinions that held any fact used to increase a defendant’s sentence must be found beyond a reasonable doubt by a jury.
In Schiavo’s case, all she was afforded was one trier of fact – not a jury of twelve. And the finder of fact employed the lowest burden of proof, clear and convincing—the same one the USSC recently said was unconstitutional to impose any sentence above that allowed by statute.
The USSC had no problems making radical changes on the basis that not to do so is a violation of due process of a criminal defendant. Increase a sentence by a couple of months, it’s unconstitutional. Give Schiavo the ultimate sentence, who gives a damn. So, please, Rule of Law people, take your rules and stuff it.