How the Schiavo Federal Court Case Might Have Been Won(Long article worth the read)

FindLaw's Writ ^ | Saturday, Mar. 26, 2005 | By MICHAEL C. DORF

[Kretek]

How do you justify when we bomb countries, murdering innocents?

Were you in coma at the time of 9/11-2001???

Why are you so up in arms over the terrorist attacks on September 11th? The deaths of innocents! Does it matter who killed the innocent or why?

[PhiKapMom]

FYI! Didn't want you all to miss this article.

[Kretek]

Dr. Ronald Cranford has even testified in court that spoon-feeding may be classed as "artificial," presumably because helping people to eat is somehow unnatural.

I wonder how Dr. Cranford distinguishes between spoon-feeding an infant, and spoon-feeding an adult patient? Or is spoon-feeding anyone of any age artificial life support?

[bigeasy_70118]

will read later. Thanks for the ping.

[.30Carbine]

Link for that?

[PhiKapMom]

You're welcome -- didn't leave you out this time! You will find this very interesting reading IMO! :)

[AntiGuv]

Perhaps their lawyers were blinded by ideology.

Yup, I've been thinking that all along as I saw the claims they raised and heard the statements they made. If you want a good lawyer, you should hire a "mercenary" - never a "true believer"...

[My2Cents]

A friend emailed me yesterday that in watching Fox News, they appeared to be in retreat and in full revisionist mode. Guests were now saying that Congress did what it could, that Michael Schiavo isn't such a bad guy, and that Judge Greer did an outstanding job given the way Florida's laws are written. This perspective that the Schindler's had lousy lawyers is part of the revisionist spin. Just watch...the blow back will be that what made this issue worse than it should have been were "values conservatives" and the Schindlers. At the end of the day, it will be us pro-lifers and Terri's parents who were the bad guys here.

[ClaireSolt]

I saw Sekulow, Boise, and Dershewitz on TV the night before they went through the second round, and I got the impression that all the big guns got involved trying to get that petition right. However, we cannot have a legal system that is so screwed up that it takes 2 million dollars and an act of Congress to come out with a bad outcome. The Judges have a responsibility to see that justice is done. I think the real problem is with Florida law which was revised in 1999 and fits Terri to a tee.

[HitmanLV]

A lot of us with legal backgrounds have been saying the same thing, esentially, since the Schindler's attys first went to Federal court and clearly blew it.

Though I don't recall seeing anything in this detail on FR, it has been basically said here for almost a week - the Schindler's lawyers have done a ton of missteps. They are far more to blame for the situation Terri is in than Congress, Dubya, or Gov Bush.

Don't tell that to a lot of the more petulant Freepers though - they are in full blame mode. It's disconcerting to see that our side has as many immature foot stompers as the other side had back when Gore lost the 2000 election. An inability to cope is not the sole domain of either political party, of course.

[AntiGuv]

Where was the foremost "right-to-life" constitutional lawyer?

Right there is exactly where the Schindlers went wrong too. You don't want the foremost "right-to-life" constitutional lawyer. You want the foremost constitutional lawyer, period.

The foremost "right-to-die" attorney was adequate on his side because the law was already in his favor.

[fight_truth_decay]

PING

[Defiant]

That the lawyers were not the brightest legal minds should not deflect from the fact that the courts thumbed their noses at Congress. All that needed to happen for the District Court to do what it was supposed to do was to read the legislation, which was before it, and see that it was required to conduct a de novo review of the entire factual and legal situation before it. It could not possibly decide the issues before it, no matter how poorly presented, in a 2 hour hearing.

The dissent by the appellate judge was exactly right. What the judges at every level did was stick it to the Schiavos and then blame then, when they knew full well what they were required to do if they wanted to follow the law. They did not want to follow the law, and just wanted some cover for not following it.

[Fudd Fan]

"If you want a good lawyer, you should hire a "mercenary" - never a "true believer"

I'd agree with that generally, but Felos is BOTH

[Fudd Fan]

"inability to cope is not the sole domain of either political party, of course"

unfortunately, that is so true

[HitmanLV]

Our side is usually better at this, I have to give credit where credit is due.

That being said, the Terri situation has brought the worst out of many folks on our side. Completely unable to accept that because of a lot of reasons, the pro-Terri side lost, they are reduced to hysteria, hyperbole, exageration, overstatement, petulant foot stomping, and worse.

I will say that recent history suggests that the worst of our side only does this maybe once or twice a decade, on balance, while the worst of the other side seems to do it every other week. ;-)

Still, the most bitter Freepers (and some have already become bitter) should get a grip. Congress did what it could. Dubya did what he could. Jeb did what he could. If only the Schindler lawyers did better, it would be a different story now.

The inability to cope with that is not flattering.

[My2Cents]

However, we cannot have a legal system that is so screwed up that it takes 2 million dollars and an act of Congress to come out with a bad outcome.

Quote of the Week.

Activist judges are quick to decide for death; when was the last time an activist judge decided for life (other than in a death penalty case)?

[Hildy]

Can you people just calm down for one moment. You say there is no reason the government (courts) should have a hand in killing innocent people. So I just asked how you justify bombing a country knowing that innocent people will be killed. Or are you just concerned about the lives of American people?

[Dog Gone]

It still boggles my mind that the attorneys did not raise issues which would have required the introduction of evidence. The Court would have been in position to refuse and the tube would have had to be reinserted until those issues were resolved.

The court would never had to issue its four-prong test because immediate injunctive relief, or a writ of mandate would have been forthcoming.

Unbelievably, they missed that opportunity with their second bite at the District Court apple, too. The Schindler's attorneys have some serious responsibility for the fact that Terri is going to die.

[Torie]

Thanks for the flag. This article gets it exactly right, the first that I have read to do so. Teh only problem, noted in the article, but deemphasized, is that while maybe there should be a symmetrical substantive due process right to not have a feeding tube removed to attend the Cruzan decision right to have it removed, the fact is that SCOTUS has not yet created such a right. I also think there is potentially a state action issue. The state is merely enforcing what presumptively the private actor wished to do, not going against it ala Cruzan. But arguably that could be finessed by claiming the court in fact went against the actor's wishes, and by doing so that was ipso facto state action.

All of these legal doctrines tend to be moving targets that courts use at the leisure as tools to paper over pre-desired results desired for ulterior reasons all too often.