Replies

Sun - you say, "READ the Constitution and the Bill of Rights and then get back to me. I'm embarrassed for you".

You have it backwards. I'm embarrassed you did not learn from Delay and quit embarrassing yourself. Once was not enough, you have to repeat it again and again. Keep at it. Just amazing what is said here. And you all believe each other [at least 82% do from the poll - scarey].

My guess is someone [a lawyer] who actually read the rulings, gave Delay a brief and rather than admit he had never read any of them before they brought this up in Congress or opened his mouth after the 11th Circuit made it's ruling [that would be really embarassing], he decided an 'apology' was easiest way to back down. 'Even though he's still right to "investigate" it'. We'll see how far that investigation goes in the judiciary committee after they all read the rulings.

Maybe you [Sun] should read the whole US Constitution, the whole Bill of Rights [Terri's wishes are rights too], the Florida Constitution [privacy - right to die], the FLorida Law the case was based on, Supreme Court ruling in Cruzan, all the court rulings and the 11th CCA ruling [especially what the court wrote in response to Judge Tjoflat's dissent]. They said even if they took the case, they would have ruled the trial judge had clear and convincing evidence to make his ruling and the FLA 2nd District Court of Appeal had done a careful [almost de novo] review of the evidence. It's obvious from comments very few here have bothered to take the time to read any of the rulings.

If you don't like the law in FLorida, change it, don't blame judges when they actually do follow the law and just rule on it.

In response to Judhe Tjoflat dissent saying "let's take the case" [i.e. - keep her alive for a few more months before we have to rule everything was constitutional].

11th CCA - As he [Judge Tjoflat] understands the plaintiffs’ latest arguments, “[t]he relevant question here is whether a rational factfinder could have found by clear and convincing evidence that Mrs. Schiavo would have wanted nutrition and hydration to be withdrawn under these circumstances.” That is not the way we understand the arguments that the plaintiffs have put forward in their current suggestion for rehearing en banc. However, even if Judge Tjoflat’s understanding of those arguments is correct and the question presented is the one he has articulated, this Court is correct in denying rehearing en banc.

Assuming, as Judge Tjoflat may, that the Due Process Clause requires clear and convincing evidence, there was abundant testimony before the state trial court to prove by that evidentiary standard that Mrs. Schiavo would have wanted nutrition and hydration to be withdrawn under these circumstances. Some of that evidence is set out at some length in the trial court’s detailed order of February 11, 2000. While there was some conflict in the evidence, credibility determinations are within the province of the factfinder. See Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S. Ct. 1504, 1512 (1985) (special deference is due where a trial court’s findings are based on the credibility of witnesses, “for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said”); Inwood Lab., Inc. v. Ives Lab., Inc., 456 U.S. 844, 856, 102 S. Ct. 2182, 2189 (1982) (“Determining the weight and credibility of the evidence is the special province of the trier of fact.”); United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004) (“Such a credibility finding is within the province of the factfinder.”). It is not the role of an appellate court to second-guess credibility determinations.

On appeal from the state trial court’s decision and findings, Florida’s Second District Court of Appeal did carefully review the record and determined that the question the trial court decided:

..... [FAL 2nd District Court of Appeal] was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration we conclude that the trial judge had clear and convincing evidence to answer this question as he did.

[back to 11th CCA] Even assuming that this type of sufficiency of the evidence issue is a proper one for an en banc determination, there is no substantial question in this case about whether a rational factfinder could have found, as the Florida court did, that there was clear and convincing evidence that Mrs. Schiavo would not have wanted nutrition and hydration continued in these circumstances. Given the credibility determinations that the state trial court was authorized to and did make, the evidence clearly was sufficient to meet the clear and convincing evidence standard, which the Florida courts had imposed and did apply in this case.