Posted on 12/25/2003 5:52:45 PM PST by JOHN W K
Tuesday, December 23, 2003 marked yet another day of Florida’s active renegade judicial system and its willingness to participate in a depravation of Terri Schiavo’s rights under color of law.
In this latest incident, [see:Judge Ready to Rule in Schiavo Case; Bush Lawyers Predict Defeat] Circuit Judge Douglas Baird, who previously stated Terri’s Law was “presumptively unconstitutional” prior to a trial concerning its constitutionality, has now seen fit to suggest that Terri Schiavo’s wishes have already been decided in another court case, and rejected Florida’s Honorable Governor’s request to have a trial by jury to determine the wishes of Terri.
Earlier this year in a case involving Terri, and which Judge Baird apparently made reference to on Tuesday, Judge Greer, the presiding judge, acted as both judge and jury and decided what Terri wanted--- first as a jury in evaluating testimony of witnesses as to what Terri would want, and then as a judge in issuing a court order to remove Terri’s feeding tube. The court order to remove Terri’s feeding tube resulted in Florida’s Legislature adopting “Terri’s Law”, requiring the tube to be reapplied and protect her life which was in harmony with Florida‘s Constitution which commands life to be protected from all those who would attempt to abridge this constitutionally recognized and protected right.
But how can Judge Baird rely upon the above court proceeding concerning Terri’s wishes in which her right to a trial by jury, and the protection afforded by such a proceeding, was waived without her knowing and willing consent? The unauthorized waiving of Terri’s right to a trial by jury is part of the court’s record and cannot be contended! Did Terri consent to waiving such a right? No. Can Terri’s constitutional guaranteed right to the protection of a jury in a case involving her life and liberty be lawfully waved by another without her knowing and willing consent? No! Does Florida’s Constitution guarantee the right to a trial by jury in a case involving life and death? Yes. Are there any stipulations in Florida’s Constitution which alters this guaranteed protection or allows the right to be waived in a case involving life and death without the knowing and willing consent by the individual who is guaranteed this right? No!
The Florida Constitution states in part:
SECTION 2. Basic rights.--All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.
SECTION 9. Due process.</B.--No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.
And what due process is provided for by Florida’s Constitution?
SECTION 22. Trial by jury.--The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.
Perhaps Judge Baird does not believe in the constitutionally intended separation of powers of judge and jury written into Florida’s Constitution as is also written in every other State’s constitution and in our federal Constitution as well. Perhaps Judge Baird does not believe in the protection which a jury was intended to provide, and that Judge Greer is somewhere constitutionally clothed with both these powers. If so, the historical evidence surely contradicts Judge Baird’s notion concerning the importance of the right to a trial by jury, and the intended separation of powers of judge and jury, to wit:
As Thomas Jefferson put it to Tom Paine in a 1789 letter, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
And, in 1794, in the first jury trial held before the U.S. Supreme Court, John Jay, the first Chief Justice instructed jurors thusly: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still both objects are within your power of decision. The jury has a right to judge both the law as well as the fact in controversy."
J. Story writes in his Commentaries on the Constitution of the United States 1757 (1833). ''t is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty.'' Id. at 1762.
And, in Sparf v. United States, 156 U.S. 51, 106, (1895) Justice Harland wrote:
“The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.”
In a more recent case, in Taylor v. Louisiana, 419 US 522 , 530 (1975) Justice Byron White stated with regard to the right to a jury trial:
"The purpose of a jury is to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the over-zealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge."
For a more complete review of this legal topic see: RIGHT TO TRIAL BY IMPARTIAL JURY
So, contrary to what judge Baird asserted, that Terri’s wishes have been decided in another case, the truth is, Terri’s wishes, as alleged by witnesses, have not been evaluated by a jury, and under the existing circumstances and our constitutional system, is the only constitutionally authorized body which may make such a determination, and therefore, Judge Baird’s relying upon a case in which Terri has not been afforded the protection of a jury, and prefers to accept the opinion of a judge who has improperly acted as a judge and jury, is aiding in a depravation of Terri Schiavo’s rights under color of law. those rights being: due process of law and the protection found in a trial by jury.
It is also important to note that the comment made by Judge Baird prior to the trial to determine the constitutionality of Terri‘s Law, the comment being that Terri’s Law was “presumptively unconstitutional”, which was then somehow found to not be a biased remark by the First District Court of Appeal [Fulmer, Davis, and Wallace, jj concurring] in which Governor Bush had petitioned to have Baird removed from the case because of the biased remark, the Court in not finding Judge Baird’s remark to be biased pointed to North Florida Women's Health & Counseling Services, Inc. v. State of Florida and relied upon an unprecedented standard used earlier by a Florida Court in “In re T.W., 551 So. 2d 1186” (Fla. 1989), in which the court, with its opinion, laid the groundwork to subjugate and overturn a number of fundamental principles of constitutional law practiced in America for over three hundred years as listed below:
1. The burden is upon him who assails the constitutional validity of a statute,
2. It is presumed that the Legislature intended a valid constitutional enactment,
and 3. When the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one which it would be unconstitutional and the other it would be valid, it is the duty of the Court to adopt that construction which will save the statute from constitutional infirmity.See Florida‘s own Supreme Court in case NO. 93, 649 NATHAN MIZRAHI and AVA RUTHMAN:
The court reasoned, in refusing to remove Baird from the case as follows:
“The circuit judge‘s statement that this legislation is presumptively unconstitutional simply announced the standard by which he believes the constitutionality of the statute is to be measured and is therefore legally insufficient to create a well-founded fear of prejudice or bias.”
Is that so? Not bias or prejudicial? In making the comment prior to trial, Judge Baird announced to the world and without reservation, that he had already determined Terri’s Law to impinge upon her right to privacy as discussed in North Florida Women's Health & Counseling Services, Inc. v. State of Florida in which the phrase “presumptively unconstitutional” is used. In this case the phrase was used by the court to observe a new standard of judicial review created by the court and to disobey three hundred years of established principles which govern constitutional law. In fact, it was used to strike down as unconstitutional an act requiring parents of an adolescent child seeking an abortion to be notified prior to such an abortion, pretending such an act would “forsake the will of the people” as they intended by their framing and adoption of Article 1, Section 23 of Florida’s Constitution, an intention nowhere to be found in the historical records during the framing and adoption of Article 1, Section 23!
As it turns out, the people of Florida during the 1970’s were quite concerned with folks in government collecting information about them without their knowledge by the use of wire taps and other such means as was exposed was being done by the Watergate incident. The people’s will with regard to the privacy mentioned in Article 1, Section, 23 was related to this type of government intrusion and was never, even remotely intended, to overturn parental rights as known in the State of Florida since its beginning when the people adopted the Amendment in 1980, nor overturn the principle that: “ The burden is upon him who assails the constitutional validity of a statute”.
As to the alleged intention that Article 1 Section 23 may have been adopted to allow Terri’s protection of a jury to be waived without her willing and knowing consent, in order to “protect her privacy” by allowing a judge to act as judge and jury in determining a medical decision she may have wanted, nothing in the historical record of the amendments framing and adoption supports such a theory--- a theory which in fact suggests that the people of Florida intended to repeal the protection afforded by the guarantee to a trial by jury in cases in which the state is called upon to end a persons’ life.
In any event, it was generally thought that Florida’s judicial system would hand the Honorable Governor a defeat, but such a defeat is not expected when the 14th Amendment protection to due process of law is invoked at the federal level, and the Court there is called upon to guarantee Terri a trial by jury to determine what her wishes may have been. Thankfully Florida’s Honorable Governor has promised to appeal this decision, and eventually our system will be made to work as intended by our Founding Fathers.
JWK
ACRS
[Permission is hereby given to reprint this article if credit to its author and the ACRS appears in such reprint. No copyright is claimed for quotes within the article which are public domain materials.]
Are Florida judges born without shame, or is it a characteristic they acquire upon appointment to the bench? It is a terrible shame that this woman's life will not be protected by the state that bore and raised her, but I have little hope of an outcome in Florida different from what you forsee. And while I hope that the federal juciciary will care more for her rights than their state counterparts, I will not believe her safe until her REAL family has the key to her room ... and can kick her husband out of her life forever.
Eventually, the USSC will see this case - unless she dies first. I hope they get the chance, and that we have the right judges there when they do.
When I heard about the new developments in the Rush Limbaugh case, I immediately thought of Terri. In hearing about Rush, I learned that, unlike the Federal Constitution, the Florida State Constitution does include a section providing for the right to privacy. That is the basis of Rush's case (i.e., keeping his medical records sealed), as it is in Terri's "right to refuse medical treatment," according to Felos.
It seems to me, that the ACLU's involvement in both cases illustrates its interest in pushing the "right to privacy" agenda.
Felos has all the judges in his pocket. WHO WILL INVESTIGATE THIS COVENANT TO TAKE TERRI'S LIFE before they actually succeed?
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