Ongoing tyranny in the Terri Schiavo case

American Constitutional Research Service | 12-24-03 | John william kurowski

[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.]

[Bloody Sam Roberts]

Seems as if the fix is in on this one, folks. Terri's fate is in G-d's hands now. May he protect her.

[countrydummy]

I am flat sick of these twisted sobs! They are all caught up in a huge power play and a innocent young woman is the mouse they are fighting over! It is beyound sick, it is horrifying!

Terri has a right to live!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

[cyn]

thanks for the ping. the keyword I search for wasn't there, so had missed this. doh!

[JOHN W K]

Thought this would interest you: Jury trial sought to decide what Schiavo wanted

I think it would help if Governor Bush is encouraged by a showing of public support to guarantee Terri's right to a trial by jury to determine her wishes! Perhaps someone can post the appropriate phone and fax numbers and e-mail addresses. I do believe if an appeal is made to a federal district court via the 14th Amendment’s due process [the right of trial by jury being within that due process, and its protection not being granted to Terri] there is too much case law to refuse her this right.

JWK

[FR_addict]

If someone has the apropriate email addresses handy that John requested, it sure would be appreciated. Also, I haven't heard Govenor Bush's attorney make the argument for a jury trial in the same way as this article.

JWK is right, we need to continue showing support to the Governor and his attorney.

[det dweller too]

It's public record -- no legal bullpoop at all --[snip]

Well, its interesting that you say there isn't legal BS and then you start right in on some. The point I tried to make and apparently missed, is that we will never know what SHE wants. We have one set of legal experts with their second hand BS against another batch. Now we will advance the purity of this argument by getting a jury involved who will make their decision, [which will be final in Terry's case, but will NOT be Terry's decision], based on the legal BS spoonfed from both sides. Throw into the mix every political action group from the entire spectrum each with their own agendas and you have the makings of a grand circus. Meanwhile this woman is treated like an object, or worse yet, like a trophy to be fought over.

This thing needs to park all the above mentioned crap and find out directly from the woman what she wants. If she says no then thats it. If she says yes she wants to leave, she should not have so suffer through starvation or writhing in pain as treatment is withdrawn. There should be lots of checks to let her change her mind and make sure it is not merely an emotional impulse. In the end it must be her choice to go or stay.

[cyn]

Jeb Bush's email address is Jeb.Bush@myflorida.com

Thanks for your work & post.

[cyn]

Hi, I thought this might be of interest to you.

[mickie]

You are so right to state that Terri needs her own attorney. One that works only for her.
How could this attorney get paid?
I for one, would be willing to donate a small amount to set up a fund......for Terri's own attorney.
Maybe one would work for costs alone..........someone who believes in saving Terri from certain death!

[tutstar]

oh my, had not thought of that...

[tutstar]

To the best of my knowledge Terri has not had a lawyer of her own...
I suppose that may be because her HINO is legal guardian, but I'm not so well versed in legal matters...

It does not make sense that she does not have one but neither do most of the happenings in this case.

[drlevy88]

Of course you snipped because the rest would embarrass your position to the perdition it deserves.

Anyhow, if they can somehow wake Terri up enough to get a lucid answer directly out of her that she wants to starve, and then she goes under again for good, your proposal could remotely approach making sense. Otherwise you are just being another ghoul.

[JOHN W K]

Here is a greatdiscussion concerning Terri’s case and judicial tyranny. Get involved!

This is ground zero!

Also see:

From the headlines for other discussions concerning Terri’s case…this forum is sponsored by the St. Pete Times in Florida, and is continually monitored by Governor Bush’s people, legislators, and even judicial tyrants! We need to give Gov. Bush our support!

Sincerely,

JWK

[JOHN W K]

Here is a greatdiscussion concerning Terri’s case and judicial tyranny. Get involved!

Also see:

From the headlines for other discussions concerning Terri’s case…this forum is sponsored by the St. Pete Times in Florida, and is continually monitored by Governor Bush’s people, legislators, and even judicial tyrants! We need to give Gov. Bush our support!

Sincerely,

JWK

[Saundra Duffy]

Here's hoping Terri will live to spend many more Christmas's with her family. I wonder if she got to hear some Christmas music in her room.

[Txlady615]

Terri also has a right to life...for medical treatment that she has been denied! There are witnesses from the care takers as to what a tyrant Michael has been. It is unbelievable that she can not be under the care of her parents and brothers and sisters! I don't know how that family has resisted not hiring some strong arms to go in and remove Terri...take her somewhere for proper care and treatment. God Forbid if anyone tried to do this to my child. My children are married and adults, but they are still my son and daughter and always will be! I wonder if that Judge has any children of his own? An idle statement of "I wouldn't want to live that way", is not directions to starve one to death! I've made a lot of idle statements in my life time...that meant nothing more than an idle statement, including statements such as "I'd kill the so & so", but I never went out and made any attempts, arrangements or plans.
Neither did Terri!

[JOHN W K]

Txlady615, you wrote:

“Terri also has a right to life...for medical treatment that she has been denied!…”etc.

Terri also had a right to the protection of a jury trial in a case in which she was the most interested party, a case to determine her wishes, [see Schiavo's wishes recalled in records] and whose right to life and liberty was at stake. And, who has waived her right to the protection of a jury, and has done so without her knowing and willing consent [making it illegal]? Her alleged loving husband who has been out and about thinking with his little head, engaging in extramarital affairs! But not to fret as the Court had the audacity to permit this active adulterous spouse to continue as Terri’s guardian! For some reason I just get the feeling that Judge Greer, Judge Baird, and the infamous George J. Felos have something else in their minds other than Terri’s best interests. But who knows? Maybe they are just good friends….very, very good friends.

In re GUARDIANSHIP OF Estelle M. BROWNING: and I suggest you read the entire case, a case which I’m sure the infamous George J. Felos is familiar with, [it has been pointed out elsewhere this is the case which inspired him to hear voices,] the following quotes taken from the case are most interesting:

1. “The Ethics and Advocacy Task Force, as amicus curiae, raises a very legitimate concern that the "right to die" could become a license to kill. There are times when some people believe that another would be "better off dead" even though the other person is still fighting vigorously to live. Euthanasia is a crime in this state. 782.08, Fla.Stat. (1987). See 765.11(1), Fla.Stat. (1987).”

2. “We emphasize and caution that when the patient has left instructions regarding life- sustaining treatment, the surrogate must make the medical choice that the patient, if competent, would have made, and not one that the surrogate might make for himself or herself, or that the surrogate might think is in the patient's best interests.”

The bottom line is, our system of justice guarantees Terri a right to the protection of a jury in determining the facts in her case in which her life may be ended by the authority of the State. Until this protection and due process is afforded to Terri, which may not be perfect but is guaranteed by our system of justice, Terri’s case will not be concluded within the four corners of our Constitution, and those who move forward without providing this protection, will be doing so in violation of their oath of office and be willingly participants in the subjugation of our constitutional system.

See: Sec. 241 - Conspiracy against rights

Sec. 242 - Deprivation of rights under color of law

Civil Action For Deprivation of Rights (see 42 U.S.C. § 1983 )

Conspiracies to Interfere With Civil Rights (see42 U.S.C. § 1985 )

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.”

And, Justice Byron White, in Taylor v. Louisiana, 419 US 522 , 530 (1975)emphatically stated:

"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." --

JWK

ACRS

[Future Useless Eater]

I found 3 things from the past that seem very pertinent to this thread...

Nicmarlo brought this to our attention six weeks ago...

Michael Schiavo Is Being Charged With Perjured Testimony and Fraud On the Court

Does anyone know the status of these cases?

Civil Lawsuit:
...April 2001 lawsuit in which Michael Schiavo has been charged with numerous counts of wrongful acts... Subsequent to the April 2001 filing, an amended Civil Lawsuit was filed on May 7, 2001, charging Michael Schiavo with the following counts and allegations:

• INTENTIONAL CONSPIRACY
• BREACH OF FIDUCIARY DUTY
• INFLICTION OF EMOTIONAL DISTRESS
• ALLEGATIONS COMMON TO ALL COUNTS

...the charges in the lawsuit compelled Civil Court Judge Quesada to conduct an emergency hearing on April 26, 2001. In that hearing, Judge Quesada recognized the inconsistency of Michael Schiavo's original 2000 trial testimony...

The civil suit presented to Judge Quesada has since been amended and a portion pertaining to probate matters has been reassigned to Judge Greer's court. However, the major segment of the lawsuit is presently under consideration in Judge Schaefer's Civil Court.

If these cases were still active all this time, Why were these given such a SLOW TRACK? and how were the judges able to justify killing her FIRST, and finding the REAL 'facts' SECOND?

---

Another post made in November was by pc93.
Here is a snippet that jumped out for me...

May 1998 - George Felos is hired and files a petition in Court to remove Terri's feeding tube.

April 6, 1999 - House Bill 2131 was introduced in the legislature by the Florida Elder Affairs & Long-Term Care Committee to amend Section 765 (Civil Rights) of the Florida Statutes. two weeks later, the legislature Committee on Judiciary recommmended that House Bill 2131 should also change the Section 765.101 legal definition of life prolonging procedures to add: "INCLUDING ARTIFICIALLY PROVIDED SUSTENENCE AND HYDRATION, WHICH SUSTAINS, RESTORES, OR SUPPLANTS A SPONTANEOUS VITAL FUNCTION".

Oct 1, 1999 - Senate Bill 2228 (formerly HB2131) becomes law changing Section 765.101 of the Florida Statutes to include the above.

Jan 24, 2000 - Trial begins to decided whether to remove Terri's feeding tube.

Feb 11, 2000 - Judge Greer orders that Terri's feeding tube can be removed.

If you followed the timeline, Felos filed a petition to remove Terri's feeding tube BEFORE the law was changed...

Why is that? Did the Florida legislature knowingly or unknowingly pass a law that would apply specifically to Terri? I don't think there were any other hotly contested "right to die" cases at that time. (The cases of Cruzan, Bludworth, and Browning were decided years before). I wonder who paid-off or influenced who to get the law changed?

http://freerepublic.com/focus/news/1018981/posts?page=316#316
(post 316 has tons of other juicy stuff)

MY COMMENTS on this snippet:
WHY DOES THIS COURT OBJECT to the legislature changing laws in 2003 affecting an active case (to SAVE Terri)...
BUT the SAME COURTS WELCOMED the legislature changing laws in 1999 affecting this SAME ACTIVE case (to DESTROY Terri) ?

---

A third post from November was by iowamomforfreedom, and it seems VERY relevant today... It also had detailed and lengthy notes on Florida JUDICIAL CORRUPTION... http://freerepublic.com/focus/news/1018981/posts?page=326#326

[Future Useless Eater]

---

      "Where there's life, there's hope."
      -Terri Schiavo ( arguing with her best friend Diane Meyer ) angrily PROMOTING LIFE FOR the comatose
-Kate Adamson ( former vegetative patient nearly starved to death ) "Its VERY painful... Its SHEER torture!"
-photos and transcript ( of Terri opening her eyes VERY WIDE on command )
-Michael Schiavo (teaching Terri she can NEVER DIVORCE him) minutes before her 'collapse'
-Michael's 1993 girlfriend ("he can be the most INCREDIBLY MEAN person!")
-link to latest TV coverage/interviews           Contact FoxNews

[Theodore R.]

The charge of fraud and perjured testimony of 2001 stopped the first attempt at execution. I do not know how it was resolved, but Michael R. Schiavo must have come out smelling like a rose. After all, didn't Jay Wolfson call him an "ideal husband" with "love" in his "heart"?

The problem is the FL judiciary!!!! No amount of truth will sway those horrible judicial tyrants in FL.