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Terri Schiavo's Plight: A Case Study in Judicial Bias [Wesley Smith]
LifeNews.com ^ | 2/2/04 | Wesley Smith

Posted on 02/02/2004 11:53:27 AM PST by nickcarraway

LifeNews.com Editor's Note: Wesley J. Smith is a senior fellow at the Discovery Institute, and an attorney for the International Task Force on Euthanasia and Assisted Suicide. He is also a special consultant to the Center for Bioethics and Culture.

The "Rule of Terri's Case" has struck again. The term was coined by Pat Anderson, attorney for Terri Schiavo's parents Bob and Mary Schindler, who complained: "If following a legal procedure will likely result in Terri dying, it will be adhered to. But if a procedure could make that outcome more difficult to attain, it will not be followed."

Anderson's complaint has ample evidentiary support. For example, under Florida law, Terri should have a court-appointed guardian ad litem to exclusively represent her interests. But, Judge George Greer, of the Sixth Judicial Circuit, refused to allow one for Terri in the guardianship case ever since her first ad litem was dismissed after recommending that she not be dehydrated to death.

Similarly, "Terri's Law," the new statute that permits Florida's governor to suspend the planned removal of a feeding tube in certain cases, also requires the appointment of a guardian ad litem. This was done. But after the ad litem Jay Wolfson urged that she be allowed a swallow test, David A. Demers, chief judge of the Sixth Judicial Circuit, refused to renew his authority. This, despite Governor Jeb Bush specifically informing Demers that he needed further information from Wolfson to properly carry out the governor's responsibilities under Terri's Law. So, once again, Terri is without the protection of a guardian ad litem.

And now Judge Greer has repeatedly allowed Michael Schiavo to skirt his statutory duty to file mandatory annual guardianship plans to establish a ward's approved plan of care for the coming year. This appears to be a direct violation of the applicable Florida Statutes, which read in part:

Each guardian of the person must file with the court an annual guardianship plan which updates information about the condition of the ward. The annual plan must specify the current needs of the ward and how those needs are proposed to be met in the coming year. (Section 744.3675; emphasis added)

Most important for the Schiavo case, the plan must describe the "plan for provision of medical, mental health, and rehabilitative services in the coming year." If a guardian fails in this duty:

The court shall order the guardian to file the report within 15 days after the service of the order upon her or him or show cause why she or he should not be compelled to do so. (Section 744.3685)

Moreover:

The court must review the initial and annual guardianship report to determine that the report: (a) meets the needs of the ward . . . (Section 744.369 (4); emphasis added)

And:

The approved report constitutes authority for the guardian to act in the forthcoming year. The powers of the guardian are limited by the terms of the report. (Section 744.368 (8); emphasis added)

In other words, the guardianship plan is supposed to be reviewed by the court prospectively, not retrospectively, which makes sense since its purpose is to ensure that the plan is appropriate to the ward's future needs. (This is not the same thing at all as reviewing an accounting of past expenditures.) Moreover, the approved guardianship plan constitutes the guardian's authority to act, and the guardian's actions are limited by the contents of the plan in the coming year. Thus, it would appear that a Florida guardian of the person has no legal authority in the absence of an approved plan.

Yet, despite these very clear statutory mandates, Judge Greer only shrugs his shoulders at Schiavo's apparent unwillingness to file annual plans. Indeed, he has instead six times granted Schiavo's requests for "time extensions" for the July 2001-June 2002 plan. It is now almost 3 years late. He also just approved a time extension permitting Schiavo further time to file his guardianship report that should have been in place between July 2002 and June 2003. By granting these repeated extensions Judge Greer sends a clear message to Michael Schiavo: I am not going to require you to comply with the statutes.

THIS MAKES a mockery of the rule of law. The guardianship plan is intended to establish the plan of care and grant the guardian authority to act in the year ahead. This means that the plans for 2001-2002 and 2002-2003, as opposed to reporting about previous guardianship activities, are utterly irrelevant at this point. Moreover, Greer should have long since ordered Schiavo into court to explain his failure to file a July 2003 to June 2004 annual plan, which the law permits to be punished as contempt of court. Not only that: Since there is apparently no current court-approved annual guardianship plan in effect for Terri, based on the above cited statutes, it would appear that Michael Schiavo has no legal authority over Terri's care.

We've all heard of judicial discretion, but this ridiculous. Greer has repeatedly denied Terri important protections to which she is entitled under Florida statutes--for almost three years--and no court will do anything about it. No wonder the Florida legislature passed Terri's Law.

I asked Pat Anderson why, in her opinion, hard and fast rules that govern other guardianships don't apply to Terri. She chuckled bitterly, "It's the Rule of Terri's Case. Both the guardian and the judge treat Terri as though she were already dead and in no need of these statutory protections."

Harsh words? I think not. Schiavo's most recent requests for time extensions were for the purpose of waiting to see whether "the mandate of the Second District Court of Appeal may be complied with." The "mandate" in question is Terri's dehydration. Thus, to put it bluntly, Judge Greer permitted Schiavo to again avoid complying with his already long overdue statutory obligations because, in essence, Terri is as good as dead: So, why go through the time and bother of complying with the law?

WHILE WE ARE ON THE SUBJECT of Michael Schiavo treating Terri as if she were already dead: I recently completed reading his November 19, 1993 deposition. The examination took place after the Schindlers attempted to remove Schiavo as Terri's guardian because he refused to allow the administration of antibiotics to treat a serious infection. After admitting to having been romantically involved with other women during this period, he was asked what he did with Terri's jewelry. He answered:

"Um, I think I took her engagement ring and her--what do you call it--diamond wedding band and made a ring for myself."

Sweet.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Front Page News; Government; Miscellaneous; News/Current Events; Politics/Elections; US: Florida
KEYWORDS: bioethics; constitution; courts; euthanasia; florida; guardians; judges; law; prolife; righttolife; terrischiavi

1 posted on 02/02/2004 11:53:35 AM PST by nickcarraway
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To: Lady In Blue; Canticle_of_Deborah; MarMema; kimmie7; floriduh voter; JulieRNR21; NautiNurse; ...
New article on Terri Schiavo by Wesley Smith
2 posted on 02/02/2004 11:54:47 AM PST by nickcarraway (www.terrisfight.org)
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To: feisty
ping
3 posted on 02/02/2004 11:57:20 AM PST by nickcarraway (www.terrisfight.org)
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To: nickcarraway
Does Wesley Smith think that poor Terri will survive until Easter?
4 posted on 02/02/2004 12:21:40 PM PST by Theodore R. (When will they ever learn?)
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To: nickcarraway
Looks like a repeat. That's OK, we got a LOT of information brought out on the last one. Time for a new thread anyway.
5 posted on 02/02/2004 12:23:14 PM PST by T'wit
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To: T'wit
I didn't see the title wehen i searched.
6 posted on 02/02/2004 12:34:05 PM PST by nickcarraway (www.terrisfight.org)
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To: nickcarraway
I wish we has a complete ping list. Somehow you were missed on the ping to the other post. sweetliberty took care of the list until her computer crashed.

The Rule of Terri's Case Strikes Again:
http://www.freerepublic.com/focus/f-news/1068994/posts

phenn's post 206 from Terri's organization is important, so I'm going to repeat it here:


"CALL TO ACTION - TALLAHASSEE

Tomorrow, Tuesday - February 3, 2004, there will be a Senate Judicial Committee Hearing on the proposed House Bill, PCB-JU04-05. This bill relates to the withholding of nutrition and hydration from disabled and vulnerable persons and is the first step towards Senate Bill 692.

You can read the text of this here: http://www.zimp.org/documents/PCBJU04-05.pdf.

This hearing is open to the public and citizens in the Tallahassee area of Florida are encouraged to attend. You can even address the committee by completing a request card prior to the hearing. Even if you only wish to say "I support this bill", your remarks will be noted.

The scheduled time for this hearing is 1.00pm ET and will be held in room 17 of the Capitol Building located at:
402 South Monroe
Tallahassee, Florida

I apologize for the late notification. However, I only received details a moment ago. Please circulate this email through your lists as well. As soon as there is an update as to the outcome of this hearing, I will post it. Thanks for your help!

-Pamela-"
7 posted on 02/02/2004 1:13:53 PM PST by FR_addict
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To: 2nd amendment mama; A2J; Agitate; Alouette; Annie03; aposiopetic; attagirl; axel f; Balto_Boy; ...
ProLife Ping!

If anyone wants on or off my ProLife Ping List, please notify me here or by freepmail.

8 posted on 02/02/2004 1:16:37 PM PST by Mr. Silverback (Pre-empt the third murder attempt-- Pray for Terry Schiavo!)
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To: nickcarraway; fiesti
Hi, and ping!
9 posted on 02/02/2004 1:26:14 PM PST by cyn (www.terrisfight.org)
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To: nickcarraway
Enh, that happens. No sweat. As the Aussies say, "No worries, mate."
10 posted on 02/02/2004 1:44:55 PM PST by T'wit
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To: nickcarraway; cyn; GWB and GOP Man; WFTR; Republic; tutstar; TaxRelief; NYer; sfRummygirl; ...
Thanks for the ping. W. Smith emailed me a couple of times the other day. He knows we're on this until Terri's safe. Apparently and thankfully, so is he.
11 posted on 02/02/2004 1:46:27 PM PST by floriduh voter (www.conservative-spirit.org freeper site)
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To: nickcarraway
Frightening!!!!!!!!!
12 posted on 02/02/2004 1:46:56 PM PST by Saundra Duffy (For victory & freedom!!!)
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To: FR_addict; JulieRNR21
Ping. Who's the North Florida Chapter head? This is an action item for Tallahassee freepers.
13 posted on 02/02/2004 1:47:53 PM PST by floriduh voter (www.conservative-spirit.org freeper site)
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To: FR_addict
It would be nice if some FReepers could show up.
14 posted on 02/02/2004 1:48:09 PM PST by Saundra Duffy (For victory & freedom!!!)
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To: FR_addict; JulieRNR21
Ping. Who's the North Florida Chapter head? This is an action item for Tallahassee freepers. POST #7
15 posted on 02/02/2004 1:48:13 PM PST by floriduh voter (www.conservative-spirit.org freeper site)
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To: floriduh voter
North Chapter leader is saminfl
16 posted on 02/02/2004 1:57:42 PM PST by JulieRNR21 (One good term deserves another! Take W-04....Across America!)
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To: saminfl
Please see #7. If anyone can participate, great. If not, no prob. floriduh voter
17 posted on 02/02/2004 2:05:11 PM PST by floriduh voter (www.conservative-spirit.org freeper site)
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To: JulieRNR21; All
Thanks for the info. Matchett-PI is Central Florida, saminFL is Northern Florida. FYI to all.
18 posted on 02/02/2004 2:06:38 PM PST by floriduh voter (www.conservative-spirit.org freeper site)
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To: floriduh voter
Hi,
Is there an address for the committee so we can notify them of our support for the bill? Would be a way to help from a distance.....those who cannot go to the hearing. Thanks!
19 posted on 02/02/2004 2:16:34 PM PST by seekthetruth
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To: seekthetruth; phenn
Phenn, please see #19 re: tomorrow's legislation.
20 posted on 02/02/2004 2:29:21 PM PST by floriduh voter (www.conservative-spirit.org freeper site)
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Comment #21 Removed by Moderator

To: Seamonster; All
$400,000 of Terri's Jury Settlement for her Medical Care and Rehab Paid to A Lawyer

And, we also want to know how much life insurance money the husband stands to receive if he succeeds in getting a court order to starve Terri to death.

22 posted on 02/02/2004 3:06:22 PM PST by yhwhsman ("Never give in--never, never, never, never, in nothing great or small..." -Sir Winston Churchill)
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To: nickcarraway; All
>>didn't see the title when i searched.

a good way to find recent terri threads is search for ANY of these words, sorted by date:
    schiavo   terri   terri's

here is a link that can be bookmarked, that does this...
Latest Terri Threads

that won't find the 'continuous' thread, but it will find almost all others.

23 posted on 02/02/2004 5:14:01 PM PST by Future Useless Eater (Freedom_Loving_Engineer)
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Comment #24 Removed by Moderator

To: seekthetruth; All
his is the House Judicial Committee hearing this bill.
http://www.myfloridahouse.com/committee_meeting_notice.aspx?id=2789

Please contact these Legislators ASAP.
mahon.mark@myfloridahouse.com,
brutus.phillip@myfloridahouse.com,
ausley.loranne@myfloridahouse.com,
barreiro.gustavo@myfloridahouse.com,
davis.don@myfloridahouse.com,
davis.mike@myfloridahouse.com,
domino.carl@myfloridahouse.com,
gelber.dan@myfloridahouse.com,
planas.jc@myfloridahouse.com,
quinones.john@myfloridahouse.com,
sorensen.ken@myfloridahouse.com
25 posted on 02/03/2004 3:00:42 AM PST by phenn (http://www.terrisfight.org)
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To: nickcarraway
I am wondering why the Catholic Church does not give Terri an annulment, since her husband is living as a husband with another woman and has children by her? Wouldn't it help her case if the church annulled the marriage? The marriage is a complete sham!
26 posted on 02/03/2004 11:54:43 AM PST by tuckrdout (Terri Schindler (Schiavo) deserves to have her wishes honored: Give her a DIVORCE!)
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To: tuckrdout
Well, I don't know how that works. Usually somone applies for an annullment. I wonder if her family could apply. Even so, I don't know if an annullment by the Church would disolve her civil union.
27 posted on 02/03/2004 12:49:16 PM PST by nickcarraway (www.terrisfight.org)
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To: nickcarraway
I wonder if her family has tried, or if the Monsignor has pursued this course?

I would think that a church dissolution of the marriage would at least give the civil case a little more teeth! If the Church found cause to annul the marriage, perhaps the civil courts would use it as one argument for doing the same?
28 posted on 02/03/2004 9:47:02 PM PST by tuckrdout (Terri Schindler (Schiavo) deserves to have her wishes honored: Give her a DIVORCE!)
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