Posted on 04/20/2005 4:02:56 PM PDT by CHARLITE
The Terri Schiavo case so outraged House Republican leader Tom DeLay that he has all but declared war on the judiciary. Heaven knows judicial arrogance needs discussion, but a politician under siege for alleged ethics violations who is upset over a single outcome that two-thirds of the country agrees with is not the person to get discussion going.
After federal courts refused to act in the Schiavo case despite the new jurisdiction that Delay helped create, DeLay said the courts had ``run amok'' in abortion and school prayer cases. Congress, he said, ``must make sure the judges administer their responsibilities.''
Some conservative activists started muttering about impeaching Supreme Court Justice Anthony Kennedy (he's the author of a few recent decisions they don't like).
Other GOP leaders were aghast, fearing that the hullabaloo would threaten their effort to win Senate votes on judicial nominees threatened with filibuster. And sky-is-falling editorial writers wondered if the judiciary would survive.
The uncomfortable fact is that DeLay is on to something. Judges at all levels all over the country long have been throwing precedent and logic to the winds to reach results they want. In Massachusetts we recall federal Judge W. Arthur Garrity's failed experiment in running the Boston schools and our Supreme Judicial Court's more recent discovery of a ``right'' of gays to marry. We are not alone.
Activist judges seem to have forgotten that their decisions must be judged reasonable both by people who don't like the result and people who do. Case in point: Kennedy's opinion outlawing the death penalty for 16-year-olds and 17-year-olds. Using the trend of laws in other countries to justify it strikes us as unreasonable indeed.
There are a number of tools that can be used legitimately against out-of-bounds judges. (Cutting court budgets is not one.) The Constitution grants Congress power over the Supreme Court's jurisdiction. The framers thought impeachment was the remedy for judges guilty of ``a series of deliberate usurpations'' - a series, not a single case (``The Federalist,'' No. 81). Ending nomination filibusters can be thought of as another. As 11 states reminded us last November, constitutions can be amended. New laws can be enacted.
If any of this is undertaken, it should be done soberly. In an ideal world, it would be led by public figures of stature who are not involved in partisan politics.
The Schiavo case has precious little to do with the problem. In her case, all the judges applied the law as they found it. If it takes up DeLay's request to examine the actions of the federal courts in this case, the House Judiciary Committee should concentrate on whether changes are needed in the law, not the judges.
You can be proud to be from Texas.
Feel sorry for me. I have Clinton and Schumer.
We just need more people like yourself in New York.
But there is another problem. Hearsay evidence is inadmissable except where explicitly permitted by law. The exception to the law was never disclosed, and the only exception for the admissability of hearsay evidence concerned with medical treatment was for symptoms and the like.
The info below, is from the Guardian Ad Litem Richard L. Pearce, appointed by Judge Greer when, MS petitioned the court to have Terri's feeding tube removed in 1998.
Upon turning over his findings to Judge Greer, MS/MS's attorney demanded that Richard Pearce be removed as Terri's Guardian, alleging "BIAS"! Judge Greer agreed.
Read the excepts below, which are DIRECTLY from the actual report and find out WHY this Guardian ad Litem was removed. Hint: MS was unable to prove clear & convincing evidence.
MS "family" had not come forward with their alleged 1st hand info as to Terri's DEATH WISH, as MS & his death attorney has lead everyone to believe. Richard Pearce did NOT recommend that the feeding tube be removed.
Richard Pearce also stated as required by DUE PROCESS, that Terri needed a consistent Guardian ad Litem, which we all know she never received!
6. POTENTIAL CONFLICTS OF INTEREST.
The pending application by the ward’s husband for withdrawal of the of the Ward’s feeding tube which would inevitably result in the ward’s death creates at least the appearance of, if not Actual, conflicts of interest involving both the ward’s husband and her parents.
All parties to this proceeding acknowledge that the Ward has no will so that, upon her death, her entire estate will pass to her intestate heir (s). Thus, if the Ward dies while married to Mr. Schiavo, he inherits the entire guardianship estate.
On the other hand, if the marriage between the ward and her husband is dissolved the ward’s parents become her intestate heirs and they for the survivor of them) will inherit the Ward’s estate upon her death. Thus, the Mr. Schiavo will realize substantial and fairly immediate financial gain if his application for withdrawal of life support is granted.
On the other hand Mr. Schiavo’s petition for withdrawal of life support is denied, it may be anticipated that he would seek to dissolve his marriage to the Ward, in which case the Ward’s parents become her sole heirs-at-law.
Of course, given the potential that the ward may have a normal life expectancy, there is no way to qualify the projected potential financial gain to the Ward’s parents upon her eventual death because there is no reliable way of predicting how much of her estate will be left.
8. GUARDIAN AT LITEM’S OPINION AND RECOMMENDATIONS.
The principal issue presented in this case is whether the ward, if capable, would direct the removal of her feeding tube given her present circumstances.
There is no written advance directive of the ward in this case. Based on Browning. There is no presumption that evidence of oral statements of the ward are clear and convincing; that burden remains with the Petitioner.
The only direct evidence probative of the issue of the ward’s intent is the hearsay testimony of her husband, Mr. SCHIAVO, who seeks withdrawal of the ward’s feeding rube which would inevitably result in her death. However, his credibility is necessarily adversely affected by the obvious financial benefit to him of being the ward’s sole heir at law in the event of her death while still married to him. Her death also permits him to get on with his own life.
In the opinion of the undersigned guardian ad litem, Mr. SCHIAVO’S credibility is also effected by the chronology of the case. For the first four years (approximately) following the ward’s accident, he aggressively pursued every manner of treatment and rehabilitation conceivable. As well as lawsuits to compensate the ward for her injuries in connection with which he presumably argued that she could require substantial funds for future care and treatment.
At or around the time the litigation was finally concluded, he has a change of heart concerning further treatment which lead, according to the ward’s parents, to his falling out with them. From that point forward, the ward’s husband has isolated the ward from her parents, has on at least one occasion refused consent for the ward to be treated for an infection, and, ultimately, four years later, has filed the instant petition for the withdrawal of life support on the basis of evidence apparently known only to him which could have been asserted at any time during the ward’s illness.
Since there is no corroborative evidence of the ward’s intentions, and since the only witness claiming to have such evidence is the one person who will realize a direct and substantial financial benefit from the ward’s death, the undersigned guardian ad litem is of the opinion that the evidence of the ward’s intentions developed by the guardian ad litem’s investigation does not meet the clear and convincing standard. Based on Migliore v. Migliore, 717 So.2d 1077 (Fla. 4th DCA 1998) , the credibility of the witness is a factor to be considered in determining whether evidence is clear and convincing.
Given the inherent evidentiary problems already mentioned, together with the fact that the ward has been maintained on the life support measures sought to be withdrawn for the past 8 years, it is the recommendation of the guardian ad litem that the petition for removal be denied.
In fairness to the petitioner, should this court disagree with the foregoing analysis of the evidence and find it to clearly and convincingly reflect the actual wishes and intentions of the ward, the guardian ad litem believes that Browning controls and, in that case, the feeding tube should be withdrawn. The undersigned guardian ad litem further asserts and recommends that due process requires that the ward’s interests continue to be represented in all further proceedings herein, whether by the undersigned guardian ad litem or other appropriate fiduciary.
There is no written advance directive of the ward in this case. Based on Browning. There is no presumption that evidence of oral statements of the ward are clear and convincing; that burden remains with the Petitioner.
6. POTENTIAL CONFLICTS OF INTEREST.
The pending application by the ward’s husband for withdrawal of the of the Ward’s feeding tube which would inevitably result in the ward’s death creates at least the appearance of, if not Actual, conflicts of interest involving both the ward’s husband and her parents.
All parties to this proceeding acknowledge that the Ward has no will so that, upon her death, her entire estate will pass to her intestate heir (s). Thus, if the Ward dies while married to Mr. Schiavo, he inherits the entire guardianship estate. On the other hand, if the marriage between the ward and her husband is dissolved the ward’s parents become her intestate heirs and they for the survivor of them) will inherit the Ward’s estate upon her death. Thus, the Mr. Schiavo will realize substantial and fairly immediate financial gain if his application for withdrawal of life support is granted. On the other hand Mr. Schiavo’s petition for withdrawal of life support is denied, it may be anticipated that he would seek to dissolve his marriage to the Ward, in which case the Ward’s parents become her sole heirs-at-law. Of course, given the potential that the ward may have a normal life expectancy, there is no way to qualify the projected potential financial gain to the Ward’s parents upon her eventual death because there is no reliable way of predicting how much of her estate will be left.
8. GUARDIAN AT LITEM’S OPINION AND RECOMMENDATIONS.
The principal issue presented in this case is whether the ward, if capable, would direct the removal of her feeding tube given her present circumstances.
There is no written advance directive of the ward in this case. Based on Browning. There is no presumption that evidence of oral statements of the ward are clear and convincing; that burden remains with the Petitioner.
The only direct evidence probative of the issue of the ward’s intent is the hearsay testimony of her husband, Mr. SCHIAVO, who seeks withdrawal of the ward’s feeding rube which would inevitably result in her death. However, his credibility is necessarily adversely affected by the obvious financial benefit to him of being the ward’s sole heir at law in the event of her death while still married to him. Her death also permits him to get on with his own life.
In the opinion of the undersigned guardian ad litem, Mr. SCHIAVO’S credibility is also effected by the chronology of the case. For the first four years (approximately) following the ward’s accident, he aggressively pursued every manner of treatment and rehabilitation conceivable. As well as lawsuits to compensate the ward for her injuries in connection with which he presumably argued that she could require substantial funds for future care and treatment.
At or around the time the litigation was finally concluded, he has a change of heart concerning further treatment which lead, according to the ward’s parents, to his falling out with them. From that point forward, the ward’s husband has isolated the ward from her parents, has on at least one occasion refused consent for the ward to be treated for an infection, and, ultimately, four years later, has filed the instant petition for the withdrawal of life support on the basis of evidence apparently known only to him which could have been asserted at any time during the ward’s illness.
Since there is no corroborative evidence of the ward’s intentions, and since the only witness claiming to have such evidence is the one person who will realize a direct and substantial financial benefit from the ward’s death, the undersigned guardian ad litem is of the opinion that the evidence of the ward’s intentions developed by the guardian ad litem’s investigation does not meet the clear and convincing standard. Based on Migliore v. Migliore, 717 So.2d 1077 (Fla. 4th DCA 1998) , the credibility of the witness is a factor to be considered in determining whether evidence is clear and convincing.
Given the inherent evidentiary problems already mentioned, together with the fact that the ward has been maintained on the life support measures sought to be withdrawn for the past 8 years, it is the recommendation of the guardian ad litem that the petition for removal be denied.
In fairness to the petitioner, should this court disagree with the foregoing analysis of the evidence and find it to clearly and convincingly reflect the actual wishes and intentions of the ward, the guardian ad litem believes that Browning controls and, in that case, the feeding tube should be withdrawn. The undersigned guardian ad litem further asserts and recommends that due process requires that the ward’s interests continue to be represented in all further proceedings herein, whether by the undersigned guardian ad litem or other appropriate fiduciary.
There is no written advance directive of the ward in this case. Based on Browning. There is no presumption that evidence of oral statements of the ward are clear and convincing; that burden remains with the Petitioner.
B-I-N-G-O!!!!!!!
Real Cynic No More,
Sorry about that! I thought I had copy/paste your comment regarding delay being ambushed with a personal attack, in order to silence him.
BTTT!!!!!!
The Schiavo case has precious little to do with the problem. In her case, all the judges applied the law as they found it. If it takes up DeLay's request to examine the actions of the federal courts in this case, the House Judiciary Committee should concentrate on whether changes are needed in the law, not the judges.
And this conclusion is based on??????????????????????????
The FACT, that Terri never received proper due process, as a result of inconsistent representation perhaps?
Although the Court apponted GAL didn't find clear & convincing and DID NOT recommend the feeding tube be removed perhaps?
The Court apponted GAL, found CONFLICT OF INTEREST associated with MS as Terri's guardian maybe?
Apparently they think everyone is blind and perhaps they think, that those of us who have made it clear that WE ARE NOT BLIND, will just GIVE UP after awhile?
BS ALERT.....is an UNDERSTATEMENT!
I would like to be added! THANK YOU!
Yes SUN. thanks for the ping! Any news on the ultra sound BS? Baby C, Mae and Clara? :)
How 'bout ordering NO FOOD OR WATER BY MOUTH! Denied even the basics of pallative care!
The ADA passed a new law in 2004 about disabled Americans having access to the courtroom. GREER DENIED TERRI ACCESS TO HIS COURTROOM even though David Gibbs repeated over and voer that Terri could be wheeled into his courtroom and attending her own hearings.
I don't have this ADA law but I know they passed it. That's just one Federal Law that Greer broke as well as Whittemore by not allowing Terri to have a de novo hearing. Whittemore said "tube's not going back in."
She wasn't even afforded consistent representation in her absence!
Greer is a STATE judge. The feds would not be the ones impeaching him - the Florida State legislature would be.
That is exactly what I am talking about - folks need to get a clear understanding of the issues and possible remedies here - or else they can end up demanding something that is not relevant.
Under the law in Florida as I understand it, in the absense of the living will, the husband becomes the lead surrogate.
The proxy can make the decision only if there is clear and convincing evidence that would have been the wish of the incapacitated person.
Apparently that standard was met, according to Greer. Looks like it needs to be moved to "beyond a reasonable doubt", since a person's life is at stake. It would give a judge a lot less wiggle room.
You make that claim - but now you have to back it up. Find in federal statutes or Florida statutes where laws were violated
This wagon is circled and I support Tom Delay. What is amusing is how the Democrats will not go along with an investigation on Mr. Delay. They know what will happen if they do.
It is questionable whether a feeding tube should ever be described as "life-prolonging procedures" but since Florida law uses the word "artificially" provided food and hydration Greer obviously violated this law, and basic human decency, by denying the parents motion to give her water and food by mouth.
This act by the judge is so outrageous and is such a clear demonstration of judicial tyranny in order to assure the death of a living person who has committed no crime and who at the very least deserved the opportunity to try to sustain her own life by taking food and water by mouth that I do not understand why he is still sitting on a bench anywhere in this country.
I still can't believe that America sat by and let this Greer pull this off.
Nor can "T"! My entire perspective as it once was, as an AMERICAN has been completely and pervasively ALTERED as a result!
I keep searching for a plausable reason that I can hang my hat on and turn back the hands!!
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