Posted on 06/19/2005 8:19:40 PM PDT by CHARLITE
Char
"Do people with profound disabilities no longer have a right to live? That issue is still on the table."
An excellent editorial that addresses this and key issues:
Spare Me the Indignation
http://www.nationalreview.com/mccarthy/mccarthy200506171321.asp
From the court transcript:
"... and to Joan Schiavo following a television movie in which a man following an accident was in a coma to the effect that she wanted it stated in her will that she would want the tubes and everything taken out if that happened to her are likewise reflective of this intent."
Following the movie ... wanted it stated in her will ... tubes and everything. Just a little more than "no tubes for me" while picking up the empty chip bowl, Mr. Leo.
Second, this was but one of five (5) comments that Terri made regarding not wanting to live that way. The judge was certainly convinced.
Actually, the judge claimed that he had "clear and convincing" evidence as to Terri's wishes, thereby meeting the State of Florida standard.
Char
Profound disabilities? Like no cerebral cortex? To me, that's way beyond dis-ability -- that's no-ability.
Tell me, Mr. Leo, do people with profound disabilities have a right to die if they so desire? Doesn't seem like it, according to your article. And THAT scares me.
Affirmed by the Second District Court of Appeals in an almost de-novo review of the case and the FSC in an appeal.
The 2nd District in their ruling wrote...
The testimony in this case establishes that Theresa was very young and very healthy when this tragedy struck. Like many young people without children, she had not prepared a will, much less a living will. She had been raised in the Catholic faith, but did not regularly attend mass or have a religious advisor who could assist the court in weighing her religious attitudes about life-support methods. Her statements to her friends and family about the dying process were few and they were oral. Nevertheless, those statements, along with other evidence about Theresa, gave the trial court a sufficient basis to make this decision for her.
In the final analysis, the difficult question that faced the trial court 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.
Schiavo Thoughts:
Hearsay
Yesterday, I saw on the news a protester carrying a sign that asked, "SINCE WHEN IS HEARSAY ADMISSIBLE?" I wonder how often protests involve rules of evidence.
I also heard hosts on news shows of three different networks express bewilderment at how the trial court could have relied on hearsay to determine Terri's wishes.
If you've read the trial court's original decision regarding Terri's wishes, then you know the court considered five persons' testimony of what Terri supposedly said to them about what she wanted. That's the supposedly inadmissible hearsay. Some say it shouldn't have been admitted. Others say it can't amount to clear and convincing evidence. "It's not in writing!" they say, as if writings aren't hearsay, or that a writing would eliminate any controversy. (More on that oft-repeated fallacy in a later post.)
I've addressed this issue countless times in emails, but the email flood has gotten too large in the last couple days to respond to each one, and this issue continues to bother people. It doesn't help that the media haven't figured it out. I wish they would. They're supposed to be doing a public service.
So I'll do what I can to clear this up on the blog. Someone tell the news folks.
Courts generally employ rules of evidence during trials, and a well known rule of evidence holds that hearsay is admissible to prove something only in limited circumstances. Under Florida law, there are about 30 or so such circumstances. You could say that one of them applies here, such as the exception for statements describing the declarant's then-existing state of mind. You could also say that Terri's statements were not hearsay, since they were offered to prove she said those words, not to prove that what she said was true. Hearsay is an out of court assertion offered to prove the truth of the matter asserted.
Those are evidentiary reasons why the testimony was admissible. There's a better reason. A constitutional reason. Terri had, and every Florida citizen has, a constitutional right to privacy that includes the right to decide that certain medical treatments should not be used to prolong her life. The Florida Supreme Court has clearly decided that this right can be exercised through written and oral statements.
In the landmark 1990 case In re Browning, Florida's high court explained that a surrogate attempting to determine what the ward would do can rely on the ward's written or oral statements. The court said:
A surrogate must take great care in exercising the patient's right of privacy, and must be able to support that decision with clear and convincing evidence. Before exercising the incompetent's right to forego treatment, the surrogate must satisfy the following conditions:
1. The surrogate must be satisfied that the patient executed any document knowingly, willingly, and without undue influence, and that the evidence of the patient's oral declarations is reliable;
2. The surrogate must be assured that the patient does not have a reasonable probability of recovering competency so that the right could be exercised directly by the patient; and
3. The surrogate must take care to assure that any limitations or conditions expressed either orally or in the written declaration have been carefully considered and satisfied.
The court also explained how the surrogate may have to defend any decision regarding the ward's orally declared wishes from a challenge by another person interested in the ward's welfare:
We emphasize, as did the district court, that courts are always open to adjudicate legitimate questions pertaining to the written or oral instructions. First, the surrogate or proxy may choose to present the question to the court for resolution. Second, interested parties may challenge the decision of the proxy or surrogate.
* * *
Although a surrogate may rely on oral statements made by the incompetent, while competent, to exercise the incompetent's wishes to forego life-sustaining treatment, the presumption of clear and convincing evidence that attaches to a written declaration does not attach to purely oral declarations. Oral evidence, considered alone, may constitute clear and convincing evidence. However, the surrogate would bear the burden of proof if a decision based on purely oral evidence is challenged.
Because the only issue before the court is a determination of the patient's wishes, challenges generally would be limited to that issue. For example, there may be challenges to claims that the declaration was not executed knowingly, willingly, and without undue influence; that the patient had changed his or her mind after executing the declaration; that the declaration was ambiguous; that the conditions or limitations contained in the declaration were not satisfied; that the surrogate or proxy was the one actually designated; and, of course, that there was a reasonable probability that the patient would regain competency. When the only evidence of intent is an oral declaration, the accuracy and reliability of the declarant's oral expression of intent also may be challenged.
I quote these passages at length to show that the Florida Supreme Court has confirmed the ability of Florida citizens to use oral statements, not just written ones, to exercise their fundamental right to decline medical treatment. The rules of evidence help define how facts can be proved at trial, but they cannot be used to preclude the admission of statements that effectuate a fundamental constitutional right.
An assertion that the ward made a particular statement may certainly be challenged as unreliable -- that the ward never said it -- but there is no question that evidence of the ward's oral statements is admissible evidence, or that oral statements may constitute clear and convincing evidence. That's the law.
...posted by Matt Conigliaro
http://abstractappeal.com/archives/2005_03_01_abstractappeal_archive.html#111167384435979940
That "hearsay" dog won't hunt.
What a breath of fresh air to read an excellent two-paragraph summary of the case written by an adult stating the facts.
Oh well. Breaks over. Back to the thread. Written by children based purely on their emotions.
Does "other such directives" include verbal directives? Florida law allows them. Judge Greer had "clear and convincing" evidence based on them.
"The argument is whether an adequate standard of proof is met by hearsay evidence from people with an obvious conflict of interest."
First, it wasn't hearsay evidence. "Hearsay" is a legal term, and is not applicable in this case. The witnesses testified as to what Terri told them. That is not hearsay.
Second, if there was a conflict of interest, the judge didn't believe it affected his decision. He even commented that he gave Michael's testimony less weight.
Wow, great article and relays exactly what we have experienced on FR.
The right to die people care not about the truth of their claims as long as the right people die.
Affirmed by the Second District Court of Appeals in an almost de-novo review of the case and the FSC in an appeal.<<
There is no such thing as an "almost de-novo" review.
The appeals court looked at the evidence developed in Judge Greer's trial court, and found that he did not come to a conclusion that they would possibly disagree either in error of law, or MASSIVE error in judgement.
De-novo would mean a new trial, as if the first never happened.
Of course now Terri would not have been "euthanized". They have tightened up the rules. Before 2001 Terri would not have been "euthanized". It was against the rules, and that stopped them from killing her the first time.
So Terri was killed, because in a short window of time, it was legal. What a legal system!
DK
Just why do you keeping fighting this issue? You have won and she died.
I do thank you for showing those who happen to read your words exactly what views some hold about how all of us should meet our ends.
We can see exactly what we have to fight to insure that each life is valued and that none judge the value of that life as a means to end it.
Let me tell you something, who are you or anyone else to say (especially a spouse with a conflict of interest), who is fit to live or not. While you were reading the court record, you should have read them all. Three different positions and times that he found her in (face down, face up, turned her over; hour and a half period in the time frames; what of the amount of time he took to call 911?...ok he could have been in shock. How about the fact that taxpayers were paying for her care and not the settlements that he received; Felos sealed the financial records, M. Schiavo only reported once when Guardianship was challenged. I suggest you go back and look again.
According to Florida Statues, only the terminally ill (6 months or less to live), are allowed admittance to a hospice. There is no record of admittance. Felos was on the board of directors, he gave to Greer's campaign during a judgement on the feeding tube issue...I could go on for days...but I have the documents to prove it.
The bottom line is, no one can say who is worthy of life, tomorrow it will be you or whoever. I sat watching the hearings in the House last week on insurance...several senators were dismayed at the number of seniors and disabled receive Medicare and Medicaid. Sounds like the Soros direction of Useless Eaters (check out website of the same name). We are repeating a horrible history here, if you can't see it...then indeed you are blind...and selfish.
So, money is a determining factor in this judge's decision?
Therefore, some lives deserve life more than others? So, the judge's own family will, of course, be allowed life whereas, those lesser ones will not.
And this is what you consider fairness, sanctity of life, and justice?
I do not and this is exactly the mindset I am fighting.
I will not give a judge the power to make these judgements over me or my family. We are not cattle - we are people who have a constitutional right to the life that God gave us and no man has the authority to sit in judgement of whether we get to live or not. That takes away my constitutional right.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
I thrive on it.
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