The Modern Anathema Of Living With Brain Damage (About Terri Schiavo)

Good Article

Excellent Article.

After the Schiavo mess, Pennsylvania legislators amended the law and provided a presumption that precludes spouses who have filed for divorce to act as medical agents for would-be ex-spouses. That would have stopped Michael Schiavo from starving his wife.

Really? When did Michael Schiavo file for divorce?

Um, I have read that Terri Schiavo was thinking of asking for a divorce (reported by friends and family). However, nowhere have I read that she had actually filed for divorce, and I believe that her parents were, unfortunately, actually legally precluded from filing for divorce on her behalf. (IIRC, Judge Greer ruled that they could not file on her behalf.)

Michael never filed for divorce. However, the Schindler did argue that Michael in a sense executed a de facto divorce from Terri by living with Jodi. Although, the law on this point didn’t seem to favor the Schindlers, the Schindlers did point that such an act certainly should have presented as a conflict of interest for Michael to continue being Terri’s guardian. Unfortunately, this point was arguely strongly but it was after the 2000 trial. The Schindlers had an incompetent lawyer in the 2000 trial and she failed to vigorously argue this conflict of interest. Although the GAL had serious concern about this, Judge Greer dismissed the GAL’s concerns. The Schindlers continued to raise this conflict of interest but it was too late. Judge Greer had already ruled that Terri die. Once the 2000 trial completed, the courts refused to the reexamine the credibility and veracity of Michael claims despite the mountain of evidence that the Schindlers presented.

Ping to post 5 :)

After the 2000 trial, the Schindlers got a more experienced lawyer who vigorously argued the credibility and veracity of Michael’s claims. Unfortnately, Appeal court don’t really look at that these issues and basically dismissed all of the concerns. The Appeals court approached the case from prospective that did Judge Greer have substantial compantent evidence to support his decision. Since Greer had evidence from Michael, Scott and Joan, the appeals court upheld the ruling (Completely dismissing any credibility and veracity issues of the underlying testimonial evidence). Unfortunately, the is how the appeals court works.

If one reads the appeal from the Schindlers and Appeals Court ruling, one will see that most of the points argued by the Schindler’s lawyer were completely dismissed and not mentioned by the court.

The Appeals court had to answer the one fundamental standard question:

Did Judge Greer have substanial compotent evidence to make the decision that he did?

From the Appeals POV, their ruling was YES.

The Appeals Court would not take into account any credibility and veracity arguments made by the Schindlers.

Hyperbaric Oxygen Therapy

See http://www.amazon.com/Oxygen-Revolution-Hyperbaric-Groundbreaking-Disabilities/dp/1578262372

TERRIÂ’S APPEAL UPDATE Summary Of Legal Events On July 5, attorneys Robert Merkle and Joseph Magri filed an "Appeal" to reverse the court ruling authorizing Schiavo to remove Terri's nutrition feeding. SchiavoÂ’s attorney then filed a "Rebuttal", citing his legal arguments against the Appeal. The last document in the appeal process is Attorney MagriÂ’s "Rebuttal Reply." The next step in the appeal process is court oral arguments, which has yet to be scheduled. Attorney Magri's "Rebuttal Reply" - On September 1, Attorney Joseph Magri filed his "Reply Brief." The document addresses issues SchiavoÂ’s attorney is protesting as invalid in the original appeal. In his reply, Attorney Magri states it is apparent that SchiavoÂ’s Attorney offers little in the way of a legal response to the appeal core issues. Essentially, SchiavoÂ’s attorney is attempting to divert the Appellate Court away from the fundamental issues by creating a buzz of sensationalism surrounding peripheral issues. Attorney Magri States: The appeal case should be about "TerriÂ’s Intent" and the procedures employed by the court in the trial should be reviewed to ensure that "TerriÂ’s Intent" was arrived at fairly and the evidence supports that finding. The appeal should be about whether the trial was equitable, balanced and fair. It should be about the court sanctioned funding, which permitted Michael Schiavo to use TerriÂ’s medical fund money to pay his legal fees. The appeal should be about whether court rulings were conducive to fair presentation of other relevant issues, such as TerriÂ’s medical condition and whether Terri was represented during the trial. It should examine whether meritorious defenses existed in TerriÂ’s behalf. Conversely, Attorney Magri Emphatically Argues: This appeal case should not be about whether any one of us, or how most Americans in general feel, in circumstances similar to TerriÂ’s condition, they would want to die **** This case should not be about whether Terri is unworthy to live, or worthy to die. **** This case should not be about whether TerriÂ’s parents think "correctly" on issues of life or death. **** The "appeal processÂ’ should not be a place to argue past peripheral issues which were previously pleaded and rejected by the court. [see footnote #1] **** This case should not be about tactical settlement discussions which was not only rejected but known before made that it would be rejected. [see Attorney MagriÂ’s comments on SchiavoÂ’s Donation Strategy.] [Footnote #1 - Prior to the trial, in June of 1998, the court appointed a Guardian ad Litem to investigate SchiavoÂ’s request for the termination of TerriÂ’s life support. Based on his study, the Guardian Ad Litem filed a report with the Court recommending the request by Schiavo be denied. Shortly after the report was filed, SchiavoÂ’s attorney legally challenged the Guardian Ad LitemÂ’s report on a charge of bias.] Attorney MagriÂ’s response then refocuses on the "fundamental issues.Â’ presented in his original appeal document and addresses SchiavoÂ’s Attorneys "Rebuttal" statements. THE COURT USED AN INCORRECT RULE OF LAW It is inherently suggested by SchiavoÂ’s attorney, that "reliabilityÂ’ is the only issue, Michael SchiavoÂ’s attorney lead the court astray by ignoring the fact that "accuracyÂ’ is also an issue and more importantly, that a decision as to TerriÂ’s wishes based on oral declarations also must be made on the basis of "clear and convincing evidenceÂ’ THE EVIDENCE WAS NOT LEGALLY CLEAR & CONVINCING. The original appeal document states the trial courtÂ’s factual findings were clearly erroneous and not supported by the evidence. A review of the testimony will reinforce this position. Michael SchiavoÂ’s Testimony - conflicted with the information Schiavo provided that is contained in the pretrial Guardian ad LitemÂ’s report. The discrepancies occurred not only in SchiavoÂ’s description of the train conversation, where Terri allegedly expressed her "oral living will", but he also omitted other conversations, which he testified to at the trial. SchiavoÂ’s testimony cannot amount to "clear and convincing evidence". [This is continued under the heading: Attorney MagriÂ’s Comments on SchiavoÂ’s Testimony at TerriÂ’s Trial] Scott SchiavoÂ’s Testimony - Michael SchiavoÂ’s brother came forward and gave a version of a single corroborative comment that Terri supposedly made years prior to her seizure. However in the space of eleven trial transcript pages he describes that statement in three different ways. If his memory changed that many times in that short a period, he could not have distinctly remembered, precisely, explicitly and without confusion the statement Terri made. Scott SchiavoÂ’s testimony cannot provide "clear and convincing evidence". Joan SchiavoÂ’s Testimony - A review of the questions and her answer reflects that she is not describing what Terri said. Her testimony is inherently confusing. Part of her answers devolves into what she and her husband wanted. It clearly identifies "we" as she and her husband. For sure, she does not distinctly use the term as she and Terri. As a matter of law these statements cannot rise to the level of "clear and convincing evidence". Beverly Tyler Testimony - It is absurd to accept testimony from someone who never even met Terri and use this person to corroborate what Terri said and meant, while ignoring the testimony of TerriÂ’s closest sibling, her brother. His testimony was based on a lifetime of interactions, and he stated did not believe Terri would want to die. 3. IT WAS AN ERROR NOT TO APPOINT A TRIAL GUARDIAN AD LITEM SchiavoÂ’s attorney claims the court properly exercised its discretion because the opposite positions of the litigants ensured fairness. This argument forgets that there were not just two sides to this dispute, there was an unrepresented third person, Terri Schiavo. A Guardian Ad Litem is necessary, to ensure that the ward is adequately represented in those proceedings. If one blindly accepts the result of actions conducted without Guardian Ad Litems, one would be blindly accepting results, which may be the result of a conflict of interest and is against the law. (In support, Attorney Magri lists six (6) Fla. Statutes.) Numerous Florida cases recognize, actions brought to litigation by the guardian, resulting in money going to the guardian as opposed to the ward, that a "legal" conflict of interest exists. (In support of this statement, Attorney Magri lists three (3) Fla. Cases) Moreover decisions from courts all over this country, including many of the ones which are cited by SchiavoÂ’s attorney for other points, buttress the use of Guardian Ad Litems. (In support of this statement, Attorney Magri lists 13 reference cases) SchiavoÂ’s attorney argues that the present case should not be reversed despite the failure to appoint a trial Guardian Ad Litem. Attorney Magri insists a trial appointed Guardian Ad Litem could have raised a meritorious defense of SchiavoÂ’s contrary positions based on his prior actual malpractice trial testimony. Attorney Magri states there is no doubt, a Guardian Ad Litem would have unquestionably resolved these issues against Schiavo. Attorney MagriÂ’s Comments on SchiavoÂ’s Attorneys Fabricated "Buzz"- Much should be said about incorrect, one-sided characterizations of tangential issues and personalities of people associated with the case. About a "Statement of the CaseÂ’ which is all argument and for the most part a fanciful one. About an argument which has never been made and is being "resurrected." About edited quotes maneuvered in argument, then once again being attacked as a misstatements. Attorney MagriÂ’s Comments on SchiavoÂ’s Charity Donation "Buzz" Strategy -This inadmissible settlement offer is mentioned 5 times. Never once with any evidence that Michael Schiavo is bound to that course. Yet, in SchiavoÂ’s attorneys "RebuttalÂ’ we are told that the Michael Schiavo has offered to donate the money he receives from TerriÂ’s death to charity. We are told this was part of a settlement negotiation. In a more telling vein, the charitable donation suggestion was made after both the pre trial Guardian Ad LitemÂ’ s concerns were known, and the parents position was known. The charitable donation was conditioned on the parents dropping their opposition to SchiavoÂ’s petition to have TerriÂ’s nutrition feeding tube removed In reality, this is an effort by SchiavoÂ’s attorney, to interject a supposed charitable donation intent, to undermine the obvious implication that SchiavoÂ’s late remembered statements of TerriÂ’s intent, have strong financial overtones. To this end, SchiavoÂ’s attorney fails to mention that no evidence exists to show this is anything other than a clever tactic. If tactic is the goal, an offer you know will be refused can suffice. You can drag. it up at trial and then on an appeal, while failing to mention the fact that you know it could not have been accepted by parents who believe what is being done is contrary to their daughterÂ’s wishes. It would have been very easy for Schiavo to set up an irrevocable trust and offer that as evidence to negate any claim that he was going to benefit financially from Tern s death. That was never done. Attorney MagriÂ’s Comments on SchiavoÂ’s Testimony at TerriÂ’s Trial - A conflict exists between statements Schiavo made regarding TerriÂ’s wishes contained in the pretrial Guardian Ad LitemÂ’ s December 1998 report to the court and statements Schiavo made at the recent trial. Beyond that, there are all the other reasons why SchiavoÂ’s testimony cannot amount to "clear and convincing evidence" and render his testimony legally deficient. They include his financial motivations; his engagement to another woman; his discontinuance of TerriÂ’s medication for potentially fatal infections; the subsequent and late post-involvement disclosure of TerriÂ’s alleged wishes. Also, Schiavo never discussed with the pretrial Guardian Ad Litem, that there were two additional witnesses to corroborate TerriÂ’s wishes. Coincidently, the unreported witnesses, were his brother and sister-in-law. [BACKGROUND INFORMATION - Commencing in June of 1998, the court appointed Guardian Ad Litem conducted interviews with all the parties involved in TerriÂ’s lawsuit. In SchiavoÂ’s Guardian Ad Litem interview, Michael Schiavo was given the opportunity to present his evidence and statements to authenticate his request to have TerriÂ’s life support terminated. The Guardian Ad LitemÂ’s six month investigation culminated with a court filed report, in which the Guardian Ad Litem recommended Michael SchiavoÂ’s request be denied. ] Attorney MagriÂ’s Comments on SchiavoÂ’s Malpractice Trial Testimony - SchiavoÂ’s attorney makes the argument that the record is void of any reference as to what Michael Schiavo testified to at the malpractice trial eight years ago. Then SchiavoÂ’s attorney suggests that Schiavo did not need to disclose his wifeÂ’s wishes. The pretrial Guardian Ad LitemÂ’s investigation report concludes that Michael SchiavoÂ’s current position contradicts his prior malpractice trial position. In the malpractice case, Schiavo was seeking to recover damages based on the continuation of TerriÂ’s condition for a normal life expectancy. However, once the malpractice money came in, Michael Schiavo stopped further treatment for Terri. Attorney MagriÂ’s Comments on SchiavoÂ’s Engagement - SchiavoÂ’s attorney states that we are misleading the court, because Michael. Schiavo did not "announce" his engagement. However, Michael Schiavo admits that a notice of his engagement to another woman was placed in the newspaper. SchiavoÂ’s attorney is debating whether a notice in the newspaper, is or is not a "announcement?" In any event, Michael Schiavo has published an engagement announcement in the newspaper. Similarly, does it matter if there is a wedding date? Obviously, as long as Mr. Schiavo is legally married to Terri he cannot marry his current fianc�. While Mr. Schiavo could divorce Tern he would not be in line to inherit when she died. As long as he wishes to inherit that money he needs to remain married to Tern and he cannot plan a wedding date. Attorney MagriÂ’s Comments on SchiavoÂ’s Character - For example, there is the suggestion made by SchiavoÂ’s attorney that we are attempting to sell Mr. Schiavo as an immoral money-grubbing operative. The true fact is the court used the wrong standard and SchiavoÂ’s character was not addressed. We are raising appropriate factors that should have been considered in analyzing whether or not Mr.. SchiavoÂ’s testimony can rise to "clear and convincing evidence." Attorney MagriÂ’s Comments on Dr. BarnhillÂ’s Swallowing Test Hearing Testimony - A review of the trial testimony establishes that Dr. Barnhill never reviewed TerriÂ’s medical records to determine if Terri had been tested for swallowing nor did he conduct any swallowing tests on his own to reinforce his negative assessment of Terri.

Everything went back to the 2000 trial.

Terri Schiavo never recieved a fair trial.

Terri Schiavo got process but she didn’t get “Due Process” (Fundamental Fairness)

Some of the major problems with 2000 trial that compromised Terri’s due process were:

Terri was unrepresented. For the entire 7 years of litigation (1998-2005) Terri was never once represented by a lawyer. The court ruled that she wasn’t entilted to legal counsel. Michael was represented and the Schindlers were represented but Terri was never represented.

Terri had no GAL. GALs were appointed. However, their roles were limited and short and didn’t play the role of a GAL - A zelous Advocate for the ward’s rights and interests.

Judge Greer Served as Advocate and Adjucaticator in the 2000 trial and deprived Terri a fair trial.

A gross financial inequity existed in the 2000. Michael was allow access to hundreds of thounsands of dollars to hire right to die attorneys and experts to fight for Terri’s death.

The Schindlers were not afforded that seem right and had to settle for a green-horned, illexperienced, illfinanced lawyer who was ineffective in advocatig Terri’s right to live.

The courts ruled that Terri was not entitled to be free from cruel and and unusual punishment because she was not a convicted criminal.

This came up on Terri search FYI.

Pinged from Terri Dailies

8mm