Schiavo Thread Part the Third

[notyoueither]

Originally posted by Kalius


Terri's wishes will never be known, and it is likely they never would have been known. You can spend time with the family, with friends and with doctors, trying to know the situation, but so what? As soon as she loses the power of communication this means nothing. Situations change, and we do not know Terri's wishes, and no matter how long she is kept alive we will never know.

A decision is trying to be made on what her wishes are, but no one will ever know them, so what do we turn to? There is no capacity in our logic for making a conclusion on a premise which is absent. The only conclusion that can be made is no conclusion, which means we get nowhere.

A lawyer would be representing her guardian's "judgment" (let's not screw the facts here, the lawyer would not be representing Terri). This "judgment" is as good as anyone's guess.

It behooves the state to try to get to know her wishes before flipping the switch.

There would be no problem if there were no dispute. However, there is one. The state needs to make real good and sure it makes the best choice possible. Simply saying 'it's too hard, we can't do this' doesn't cut it.

Our legal system was not set up with cases like this in mind. It is time we looked at modification. There was a time when children were never considered, because divorce was unheard of. Thankfully, that time is long gone.

[Capt Dizle]

The guardian felt that the husband's testimony alone was insufficient to provide clear and convincing evidence. I think the guardian stopped at that point. Made no decision as to what Terri's wishes were.

I don't see what an attorney could have done at that point. As I said before, it was simply a matter of hearing the testimony and the court ruling. An attorney would argue in which direction on what basis pray tell?

The judge agreed with the guardian and then ruled that the husbands testimony, coupled with the testimony of others, was sufficient evidence of Terri's intent. If you were the attorney that some insist should have played a role, what role would you have played?

[Frozzy]

It behooves the state to try to get to know her wishes before flipping the switch.

There would be no problem if there were no dispute. However, there is one. The state needs to make real good and sure it makes the best choice possible. Simply saying 'it's too hard, we can't do this' doesn't cut it.

Our legal system was not set up with cases like this in mind. It is time we looked at modification. There was a time when children were never considered, because divorce was unheard of. Thankfully, that time is long gone.

You cannot know what is no one else knows. The best choice possible, to Terri, is unknown, and never will be known. But a choice must be made, but whom should it prefer? The pro-life partisans? The family or Mr. Schiavo? The doctors, they're a nice third party? A choice must be made because the system demands it, but the entire concept of the "best choice" for Terri is out the window because it's impossible to know.

You're totally correct, the legal system cannot cope with questions to which there is no answer, especially in this age of ethical reasoning.

[notyoueither]

But it must try, and be seen to be trying to reach the right decision, or the entire system is thrown into disrepute.

I'm sure a little digging by a social worker could be done, and a counsel for the patient could be appointed to present the findings of the agent for the patient.

Not every case would need it, just those where the parties could not agree and they turned to a judge to pass a death sentence.

[Dinner]

Originally posted by Kalius
Terri's wishes will never be known,

Wrong. Her wishes are known because she told her husband, she told their mutual friends, and she told her sister in law.

[notyoueither]

Originally posted by Capt Dizle
The guardian felt that the husband's testimony alone was insufficient to provide clear and convincing evidence. I think the guardian stopped at that point. Made no decision as to what Terri's wishes were.

I don't see what an attorney could have done at that point. As I said before, it was simply a matter of hearing the testimony and the court ruling. An attorney would argue in which direction on what basis pray tell?

The judge agreed with the guardian and then ruled that the husbands testimony, coupled with the testimony of others, was sufficient evidence of Terri's intent. If you were the attorney that some insist should have played a role, what role would you have played?

That should have been up to the guardian. You can bet your booties that children in a bad case would be vigourously represented.

Part of the problem is the perception that 'it was just a judge' who is ordering a 'death sentence'.

That needs to be overcome, in fact and perception.

[Ned]

Originally posted by Capt Dizle
"But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself. "

This is the crux of the issue in my eyes. An attorney for Terri could have done nothing but witness the testimony about what Terri's wishes were and then watch the court rule. He or she could not argue one way or the other, because to do so would be to offer their opinion in place of Terri's. There is no way to know what her will is other than to rely on testimony and that was done.

How could an attorney for Terri have even questioned the testimony without prejudicing the case?

You simply cannot have an attorney go in there with a presumption that Terri would want life. That wouldn't be representation of Terri, that would be representation of a particular religious position.

The attorney for Terri would have conducted an independent investigation into the matter. She could have discovered the prior inconsistent statements of Michael, his adverse interests, his prior suborning of perjury in the malpractice case and the witnesses who flatly contradict Michael's testimony on the issue. Attorneys are skilled at the law, at using discovery, at conducting depositions, at getting at the truth. Guardians who only hire doctors to conduct a medical investigation do not represent the victim adequately on the critical issue of consent.

Even Terri's parents say their position would be entirely different had Terri left a written document declaring her wishes, or had clearly communicated her wishes to them as well. But Terri stands condemned to death on the parol testimony of adversely interested witnesses who were able to introduce that testimony apparently without objection and apparently without due caution by the judge in this case who was supposed to establish the matter of consent by clear and convincing evidence. In the Cruzan case, which I cited earlier, Missouri refused to accept the parol testimony of witnesses who appeared to be disinterested as "clear and convincing." That is the right legal standard.

[Dinner]

Originally posted by Drake Tungsten
[q]
You're also ignoring the fact that almost all the money was in the trust fund when he placed the initial do-not-resuscitate orders on Terri and when he denied treatment for her bladder infection. By the time he petitioned the court to pull her tube, there was still $700,000 left. Seems like a conflicting interest to me.

Wow, your conspiracy theory just is a 180 compared to CNN's coverage. Now I must decide if I trust CNN or that website you linked. decisions, decisions.

[Ned]

Originally posted by Capt Dizle
The guardian felt that the husband's testimony alone was insufficient to provide clear and convincing evidence. I think the guardian stopped at that point. Made no decision as to what Terri's wishes were.

I don't see what an attorney could have done at that point. As I said before, it was simply a matter of hearing the testimony and the court ruling. An attorney would argue in which direction on what basis pray tell?

The judge agreed with the guardian and then ruled that the husbands testimony, coupled with the testimony of others, was sufficient evidence of Terri's intent. If you were the attorney that some insist should have played a role, what role would you have played?

You clearly do not understand the role of an attorney.

[Frozzy]

But it must try, and be seen to be trying to reach the right decision, or the entire system is thrown into disrepute.

I'm sure a little digging by a social worker could be done, and a counsel for the patient could be appointed to present the findings of the agent for the patient.

Not every case would need it, just those where the parties could not agree and they turned to a judge to pass a death sentence.

Well, I think regardless of the decision it makes, the system is in disrepute, because people will be let down because the "law of the land" is in direct conflict with their personal oponion.

A little digging by a social worker can be done, but if you dig for evidence of a potato shortage and only look in potato farms, you're not going to find much The evidence of Mrs. Schiavo's wishes is all in the testimony of the people, and really that is awfully subjective to say the least.

There is a horrible lack of tangible proof in this case. Most cases have some tangible proof or they are thrown out. A gun with fingerprints, blood in the car, or something. The courts cannot handle a case with no tangible proof, and throwing out the case is not an option.

You simply cannot throw out a case in which both sides can claim to be prosecutors/defendants.

[Frozzy]

Wrong. Her wishes are known because she told her husband, she told their mutual friends, and she told her sister in law.

But there is no tangible proof. A written document, a tape, just testimony. You cannot convict someone on the basis of pure testimony or we fall into a To Kill a Mockingbird situation.

[notyoueither]

Many child custody cases are *****es too. That doesn't mean the system isn't constructed to try to get the best result.

[Ned]

The Federal Judge denied most of Terri's Federal Claims in part on the basis that their was no state action. http://news.findlaw.com/cnn/docs/sch...2505ord2nd.pdf However, in the very same opinion where he cited a few lower court decisions in support, he cited the Supreme Court case of Cruzan (which I cited above for another point) which proceeded on the basis that State court action denying the parent's petition to pull the plug WAS state action. I fail to see how a state court rulling condemning the victim to death over the objections of the parents is similarly not state action.

David Bois tonight said that Terri's parents did make the right argument in the second case that her fundamental right to life was being denied by state action her in that her parents are being denied by the state courts of Florida any right to feed their daughter in absence of any sufficient evidence of her intent on the consent issue.

[Capt Dizle]

Originally posted by Ned


You clearly do not understand the role of an attorney.

Yeah, well, fine.

[Dinner]

Originally posted by Ned


The attorney for Terri would have conducted an independent investigation into the matter.

That's why the court had appointed no less then a dozen differnet doctors over the years to provide an independent purely factual review. All 12 came to the same conclusion. 19 judges looked at the legal facts and listened to the individuals who testified that terri told them she did not want to live as a veggitable and they reviewded the parents claims. In the end all 19 judges agreed; one after another.

You need to let go. Terri said she wants everyone to let her go.