Wednesday, March 23, 2005

Thoughts on the Schaivo Situation

I'm sure by now everyone has heard about Terri Schaivo. She has been diagnosed to be in a persistive vegetative state by court-appointed doctors. Her parents dispute this finding, and want to continue to give her therapy and keep her plugged into a feeding tube. Her husband wants to pull the feeding tube. Both sides argue about what they believe Terri wants. There isn't a clear answer, but the court determined that her husband's view should prevail. From what I understand, in the initial court case where this was determined a lot of key facts which later became available were not presented.

Given our trial system, this poses a significant problem for Terri's parents. Appeals typically aren't just hearing the same case over again - you need to show that the initial court really messed up bad, and often you need to show that they were completely unreasonable in their judgment. Even if all of these other facts had been known (and maybe they were - I'm working with an assumption here, but it's a well-educated assumption and I'm pretty sure that it's correct), would the first court have ruled differently? It's tough to prove that, and so Terri's parents are at a significant disadvantage.

The thing I want to throw out for now - because I need to keep this quick and get back to homework - (oh, I could go on an on about this Schaivo topic, but I'm hoping to get a discussion going here, and that'll have to be the way for this topic) - is this. It's a quote I've seen in several articles, from the decision by the appellate level judges who refused the request of Terri's parents to have the tube re-inserted. (I've taken this excerpt from an AP article):

"There is no denying the absolute tragedy that has befallen Mrs. Schiavo," Judges Ed Carnes and Frank M. Hull said in the 2-1 decision by the 11th circuit panel. "We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision."

Other, similar quotes, reflect that the judges must make a decision on the "legal" merits of the case - basically they're saying that their hands are tied by the legal system.

I have an enormous problem with this. How is it any different than Pilate washing his hands of Christ? Or judges in Nazi Germany sentencing Jews to death?

I'll grant that in this case there is a question about who truly has Terri's best interests at stake - the parents or the husband - and so in that regard the offense is not so terrible as Pilate or the Nazi judges, but the parallel still exists.

There are times when we expect those in a position of power, i.e. our judicial branch, to transcend the limitations of our system. We have a system for a reason, and the vast majority of times it will get things right. But there are exceptions, such as this situation, where people need to break from the mold to make the right determination.

This is to say nothing of the content of the decision. I think it is important that this case be reheard, and for that to happen Terri's life needs to be continued. The judges seem to agree. They point to the tragedy of the situation, and then let us all know that there isn't anything they can do. I call bullshit.

I think I may write this idea out more explicitly and eloquently in the future (maybe not, we'll see). But I'm hoping this gets some discussion going. Please do respond with any thought or question. Ok, go:

Sent shivers down my spine, body's aching all the time


joel said...

For the record, if that's ever me, I'd prefer to have the tube pulled and meet the good Lord who made me rather than be kept alive by bizarre, unnatural means. Matt's blog doesn't quite qualify as a "living will," but it does make my intentions at least somewhat clear.

That said, perhaps the most thought-provoking question I've encountered on this entire subject is this, which I found over at Airbag:

Sincere question: Why is it that the religious faction, who one would imagine are concerned with the spiritual and the soul, get so hung up on the minutiae of the physical body?

I think that's an excellent question. As Christians, we are taught and believe in the power and existence of eternal life with the Lord. We know that when it is our time to go, God welcomes us with open arms into paradise with Him. Whether or not this was "God's will" (a phrase I hate to ever hear associated with death. Ew), she has reached a point in which significant parts of her brain just don't exist any more. Were she to improve—even steadily—it is nearly certain that she will never be able to lead even a facsimile of a normal life again. Her husband truly believes that it was her wish not to be kept in this state. Her husband. He who was legally and spiritually bound to her. In that vein, this quote relates a little bit to your other hot topic of conversation here, Matt:

Another note: Where's the 'sanctity of marriage act' when we need it? Terry [unfortunately] did not leave a legal living will, but she did make a very public, legal decision by marrying her husband. Legally, that makes him her closest relative. The government is now going to step in and prevent him from exercising his legal rights as her guardian because they (and the people who vote for them) find his decision un-Christian?

I think that stands pretty well on its own. I feel for her husband. I really do. The poor guy has had to watch his wife slip into a [near-]vegetative state, and then when he thought he was doing the right thing so she could pass on to the next life and he could move on with his in this world, he's been dragged into a decade of court fights because her family refuses to acknowledge his wishes as her legal guardian. That poor man has lost 10+ years of his life to this. When does he get to move on? Hell, her family has lost 10+ years of their lives to this, too. Can they not move on? Would they prefer that their loved one continue to lie in a bed while they hold onto the eternal hope that some day she might be able to, oh I don't know, open an eye rather than come to grips with the idea that she might be better off in the afterlife?

I'm all for the right to life. Matt, we've had this discussion before when we talked abortion for hours. Without going into that topic, I want to reiterate that I am hardly championing that death is a better alternative than life. In this case, I think it is fair to consider the benefits of allowing someone to pass on to the afterlife. This is NOT an case of an unborn child not given a chance at life. This is a woman who tragically lost a good portion of the physical and functional capabilities of her brain and has little hope for even slight improvement. She's been trapped in this state and at the mercy of the courts for over a decade. Her legal guardian truly believes that it would be her wish to pass on. Let the Lord welcome her home.

Matthew B. Novak said...

Joel - I don't disagree. I just think you're not appreciating the complexity of this case. There is a significant question of whether her husband should be her legal gaurdian. He is engaged to another woman. He has had 2 children with this other woman. He denied Terri therapy at an early point when it might have been effective. He stands to make a lot of money from her death. Now, none of these mean he isn't sincere, but there is a real question that should be decided. I'm not getting hung up on the idea that we should keep Terri alive - just that we don't really know what her wishes are, and we need to be dang careful before we decide to side with a "gaurdian" who has so many conflicts of interest. Especially when a life is at stake. It is important that we have all the facts on the table before we make any decisions. That hasn't happened yet, and it doesn't look like it's going to.

joel said...

From the time that I wrote my first comment to this moment now, I've been reading about this situation nonstop. I'll freely admit that my initial impressions of her husband were misguided. However, while that significantly harms the last half my first comment, the first half stands apart from that unharmed.

Unfortunately, at this point, the more I've learned, the more confused I've gotten. My feelings and thought behind the first comment remain intact, I just don't know how well they apply at this point. Frankly, I don't think that any of us can debate this case itself. It is too convoluted and the information from both sides is too questionable. On one hand, we have her family claiming to have "17 doctors" backing up their side of the story and on the other hand, we have "almost 50 court rulings" going the other direction. That said, and in an effort to keep your blog from turning into a flame war over a case that, frankly, has gotten far too much media, public and [most disturbingly] federal government attention, I'm going to avoid debating the precise details of her case. If you don't mind, I feel the focus should be on the more general questions—those like my first italicized quote:

Sincere question: Why is it that the religious faction, who one would imagine are concerned with the spiritual and the soul, get so hung up on the minutiae of the physical body?

Unless, of course, you DO want to argue this specific case. If that is what you'd prefer, I'll just read :-)

Matthew B. Novak said...

Well, first of all, I would prefer to discuss the original topic I was posting about - the role of the judges in this case, their unwillingness to do what they seem to recognize as best (see the quote I put in - the judges recognize the tragedy but refuse to stop it).

Second, I think the particulars are somewhat important, and I'll discuss those too, but I'll pass too - either way. I would just say that of those 50 decisions a large amount (probably close to 35 I'd guess) have been by the same judge. And most of the others have just looked to see if that judge was reasonable or not, they didn't look at the actual issues (that's the structure of our system).

Third, I think it's only natural and right for Christians to be concerned with the physical. Especially in terms of life and death. Part of the Christian credo is that life is good. If someone is dying, that is bad. This is, by its very nature, a physical question. Second of all, the physical and spiritual are intertwined. Yes, when we die we transcent the physical, but until that time we are also physical beings. Moreover, aren't we supposed to rejoin our bodies (in a perfected form) at the end of time? The idea here is just that body and soul are intertwined. Our physical predilictions can lead us to sin. Our Christian duty is to promote life, or to serve others - an inherently physical action. God even took on physical form, in fact, God had to take on physical form in order to provide for our salvation (because he needed to die, and only the physical can die). Clearly though, there are important physical questions to be asked. I don't think most people get "hung up" on it - I think it is afforded an appropriate amount of scruitiny.

CAL said...

I just find Bush's position here so telling. As my friend Dan pointed out, earlier this week Bush cheered the death sentence handed to Scott Peterson and less than 24 hours later is the hero of the life movement for his defense of maintaining Terri Schaivo's feeding tube.

I don't think, as part of the "religious faction", I am hung up by the "minutiae of the physical body", but certainly, if we start judging how someone's physical body determines the value of their life, we will be entering a place we may not want to be. Something about "image and likeness of God" has to be factored in when looking at "quality of life", etc. Just as God can forgive stuff I would never consider forgiving, and love people whom I abhor, I believe his measure of human worth is probably different than mine too. So I'll say what many people are probably thinking: I don't see much "sense" or value in Terri's life. Doesn't matter though; I'm not God and I don't get the final say.

dyk said...

I'm on my way out the door, but I'll be back to comment further. I just wanted to pose one theological / metaphysical dilemma. Are we so sure that it is the body that the soul is conected to? Does someone who has no sense of identity retain their soul? Like Joel, I have a great deal less interest in the physical than the spiritual.

I'll be back for more.

dyk said...

It is my personal and cynical opinion that when every judge and politician uses a phrase similar to:
"There is no denying the absolute tragedy that has befallen Mrs. Schiavo," Judges Ed Carnes and Frank M. Hull said in the 2-1 decision by the 11th circuit panel. "We all have our own family, our own loved ones, and our own children. However..."
They are saying that so that they don't look like an insensitive jerk. As far as tragedy part goes, however, the exact nature is out for debate. Is the tragedy that she's become vegetative? Tragedy that she will soon die? Tragedy that she has not been allowed to die because of the decade of legal battles? Tragegy that her husband wants her to die? Tragedy in the simple fact of the family conflict that has arisen?
It seems the judge could have meant any one or more of these when he spoke those words.

It looks to me as though the judges do not think the case needs to be re-heard, or they would have the authority to order the tube re-inserted.

As for intervention, isn't that what congress did? If this is such a tragedy, why not decree altogether that withholding food and water from any patient be illegal?

They simply ordered that this one case be placed in the domain of federal courts, and these courts seem to have agreed that the legal case as it was conducted in Florida was handled appropriately.

At least, that's what I've been able to comprehend of news reports and stories that only go skin deep on the particulars of the issue. And if I don't have the story straight, I'm pretty sure the legislature didn't bother, and positive that the American public doesn't have it either.

JAAndersland said...

First of all I think it's a tragedy that this ONE case has gotten so much attention when I'm sure there are similar cases that don't get a fraction of attention. Regardless, I'm not saying I'm not a proponent of life, but just let her die. The facts of the case are so muddled and twisted beyond reasonable disection. Who is to say who is right? It seems to me that Terri got a fair case and thats the end of it. Everyone else involved including Bush is just using this case to further their own careers and public image which in my opinion is the real tragedy. Her husband IS the legal gaurdian via marriage and thus should have the end say. Why? Well lets face it the husband should and does have more interaction after marriage with his spouse and knows her better then anyone else. He should know exactly how she felt about the whole ordeal. And well if he is lying, then he will be judged in his own time.

Matthew B. Novak said...

The problem I have is that I don't think a fair hearing actually has happened. Yes, there was a trial. I'm pretty sure it was only a judge doing the deciding, not a jury. This means one person decided the case, without having all the facts (the initial case apparently didn't include all of stuff about the money that Michael stood to gain, or the extra-maritial relationships, etc.). Everything since has been built off of this one decision. My problem is that these judges who are refusing to hear the case now are saying that it doesn't need to be reheard. It really doesn't appear that there has been a fair trial.

Also, regardless of what the judges think, it seems to me they should actually rule on the case. I don't accept "we have to limit our decision" as a valid response. Time after time judges do not limit their responses. There is a strong argument that they should (ironic that it is usually conservatives who push for judicial restraint and they now want judicial activism). But ultimately, I feel, that no matter if a judge is "restrained" or "active" they are making a policy choice. And, since what they do has a real effect, regardless, when they see something troubling they should step up and stop it. Maybe all of the judges who have heard this case agree with Michael and don't see any significant question to what is going on. But if they see a problem and they don't step up to stop it, then isn't that basically the same as the nazi judges? That's the bottom line.

joel said...

It only took 9 posts for Godwin's Law. Go figure.

JAAndersland said...

Ok first of all I don't really believe any of those judges. My guess is they are saying what they are saying so they don't look like jackasses. But my point is this. She HAS had way more attention then deserved. There is no CATASTROPHIC evidence that suggests that her husband is not doing as she willed. Lets face it without a will or directives in this situation the decision is left to the legal gaurdian, ie her husband. And lets face it he couldn't possibly be doing it for the money! No amount of money would be worth all the legal battles etc in this case. As far as why the judges haven't done anything?
1. The husband is the legal gaurdian
2. there is no hard core evidence that suggests foul play
3. Just because a judge has PERSONAL feelings on the matter SHOULD NOT IN ANY CASE weigh in on the matter.
What right is it for someone to push their religious or otherwise beliefs on someone else? Which is part of what is going on. If I'm not making sense let me know. When I right I sometimes forget to finish what's in my head while I write.
Basically the judges can't act because they don't have just cause, just because they have personal feelings does not give them warrant to act.

Matthew B. Novak said...

But my point here isn't that the judges should find for the parents. My point is that they should hear the case, which they are refusing to even do. That is what I think is ridculous. They're hiding behind the procedure to avoid making ANY substantial decision, but in the process they are making a decision. I'm just saying that they can't wash their hands of it.

Also, you can't just jump to the idea that the husband is the legal gaurdian, because that is exactly what is being challenged. You can say that the parents need to show a lot of evidence to prove the husband shouldn't be the gaurdian, but you still have to recognize that it's being disputed.

Finally, yes, he could still be doing it for money - a million+ is quite a tempting plum. Especially because he might stand to inherit even more, depending on Florida's inheritence laws. Also, the whole legal costs might be being done on a cheaper basis or the lawyers might be doing it on a contigincy basis, just taking a piece of the inheretance. I doubt it, but without knowing the monetary structure, I don't think we can eliminate money as a motivator. that's for a court to hear all the facts. Unfortunately, that hasn't been done.

joel said...

I'll let you decipher this history of the case. My eyes glaze over once it starts listing case numbers and rulings.

Matthew B. Novak said...

Yeah, it looks pretty much like my original assesment was correct. First, it doesn't appear that a jury has ever heard the question. Second, because of the way the suit developed, Michael became gaurdian before any of that conflict-of-interest stuff happened/came to light. So basically, he should have been her gaurdian then. The question should be whether he should have been allowed to continue being her gaurdian, once those conflicts of interst arose. It doesn't look like those were ever fully litigated because it appears the court tossed out the suit, without even fully hearing it. Given these facts, it just seems to me that the Schindlers haven't really gotten their day in court. Which is odd, considering how long this has been going through the courts. A strange, sad, twist.

Anonymous said...

ok i personnally think the entire nation needs to but out of this entire thing!
maybe if they did the family wouldve decided by now!
i also think they should well let her die. i mean shes been like this for 10+ years and she hasnt gotten any better has she?!?!? people just need to except the fact that one day they are gonna have to let her go better sooner than later!
then the pain wont be so bad!
i mean if theyd just done what the husband had suggested right away before it became all nationwide with every one in their bussines they wouldnt have put up as big a fight for her life. i say this because now they wanna prove that she will get better and can live a normal healthy life. just another thought!

Anonymous said...

ok i personnally think the entire nation needs to but out of this entire thing!
maybe if they did the family wouldve decided by now!
i also think they should well let her die. i mean shes been like this for 10+ years and she hasnt gotten any better has she?!?!? people just need to except the fact that one day they are gonna have to let her go better sooner than later!
then the pain wont be so bad!
i mean if theyd just done what the husband had suggested right away before it became all nationwide with every one in their bussines they wouldnt have put up as big a fight for her life. i say this because now they wanna prove that she will get better and can live a normal healthy life. just another thought!

Anonymous said...

As a new reader and novice poster, I'll do my best to keep my response brief.

To begin, juries don't hear questions of guardianship in the state of Florida.

My real concern, Matt, is your comparison of a good segment of the Florida judiciary and the 11th Circuit to the Nazi judges. I have studied at Yad Vashem, and by "Nazi judges" I assume you mean the members of the Reich Ministry of Justice brought before the Nuremburg jury in 1947. These men, many of whom were appointed long before the Nazis were elected to power in 1933, did enforce Nazi law and uphold the legality of the Final Solution as it was employed. Of the sixteen justices who appeared as defendants in Nuremburg, ten were convicted; four of those received the death penalty. Not one of the sixteen was permitted to use as a defense the fact that his hands were tied by the law.

One large difference between our society and Nazi Germany, Matt, is that here we allow laws, not men, to rule. When Hitler declared himself Furher and legibus solus in 1942, the Reichstag confirmed his power to intervene in and mandate the outcome of any case before the courts.

Another difference between Nazi Germany and America today is that our lawmakers, past and present, have placed significant checks on those who exercise the law. Here, Due Process is guaranteed by the Constitution. German judges had no such "higher law" to which they might have referred. Here, we deliberately separate the power of the judiciary from the power of the political branches. In Nazi Germany, there was no such separation; the executive and the judiciary were often one and the same.

Let me concede that the American federal judiciary is an imperfect system about which our Constitution was left strangely silent. In this country, we leave it to men and women of good faith and good standing to interpret the law and resolve our disputes. The notion of Due Process guarantees any party with a legitimate claim to petition the courts for a result. And, as a matter of politics or personal preference, a good number of us might disagree with the results.

Reasonable people can disagree about whether or not Mr. Schiavo has the authority to speak for Mrs. Schiavo after eleven years. Reasonable people can disagree about whether or not a husband has any authority at all to speak on behalf of his wife. Reasonable people can disagree about whether or not there is a right to die.

Matt, you really dislike that these judges claim to be tied down by the law. You want these men and women to step outside their regular authority and do the just thing--do I presume the "just" thing would be to hear the entire case again?

You are correct in that appeals are not de novo hearings; neither federal nor state appelate courts hear the facts of the original case over again. In this case, the courts heard the facts--not once, but four times--and either assigned or maintained Mr. Schiavo's status as his wife's guardian. In this case, the courts heard the facts--not once, but three times--and ordered Mrs. Schiavo's feeding tube removed. There have also been dozens of appeals that did not review the entire case again. This case is the most litigated right to life case in history. Due process concerns are as satisfied as they can be in our legal system. How would one more review of the facts satisfy justice?

Or is it that the just thing is to intervene because keeping Mrs. Schiavo alive is the right thing to do, regardless of due process? "In cases such as this, the legislative branch, the executive branch ought to err on the side of life," as President Bush argued last week?

I will set aside the accusation that many in the Congress see a political upside to intervening in "life" issues. And I will set aside the obvious inconsistencies in the President's willingness to intervene in such issues--not ten days ago, a 5 1/2-month-old baby named Sun Hudson died when doctors at Texas Children's Hospital removed his breathing tube. It was removed over his mother's opposition under the provisions of the 1999 Texas Advance Directives Act signed by Governor George W. Bush.

Congress strained against its checks and balances when it singled out this one woman to receive federal review. The President is equally complicit--he won't be bothered in Crawford by a health care crisis that lets thousands like Mrs. Schiavo die every week; he signs bills into law in Texas all the time; but he flew back to sign this one bill into law in Washington because he feels this one case ought to have federal standing, regardless of our established standards.

The fatal flaw of the German judiciary, Matt, was the unrestrained power exercised by its judges. Don't ask the American judiciary to cut itself loose from rule of law. These judges are not Nazis because they believe the law takes precedent over their personal opinion.

You may believe these judges are held accountable by a higher power; so be it. They have made this decision many times over in good faith. It won't satisfy everyone, but it's the best we know how to do.


Matthew B. Novak said...

First, I doubt that if their decisions were truly in good faith they wouldn't couch them in terms of tied-hands.

Second, I realize what the laws are with this case, the way the reviews work, the fact that gaurdianship cases aren't heard by a jury. This is what troubles me. It doesn't bother me that Michael has been found to be the gaurdian. It bothers me that he was found to be the gaurdian by a single judge on a limited set of facts. You cite due process and a rule of law. What troubles me is that our rule of law seems to have denied due process. Due process would call for a decision on the complete set of facts and a factual inquiry into gaurdianship by a jury.

Before Gideon v. Florida, or whatever the Gideon's Trumpet case was, our rule of law didn't gaurantee legal representation for non-capital crimes; our rule of law worked against due process. I feel a similar condition exists here. My objections are completely without regard to outcome.

Now, as for the Nazi comparisons - I recognize that the analogy is far from perfect. But, in short, the judges have claimed to be constrained by rule of law, which, as anyone vaugely familiar with the Nurnberg trials knows, was the same excuse offered by the Nazi judges. You point to the fact that judicial and executive were largely tied in Nazi Germany. Is your point here that "my hands are tied" is a valid excuse in our system? Should it be? I think not. We allow our judges to determine whether something is constitutional. We give them the power to carve out and define due process. There are a myriad of examples of judicial legislation. I can't accept that "tied hands" is a legitimate excuse.

Further, in the current case the "right" outcome is an open question. An honest attempt to figure out an answer to the question would be the just thing. Yes, I honestly think that one more review of the facts is the just thing to do.

Finally, good to have you throw your thoughts up here. I don't get enough lawschool people posting on here, and part of the reason my blog exists is to subject my thoughts to some intense scrutiny - exactly the type you've provided here. Thanks!

Matthew B. Novak said...

P.S. to that last one - I wrote that the same excuse was used by the Nazi judges. It seems they weren't allowed to actually use it as a defense, but the tied-hands theme was pervasive. The fact that they weren't allowed to use the defense though, seems to even further cement my point - it simply isn't an acceptable excuse.

Anonymous said...

You doubt that the appellate judges made these decisions in good faith because the law states that appelate judges don't get to review the facts? The law ties the hands of appellate judges in this matter. They are not legally empowered to retry the case. This is a fact, not an excuse.

Your contention that there has been only one review of the facts is just factually incorrect. On an initial review of the facts, Mr. Schiavo was appointed legal guardian for his wife by a Florida court in 1990. In 1993, on a further consideration of the facts, the court denied a petition to remove Mr. Schiavo as guardian. In 1994, a guardian ad litem reported to the court--a state mandated review of the facts--and claimed that Mr. Schiavo had dutifully fulfilled his obligations. In 1998, a second guardian ad litem reported to the court--and while his report was less favorable, the court reviewed the report and left Mr. Schiavo in his position as guardian. That makes four times that four different judges ruled on this particular guardianship issue, twice with court appointed expert opinion to further inform the decision. More importantly, it satisfies every state and federal legal requirement for reviewing guardian status. How, exactly, is due process not satisfied?

Due process of law, as you conceive it, might provide for a jury trial even though the law as democratically determined by the people of Florida and the Congress of the United States says otherwise. Due process of law, as guaranteed by the Fourteenth Amendment, does not.

I fear I have not made myself clear in why your Nazi comparison is entirely inappropriate. Let me quote from the 1947 case:

"In German legal theory Hitler’s law was a shield to those who acted under it, but before a Tribunal authorized to enforce international law, Hitler's decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations."

These judges were not permitted to use the "tied hands" defense because the laws by which they were tied were illegitimate. The laws promulgated by Hitler as Supreme Legislator and Supreme Adjucator were, in effect, not laws at all.

Of course the law changes when judges make decisions--as you say, "We allow our judges to determine whether something is constitutional. We give them the power to carve out and define due process." But none of this occurs in a vacuum--I take exception to your term "judicial legislation." The legislative and executive are permitted to write and attempt to pass laws about whatever occurs to them. The judiciary may rule only the question presented, and only within the boundaries prescribed by the Constitution.

I argue that it is precisely because we prescribe and respect these limits that we can trust the judiciary to make decisions at all. The Nazi judiciary was an exercize in raw power; it had no such restraints.

For a federal judge to do what you are asking here--to simply ignore the law and mandate a jury trial because, in his opinion, there should be one--makes him guilty of the same disregard for the legitimacy of rule of law.

President Lincoln once observed that the Constitution, presumed to be the legitimate source of government authority, cannot provide for its own end. So you have to make a decision, Matt. Either you can follow the law, move to Florida, and petition the state legislature to provide for the jury trial you would like in this sort of case. Or you can toss the Constitution and its guarantees out the window--"cry bullshit," as you so elloquently put it--and try to come up with something better. You get rule of law or something you hope conforms to your opinion more of the time. Your choice.

In the meantime, under the current regime, more than twenty judges on both state and federal benches believe that every right has been satisfied and due process has been served.


Matthew B. Novak said...

While there have been multiple reviews of the facts (4) the latest happened, as you observed, in 1998, before several key facts came to light. And, in fact, I believe (though I could be wrong) that all 4 of those were presided over by the same judge - it would be a remarkable event for a judge to reverse his previous decision on an issue such as this, and would take an especially humble person to recognize that they had done a poor (and porous) job the first time.

Moreover, given that the second gaurdian ad litem report didn't reflect the same facts as those the court had ruled on, I am suspicious of the court's integrity in this situation. Especially considering that the facts were never reviewed in an appellate decision.

Secondly, I followed your Nazi argument just fine - in essence you are saying that in that instance "tied hands" wasn't a defense because their hands weren't legitimately tied. The corrollary for the US is that "tied hands" is in fact a legitimate excuse for the judiciary because those hands are legitimately tied.

My contention is two-fold. First, I question whether it should be a legitimate excuse. I don't think so, but reasonable persons could disagree. Secondly, and more important, I observe that our courts do have precisely the power to define due process. Their hands aren't tied. The redefined Due Process in Gideon. There isn't anything stoping them from doing so here. You write that Due Process, under the 14th Amendment, doesn't gaurantee a jury trial in a case such as this. But you're wrong - because it is an open question. Previous to Gideon the 14th Amendment didn't gaurantee legal representation. Now it does. You yourself observe that the law changes when the judiciary rules, but that it must rule within the context of the Constitution. A judicial determination that due process in gaurdianship cases requires a jury determination fits entirely within that 14th Amendment/Constitutional framework.

I am far from tossing the Constitution out the window as you suggest. I simply desire a judiciary that recognizes the incompleteness of the Constitution and works to continually define the nuances of our law. There is much that has been settled in our law, but there is much which is still open. Defining the complete requirements of Due Process is, in fact, an open and evolving question. I favor a judiciary willing to resolve those new issues to one which tie their own hands with stare decisis. If we are going to live under a rule of law let it be one of growth, not one of stagnation.

Finally, it seems the 11th circuit may agree with me. They've now agreed to hear the facts of the case. They aren't just satisfied saying Due Process has been served. Perhaps I was wrong in accusing them of using this "tied hands" excuse. I'm glad to be wrong though.

Anonymous said...

I am glad you are glad to be wrong, because wrong you are.

The question of guardianship hasn't been raised since 1996; that had been pretty well settled. The last complete review of the facts from a legal standpoint happened in late 2003, when Mr. Schiavo first challenged the Constitutionality of "Terry's Law." And there have been at least five other occasions between then.

More importantly--and please tell me that after two years of law school, you know this and are just baiting me--the question presented is not "defining the complete requirements of Due Process." No body in this case ever asked for a jury trial. In Gideon, the question was whether or not due process ought to extend guaranteed representation--the court said yes, it should. In this case, the questions presented have been whether or not Mr. Shiavo should be the guardian (they said yes); whether or not the feeding tube should be removed (they said yes); and whether or not Terry's Law is unconstitutional (they said yes again). No judge anywhere is empowered to stick a jury trial into the system just because he feels like it.

And I suggest you read the headlines more carefully. The 11th Circuit has not agreed to hear the facts of this case; Mrs. Schiavo's parents have simply petititoned for a de novo federal review (incidentally, not a jury trial) using one obscure constitutional reference. It is highly doubtful that the court will even hear the petititon--the "medical" facts on which it is based are pretty unbelievable.

So that's three things on which you were wrong--three more things to be happy about.

Anonymous said...

As an aside, I am going to quote you on "let it be one of growth, not of stagnation," the next time we talk about gay marriage.


Matthew B. Novak said...

"In Gideon, the question was whether or not due process ought to extend guaranteed representation." My contention is precisely that the current question parallels the one presented in Gideon. The question I'm raising isn't whether or not Michael should be the gaurdian, or whether or not the tube should be reinserted. The question I'm raising is whether or not due process ought to extended to a de novo review by a federal court. Or a jury. These are, at least the de novo question, the claims being presented now by the Schindler camp. I've been claiming all along that this is the argument they should make.

So no, the question presented isn't "defining the complete requirements of due process." But the skilled attorney representing Terri's parents would present the question of what due process in this case requires, and would (clearly) suggest the answer that due process requires more than what has happened thus far. This is the argument I'm making. Whether or not it amounts to jury trial or de novo review, I feel due process requires more than what has gone on so far. I feel due process requires gaurdianship to be reconsidered, on a complete set of facts, which hasn't happened - as you observe - since 1996. Almost a decade ago.

The headline thing - I was just going by what CNN/AP had written at the time I posted. They've since limited their previous statemetns to the more accurate representation that the court is only allowing the Schindlers to present this claim, not that they have agreed to hear it.

And finally, a response to your aside: growth does not require ever-expansion. And I don't know if you've read my old comments about same-sex marriage, but I hardly think my proposal would constitute "stagnation."

dyk said...

I prefer to be informed before getting involved in discussion. Call me crazy. I sometimes think that's a greatly underheld stance.

That being the case, I'm wondering if there are resources available for a common folk like myself to have access to the details of legal matters like this. I wasn't sure if you legal-types were getting information from classes or if there are other options available. Perhaps if I better understood the court hierarchy I'd be able to determine what facts had been reviewed at which level.

A little help, counselors?

Matthew B. Novak said...

Well, a quick summary would point out that typically factual inquiries are resolved by juries. Questions of law, on the other hand, are resolved by judges (since they're the experts in those matters). Naturally there is some overlap between legal and factual questions. Sometimes they split the parts. Normally judges resolve the joint questions. There are also times when judges just do the whole ball.

Also, when an appellate court reviews a lower court decision there are several levels of review. Sometimes they review it as if the lower court should get complete deference and only when the lower court was totally crazy will they overturn the decision. Sometimes they give the lower court no deference what-so-ever. And there are levels in-between.

That's the quick version. Aaron, want to contribute?