Schiavo Spin Doesn't Wash

It pains me, little fauss, to side with a non lawyer against a lawyer (professional courtesy! ) but I think Dr. Douglas has it right in his last post.

Before you become too upset about it, let me remind you that this is, or at least has been up until now, a matter of state law. The Florida court system is the final arbiter of Florida law.

Now, if you are thinking that the federal courts should have intervened, what you are really saying is that the federal court should have declared the Florida law invalid as unconstitutional.

Trouble is, that really WOULD be an act of judical activism. I have been able to find NO federal case law or statute that would support such a departure.

Now, having debated with you in the past, I would guess that you are really arguing from a moral principal, reverence for life, that you believe trumps any law to the contrary. Well and good; in hard cases that appears to be exactly what good judges do. The problem is, though, that the principal you want applied really isn't part of our law. And it isn't universally recognized, either, otherwise why would the country be split on abortion? If a judge did apply such a principal, the decision would depend entirely on the personal convictions of the judge himself. That is not "justice", it is "legislation".

So the federal courts really had no basis to do anyting other than what they did.

 

1. It is 15 years from the time Terry became what most would consider brain dead.

2. According to the autopsy she wasn't able to even swallow water or food.

3. Her parents would have exhausted the insurance money relatively quickly and it would have been the state that paid for her upkeep.

4. Your right about it being a controversy but it still seems the right got carried away despite their better judgement. Some such as Hannity and others were making completely untrue and fabricated accusation that have turned out false.

 

Little Fauss

Despite what you call "reasoning", calling someone a liar without any real evidence other than your opinion is very distasteful, and downright wrong. Word of advice: tone it down a little. I know once someone falsely labels me a liar, I completely disregard everything else they say -- if you desire crediablity, you might want to rethink your stand.

To be politically correct, I would use "mistaken", or "I disagree with you".

 

I would like to say that referring to Terry as a "turnip" or "vegatable" is disguisting. She was in a "vegatative state", but that doesn't mean she was a "turnip".

 

I didn't make a federalism argument in any of my posts. I haven't even opined on the federal intervention. If you want to know my opinion, I think that it may likely have been a separation of powers issue; that the federal intervention was not in keeping with the Constitution.

And if you think, after all we've been through, all of our debates, that I would consider my personal principles--or anyone's personal principles--justification for overriding the law, then you've really missed out on any understanding of me. You couldn't be farther off the mark. I don't think that right wing activism is any better than left wing activism. The Supreme Court was no more justified in Lochner or Dred Scott than it was in Griswold or Roe. All are examples of activism and lawlessness

What I was saying is that the actions taken by the Florida courts were not an inevitable consequence of the statutory law and precedent at hand. That there were huge issues of custody and abandonment and intent and evidentiary value. You know that, and so does anyone who's intellectually honest. The actions of the courts were not at all inevitable given the the law in Florida. That's all I said, Osborne, I never touched on the separation of powers issue, not a jot.

If you're going to debate me, at least debate me!

 

This will be the last time that I make this comment because obviously people are intent at giving their own definitions to real terms without regard to the actual meaning thereof. I'm tilting at windmills, I'll abandon it after this post. But I don't care if "most" would consider her "brain dead". "Brain dead" has a real meaning independent of what "most" think, and whether or not she could swallow or whistle Dixie, she was not brain dead.

Why are people so insistent on getting this wrong, even after I tell them what's correct? What gives?

 

Here's the statement that I made to which Mr. Engineer refers:

___________________________

Further, just to clear you up entirely,
"persistently vegetative" does NOT
equal "thinks with all the capacity of a turnip".
(emphasis added)
___________________________

I leave it up to the readers to determine whether I said that of which I'm accused or whether my accuser is simply confused.

 

You may be right there, that he was merely mistaken. In fact, I said pretty much that. I stated that I think Rich, by no means short on intelligence, was, like many other otherwise intelligent people, quite ignorant of the true meaning of the term "brain dead". I also left open the distinct possibility--which I still regard as a possibility--that he was intentionally obfuscating for his own advantage in the debate.

On the other thread to which you refer, I told Rich "That's a lie". And as a point of fact, it was a lie--she was not brain dead. I immediately softened it that same post by saying "You're ignorant". He was, you must agree, either lying or ignorant.

It's interesting to me that JoAnn can unleash a post that's nothing but name-calling, ad hominem, unthinking nonsense, and there's not a word telling her to tone down the rhetoric. It's interesting that a person on this thread can refer to the departed Ms Schiavo as a plant--a bonsai--and there's not a word of rebuke from any of you. In fact, rather than rebuking him for such an outrageous statement, you chose instead to rebuke me by flatly and perfectly misquoting me, saying I said precisely the opposite of what I'd actually said.

Mr. Engineer, think about that for a moment. And ask yourself what's going on inside.

 

little fauss,

No, actually, I know nothing of the sort. I know only that the Florida courts spoke to what the law in Florida is.

If you disagree with the Florida courts' interpretation of their own law, say so! Then point me, please, to the specific Florida cases and statutes that support your claim.

 

Come on now, you actually were implying that I supported the federal intervention--don't wiggle out. Your contention with me, as stated in your post, was about the federal courts and intervention, and me supporting their "lawlessness" on grounds of principle, my principles being the sanctity of life. I advocated no such lawlessness.

I have said repeatedly that this was a case that could've gone either way based on the law--in fact, I don't think I ever said specifically that the courts were wrong, just that their decision wasn't terribly supported by the facts at hand, and I lampooned that fact in my original post with my mock transcript. Or do you think that Mr. Schiavo had more supporting his argument that her intent was to be starved under the circumstances? To say that it was light and sketchy evidence would be drastic understatement.

There were also questions of custody and spousal rights. Had he forfeited those by his actions in finding another woman and starting another family? Are you really prepared to state before this forum that there's no such thing as an abandonment of rights vis-a-vis your actions in abandoning an individual over whom you claim custody? Or put it this way: what if Mr. Schiavo's current mate with whom he's fathered children and with whom he lives were--G-d forbid--to have been suddenly placed in the same heart-rending situation as terri while the proceedings were underway? Do you not think he would assert his rights, or at least attempt to do so, based on their relationship and status? Can he attempt to assert spousal rights and custody over two women simultaneously? We live neither in 19th century Utah nor in modern-day Saudi Arabia, you know.

All I said was that the law was not clear cut, as you all seem so intent on implying. If you want to me to do research on the case law in Florida standing for the proposition that very old oral testimony, uncorroborated, is insufficient to justify the actions taken; that sposal abandonment and a forfeiture of rights thereto can result from the actions of Mr. Schiavo; that denial of food and water are unwarranted given the lack of any directive to that effect executed by testator, then I guess I'll put together a brief for you to that effect. But you'd have to give me several days. But I really don't think it's necessary, because you're not ignorant as are others on this matter. You know the case law exists throughout this country and almost certainly in Florida; you know this was one that could've cut either way; you know that it's not a matter of saying the courts correctly applied the law. They applied the law as they applied the law. It may have been correct in the absolute sense, it may not have been. There were arguments both ways. And that's all I ever said.

And by the way, I've already asked you to cite the precedent supporting your view. You did not. And no fair citing the instant case.

 

No, I'm asking you to support your legal opinion. I am not challengiing the courts' decisions, YOU are.

 

You're going to make me brief this, aren't you? I've probably wasted too much time on this already. I have an assignment due tonight for my MBA class, I have work to do, I have a boss who will fire the bejeebers out of me for continuing to waste time, and now you want me to prepare an appellate brief--even though you know full bloody well that everything I've stated is true, that there is certainly good case law for every proposition that I raised.

OK, let me put it this way, counselor, are you going to state here and now that the case was clear-cut, that there was no argument about the law, that the points I made were invalid and nonexistent in the law? Is that your position? And if so, would I not then have the right to refer even to you as either ignorant or disingenuous? But since you are neither, in my opinion, I'm sure you'll answer the question with integrity and admit that yes, while I disagreed with the manner in which the case turned out and that you agreed with it--presumably--that in any event, regardless of how the law was applied, the law did not cut in one direction only, that the courts could've come out exactly the opposite.

Will you answer that question directly? Do you really think there were no issues cognizable in the law of: custody, intent, lack of supporting documentation, etc?

 

I think that, as to some of the issues you raise anyway, there were questions of fact. Findings of fact are for the trial court to make. In general, findings will not be disturbed on appeal and in general no one is in a better position to make findings than the trial judge.

Including you and me.

 

Of course, findings of fact are generally not touched on appeal. I'm not arguing that the appellate courts overstepped--or understepped--by refusing to revisit the findings of fact. I am questioning, based on all the reports, whether the facts were anywhere close to establishing the extraordinary steps taken by the trial court. That's really all Mr. Schiavo had, was it not, an offhand statement after watching a movie that she allegedly made several years before the testimony in question? And upon that we starved her? That may well be sufficient grounds for re-opening, but as I've already said consistently from the start, this was a matter in which the courts could've cut either way based on the law.

But I'm not only questioning the findings of fact. I'm questioning the law regarding custody under the circumstances, the law regarding the removal of sustenance from a non-brain dead individual absent a directive to that effect. Those are not questions of fact, but law. And those are certainly grist for appellate review. And whether the appellate courts agree with me or not, surely the judges cannot say--given that they were plowing new ground here--that do do otherwise would've been "activism". You kidding me? before you say something, you should at least be able to say it with a straight face.

 

If you don't feel you can discuss it civilly and with respect, dropping it may indeed be correct thing to do.

She had no consciousness as we know it. She was unable to swallow even water. While she had some kind of brain activity, a persistent vegitative state without hope of any kind of recovery is what most people would consider brain dead. If that offends you on technical or semantic grounds so be it.

 

Quite remarkable. I've acted with decorum here that has required some measure of restraint.

Have you read some of the posts? Have you read where people referred to her as akin to a bonsai plant, and indirectly referred to me as akin to "Falwell", and a "right-wing zealot"? I've been told--quite wrongly--that I think my opposition is "evil" and "unitelligent" (I never said nor thought it); I've been told my arguments are "sweeping ad hominem" and "ad hominem" by people who apparently don't know the meaning of the term; I've had posters completely misstate my arguments and blame me for what they said I said (which wasn't what I said). I've done it all pretty much myself up against several people screaming out their views on the keyboard. And while I've tried to answer virtually every question thrown at me, to reason it through--in strong terms, I admit--for the most part, my worthy opposition has ignored my questions. (But for Osborne and, on a limited basis, a couple others)

And all I said was that those who call her "brain dead" are mistaken, that the difference between it and "persistently vegetative" is more than semantic. I'm not complaining per se, I dish it out and I can take it as well. But when someone informs me that I can't discuss this civilly and gives the field a free pass, I must protest.

You know, there's one question of mine that nobody here has answered: What's the difference between Terri Schiavo and a profoundly retarded person in an asylum who has no more cognition, no more abilities, than her? Why exterminate the former but not the latter? And what about your philosophy would forbid one but embrace the other? Cogitate on that.

 

I think you really need to reevaluate the discussion here and how you view other's contributions. I don't think your characterizations are accurate.

As to your question, if you are talking someone like Terry that has no cognition or conscienceness I don't think there is any difference. As to someone who has conscienceness but no cognitive ability at all I am unsure, although it is an important question.

 

Dave, I'm willing to learn and be educated. If I've completely misstated my opposition, then I apologize. But I can guarantee you that on more than one occasion, my opposition has misstated me. Read it for yourself.

However, I do believe that some good contributions were made, some fair ones, and certainly not just by me.

Of course, whether she had no cognition or consciousness was not determined by the autopsy. It was determined that she was blind, that her brain was shrunken by 50%, and that she was beyond rehabilitation. But that's not the same as saying that "she had no cognition or consciousness". She likely did, quite probably did, but there's almost no doubt it was on a very basic level. If someone is truly brain-dead, then they are dead. They are flatliners, no activity, a body kept alive by machines. But that was not Terri.

And of course, at the time of her death by starvation, people had no real way of knowing with certainty what level of awareness she possessed. Medical experts had cut both way on this one--the court decided to take the advice of one side over the other, and jumped through several questionable legal hoops to reach their ultimate determination. What I'm getting at is that any relief experienced by those on your side at the autopsy results is pretty much post hoc rationalization.

And if the precedent now established in this case is followed to any extent, I can guarantee with almost mathematical certainty that at least one individual--such as the persistently vegetative firefighter who recently emerged from this state after a decade--will be killed before their time has come. If you're comfortable with that, that's your business.

As for those profoundly retarded individuals who have no real cognition, you must provide me more than it's "an important question". If there's any hesitation on your part as to whether those living, breathing human beings with limited or even no cognition "as we know it" should be put down, that's difficult for me to understand.

 

You know, little fauss, from your posts here and elsewhere, I am forming the opinion that you do your legal analysis backwards.

Backwards analysis is the FIRST REQUIRMENT of the skilled advocate; you START with the client's goals, figure out what legal theory should cause the litigation to satisfy the client's goals, determine what facts the Court must find in order for your chosen legal theory to "fit" and be adopted by the Court, examine available evidence to see whether you can prove up the facts necessary to support the theory, and if you think you can prove them, you try your case! (Actually, in criminal defense, you sometimes start even further back, with determining what Court of Appeals decision will lead to the client's goal.)

And I can't help but think that you start with the goal; "keep Terry on the feeding tube."

But a good Judge cannot work backwards. His decision must be the result of taking evidence, finding facts, determining what legal theory fits, applying that legal theory to the facts as found, and adopting as their decision the result of the legal test as applied. If the Judge starts out with his decision, you see, it cannot be founded on law or fact but only on personal convictions and that is not adjudication, it's legislation and it's neither fair nor impartial.

I may be entirely wrong, of course, I can't read your mind, but that's how it is beginning to look from here.

 

Actually, I was thinking that you tend to do the same--but I still love you.

I try to follow things through based on a principle that the law is not to be subservient to our personal views, but that judges are to apply the law as it comes before them, blind to their prejudices. The saying "tough issues make for bad law" is true only if the judges try to insert their desired outcomes into the proceedings. I never think that's acceptable.

I cannot fathom what you're trying to do here, other than to "zing" me by claiming that I tend to do that thing which I most despise in the modern judiciary. You throw out the statement, but don't support it with anything of substance. What about my questions on the case would lead you to believe that I was using backward analysis? Are there any grounds for questioning the various legal hurdles that were gone over for the court to reach its ultimate conclusion? Do you really think there were none?

If I were using backward analysis would I not have used some tortuous logic to support the actions of Congress and the federal judiciary? But I didn't, because I tend to think it was a violation of the principles of federalism. I was consistent with my views of the judiciary to the damage of my argument! How's that backwards reasoning?

And additionally, I've discussed the law here and the courts, but that has not been my primary motivation for bringing this up; the legal, jurisprudential aspect has not been the main thrust of my arguments on this thread. My argument here is primarily moral; not necessarily vis-a-vis the courts or judicial restraint at all. I've asked, irregardless of any court, whether we should have done what we did in an absolute, moral sense.

I've already conceded that the courts could have gone both ways with their reasoning. Actually, you seem to be the one contending, without fail, that they could not--that your way was the precedential approach and my way was simply not. Who's utilizing backwards reasoning?