Friday, January 09, 2004

Update On Terri Schiavo,

or,

Being a Judge Means Never Having to Say, "I was Wrong"


My article titled "Killing Terri Schiavo" is now out in the January issue of Crisis Magazine. If you don't subscribe to Crisis, you might buy, beg or borrow (don't steal) a copy of it. In the article I examine some of the legal and medical issues in her case, and demonstrate how Terri has been the victim of a judicial and medical establishment that has embraced the pro-death agenda. In my research for the article, it became plain to me that a serious miscarriage of justice has been perpetrated by Judge Greer et al. One notable way in which the Florida courts have ridden roughshod over Terri's rights is in the manner they have handled the guardians ad litem in her case: Several attorneys have informed me that the normal procedure is to have such a guardian appointed to represent the person's interest. But Terri's court cases have consistently gone to trial without an independent guardian ad litem to represent her. As I write in my Crisis article, the first guardian ad litem, Richard Pearse, said some things in his report which George Felos, attorney for Michael Schiavo, didn't like, so Felos tried to get rid of him:
In February of 1999 George Felos filed a "suggestion of bias" against Pearse, and demanded he be removed as guardian ad litem. The judge then hearing the case, Bruce Boyer, took no action on Felos' "suggestion of bias" nor on Pearse's report. In April of that year, after waiting four months without hearing from the judge, Pearse filed a request that he either be given further instructions or discharged. He reiterated his concerns about Michael's guardianship, and also noted that there would be due process difficulties if the case proceeded to trial without Terri having an independent guardian ad litem. Judge Boyer's response was to discharge Pearse without appointing a successor. The case then proceeded to trial before Judge Greer, without him appointing a new guardian ad litem .

Well, now it looks like the same thing is happening again. In the latest proceeding, Governor Bush asked the most recent court-appointed guardian, Jay Wolfson, to investigate 10 issues related to Terri's case, including such things as the circumstances of the injuries which led to her brain damage. Governor Bush also asked Wolfson to make a determination as to whether Terri and Michael could be divorced. Mr. Wolfson had also, in his report to the court, advocated that swallowing tests be done on Terri, as well as other measures to determine whether there is any likelihood that therapy could improve her condition.

All of these questions, and the request for a swallowing test, are highly inconvenient to Michael Schiavo and his attorney, George Felos. If Michael and Terri can be divorced, then Michael is sunk, and Felos loses the pro-death test case he longs for. If a swallowing test is conducted by honest and independent doctors, then Michael will almost certainly be sunk as well, because such a test will reveal that Terri already is swallowing her own saliva (about 2 to 2.5 liters per day, like most normal adults) and can therefore swallow liquids. If she can swallow liquids, then she can probably re-learn to swallow solid food.

But these questions and the request for a test are also inconvenient to the Florida courts, because honest answers to them will reveal the bias and judicial incompetence, if not outright misconduct, of Judge Greer and, to a lesser extent, Judges Boyer and Baird.

And so, the response of the courts has been, once again, to discharge the guardian ad litem. Once again, there is no independent advocate representing Terri. The Schindlers have petitioned the court to re-instate Jay Wolfson so that he can complete the investigation into Terri's case. Predictably, George Felos opposes the re-instatement, saying that Wolfson had already completed the investigation. Felos has relied upon misinformation and outright deception to make his case, and can't afford to have any further inconvenient facts come to light.

What this case is now about is the combined efforts of George Felos and the judges of this case to prevent Governor Bush and the Schindlers from re-visiting the questions of fact in Terri's case. In my opinion, the maneuverings regarding the constitutionality of "Terri's Law" are just a smoke screen in front of those questions of fact.

You see, Judge Greer made some highly dubious, and indeed almost unaccountable findings of fact in this case. His judgment that Michael's assertion that Terri "wouldn't want to go on living" in her condition met the standard of "clear and convincing" proof is one egregious example of what can only with charity be described as a number of "counter-intuitive" decisions.

But in our legal system, once a judge has made a finding of fact, that finding is all-but unassailable, no matter what evidence might come to light subsequently showing that finding to be erroneous or even absurd. Being a judge means, in a very real sense, never having to say "I was wrong".

Governor Bush and the Schindlers are using the opening given them by "Terri's Law" and the governor's intervention to try to re-open the case and re-visit the rulings that Judge Greer made regarding Terri's diagnosis and regarding her putative wishes. And, as I have written before, there is ample reason to doubt the validity of those judgments.

It is precisely because of the objective weakness of those judgments and the flimsiness of the evidence behind them, that the Florida judiciary will do almost anything to prevent them from being re-examined. A small waft of truth will bring down that house of cards. So the tactic of the judges will be to keep the windows closed on, and the light off of, the matter.

And so the Florida courts, wittingly or not, are locked in common cause with George Felos. They both need the same thing, albeit for different reasons. And that is why I am not at all sanguine about the outcome of Terri's case as long as it is in the Florida courts. Neither the Schindlers nor the attorney for Gov. Bush, Ken Connor, are optimistic, either. Judge Baird has clearly signalled his intentions by refusing to allow a new trial to present or consider evidence in the case.

It is almost a certainty that Judge Baird will rule that Terri's Law is unconstitutional. Judge Baird all but declared himself on the matter before there was even a hearing. That his evident bias didn't disqualify him is appalling, but not surprising. The arguments he gives for his ruling may be of interest to legal pundits, but even if he has no plausible reasons the outcome will be the same. As far as the judiciary as concerned, it is necessary that Terri's Law be found unconstitutional. They will allow no governor nor legislature to brook the unfettered exercise of judicial power. Once Terri's Law is declared unconstitutional, that puts an end to the inconvenient questions and demands of Gov. Bush and the Schindlers. Once Terri's Law is declared unconstitutional, the inconvenient findings and recommendations of Jay Wolfson will be rendered moot.

As soon as that ruling is given, George Felos will ask for an order to again remove Terri's feeding tube. It will probably be granted. Felos will try to get Terri's death order on a "fast track", so as to limit the opportunities for further legal maneuvering. Gov. Bush and the Schindlers will ask for a stay of the death order pending appeal, but many involved in the case think Judge Baird is not likely to grant it. And the Florida appellate courts, in all likelihood, will also decline to issue stays. Their interests also lie the way of Terri's death. At that point the only hope is in a Federal intervention.

Once Terri is dead, then all the inconvenient, unanswered questions lose their interest and relevance. Felos knows that against the fact of Terri's death, none of those problematic issues will have much actuality. Most people will shrug their shoulders and move on. And Felos and his comrades at the Hemlock Society and Death-with Dignity" will have their test case, and the legal means to continue apace their offerings to Death The All-Embracing.