March 26, 2005

Facts...

Something to keep in mind about the Schiavo case is that once the facts are established in a trial court, an appeals court usually has to stick with them. So if the Schindlers have lost their all their appeals it doesn't mean that justice has been done.

From Steve Sailor's blog, via Orrin Judd:

A Florida lawyer writes:
I have been following the case for years. Something that interests me about the Terri Schiavo case, and that doesn't seem to have gotten much media attention: The whole case rests on the fact that the Schindlers (Terri's parents) were totally outlawyered by the husband (Michael Schiavo) at the trial court level.

This happened because, in addition to getting a $750K judgment for Terri's medical care, Michael Schiavo individually got a $300K award of damages for loss of consortium, which gave him the money to hire a top-notch lawyer to represent him on the right-to-die claim. He hired George Felos, who specializes in this area and litigated one of the landmark right-to-die cases in Florida in the early 90s.

By contrast, the Schindlers had trouble even finding a lawyer who would take their case since there was no money in it. Finally they found an inexperienced lawyer who agreed to take it partly out of sympathy for them, but she had almost no resources to work with and no experience in this area of the law. She didn't even depose Michael Schiavo's siblings, who were key witnesses at the trial that decided whether Terri would have wanted to be kept alive. Not surprisingly, Felos steamrollered her...[there's more]

I'm getting sick of the argument "you conservatives believe in the rule of law, so why can't you go along with the multiple rulings by the courts?" Or, "You conservatives believe in Federalism, so how can you let Congress or the President to step in?" If Teri were a poor felon on Death Row there would be a proper means by which what seems to be an injustice could be corrected--President's and governors have the power of the pardon.

The power to pardon doesn't work in this case, but the attempt by Congress to interfere is analogous to it. I don't think it undermines Federalism, anymore than if Bush pardoned someone on Death Row.

Posted by John Weidner at March 26, 2005 12:17 PM
Comments

Excuses, excuses...

1) Shindler's had poor legal representation? Perhaps, but only at first. Its undisputed they've had hundreds of thousands in support over the last several years, plus the aid of dozens of right-wing legal advisors. Given most of the judges they've appeared before are in fact quite conservative themselves, it only demonstrates the essential weakness of their original case.
2)Welcome to the world of lousy lawyering! We nasty libs have been pointing out for decades that poor people, generally, get lousy legal advice and assistance. As a result, corporations steamroll over people injured by bad products, by pollution. People facing capital cases have lawyers who get drunk and sleep during trials, and CONSERVATIVE judges, such as TX's Supreme Court, routinely say tough, its good enough! Their logic has long been that the Constitution requires you have legal representation, but there is no right to good, or even adequate, legal representation. Suddenly you've discovered this isn't fair? As usual, you guys are late to the party!
3) The pardon argument is totally facetious! Legal dictionaries define "pardon" as "to use the executive power of a Governor or President to forgive a person convicted of a crime". I realize you guys would love to convict Michael Schiavo of crimes, but there are none in this case. It isn't even a criminal case, but purely civil, one which cuts directly to the basics of who is allowed to make decisions for those unable to decide for themselves. English common law, US law with 200yrs of precedent, and an overwhelming majority of Americans (including Republicans and evangelical Christians) all agree that person is Michael Schiavo. All GOP grandstanding over the last week has been intended to undermine all that, and only for what they thought would be a lose-lose position for Democrats. Instead, they overreached, and now (hopefully) they'll pay the price of hubris.
Unless you guys want to be taunted as whiners and losers, start facing up to a serious misjudgement and more on. Stop making excuses!

By the way...if the news, especially TV news, is so liberally biased, why are any TV news shows mentioning that on Thursday FL Gov. Jebbie ordered agents of the FL Dept of Law Enforcement to go to the hospice and forcibly remove Terry Schiavo, take her to a nearby hospital, and get her life-support reattached? According to the Miami Herald, some agents in the FL DLE and at least one lawyer in the State AG's office called and tipped off local police, who went to the local judge. The judge issued a TRO barring the Gov's agents, and authorizing local law enforcement to use force if necessary. The local sheriff deployed his men at the hospice, and warned any FLDLE agents attempting to enter would be arrested, by force if needed. At this point, Jebbie backed off. Since, he has been avoiding the Shindler's and their supporters, like the plague. As have Fed GOPers, who originally planned an onsite hearing yesterday, but who since called it off due to "conflicts in scheduling." Jeb Bush almost caused a violent confrontation between state and local police agencies, and would have been knowingly violating legal orders (something even southern Governors didn't do during integration). And no one wants to report on it??? Tell me again...WHAT LIBERAL BIAS???

Posted by: Zoomie at March 26, 2005 02:15 PM

At last, something useful--a splendid example of left-wing media bias! Of course the news doesn't want to report that one, even though it's a thrilling story that honest reporters would be all over. They know most Americans will ADMIRE Jeb Bush for being willing to take forceful action to cut a Gordian Knot .

Perhaps I should re-consider him as Presidential timber. I didn't think there was enough cowboy in him, but maybe there is.

Posted by: John Weidner at March 26, 2005 04:08 PM

Perhaps, but only at first.

And as we have seen, that's all the "lousy lawyering" you need to kill someone thru dehydration in a civil case.

Posted by: Scott Chaffin at March 27, 2005 07:39 AM

Hi, John,

You write:

"They know most Americans will ADMIRE Jeb Bush for being willing to take forceful action to cut a Gordian Knot."

Yeah, maybe most Americans would admire Governor Bush for doing such a thing. Too damn bad that it would be a PRIME example of the rule of men, rather than the rule of law, however asinine the law is (and it may well be) in this case.

My advice to Mrs. Schiavo's would-be saviors is this: You may not like the law, but you have to obey it. If you don't like it, get it changed so we don't have to put up with this hullabaloo the next time something like this happens. Until then, tough noogies.

Posted by: Hale Adams at March 27, 2005 07:25 PM

Oh, I agree, Hale. I didn't say it was the right thing to do.

And I think it's permissable to admire the quality of being willing to take action in a good cause and not being paralyzed by indecision and "nuance;" and at the same time think the actual action was stupid and wrong...

And it seems to have been flubbed. That's not admirable. I bet if W had tried such a trick, it would have gone off without a hitch!

Posted by: John Weidner at March 27, 2005 09:11 PM

It's one thing to obey the law. It's another thing to obey the law the way ants obey the need to build anthills. Men make the laws, laws don't make the men. Once by law a black person was considered only 3/5ths human. No one on the progressive side complained when the feds went into Mississippi and other places to enforce voting rights. And so on.

What is clear to me here is that there has been, for several years now, no justice for Terri Schiavo, because when you come right down to it most people don't care what happens to someone who has been designated a "drooling vegetable." They immediately start fantasizing about how "awful it must be to be that way" as if they could possibly know from their viewpoint, or immediately start talking about their own braindead, dying, or dead relatives as if this was all about them and their families, taking refuge in abstract political arguments (send the Schindlers copies of the Constitution when their daughter dies, I'm sure that will make them feel better) and so on; quite ignored by all but those of us who have been labelled Rethuglikkkan rightwingnut desecrators of the Holy Constitution is the fact that for some reason that no one can seem to really articulate Michael Schiavo has refused to give up control of a wife who is of no more use to him despite the fact that he has moved on to another woman and has sired children by her, and that he also seems to hate her parents (why not give them her body -- why the insistence on immediately cremating her, something devout Catholics disapprove of, and which kind of destroys his Catholic act even more than his open adultery?), and for some inexplicable reason the judges have gone along with him at every step of the way. But hey, Congress was wrong to interfere. You know, states are states, even if they are small, and small states can be just as wrong as large, federal bodies.

Posted by: Andrea Harris at March 28, 2005 03:51 PM

I'm not sure who you are addressing Andrea, but I don't think Congress was wrong to intervene.

I think the supposed raid by Governor Bush would have been wrong--a noble deed, but that sort of thing is like putting on the Ring of Power. You start by scouring the Shire & pretty soon you are ordering thrones sent home to try on.

Or maybe not. Actually, now that I think about it, that sort of power-run-amok stuff really isn't much of a problem in this country. Our system is way too resilient and self-correcting. I strongly suspect that our mixture of rule-of-law and rule-of-men has stayed at about the same proportion throughout our history. And any one act is just not going to make a difference or start a trend...

Actually, if there's a place where the Ring of Power analogy fits, it's our court system. Men started wielding extraordinary power to help the oppressed, and ended up as little tyrants imposing their whims and caprices...

Posted by: John Weidner at March 28, 2005 07:17 PM

"You start by scouring the Shire & pretty soon you are ordering thrones sent home to try on."

Huh. My edition of LOTR doesn't have that ending. (Neither the book nor the movie.)

Posted by: Andrea Harris at March 30, 2005 04:24 AM

Forgot to add: maybe people should be more like hobbits. But anyway -- what I was addressing was the attitude I've seen in places that "the law must be obeyed no matter what or it's anarchy! flames falling from the sky! Dogs and cats, living together!" I mean, that was no doubt the attitude people in Alabama had to the desegregationist efforts; it is clear in my mind anyway that Terri Schiavo's civil rights have been violated. I suppose at this point I should make some caveat about "oh well though in this instance it was a good thing that Jeb Bush backed down because then there would have been all manner of awful things" -- but I won't. As far as I can tell the only thing that would have happened would be an increase in whinging from a certain quarter. When the feds raided the house in Miami where Elian Gonzalez was being kept no one started a civil war; there was just a lot of screeching and yelling. It will take more than a few instances of federal overreach, whether right or wrong, to bestir the average American citizen from their comfy chairs. I guess I'm cynical.

Posted by: Andrea Harris at March 30, 2005 04:29 AM

I was thinking of where somebody in the book (Gandalf?) says that if they used the Ring they would start by doing good and getting rid of the bad guys, but then eventually morph into being a new Dark Lord or Lenin or something...

But anyway, as I said and you said, it's really not a problem. We've been running this experiment for 200 years and lots of people have exceeded their legal authority without the wheels falling off.

That's true about a lot of things. 50 years ago there was not the least danger that this would become a communist country. Right now there is no danger that we will become a "theocracy" or a one-party state. The Patriot Act is not going to lead to the destruction of our civil liberties.

America is not brittle.

Posted by: John Weidner at March 30, 2005 07:29 AM
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