Funmurphys: the Blog

Judicial and Media Failure

In what is hopefully not just one more burning coal in the heap poured on the Schindlers' head, the 11th Circuit Court of Appeals in Atlanta has agreed to a rehearing of their appeal by the whole court.

I have to consider Terri Schiavo's saga as a terrible judicial and media failure on top of a great personal tragedy.

The judicial failure is that a judge would make a determination that ends someone's life on such scant and conflicting evidence and that the courts above would or could do nothing. If she had been a condemned prisoner, the Governor could have pardoned her, but in our truly great legal system, he can't do anything. In the words of that famous Christian republican, Nat Hentoff:

Among many other violations of her due process rights, Terri Schiavo has never been allowed by the primary judge in her case—Florida Circuit Judge George Greer, whose conclusions have been robotically upheld by all the courts above him—to have her own lawyer represent her.

Greer has declared Terri Schiavo to be in a persistent vegetative state, but he has never gone to see her. His eyesight is very poor, but surely he could have visited her along with another member of his staff. Unlike people in a persistent vegetative state, Terri Schiavo is indeed responsive beyond mere reflexes.

While lawyers and judges have engaged in a minuet of death, the American Civil Liberties Union, which would be passionately criticizing state court decisions and demanding due process if Terri were a convict on death row, has shamefully served as co-counsel for her husband, Michael Schiavo, in his insistent desire to have her die.
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In February, Florida's Department of Children and Families presented Judge Greer with a 34-page document listing charges of neglect, abuse, and exploitation of Terri by her husband, with a request for 60 days to fully investigate the charges. Judge Greer, soon to remove Terri's feeding tube for the third time, rejected the 60-day extension. (The media have ignored these charges, and much of what follows in this article.)

Michael Schiavo, who says he loves and continues to be devoted to Terri, has provided no therapy or rehabilitation for his wife (the legal one) since 1993. He did have her tested for a time, but stopped all testing in 1993. He insists she once told him she didn't want to survive by artificial means, but he didn't mention her alleged wishes for years after her brain damage, while saying he would care for her for the rest of his life.

To me the crux of the legal failure is how a single judge can end a person's life by his steadfast purpose in doing so.

The simple story is woman suffers brain damage and her mental capacity is sharply diminished, althought the exact amount is still in dispute. Years later the husband collects a large settlement partly for him but mostly for the care of his wife. Then the husband suddenly remembers her wish not to live this way and sues in court to not let her eat or drink. The judge hears conflicting testimony on her desires and a recomendation from her original >guardian at litem not to stop nourishing her because the husband has two huge conflicts of interest - money and sex since he stands to inherit a ton of money and he is currently bopping another woman but rules that the woman should die as it was her very own desire. The womans parents appeal as most of her family feels that was not her very own desire, but the desire of her ersatz but real in an all too binding legal sense husband. The appeals drag on for seven years during which husband lives with other woman and fathers two children with her. Also during this time the Florida Legislature passes a law which make the state's governor her guardian, but this law is soon declared unconstitutional by another Florida court. When the original judge in Florida rules he's had it with all these appeals and sets a deadline when the food and water will be witheld, the publicity really intensifies and the US congress passes a law which allows the woman's family to have a new day in court but this time in Federal court. The Federal court rules that the family already had it's day in court so there.

How is this reported in the press? Right Wing nutters want to keep body alive against former occupant's wishes and will do anything, include appeal court rulings, to do it. And that's the most accurate part of the reporting. Tim at Random Observations has a lot more about what you didn't hear, Power Line takes on the so called GOP talking points, Patterico deflates the phoney baloney polls, and Nat Hentoff gets the last word on the courts and the press:

Contrary to what you've read and seen in most of the media, due process has been lethally absent in Terri Schiavo's long merciless journey through the American court system.

"As to legal concerns," writes William Anderson—a senior psychiatrist at Massachusetts General Hospital and a lecturer at Harvard University—"a guardian may refuse any medical treatment, but drinking water is not such a procedure. It is not within the power of a guardian to withhold, and not in the power of a rational court to prohibit."

This isn't about the end stages of care of a terminal patient but an injustice done to a particular person. I'm not a big Jesse Jackson fan, especially since he shows the ocasional flash of the man he should be, but he is right:

I feel so passionate about this injustice being done, how unnecessary it is to deny her a feeding tube, water, not even ice to be used for her parched lips," he said. "This transcends politics."

Of course, other people have to weave this into the same dreary tapestry they weave every thing into, whether it belongs or not. Like Paul Krugman, who continues to not make sense, as in:

America isn’t yet a place where liberal politicians, and even conservatives who aren’t sufficiently hard-line, fear assassination. But unless moderates take a stand against the growing power of domestic extremists, it can happen here.

Hey Paul, if we really should worry about assassination by domestic extremists, who would get wacked in this case? The judge, liberal politicians, crazy pundits? Nope, I'm not advocating violence, but if anyone were iced, it would be Michael Schiavo because then it would be over - her parents would be Terri's guardian and they would immediately order proper care be given.