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Thread: Terri Schiavo: Due process denied?

  1. #1
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    Default Terri Schiavo: Due process denied?

    Unlike most who have discussed the Terri Schiavo case, my interest and concern in the case is not the outcome of the case as a priority, but the process by which that outcome has been reached.

    My observation is that Terri has not been afforded fundamental due process of law--- the right to the protection of a jury, and the right to be represented in court by counsel in a case in which that state has been called upon to end her life.

    Some have stated Terri is not entitled to the above mention constitutional protections, and I have attempted to rationalize such thinking. My only conclusion is that those who make such a claim believe Terri is a piece property and its fate is being litigated by two opposing parties, her parents and her husband, in which case the property in question would indeed have no right to the protection of a jury, nor a right to be represented in court by counsel.

    But Terri is not “property”! She is not the “property” of her husband, nor the “property” of her parents, and therefore, because the state has been called upon to exercise its power to end Terri‘s life, Florida’s constitutional guarantees are set into motion and provide protection to Terri against arbitrary government action.

    The protections that are afforded are: “No person shall be deprived of any right because of race, religion, national origin, or physical disability”, and, “No person shall be deprived of life, liberty or property without due process of law.” And, what due process is guaranteed? "The right of trial by jury shall be secure to all and remain inviolate."

    Some have suggested that the right to the protection of a jury is not applicable in Terri’s case because it is not a criminal case. But Florida’s own Supreme Court in Case No. 79,396 _B.J.Y., Petitioner/Appellant, vs. M.A., Respondent/Appellee. [April 29, 1993], has made it quite clear the protection of a jury is a vital part of Florida’s due process and “…is not to be narrowly construed.”

    Fact is, the protection of a jury was waived in Terri’s case by her adulterous husband and her parents, and done so without Terri’s knowing or willing consent. And yet, there is no provision in Florida’s constitution allowing Terri’s right to the protection of a jury to be waived without her knowing or willing consent in a case in which the state has been called upon to end her life.


    Had Terri left a legally recognizable written end of life directive as in the Browning or Bludworh Case, or an oral end of life directive as in Satz v. Perlmutter, in which the Court accepted oral testimony from the patient taken at a bedside hearing, [a hearing in which the patient expressed a carefully thought out and deliberate end of life directive], the court would have concrete evidence from the patient’s own lips or hand and merely be authenticating such wishes prior to enforcing those wishes.

    But in Terri’s case there is no evidence from Terri’s own lips or hand expressing her wishes. There is only the questionable testimony given by her adulterous husband that Terri wants to be left to die, and, the testimony given by a brother of Michael Schiavo, and a sister-in-law of Michael __ in each case the “testimony” alleged nothing more than random and inconsequential remarks were made by Terri, none of which could be legally construed to be a carefully considered and intentional end of life directive!

    And what has the state decided to do? Ignore Terri’s right to be represented in court by counsel, and a judge, Judge Greer, has taken it upon himself to act as a judge for Terri, decision maker for Terri, counsel for Terri, jury for Terri, and then, issued a court order to end Terri’s life, and has sided with Terri’s adulterous husband in his Star Chamber Court proceeding rather than provide Terri with the protection of a jury whose constitutionally assigned duty is to sort out the facts of the case and “…to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the over-zealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." -- see:Taylor v. Louisiana, 419 US 522 , 530 (1975)

    In the Browning case it was noted that:

    "The Ethics and Advocacy Task Force, as amicus curiae, raises a very legitimate concern that the "right to die" could become a license to kill. There are times when some people believe that another would be "better off dead" even though the other person is still fighting vigorously to live. Euthanasia is a crime in this state. 782.08, Fla.Stat. (1987). See 765.11(1), Fla.Stat. (1987). Despite the tremendous advances achieved in this century, the world has witnessed the extermination of retarded and mentally disturbed persons for whom a foreign government decided that death was the proper prescription. Thus, it cannot be overemphasized that the remedy announced in this opinion and the procedures designed to safeguard that remedy are based upon the patient's right to make a personal and private decision and not upon other interests. Browning, 543 So.2d at 269

    In view of the fact there was no evidence from Terri’s own lips or hand expressing a carefully decided end of life directive, it is obvious Judge Greer and the state’s judicial system has issued an order to end Terri’s life based upon Terri’s medical condition, and not upon clear and convincing evidence [ Florida’s required legal threshold to be met] documenting what her wishes are.

    Perhaps Terri would want to be left to die and Judge Greer’s decision is what Terri would want, but, one thing is certain, the process by which a court order has been issued to end Terri’s life is not within the four corners of our constitutional system until Terri is represented in court by counsel and afforded the protection of a jury to evaluate the testimony alleging Terri wants to be left to die.

    Judge Greer ignored the fundamental separation of powers in our constitutional system when he decided to act as a judge for Terri, decision maker for Terri, counsel for Terri, jury for Terri, and then, issued a court order to end Terri’s life. A fundamental separation of powers between judge and jury was eloquently pointed out by the SCOTUS in Sparf v. United States, 156 U.S. 51, 106, (1895):

    “The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.”

    Apply the process by which the State of Florida has issued a court order to end Terri’s life in all future cases in which the state is called upon to end a person’s life and we are left with a Star Chamber Court system in which the state is free to render arbitrary decisions and ignore the fundamental safeguards our founding fathers provided in a written constitution.

    The honorable Governor of Florida has called for the protection of a jury in Terri’s case. Perhaps it is now time for him to go a step further and file a 14th Amendment due process appeal in the SCOTUS asserting Terri has not been afforded the right to be represented in court by counsel, nor afforded the protection of a jury by Florida’s Judicial system in a case in which the state has been called upon to end her life. Since there is no case law which addresses these rights as could be applied in Terri’s case, an appeal limited to these two fundamental and basic rights is an appropriate question for the SCOTUS to address.


    Sincerely,

    John William Kurowski, Founder,
    American Constitutional Research Service

  2. #2

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    Please stop cutting and pasting your diatribes all over the internet. It suggests that you're more interested in ranting than you are in discussion.

    Schadenfrau
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    Wired NY Posters For Internet Manners

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    Default The Rule of Law

    Quote Originally Posted by Schadenfrau
    Please stop cutting and pasting your diatribes all over the internet. It suggests that you're more interested in ranting than you are in discussion.

    Schadenfrau
    Founder
    Wired NY Posters For Internet Manners
    Actually, I am interested in discussing the rule of law as applied in Terri's case. This is what I have found regarding the rule of law, do you have any constructive comments?


    The SCOTUS upheld in CRUZAN that a state may require a “clear and convincing evidence standard” to support the assertion that it is the patient’s wish to die. In Terri’s case that standard was never met. The Court in CRUZAN concluded that :

    “…a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. The Supreme Court of Missouri held that in this case the testimony adduced at trial did not amount to clear and convincing proof of the patient's desire to have hydration and nutrition withdrawn. In so doing, it reversed a decision of the Missouri trial court which had found that the evidence "suggested" Nancy Cruzan would not have desired to continue such measures, but which had not adopted the standard of "clear and convincing evidence" enunciated by the Supreme Court. The testimony adduced at trial consisted primarily of Nancy Cruzan's statements made to a housemate about a year before her accident that she would not want to live should she face life as a "vegetable," and other observations to the same effect. The observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. We cannot say that the Supreme Court of Missouri committed constitutional error in reaching the conclusion that it did.
    The judgment of the Supreme Court of Missouri is Affirmed.”


    The Court came to this conclusion primarily because, when in doubt as to a patient‘s wishes, “err on the side of life“!

    There is no evidence from Terri’s own lips or hand indicating a carefully thought out end of life directive that she wants to be left to starve to death.

    In Terri’s case, her husband has gone into court to obtain a court order to carry out what he alleges to be Terri’s wishes. A guardian does not have any authority to impose his/her own beliefs for that of the patient‘s. In our legal system, and in order for the court to issue an order to end Terri‘s life, a legal threshold must be satisfied which requires “clear and convincing evidence” that Terri carefully considered and knowingly and willingly left an end of life directive expressing what her husband alleges are her wishes..

    In Terri’s case there is no evidence from her own lips or hand, and, in addition to assertions made by Michael’s brother and sister in law asserting Terri made some random and inconsequential comments about a life/death situation, there is only the flimsy testimony of her adulterous husband who claims Terri made a few more inconsequential remarks, none of which can be legally construed to be a carefully thought out and intentional end of life directive as is required under the clear and convincing standard. Fact is, Greer based his decision upon Terri’s medical condition and not her wishes in violation of the rule requiring “clear and convincing evidence” of Terri’s wishes.

    In the Browning and Bludworth cases written directives prepared by the patient expressing their wishes were accepted by the court as being clear and convincing evidence, and in Satz v. Perlmutter the Court accepted oral testimony from the patient taken at a bedside hearing expressing an intentional and deliberate end of life directive.

    In the Browning case the Court states in crystal clear language:

    “As we previously noted, the right involved here is one of self-determination that cannot be qualified by the condition of the patient. In this case, as in Bludworth, the patient was unable to personally or directly exercise the right to refuse medical treatment. Significantly, the patients in both cases, while competent, “had executed written documents expressing their wishes.”

    The court went on to emphatically state: “A surrogate must take great care in exercising the patient's right of privacy, and must be able to support that decision with clear and convincing evidence.”

    So, contrary to what is suggested by the starve Terri to death crowd, the truth is, Terri’s adulterous husband may not waltz into court and obtain a court order to starve his wife to death because he alleges that is his wife’s desire . . . He must support that claim with “clear and convincing evidence”

    The honorable Governor of Florida has called for the protection of a jury in Terri’s case. Perhaps it is now time for him to go a step further and file a 14th Amendment due process appeal in the SCOTUS asserting Terri has not been afforded the right to be represented in court by counsel, nor afforded the protection of a jury by Florida’s Judicial system in a case in which the state has been called upon to end her life. Since there is no case law which addresses these rights as could be applied in Terri’s case, an appeal limited to these two fundamental and basic rights is an appropriate question for the SCOTUS to address.

    A fundamental separation of powers between judge and jury was eloquently pointed out by the SCOTUS in Sparf v. United States, 156 U.S. 51, 106, (1895):

    “The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.”

    In Terri's case, Florida judges acted as a judge for Terri, a decision maker for Terri, legal counsel for Terri, jury for Terri and then issued a court order to end her life.
    Apply the process by which the State of Florida has issued a court order to end Terri’s life in all future cases in which the state is called upon to end a person’s life and we are left with a Star Chamber Court system in which the state is free to render arbitrary decisions and ignore the fundamental safeguards our founding fathers provided in a written constitution.


    As I have repeatedly stated: Unlike most who have discussed the Terri Schiavo case, my interest and concern in the case is not the outcome of the case as a priority, but the process by which that outcome has been reached. Terri has not been afforded basic fundamental constitutional protections to insure her wishes are carried out and not the wishes of her adulterous husband, her parent's wishes, or the beliefs of a judge that Terri ought to be left to starve to death because of her medical condition.

    And what is the function of a jury which has not been afforded to Terri?

    Its constitutionally assigned duty is to sort out the facts of the case and “…to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the over-zealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." -- see:Taylor v. Louisiana, 419 US 522 , 530 (1975)


    JWK
    ACRS

    "The Ethics and Advocacy Task Force, as amicus curiae, raises a very legitimate concern that the "right to die" could become a license to kill. There are times when some people believe that another would be "better off dead" even though the other person is still fighting vigorously to live. Euthanasia is a crime in this state. 782.08, Fla.Stat. (1987). See 765.11(1), Fla.Stat. (1987). Despite the tremendous advances achieved in this century, the world has witnessed the extermination of retarded and mentally disturbed persons for whom a foreign government decided that death was the proper prescription. Thus, it cannot be overemphasized that the remedy announced in this opinion and the procedures designed to safeguard that remedy are based upon the patient's right to make a personal and private decision and not upon other interests. Browning, 543 So.2d at 269

  4. #4

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    Two posts. First sentence of first post...
    Unlike most who have discussed the Terri Schiavo case, my interest and concern in the case is not the outcome of the case as a priority, but the process by which that outcome has been reached.
    Followed by...
    adulterous husband
    Once.
    adulterous husband
    Twice.
    adulterous husband
    Again.
    adulterous husband
    Yet again.
    adulterous husband
    One more.
    adulterous husband
    Wait, another.

    Did I miss any?

    Google "Terri Schiavo""adulterous husband"
    Look at all the pages you get.

  5. #5

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    Our friend Kurowski thinks he has a license to kill - with his unbearably boring posts.

    I am thinking on introducing a quota on the length of his posts...

  6. #6
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    Default

    Quote Originally Posted by ZippyTheChimp
    Two posts. First sentence of first post...

    Followed by...

    Once.

    Twice.

    Again.

    Yet again.

    One more.

    Wait, another.

    Did I miss any?

    Google "Terri Schiavo""adulterous husband"
    Look at all the pages you get.
    Adulterous husband is mentioned as it questions the credibility of testimony given by Terri’s husband. The credibility of a witness is very much part of our legal system. A person who breaks a marriage contract and engages in infidelity, and then runs into court claiming his wife wants to be starved to death , would appear to not be as credible a witness who has not broken such a contract.

  7. #7

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    The order of six times is what an attorney does to drive home a point to a jury. An attorney is generally concerned with the outcome of the case.

    Once is sufficient to impart information to a forum.

  8. #8
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    Default clear and convincing evidence legal standard

    Quote Originally Posted by ZippyTheChimp
    The order of six times is what an attorney does to drive home a point to a jury. An attorney is generally concerned with the outcome of the case.

    Once is sufficient to impart information to a forum.
    Zippy,

    In the state of Florida, there is a clear and convincing evidence standard which must be met of a patient’s wishes before a court order can be lawfully issued to end a patient’s life.

    Here is an account of the flimsy testimony which Judge Greer considered to be “clear and convincing evidence” of Terri’s wishes.


    For a legal perspective concerning “clear and convincing evidence”, a standard which Florida has adopted, see:CRUZAN v. DIRECTOR, MDH, 497 U.S. 261 (1990) and then ask yourself if the clear and convincing evidence standard has been met in Terri’s case.

    “We believe that Missouri may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual's life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction.. . . . It is also worth noting that most, if not all, States simply forbid oral testimony entirely in determining the wishes of parties in transactions which, while important, simply do not have the consequences that a decision to terminate a person's life does. At common law and by statute in most States, the parol evidence rule prevents the variations of the terms of a written contract by oral testimony. The statute of frauds makes unenforceable oral contracts to leave property by will, and statutes regulating the making of wills universally require that those instruments be in writing…There is no doubt that statutes requiring wills to be in writing, and statutes of frauds which require that a contract to make a will be in writing, on occasion frustrate the effectuation of the intent of a particular decedent, just as Missouri's requirement of proof in this case may have frustrated the effectuation of the not-fully-expressed desires of Nancy Cruzan. But the Constitution does not require general rules to work faultlessly; no general rule can. . . . In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state.We note that many courts which have adopted some sort of substituted judgment procedure in situations like this, whether they limit consideration of evidence to the prior expressed wishes of the incompetent individual, or whether they allow more general proof of what the individual's decision would have been, require a clear and convincing standard of proof for such evidence. . . . The Supreme Court of Missouri held that, in this case, the testimony adduced at trial did not amount to clear and convincing proof of the patient's desire to have hydration and nutrition withdrawn. In so doing, it reversed a decision of the Missouri trial court, which had found that the evidence "suggest[ed]" Nancy Cruzan would not have desired to continue such measures [just as in Terri’s case] . . . but which had not adopted the standard of "clear and convincing evidence" enunciated by the Supreme Court. The testimony adduced at trial consisted primarily of Nancy Cruzan's statements, made to a housemate about a year before her accident, that she would not want to live should she face life as a "vegetable," and other observations to the same effect. The observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. We cannot say that the Supreme Court of Missouri committed constitutional error in reaching the conclusion that it did.”

    The fact is, in Terri’s case there is a requirement of “clear and convincing evidence” to be met, which has not been meet by accepted legal standards, and Judge Greer arbitrarily issued a court order to end Terri’s life based upon Terri’s medical condition, and not upon “clear and convincing evidence” of her wish to be starved to death because of her existing medical condition.

    Without “clear and convincing evidence “ being produced in court, Terri has been denied the due process which requires such evidence to be produced. And this denial of due process is in addition to Terri not being afforded her own legal counsel in a case in which the state has been called upon to end her life, and not being afforded the protection of a jury to assess the evidence asserted to be her wish.

    JWK

  9. #9

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    Actually, I agree with your position on this matter. However, there is no need to repeatedly hit us over the head with the same point.

    I was not aware until recently that the video that is always played in TV reports is over 8 years old, and that the court has blocked the release of any current video.

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    Quote Originally Posted by ZippyTheChimp
    Actually, I agree with your position on this matter. However, there is no need to repeatedly hit us over the head with the same point.

    I was not aware until recently that the video that is always played in TV reports is over 8 years old, and that the court has blocked the release of any current video.
    I didn't know that about the video either, but my concern in the case is about the process by which the power of the state is used in a life/death situation.

    Oh, BTW, just found this about Judge Greer, and there may be more, but I must first do a little more research to confirm my facts.

    In a Florida Appeals Court ruling, Justice Stevan Northcutt found that “homophobia crept into Greer’s other factual determinations.”

    Curious how the starve Terri to death crowd, largely composed of pro-homosexual same sex marriage advocates, support a homophobe when it comes to him prohibiting food a water to be given to Terri and basing his decision upon her medical condition and not her wishes, and they reject the legal definition of “marriage”

  11. #11

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    Curious how the starve Terri to death crowd, largely composed of pro-homosexual same sex marriage advocates, support a homophobe when it comes to him prohibiting food a water to be given to Terri and basing his decision upon her medical condition and not her wishes, and they reject the legal definition of “marriage”
    I suppose I shouldn't object to the above agenda-driven remark, since it is no different than what is going on on both sides of the aisle in Congress.

    First, I have to amend my position on the video. I found out that the 10 second total time of the clip was edited from over 30 hours of tape in which nothing happened.

    Congress should not be legislating in any individual case, but a rational debate should be started on "end of life" issues.

  12. #12
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    Thumbs down

    You also have to realize a few things:

    He did not up and leave her the day she got hurt. He tried for 4 years to get her everything he could to bring her back, including cebral electrode implants for stimulation.

    He was known as a continuing nuisance at the care facility because he was just there too much.

    Here's a good one, Terry's parents actually encouraged him to go see other people before the case began.

    Here's another good one, the video everyone keeps using is not something that happened all at once. It was over 9 hours of tape edited down to the few times she had a response.

    Now, you may say these responses indicate something, but tests have comfirmed that she has no function. Tests given by more than just the people looking to "starve her to death". The council/expert hired by JEB BUSH to look into this "regretably" informed us all that he was unable to reproduce any of the reactions no the tape, or prove any semblance of conciousness whatsoever.

    Even he said she was Brain DEAD.





    Now, as a counter to this arguement, all i hear is people saying "right to life", "you are starving her" and "He is an adulterer", all emotional arguements that have nothing to do with the outcome of the case.

    Add to it the involvement of more NATIONAL POLITICIANS on an issue that should have stayed local.



    WE HAVE NO FRIGGING BUISNESS IN THIS!!!! This is not a national event or concern!

    As was said on the daily show (paraphrased).

    'The government, sad that it cannot offer its pledged duty to provide something for every American, has triumphed in striving to give something to a single person.'

  13. #13

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    Not letting a dead person go is not entirely new development - in Mausoleum in Red Square in Moscow, an institute of russian scientists is using state of the art machinery and medicine to keep Lenin's corpse from deteriorating.

  14. #14

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    For more than 80 years I might add - Terry has a long way to go...

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    Sorry to mix polarizing issues, but where are all these right-to-lifers as the death penalty comes back into fashion? The cynicism of right-to-lifer strategizers continually impresses me. I have read repeatedly Terry Schiavo is just a pawn in the anti-abortion agenda. That to establish a new right to be kept alive even at this low brain activity level would be a step towards outlawing abortion again.

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