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
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Originally Posted by Schadenfrau
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