portland independent media center  
images audio video
newswire article commentary united states

government | human & civil rights | police / legal

Tough Questions in Schiave Case

This article addresses some tough questions that the mainstream media has not discussed in the Terri Schiavo case. If you are interested in justice, please take a few minutes to read this article.
What is clear and convincing evidence? Who gets to decide what is evidence? Did someone waive the right to a jury trial in Terri's case or does Florida law not allow a jury trial in this type of proceeding? There are more questions that we could ask, but I would like to shed some light on just these few because the mainstream media doesn't seem to want to delve into these issues apparently due to the sticky questions that come from an understanding of these issues.

The Founding Fathers thought that a jury should always decide each case which is why the right to trial by jury was provided for in the U.S. Constitution three (3) times, and the rights provided by the U.S. Constitution cannot be taken away by the states, at least they are not supposed to be abridged by the state or federal government. Of course, our constitutional rights are ignored regularly in the name of national security, sobriety, etc., a.k.a. the war on terror and the war on drugs. But that's another story.

Why did our Founders feel so strongly that all cases should be decided by a jury? Alexander Hamilton explained that the Founders believed that the right to trial by jury was so important because it was much easier to improperly influence a judge than it was to improperly influence several members of a jury who were randomly called to hear a case. For more information on the role of the jury, visit the American Jury Institute website at  http://www.americanjuryinstitute.org/ There, you can learn more about what our Founders believed about the protections from tyranny and injustice provided by a jury; when your right to a trial by jury started to be trodden upon, if you guessed during alcohol prohibition, you guessed right; and what you can do to help restore the right to a jury trial as the Founders intended it.

Although the Founders intended for juries not judges to decide cases, Florida's court rules do not provide for jury trials in guardianship proceedings which is how Terri's case came to be decided by Judge Greer instead of a jury. I have read Judge Greer's opinion where he found clear and convincing evidence that Terri did not want to be kept alive artificially based on the testimony of her brother-in-law and her sister-in-law. Judge Greer discounted the testimony of Terri's mother and one of her life-long friends who testified that Terri expressed that she thought that it was wrong to remove life support. You can read Judge Greer's opinion here  http://abstractappeal.com/schiavo/trialctorder02-00.pdf

Florida's Second District Court of Appeal also found that this conflicting testimony met the standard for clear and convincing evidence although it quoted a Florida Supreme Court decision that it was supposed to follow which stated that when there is conflicting evidence, the court should rule in favor of preserving life. You can read the Second District's opinion here  http://abstractappeal.com/schiavo/2dcaorder01-01.txt

Proving a case by clear and convincing evidence means that the moving party, Michael Schiavo, would have to meet a very high standard of proof. In 1990, the U.S. Supreme Court considered these same circumstances in Cruzan v. Missouri Department of Health, 497 U.S. 261, and in this case, it discussed the requirement that the moving party had to show by clear and convincing evidence that a person did not want to be kept alive on life support before it could be removed. In the Cruzan case, the U.S. Supreme Court discussed whether this standard had to be met by written evidence, and although it did not require written evidence, the dissent indicated that it believed that only documentary evidence could satisfy the clear and convincing evidence standard. In Cruzan, although her roommate and her family members had testified that Ms. Cruzan would not want to be kept alive by artificial feeding and hydration tubes, the Missouri Supreme Court had found that this testimony did not meet the clear and convincing evidence standard, and the U.S. Supreme Court affirmed that decision.

If the U.S. Supreme Court has decided that uncontradicted testimony did not meet the clear and convincing evidence standard in the Cruzan case, and the Florida Supreme Court has stated that the court must rule in favor of preserving life when faced with conflicting evidence, why did Judge Greer find clear and convincing evidence in the contradictory testimony presented to him, and although Judge Greer's ruling seemed to be erroneous, why did Florida's Second District Court of Appeal uphold it? Also, if our democracy gives the power to make law to the legislature and only the power to interpret it to the courts, why would Florida's courts say that by making a law that would clarify the burden that had to be met before feeding and hydration tubes could be removed, the Florida Legislature exceeded its power? I can't think of a single good reason for these many questionable court decisions, but I can think of a million other reasons. Well, maybe a couple thousand reasons. There have to be enough reasons to spread around.

You may be thinking, well, if these judges have been accused of ignoring the law and playing favorites, then the press would have written about it, or someone would have made a complaint to the government about it, and someone could check on those complaints and see if there is a pattern. Well, if you are thinking that, then you would be wrong. I have written to the St. Petersburg Times and the Tampa Tribune about the questionable decisions of Judge Greer and the Second District Court, but none of my letters have been published.

From now on, I will publish my letters to the editor on the Tampa Bay Independent Media Center website at  http://www.tampaindymedia.org/bin/site/templates/splash.asp I urge you to do the same because if the mainstream press sees that the public is interested in an issue that they are not covering, they will either have to cover the issue or lose their credibility. If you are in another area, go to the Tampa website to find the Independent Media Center website for your area.

I have also looked into complaints about Florida's judges. I found that the Judicial Qualifications Commission, which is made up mostly of judges, handles those complaints, and that unless the JQC takes action on a complaint, it remains top secret. So, no one knows how many complaints have been made to the JQC about judges in Florida, and no one in the press seems to be interested in doing any in depth reporting on what obviously appears to be biased court decisions favoring Michael Schiavo.

You would think that the press would be interested in a good scandal involving a judge, look how it has followed the JQC's persecution of Judge Holder for telling on other judges' plans to fix cases. Whoops, the JQC is officially going after Judge Holder for supposedly plagiarizing a paper once upon a time, not telling on other judges. But still, plagiarism is really serious, especially when compared to fixing a case involving life or death.

If you are reading this, you may know that there are numerous websites which tell of questionable decisions by Florida's judges and judges throughout the country. For more information on how you can help ensure your right to a fair trial before an impartial judge, visit the Citizens for Judicial Accountability website at  http://www.judicialaccountability.org/ the Judicial Accountability Initiative Law website at  http://www.judicialaccountability.org/ the Judicial Accountability Initiative Law website at  link to www.jail4judges.org At this website, you can learn about and sign a petition to hold judges accountable when they refuse to follow the law.

If you want the real news, you can't get it on TV or in the papers, you have to go on the internet, and if you want justice when you need it, you better do something now to make sure that liberty and justice for all is restored in our country. There are two petition drives currently being conducted to let our representatives in Washington DC know that the public wants fair judges. Please take a few minutes to visit these websites to learn about and sign these petitions.

Move On has a petition drive to let our Senators know that we do not want dishonest judges on the Federal courts who are willing to do favors rather than follow the law. You can sign this petition at  link to www.moveonpac.org Although these petitions are sponsored by liberal organizations, everyone should want fair and impartial judges who follow the rule of law.

Your right to a fair trial is at stake. Many have fought and died to preserve this right, and our troops are fighting in Iraq and Afghanistan to give these countries a judicial system where the rule of law is followed. Please take a few minutes to visit these websites to learn about and sign these petitions and copy this link or this article and forward it to your contacts. Thank you for your effort to help preserve our right to a fair trial and equal justice for all.

the ends justify the means 15.Mar.2005 08:19


I for one am tired about the hysteria the religious right is stirring up everywhere. Forget your ego and let poor Ms. Schiavo die quietly. After all, she is just your tool and showing compassion means to let her pass on to...paradise, right? For those of you who have a strong stomach, listen to KPDQ (93.7) for a bit and you will probably hear the pathetic "send money to save Terri" pitch. Folks if we don't oppose the crap these people are pushing we will have a theocracy. *their* theocracy.

I agree 15.Mar.2005 08:42


Too many goddamned egos and a soul stuck in transit, hello?
Her parents ought to be ashamed. She is not coming back - she died long ago, but her spirit is trapped in that broken body.
Her husband doesn't seem quite kosher either, for reasons I can't put my finger on...
And all the religious protesters need to go find some other toy to play with, they don't give a damn about Schiavo, they're just using her to move their own agenda.

Let that poor dead woman go! What kind of sadist would leave her suffering so long because they just can't bear to put the body in the ground?
Oh, that's right, her "loving parents."

Excuse me, I have to go throw up now.

I'll pray that she slips away quietly while they're all fighting yet another courtroom battle over her corpse. Tell 'em Terri!

This is a dangerous step into mass murder. 15.Mar.2005 09:37


Exactly what Nazi Germany ( taking the California template ) did to justify ending the life of all the 'useless eaters' it considered a burden upon the people.
You really want to follow this ideology? When you are old, sick or disabled. it could be you.

Somehow, 15.Mar.2005 11:00


I don't think this is a step towards mass murder.

yes 15.Mar.2005 12:02


You're correct, Xenok
Somenow you really don't think...

... that this is a step towards mass murder. 15.Mar.2005 12:30



Strange 15.Mar.2005 14:53

Catalina Eddie

I haven't yet heard any of you Obligation to Life assholes commit to taking care of that poor woman. Like, turning her to relieve bed sores, or clean bed sores. Hell, she's alive! She must be feeling pain. Or do you think she's having some fuckin party in that useless body. How much would you enjoy lying in a hospital bed for ten years? What sick concept of compassion is that?


take care of her 15.Mar.2005 15:05


The family ( not her 'husband, who is living with his girlfriend ) has been prohibited from being able to care for her.

mass murder 15.Mar.2005 17:29


The way to mass murder is by allowing fascists to run the government. Allowing a brain-dead woman to die with some kind of dignity rather than using what appears to be her still-breathing corpse as a pawn for some power-drunk right wing rabble to advance their power grab (and make a few bux) is compassion for all concerned.

From what I've read about Terri, she was bulimic. This may or may not have caused her heart to stop and destroy her brain, but it does indicate an extremem concern for her appearance. I suspect (but I don't know of course) that given a choice she would rather die than exist as she is now.

If you xians were really concerned about Terri, you'd let her go to Jesus. If you think this is wrong, the person who unplugs her feeding tube will burn in hell right? But Terri will still be wearing wings. What's wrong with that?

to fundie-licious 15.Mar.2005 19:13


I'm not sure of your agenda, nor does it really matter.
Terri is not brain dead, she is however, abandoned. By her husband, by the legal system.

This is an important case law for involuntary 'euthanasia' being made here and this is going to determine law in this new hoeland, oops I mean homeland for years under the fangs of the lunatics creating current policy. Untill they are all tried and sent to prison or hung.
But I know you're only here to help us, sir.

to sheepdog 16.Mar.2005 07:12


I have no agenda other than ranting when I see somebody inflicting their beliefs on others. You know, "get your laws off my body". And "do not do unto others what you would not have done unto you". How would you like a Wiccan-inspired law shoved down your throat? Or a Hindu or Muslim one or??? What if someone mandated cremation because the majority in the country was Hindu and you wanted to be buried?

I am a bit curious about your last statement though and I've been scratching my head about it. Current policy lunatics means Jeb and his gang or W and his gang or the secular humanists or ???

You also mention that you are sure of Terri's brain state. How can you be when you aren't there and don't have access to her medical file or her doctors. In fact, according to what I've read, the only ones pitching anything really being there are her parents. The equipment most/all of the docs say flatline == brain dead.

As for involuntary euthanasia, do you support the "voluntary" variety (i.e. Oregon's Right to Die Law?) If Terri had a living will that specified that she did not want to be kept alive in a state like this, would you support removal of her feeding tube in that case? I'm willing to wager your honest answers would be no and no and that's what I have a problem with.

And another thing, why is it OK in the mind of someone like Scalia to execute minors, to inflict war on innocent civilians but not to allow people like Terri to die peacefully or to allow a woman to choose to keep a pregnancy or not.

The right to kill" 18.Mar.2005 20:13

Marie Burleson mroer@hotmail.com

The preamble to the Constitution states:"We hold these truths to be self evident, that all men are created equal, and are endowed by the Creator with the inalienable right to life..." Inalienable means that it is inherent. It is NOT bestowed by men, to be taken away at whim. The so called right to die is a fallacy. If you have both a right to live and a right to die, then both must be looked apon as neutral, where one is not preferred over the other. A person who states "I want to die" must be- what- killed? Should we kill the teenage girl who gets cut from the cheerleading team? No? OK, so its clear that not everybody has the right to die. In fact the only people we "grant" a right to die would be those for whom we personally think should die.We are no longer interested in them as an individual, but on how they affect their family and the community. I believe in Hitler's day they were called "useless eaters". The biggest problem with the so called "right to die" is that you can't seperate the good guys from the bad guys. If Michael Shiavo, Terri's estranged husband, who has refused rehabilitative therapy,treatment, and familial interaction for Terri, while spending HER money on a court case in order to legally kill her, can STILL be considered a good guardian, what does a bad guardian look like? If refusing treatment is as equally "good" as treatment, what will happen to our level of medical care? Do we really want doctors doling out death? Doctors who would sooner kill us as cure us? If there really were a right to die, why involve the medical community at all? Do we really need a medical professional to kill someone? There are professional hit men, you know, and a bullet to the back of the brain is quick and relatively painless. But wait, you say, no one is talking of killing anybody- just "allowing them to die" by withdrawing any "artificial means" that are keeping them alive. So if my asthmatic mother expressed a wish to die, would you take away her medication? What about a diabetic? Would there be no insulin for the suicidal? Again no? Therefore "artificial means" of keeping a person alive are all right for those we think should live. We withdraw artificial means only for people we think ought to die- the old, the feeble, the disabled are our targets. If these people should express a wish to die, then by all means let them! Even if they haven't expressed a wish to die, we'll substitute our own judgement! A judge in Florida wants Terri Schiavo to die. All of the hand ringing about what "Terri wants" is whitewash. Terri is a disabled person who at present relies on a feeding tube to provide her with appropriate nourishment. Anyone who hastens her death by removing her access to food and water is killing her. The reason that she is being killed is because she is disabled, not because "she wants to die". To those who feel that Terri is "just a shell" I have the following proposition. Let's downgrade Terri's status from person to "puppy". If caring for Terri makes her parents happy, and they don't mind cleaning up after her, then let them keep her. It's no skin off of anyone's nose. Terri can't mind - she is just a shell, remember? Then again, if Terri is still "in there", there is no one better than dedicated, caring and patient loved ones to prove the doctors wrong. Just ask Kate Adamson, who was being starved to death, by doctor request, for eight days before her husband managed to pressure the doctors into reinserting her feeding tube. Yes, ASK her, because despite all of the doctors dire predictions, she recovered. What do doctor's say in a case like that? Oops? No one really believes in the right to die. There is only extreme prejudice against the disabled, who are looked on not as people to be cared for, but burdens to be lifted.

Good Point! 22.Mar.2005 12:43


Marie Burleson ~ Hats off to you! Do you mind if I print this off and send this to the St. Louis Post dispatch? If published, it would be considered a letter to the editor. No money involved. I would put your name as the author. I just want to share your view with others, I think you have brought up some good points others have neglected to consider. Such as her husband's greediness and considering he is back with an old fling and has a family with her, really, what business does he have being a guardian of this "patient" anyway?