Tuesday, March 22, 2005

Schiavo Update

The Federal judge in whose lap the Schiavo case landed won't order installation of her feeding tube and won't rule just yet. Is he waiting for the situation to become moot by her death in 11 days or so?

Worthy of note: this email to NRO's Kathryn Lopez from Carter Snead, the general counsel of the Council of Bioethics. Why? Check out the irregularities in the Schiavo litigation -- this is due process?

The courts in Florida were charged, first and foremost, with discerning what T. Schiavo would have chosen under the present circumstances ("substituted judgment"). Florida law provides a complex system of procedural safeguards for this determination, including a "clear and convincing" evidence standard (the highest in all of civil law), and a presumption that the now-incapacitated patient would choose to live, in exercising her constitutional right to accept or refuse life-sustaining treatment. Moreover, Florida law requires that a guardian be appointed in circumstances such as these to represent the interests of the patient. . .

The procedural irregularities that tainted the handling of Ms. Schiavo's case include...:

[1] The court's failure to appoint a guardian ad litem (following 1998);
[2] The court's usurpation of the guardian's role (in direct violation of Florida law);
[3] The court's reliance upon insufficient evidence regarding T. Schiavo's wishes (namely, the recollection of her husband that T. Schiavo's had made ambiguous, casual remarks about "not wanting to be a burden" many years prior, in a wholly unrelated context);
[4] The court's refusal to consider probative evidence of T. Schiavo's wishes (namely, witness testimony that Mr. Schiavo was lying and that he had never, in fact, discussed end-of-life care with T. Schiavo); and
[5] On remand, the court's shifting of the burden to the Schindlers to demonstrate that T. Schiavo would have wanted treatment under the present circumstances (inverting the logic of the Florida laws).

* * *
. . . most importantly for present purposes, [the recent Congressional enactment] empowers the federal court to determine, DE NOVO, "any claim of a violation of any right of T. Schiavo within the scope of this Act, NOTWITHSTANDNG ANY PRIOR STATE COURT DETERMINATION AND REGARDLESS FO WHETHER SUCH A CLAIM HAS PREVIOUSLY BEEN RAISED, CONSIDERED, OR DECIDED IN STATE COURT PROCEEDINGS."

Thus, its seems highly improper for the federal court to determine on the basis of a two hour hearing that the Schindler family would not likely be successful on the merits in an entirely new trial, complete with extensive discovery . . .

No question: if Snead's recitation of the facts and law are correct (and there has been VERY little disagreement over the facts -- most of the contested issues are political), this cannot be due process. What strikes me most: the trial judge found Michael Schiavo's testimony met the clear and convincing evidence standard. The fact that the judge made such a ruling (even implicitly, because it is a requirement in the Florida law) means the judge does not know what clear and convincing evidence is.

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