Tuesday, March 22, 2005
Via Instapundit, BillHobbs.com has a good editorial on the Schiavo case and suggest the following:
Here is what I would like to see happen in the aftermath of this sad, tragic, horrible case: I would like to see Congress pass, and the President sign, a law that says if any person who has no living will comes to be in a position where a living will would be helpful, any decision in a squabble or dispute over her care must err on the side of maintaining life, and hearsay evidence such as that offered by Michael Schiavo would not be admissible.
At least in Florida, there is no need for Congress to pass anything as this is already the law:
In Browning, we stated:

In making this difficult decision, a surrogate decisionmaker should err on the side of life. . . . In cases of doubt, we must assume that a patient would choose to defend life in exercising his or her right of privacy.

In re Guardianship of Browning, 543 So.2d at 273. We reconfirm today that a court's default position must favor life.
In re Schiavo, 780 So.2d 176, 179 (Fl. Ct. App. 2001).

This goes to a larger issue, people seem to think that the standard of proof the husband had to meet was the ordinary preponderance of the evidence standard in ordinary civil cases. This is not so:
Finally, the Schindlers argue that the testimony, which was conflicting, was insufficient to support the trial court's decision by clear and convincing evidence. We have reviewed that testimony and conclude that the trial court had sufficient evidence to make this decision. The clear and convincing standard of proof, while very high, permits a decision in the face of inconsistent or conflicting evidence.
. . . .
After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.
Id. at 179-80.

So this wasn't simply a case where the evidence the husband presented was just slightly more convincing than was the parents' evidence. To the contrary it was "clear and convincing," and had to overcome the presumption of life. And as noted in my prior post on this below - the appellate court even looked at the evidence de novo and concluded they would have ruled the same way as Judge Greer. So all the arguments about Judge Greer being biased, or having connections to the Hospice are sheer nonsense.
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I am an attorney in Chicago. Politically speaking, I am an indepedent that tends to lean conservative on fiscal issues and progressive on social issues. I try to remain as unbiased and open-minded as possible. Please email or post any comments, and especially criticisms. If something I say is wrong, or you disagree - let me know about it!



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