Tuesday, March 22, 2005
Via Powerline, this purports to be a rebuttal to Judge Whittemore's decision to deny the TRO in the Schiavo case. I find it a totally unconvincing argument.

The post first quotes the text of the bill:
The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

[T]he District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted. [Italics mine.]

That is all well and good, it is good to start with the text of the bill that gives the court jurisdiction and authority. But then the article delves into a discussion of how this language means that Judge Whittemore must not accept any factual finding of the Florida courts. And if that were relevant in this particular situation, it might be a good point.

But guess what this article never mentions - not once - the Complaint. No where in that bill was the court authorized to sua sponte pursue any possible deprivation of a right, it can only examine claims that are raised in the Complaint, a copy of which can be found here.

As this article notes, Judge Whittemore himself mentioned that the Complaint failed to discuss how the supposed medical affidavits that might show Schiavo is not in PVS related to the claims. The reason he said this: it is clear that their claims do not attack the PVS findings. The Complaint, to put it bluntly, is horrific. I suspect it was drafted well before they knew what the bill language would be. Clearly they didn't know they would be entitled to such broad de novo review - or if they did - they really screwed up. Notably, the Complaint never states - not once - that Terri is not in a PVS. Rather it merely states that Judge Greer found her to be in PVS despite never examining her. (Compl. para. 30.) They never allege facts or any conclusions even to contradict Judge Greer's finding.

So McCarthy's analysis just completely misses the point. The judge had no choice but to deny their TRO frankly. And as we will soon find out I bet, any judge that reviews the record of proceedings in Florida is going to have to work very hard to try to come up with any plausible argument to support a finding that Schiavo was deprived of any due process rights. Because she wasn't. But instead of realizing that the Complaint simply failed to make a meritorious argument at all, McCarthy states this:
But most disturbing about Judge Whittemore’s opinion is its refusal to delve into the questions that impelled Congress to act in the first place: Whether Terri is really a PVS case and whether she really evinced an informed desire not to be sustained — let alone to submit to two weeks of starvation and dehydration, which is unquestionably torture for a person who is responsive to stimuli and aware of pain.

Not only does Whittemore decline to get into the heart of the matter. In the one fleeting footnote in which he alludes to it, he blames Terri’s parents and their attorneys for this dereliction: “Plaintiffs have submitted affidavits of health care professionals regarding Theresa’s medical status, treatment techniques and therapies which are available and their opinions regarding how and whether these treatments might improve Theresa’s condition. Plaintiffs have not, however, discussed these affidavits in their papers and how they relate to the claimed constitutional deprivations.” (Italics mine.)

Did Judge Whittemore really think the Schindlers submitted these affidavits simply to pad their submission with physical heft? Those submissions were obviously included because Terri’s parents contend the factual findings made in Florida are wrong, and could be proved wrong at a de novo hearing.

When Congress provided for de novo review, uninhibited by what had already been determined in Florida, it seems clear that this is what they thought they were getting at. They were saying: Before we allow state action to deprive the constitutional right to life, let’s be certain we really are dealing with a PVS case and a woman who actually made an informed choice to refuse sustenance. Judge Whittemore, to the contrary, has decided to interpret Congress’s command as limited to an inquiry about whether Florida’s procedures are likely to produce good results. As for the results actually produced — a finding of PVS and informed choice to die — he doesn’t see the need to kick those tires because, he lamely notes, the Schindlers haven’t explained how they could possibly relevant.

The judge, I believe, is wrong and needlessly stingy in construing what the just-passed law directs him to do. Terri Schiavo has had neither the standard medical tests (including an MRI and PET scan) nor the extensive clinical observation that should be mandatory for any finding of PVS on which an effective death sentence is to be predicated. If the proof supporting the PVS finding or the informed-choice finding — which Florida law require to be proved by clear and convincing evidence — is blatantly inadequate, then she has then not received the due process of law necessary to justify a taking of life under the Fifth and Fourteenth Amendments. If she is not a PVS case and she is being tortured by starvation and dehydration, the Florida ruling removing the feeding tube is subjecting her to cruel and unusual punishment under the Eighth Amendment.

That’s what we need a de novo review of: Why weren’t standard tests done, why shouldn’t they be done before a final PVS conclusion is made, and, in their absence, why should we be confident in the accuracy of the PVS diagnosis? There may be good answers to all these questions, but that is what evidentiary hearings are for.

That’s why the medical-expert submissions made by the Schindlers are relevant, even if Judge Whittemore is correct that, in the dizzying pace of the last few days, the Schindlers’ lawyers failed to connect the dots in their papers — a failing many, many courts would have understandably forgiven in these dire, hurried circumstances, where life is at stake.

Or in other words, who cares about the law, or the pleadings, just rule the way I think you should and then you would be doing the right thing. Really, Congress should have just passed that bill - the "Terri Schiavo wanted to live bill." Since that is all they really want. Even if she didn't.
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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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