Tuesday, March 22, 2005

The Ruling

Folks, it is what it is. Here is the PDF version, courtesy of RealClearPolitics. The judge's arguments are hard to dispute. His ruling was only regarding an emergency injunction requested by the Schindlers to reinsert the feeding tube until litigation is concluded. And while the judge agreed with just about all of their reasoning regarding the emergent nature of the injunction and the comparatively little inconvenience suffered by Michael Schiavo, he found that there was not a substantial likelihood of success for their claims.

This is where the judge's discretion comes in, and the way he argues it is fair enough. His defense of the proceedings before Judge Greer is devastating to the Schindler case. Having said that it is equally fair to find that at a new trial, there may be substantial evidence that Terri is conscious of her surroundings which would justify the re-insertion of the feeding tube until such matters could be determined.

But the judge found as he did. It's not good, and he's really unlikely to be overturned. And so I pray that Michael Schiavo is right that she cannot perceive what is going on with her body. Because he just may be getting his way.


My anonymous commenter may want to stay that way. The comment which was attached was attributed to the Memorandum Order from the U.S. District Court for the Middle District of Florida in the Schiavo case. I thoroughly read the document. You'll not find that language there. Actually, it is language from the state intermediate appellate court from last week. And to be really clear, I DO disagree with the rationale. Judge Greer ignored medical evidence that he didn't want to hear, and allowed George Felos, Michael Schiavo's attorney, wide latitude that he did not allow to the Schindlers, to the point that he produced critical witnesses to the case two days before the hearing. These were not surprise witnesses either. They were Mr. Schiavo's brother and sister-in-law. Surprise indeed. The Schindlers had no chance to depose them or to prepare for their cross. Judge Greer heard what he wanted to hear, and ruled as he wanted to rule.


Anonymous Anonymous said...

Do you disagree with any of the following excerpts of todays decision?

"The Schindlers also argue that the judgment is void because Mrs. Schiavo was denied a full and fair opportunity to defend her rights in this case. As we have explained in the past, this is not a case where the trial court validated the guardian's decision for the ward without a full and independent inquiry. Instead, both Mr. Schiavo and the Schindlers were allowed to present evidence to the trial court as if each were her guardian. Id. The trial court then made its decision pursuant to law and based upon a heightened standard of proof. That decision has been subject to appeals and postjudgment scrutiny of all varieties, and it remains a valid judgment pursuant to the laws and the constitution of this state. Not only has Mrs. Schiavo's case been given due process, but few, if any, similar cases have ever been afforded this heightened level of process.

* * *

For those of us who are not trained physicians and who do not deal on a daily basis with patients in vegetative states, or with the difficult decision to remove life-sustaining treatment, the images of Mrs. Schiavo's face are haunting. But the images do not reveal the full extent of the devastation to her brain and her inability to engage in cognition. Dr. Wolfson, the guardian who was appointed at the request of the Governor, visited Mrs. Schiavo many times in 2003. He was unable to independently observe any "consistent, repetitive, intentional, reproducible interactive and aware activities." His report does not challenge the now well-established medical diagnosis that Mrs. Schiavo's movements are merely reflexive. As he explained: "This is the confusing thing for the lay person about persistent vegetative states."

* * *

But in the end, this case is not about the aspirations that loving parents have for their children. It is about Theresa Schiavo's right to make her own decision, independent of her parents and independent of her husband. In circumstances such as these, when families cannot agree, the law has opened the doors of the circuit courts to permit trial judges to serve as surrogates or proxies to make decisions about life-prolonging procedures. * * * It is the trial judge's duty not to make the decision that the judge would make for himself or herself or for a loved one. Instead, the trial judge must make a decision that the clear and convincing evidence shows the ward would have made for herself. * * * It is a thankless task, and one to be undertaken with care, objectivity, and a cautious legal standard designed to promote the value of life. * * *

* * *
We are well aware that many people around the world disagree with the trial court's decision. However, when he became a judge, the trial court judge took an oath, required by the Florida Constitution, to obey the rule of law and the constitution of this state. The trial judge followed and obeyed the law as set out by the precedent of the Supreme Court of Florida and by the general laws adopted by the Legislature. The trial judge made this most difficult decision after fully considering the evidence and applying a heightened standard of proof that is designed to protect society's interest in sustaining life."

3:24 PM  

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