Thursday, March 24, 2005

"Clear and Convincing" to whom?


The Empire Journal

Judge Greer based his "clear and convincing" evidence standards on In Guardianship of Browning 568 So. 2d 4(1990), "a case in which Michael Schiavo’s attorney, Felos, opposed the state in withdrawing the feeding tube of Browning, an 89-year-old stroke victim who had left a living will stating she did not wish life support to continue if she were terminal."

No newcomer to allowing people to die, this attorney...

However, the guardian must base such a life-ending decision on “clear and convincing” evidence of what the patient wanted. The Court specifically recognized that reliance on oral statements does not have the same presumption of clear and convincing evidence as written declarations. It stated that “the evidence of the patient’s oral declarations [must be] reliable”.


The Florida Supreme Court held in Browning that when the decision of proxy or surrogate to refuse medical treatment on behalf of an incompetent patient is challenged, although the surrogate may rely on oral statements allegedly made by an incompetent patient while competent, to exercise patient’s wishes to forego life-sustaining treatment, presumption of clear and convincing evidence that attaches to written declaration does not attach to purely oral declarations. While oral evidence, considered alone, may constitute clear and convincing evidence, surrogate (Michael Schiavo) would bear the burden of proof if the decision based purely on oral evidence is challenged.

The most unbelievable aspect of this case is that none of the reviewing judges... from district to federal... have done whit to examine "de novo" any of the facts that Judge Greer used to make his rulings. He has, instead, denied challenges and thwarted each and every maneuver the Schindler's have made to try and regain some influence in Terri's fate.

Remember this incident well, America. Your right to recourse thru the court system has it's limitations. And in charge of it all are Judges - merely humans, with their own egos and agendas. At their mercy and power lie us all.

So what is Greer's viewpoint of "clear and convincing evidence?

“The court must decide whether or not there is clear and convincing evidence that Theresa Marie Schiavo made reliable oral declarations which would support what her surrogate (Petitioner/Guardian) now wishes to do

“All of the other collateral issues such as the quality of the marriage between Michael and Terri Schiavo, access or lack of access to medical information concerning their daughter, motives regarding the estate of Terri Schiavo if deceased, and the beliefs of family and friends concerning end of life decisions are truly not relevant to the issue which the court must decide.” - Judge Greer’s February 11, 2000 Order

Not relevant? Considering the court cares *only* of assumed wishes by Terri, and they are basing that assumption on the oral statements of the husband, then Michael Schiavo's denial of care and therapy, his motives pertaining guardianship and her estate are extremely relevant, and her parents challenges to that statement, denied by Greer should be questioned before the husbands statement is allowed to stand. Her very life depends on the relevancy of Michael Schiavo's genuine intents.

Considering this same judge has had guardianship petitions, motions and evidence before him, refused to reconsider and admit new evidence, one can only conclude that his idea of "relevance" is a testament to impeachment of judges.

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