Terri's parents appeal to the Supremes
There's so much news and rumours on this case that's pure emotion vs fact that it's indeed hard to find some sort of position based on intelligent analysis. Not that this stops the American public, of course. There's sundry polls flying around showing majority of public support for the federal court judges who have reviewed the case since the midnight bill enactment by Congress and the WH last Sunday.
Yet most poll respondents admit to inserting their own personal feelings about the Terri's quality of life, thus super-imposing their own beliefs as hers. Because *they* would not want to live like that, surely Terri does not either. And hearsay "she said/he said" evidence, in lieu of a living will, seems sufficient for the average poll taker.
Easy for them to say... it's not their life in the balance.
I have some serious problems with all this. Oddly enough, it has more to do with legal flubs than with morality. Bear with me here... this is long, but it just may be a different take on the scene than you've had before.
When Congress passed Terri's Bill on Sunday night, I had thought... along with Terri's family and the rest of the world... that the federal reviews should, and *would*, be more than just a mere re-examination of Florida’s Sixth Circuit Court George Greer's previous rulings.
Indeed, with all the hooo-ha about the "19 judges" - giving the impression that evidence is that unshakable - what has truly happened over all these years and upheld decisions is nothing more than a bunch of robed ones, re-reading what the first guy said - rather like grading his judicial work.
And while most tend to think that Terri's status as vegetative or not is the big question, I think the bigger question is the intents and conflict of the guardian husband, and his moral right to decide Terri's life or death.
Personally I think there is ample evidence that Mr. Schiavo, who may indeed genuinely concern himself with Terri's welfare to some extent, has too many conflicts of interest to act as her guardian in a life or death situation. And I am bypassing any of the rumours and stories that indict the gentleman as a monster. Whether he is or isn't is not the crux of the matter.
Instead there is the reality that Mr. Schiavo has not utilized funds for therapy for Terri. Indeed, he has refused to allow even the most benign of tests such as MRIs and rehab therapies, with the gov't provided funds that were alloted for just that.
Is this the action of a guardian concerned with the best interests of his ward?
Secondly, one cannot deny the presence of a new family - children by his live in girlfriend. If Terri were able to speak, and learned of Michael's new family during her incapacitation, do you think her first words would be "let me live"? Or, like any woman, do you think the first words out of her mouth just might be "give me a divorce"!
Schiavo and his new family must have conflicts of interests. Certainly the rehabilitation of Terri to any degree could cause some friction for a woman who, most likely, would like to be legally wedded to the father of her children. So can we be absolutely sure that Schiavo puts Terri's needs over that of his live in family?
So now, with two federal judges already passing the buck by merely reviewing Greer's work, we are faced with the Supreme's as the last resort. In the interim, no one will allow the feeding tube to be reinserted while everyone makes up their minds. And considering the Supremes have already refused to hear this case before, I find it highly unlikely they will do anything different now. Terri's future looks sealed... and it will be death by judicial neglect.
What truly needs to be done is to examine more closely not what Judge Greer did say, but what he *did not* say or do in requiring that Michael Schiavo adhere to legal parameters to maintain guardianship. And so much of that has to do with Terri's parents concertive efforts to remove Michael Schiavo as her guardian from years back... attempts that have never formally been addressed by the judge at the center of this case.
In an article in The Empire Journal by June Maxam and Ginger Berlin, they lay out a legal side to the story that addresses the rules of guardianship, and how Judge Greer has not enforced Mr. Schiavo's failure to adhere to these rules of law.
On Nov. 15, 2002, Patricia Anderson, attorney for the Schindlers, filed with Greer a petition to remove Michael Schiavo as guardian. The petition included a declaration of adversary proceedings charging that the husband had violated a dozen or more Florida Statutes. As of this date, more some 2 ½ years later, Greer has never ruled on the motion---in violation of state law. But then there if a hearing was conducted as required, there would be only one way to rule on the motion---to remove Schiavo as guardian.
On Jan. 10, attorneys for Mary and Robert Schindler Sr. renewed their petition for the removal of Schiavo as guardian of their daughter and as this date, Greer has failed to rule on that motion too, in direct contravention of Florida Statutes. By refusing to conduct the required hearing on the issue and addressing the blatant violations of state law, Greer is not only aiding and abetting Michael Schiavo and George Felos but he is a lawbreaker himself, a violation of public trust and the oath of office that he presumably took and filed.
Not only has Judge Greer refused to respond to the motions, but he has given Michael Schiavo a pass on delinquent or non-filing of required annual reports necessary to maintain guardianship.
Pursuant to Chapter 744 of Florida Statutes, each guardian, whether non-professional or professional, is required to file an annual guardianship report, plan and accounting. By law, the court retains jurisdiction over all guardians. The court, and that includes Greer, is required to review “the appropriateness and extent of a guardianship annually and if an objection to terms of the guardianship has been filed, if interim review requested, if the guardianship report has not been received and the guardian has failed to respond to a show cause order”.
Unless the court requires filing on a calendar-year basis, each guardian of the person, such as Schiavo, is required to file with the court an annual guardianship plan within 90 days after the last day of the anniversary month the letters of guardianship were signed, and the plan must cover the coming fiscal year. If calendar year filing is required, the guardianship plan must be file within 90 days after the end of the calendar year---or in the case of 2004----on March 30, two weeks after Greer has decreed that the death order be executed.
The annual accounting must also be filed at this time by the guardian of the person.
When these reports are not filed timely, the judge is supposed to order the guardian to file the reports within 15 days, or show reason as to why they are not filed.
Judge Greer not only did not order Schiavo to comply with the law, but is in violation of statutory law himself because he has not reviewed mandatory reports that do not even exist.
Today Terri's life depends upon Judge Greer's performance over the past decade. Yet the federal judges have not examined any mandatory duties that Judge Greer did not perform, but instead are only examining what he did do, and concerning themselves mainly with the hearsay evidence of "Terri's wishes".
Now I'm not sure why Terri's parents and attorney haven't jumped all over the judges lackadaisical performance in the past when he failed to perform as mandated. Personally I would have been all over him and demanded he recuse himself for blatant inadequacy. But since this is a life or death situation, one would think that the highest court in the land should be required to go over the performance of the Florida underling with a fine tooth comb. And in the interim, keep Terri alive until their findings can be made known.
Andrew McCarthy, from National Review Online, weighed in with similar criticism of the federal reviews in his article Ducking Tough Questions yesterday.
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.
In other words, we have the higher judges "grading" the performance of the lower judges... nothing more, nothing less. And they are not grading the LACK of performance.
As one who's delved into the judicial system in the past, I've learned that what you do NOT know about your rights when standing before the bench in a court of law can make all the difference in the world for judicial remedy. It's a tight little band of thieves, the judicial and attorney world. They don't like slapping another's decisions because they all know that there, by the grace of God, go they all.
But Terri's life is hanging in the balance - all dependent upon whether or not the federal judicial system does what Congress intended it to do, and open all aspects of the case for a life and death situation. Or whether they continue to reshuffle the paperwork and pass the buck.
All in all, it's a sad day for Terri and her family. For the rest of us? It's a heads up. If you are in a situation requiring a saunter thru the judicial world, call the robed ones on the carpet for their lack of remedy immediately. Call their bosses and complain thru appeals. And do not let them slide when they shirk their duties.
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