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Wednesday, March 23, 2005

Where Things Stand

Earlier this afternoon, Gov. Bush spoke and urged Florida senators to pass a bill which would amend current Florida law as to the care of incapacitated persons.

The Bill passed by the Florida House made it illegal to deny an incapacitated person food and water unless one of four exceptions could be met. Of those four exceptions, included was that death would be allowed if the person had a living will or the person expressly made it clear they would not want to be kept alive by the use of food and water.

Of course, Terri had neither. And the poor excuse for what Michael Schiavo claims was Terri's "expressed intent" (her casual remark during the course of a movie) would hardly satisfy.

The Senate had a bill which said it would be illegal to withdraw food and water if: (a) it was to kill the person; (b) the guardian parties couldn't agree; and (c) there was no living will to the contrary. The Senate's version was actually much simpler and straitforward, with fewer possible loopholes.

Unfortunately, the Florida Senate has disappointed us all.

Now we wait and watch Gov. Jeb Bush. He also announced earlier that a respected Nobel-prize winning physician believed Terri was not in a "persistent vegetative state" and she could be rehabilitated. Furthermore, the Department for Children and Families announced an investigation of the facts surrounding Terri's care and her condition.

Governor Bush seemed to indicate that it was within his authority to take protective custody of Terri during the course of the DCF's investigation into the matter.

However, Blogs For Terri (link to the side) reports that CNN is reporting Judge Greer denied a motion to open court records to the DCF's investigators. Furthermore, they report that Greer has expressly ordered that DCF investigators be blocked from access to Terri herself.

Please do not tell me this is not personal for Judge Greer. He has been anything but an impartial jurist in this matter and his latest attempt to block the State's investigation into Terri's care is another strong example of this. Judge Greer is a poor, poor example of those that don the black robe.

Speaking of judges, I have reviewed the 11th Circuit's decision, as well as the decision handed down at the District Court level. This also led me on a chase through the case history at the Florida Supreme Court level.

After exchanging e-mails and speaking with several law professors, there is very little consensus on WHY the district court denied the Shindler's motion for a TRO.

(a) The statute passed by the U.S. Congress was too narrow in its application that the attorneys for the Schindlers could not make a claim upon which they could be reasonably expected to prevail;
(b) The statute passed was not narrow and the Congress intended that Judge Whittemore conduct a new trial but Whittemore interpreted the statute so narrowly that he could deny the motion; OR
(c) The statute passed intended a new trial but Whittemore was not asked by the Shindler attorneys for a new trial and, thus, he was limited to ruling upon the claims they did make.

From a reading of Whittemore's opinion, I believe it is either (b) or (c). While I have not seen the motion and brief filed with the Federal district court, Whittemore argues that his hands were tied by the limited claims made by the Shindler attorneys.

Judge Whittemore points out that he was only asked to review Judge Greer’s actions implicating:
(a) Terri’s 14th Amendment due process right to a fair and impartial trial and how this may have been impaired by Greer’s dual-role as her surrogate and as an impartial decision maker;
(b) Terri’s procedural due process rights and the fact that she was denied access to
independent representation by Greer;
(c) Terri’s right to equal protection which, I surmise, has something to do with differing standards of reviewing a choice made “by competent person” as opposed to one made “for an incompetent person”; and
(d) Terri’s right to free exercise of religion (which Whittemore ruled was inapplicable due to the fact that the Hospice and Michael are not state actors)

Given Whittemore's decision, the 11th Circuit was not given much to work with either. The dissent, however, makes an excellent point -- the ability for the Court to order the feeding tube be replaced is entirely within their discretion. Equity would argue that this is the only reasonable action as there is really no interest being harmed by the temporary reinsertion while the Shindler's claims were fairly adjudicated.

Finally, he also argues what I feel to be the most important point:

It seems clear the U.S. Congress intended for the Federal Courts to completely re-adjudicate this issue based upon U.S. laws applicable to the question of depriving a person of food or water. Having this in mind, they believed that the Court would HAVE to issue an injunction. There would be no other way to fully and fairly hear the issue. The congressional record quoted by the majority has Senator Frist saying very nearly that exact same thing.

What more can be done now?

Pray. Wait. And Pray.

And I need to get some sleep.


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