Has the Schiavo case Become a Political Football?

I've seen lots of statements re the bulimia and potassium deficiency, etc., but no 'evidence'. Even Judge Greer mentioned it but did not seem to have any evidence that a potassium deficiency was the cause.

Potassium deficiency can be caused by a high sodium intake, inadequte fruit and vegetables in the diet. More commonly deficiency is caused by excessive flud loss (sweating, diarrhea or urination, use of diuretics, laxatives, aspirin and other drugs. No lists of causes of potassium deficiency I could find even mentioned eating disorders.

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Why is the cause of the heart attack relevant to anything?

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Quote, "Potassium deficiency can be caused by a high sodium intake, inadequte fruit and vegetables in the diet. More commonly deficiency is caused by excessive flud loss (sweating, diarrhea or urination, use of diuretics, laxatives, aspirin and other drugs. No lists of causes of potassium deficiency I could find even mentioned eating disorders." What's your point?

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The pope had a heart failure.

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Debra_Law wrote:

Where in the opinion does the judge give any weight at all to the guardian's report that Michael cannot provide clear and convincing evidence of Terri's wishes due to his conflicts of interest?

On page 5 and 6, beginning with the passage I quoted, where he says, in effect, that even if he cannot, the confirmation of his story by two other people is reliable enough to establish clear and convincing evidence.

Debra_Law wrote:

Perhaps you should research and familiarize yourself with respect to the admission of hearsay

The judge wasn't relying on hearsay. He was relying on witnesses' testimony on what Terri Schiavo had told them first hand.

Suppose Bob tells Clara that Alice robbed a bank; Clara hasn't seen for herself what Alice did. If the bank sues Alice for bankrobbery, and at the trial, Clara testifies to what Alice did, that's hearsay. But if Alice sues Bob for slander, and at that trial, Clara testifies to what Bob said, it's not. In our case, the issue is what Terri Schiavo had said she wanted to happen with her if she was to fall into a vegetative state, before she actually did. Scott Schiavo and Joan Schiavo testified that they were among the people she talked to about this. So their testimony is analogous to our second hypothetical case -- Clara testifying to what Bob said in Alice's slander case. The judge found Scott and Joan Schiavo's testimonies reliable enough to stand on their own -- reliable enough that he didn't have to decide how reliable Michael Schiavo's testimony actually was.

Looks like sound reasoning to me.

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Thomas: I can point to page 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 and tell you what the judge said on each page of his written opinion. Anyone can do that. You're not addressing the legitimate criticisms that people have made concerning the opinion.

When is hearsay deemed reliable when proffered by persons with conflicts of interest? (Answer: NEVER!)

The two people who came forward at the last minute to claim Terri said she didn't want to be "hooked to machines" was Michael's brother and Michael's brother's wife. And what does the judge say about their stepping forward at the last minute to become witnesses for Michael? He simply dismisses the challenges to their credibility with one sentence: "Argument is made as to why they waited so long to step forward but their explanations are worthy of belief."

What? Terri was incapacitated in 1990. The trial took place ten years later in 2000. During the course of ten years . . . and during the course of lengthy litigation . . . Michael never identified these people as corroborating witnesses. They were placed on the witness list at the last minute right before trial. Judge Greer allowed them to testify over the objections of the Schindlers' counsel.

[Pretrial discovery is intended to eliminate surprise at trial . . . why weren't these people disclosed as witnesses before trial????? They suddenly materialized as witnesses AFTER the guardian ad litem submitted his report and stated that Michael could not provide clear and convincing evidence of Terri's wishes due to his conflicts of interest.]

In any other case, circumstances such as this would substantiate a charge of recent fabrication or improper motive or influence. But, this particular judge dismisses the overwhelming impeachment value of these people coming forward at the last minute and being placed on the witness list virtually on the eve of trial in one unexplained sentence. Their explanation is believable? Well . . . I'll be a monkey's uncle. If you buy that, then I'd like to sell you some swamp land in Florida.

The court did the same thing in refusing to consider Michael's conflicts of interest and by ruling that the mountain of evidence with respect to Michael's ulterior motivations for wanting to end Terri's life was irrelevant.

Excuse me? How can any person's motivations to fabricate evidence be deemed irrelevant in any other court in the land? Something smells rotten in Denmark . . . I mean, Florida.

I'm sure that Michael's brother and Michael's brother's wife admitted that they didn't know what Terri meant when she said she didn't want to be "hooked to machines." Did that also mean that she would refuse food and water?

So what happens next? The court takes and accepts the testimony of Beverly Tyler? Who in the heck is she? She did not know Terri. She did not talk to Terri. How on earth can she give testimony as to Terri's intent when she allegedly said she didn't want to be hooked to machines? She appears to be some sort of "expert" on the intentions of the average person of Terri's age group who makes statements concerning being "hooked to machines." What does the average person have to do with anything in this case when the law specifically requires that Terri's intent (not the average person's intent) be ascertained by clear and convincing evidence?

So, we have two last minute, undisclosed witnesses taking the stand to proffer hearsay evidence that can't be cross-examined because the delcarant is unavailable and an alleged expert who is explaining what Terri intended when Terri allegedly made the out-of-court statements based upon what the average person of Terri's age group means when they make those types of statements??????

Do you understand how ridiculous that is? It's mind-boggling. I'm dumbfounded by the lunacy of the evidence -- if you can even call it evidence -- that was presented and relied upon by the court as "clear and convincing."

Hearsay is unreliable and untrustworthy as a matter of law! That's why courts do not admit hearsay as evidence unless it falls within an exception the the hearsay rule. How can the hearsay testimony of Michael's brother and Michael's brother's wife be deemed "reliable?" It would be inadmissible in all other cases. And that's the problem, Thomas. You accept the judge's finding without any question.

I have read the opinion several times, and I'm appalled . . . but perhaps I shouldn't be appalled when information is now coming out concerning the many contributions that are being made to Judge Greer's re-election campaign fund through Felos and his cronies.

Did the Schindlers get a fair trial? No way. The entire deck was stacked against them.

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Thomas wrote:

I'm sorry, parados, but I missed this post of yours when you posted it, and I have only now picked it up via nimh quoting it. (Thanks, nimh!) After that, I tried to find a copy of the original (2003) decision and check the primary source myself. But it appears that everyone on the Web is pointing to a file on terrisfight.org, and that file is no longer on their server.

I linked in and quoted at length from the November 2002 and September 2003 court orders in this post and this post, on page 129-130, answering Lash's assumptions on most of the counts we have discussed here. These are those two links again:

http://www.libertytothecaptives.net/order_nov_22_2002.html
http://abstractappeal.com/schiavo/trialctorder0903.pdf

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Debra_Law wrote:

Thomas: I can point to page 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 and tell you what the judge said on each page of his written opinion. Anyone can do that.

You, on the other hand, didn't point to pages 1, 2, 3, ... and posted a summary of what the judge said which, on reading his opinion, turned out to misrepresent it. I am not pointing to actual quotes because I think it's original, but because it helps sort out errors -- including my own. You're right anyone can do that; more people ought to.

Debra_Law wrote:

When is hearsay deemed reliable when proffered by persons with conflicts of interests? (Answer: NEVER!)

Correct. That's why the judge didn't rely on hearsay, and did rely on witnesses who hadn't been accused of conflicts of interest.

Debra_Law wrote:

The court did the same thing in refusing to consider Michael's conflicts of interest and by ruling that the mountain of evidence with respect to Michael's ulterior motivations for wanting to end Terri's life was irrelevant.

... because he relied on Scott and Joan Schiavo's testimonies, whom even Terri Schiavo's lawyers hadn't accused of ulterior motives.

Debra_Law wrote:

I'm sure that Michael's brother and Michael's brother's wife admitted that they didn't know what Terri meant when she said she didn't want to be "hooked to machines." Did that also mean that she would refuse food and water?

The judge, in his opinion, makes a sound and carefully reasoned argument that it does.

According to the testimony of Scott Schiavo, whom nobody has accused of ulterior motives, Terri Schiavo said at the funeral luncheon to his grandmother: "If I ever go like that just let me go. Don't leave me there, I don't want to be kept alive by a machine." (page 9) According to the opinion, "the testimony of Ms. Beverly Tyler, Executive Director of Georgia Health Discoveries, clearly establishes that the expressions made by Terri Schiavo to these witnesses are those type of expressions made in those types of situations as would be expected by people in this country in that age group at that time. They (statements) reflect underlying values of independence, quality of life, not to be a burden and so forth. 'Hooked to a machine' means they do not want life artificially extended when there is not hope of improvement." (page 6)

There was no hope for Terri Schiavo, and a feeding tube is an artificial extension of life. So again, looks like sound reasoning to me.

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Thanks for reposting the links nimh!

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Thomas wrote:

Thanks for reposting the links nimh!

Yeah, you should check the other one out too. I must admit I didnt myself read all of the 2003 court order, I only searched through it to find what it said about the affadavits of those nurses, Heidi Law and Carla Iyers (it found them "incredible to say the least"). But I did read all the 2002 one, which goes into the testimonies of the five doctors who examined Terri for the court case. And I thought it was pretty conclusive when it came to the question of whether Terri was indeed in a PVS (with all that entails) or rather that she was still responsive in some way or other, and also on the question of whether there was still a prospect of any effective treatment.

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(cont.)

So it's interesting, cause I think you read the 2003 one but not the 2002 one, yet we came to the exact same conclusions. Complementary to each other, they should probably have wrapped up the story. That they didn't testifies to the perseverance of the family, with which I don't have a problem an sich - they fought for what they believed to be right, and everybody has the right to use the opportunities the court system offers to do so. My distaste is primarily with those who got involved on their behalf from various political motivations. Not just the craven opportunism of the Congressmen (I'm sure there were those who voted on conviction, but there was definitely enough opportunism to go around), but also the activist groups who used the Schiavo case for their own pet causes.

That brings me back to an earlier exchange you had with Lola here. She insisted the Schiavo uproar was all to do with the Christian-conservative right-wing in the Republican party pushing/imposing its agenda; you replied with a reference to Debra Law and others who showcase that this wasn't a conservative/liberal split. I have to say, in review I lean a little more to Lola's POV than I did before. On the one hand, it's absolutely true that popular opinions on the matter do not confirm to the lib/cons divide. This was exactly the point I was making here to Lash before - just look at A2K, with McGentrix, Woiyo and Phoenix on the one hand and Debra and Montana on the other crossing the usual divide. Thats partly because in a case like this, Libertarians and perhaps Constitutionalists too would have to side with Michael's case, but it's also because it's such a personal matter.

But while popular opinion is one thing, a review of the activists who were actually pushing the case is another. Once the public was confronted with this case, its opinion split in undogmatic lines about it, with even conservatives in majority rejecting Congress's involvement. But how did the case become a matter of national opinion in the first place? Because of the push by an influential conglomerate of politicans and activist groups (note: I'm not talking organised conspiracy, just a network of groups that are webbed together in a self-sustaining, self-confirming world where each instinctively refers to one another). And that network is much more clear-cut in ideological orientation.

What brought that point home to me was a simple web search. I mean, with a court order or two or how many more like the ones you and I just quoted, some issues would simply have been done with. One can still easily disagree with the final decision on principle - for example if you strictly oppose anything resembling euthanasia - but individual allegations and assertions, at least, should have been resolved for good. But instead they kept on doing the rounds, unrefuted, confirmed and repeated time and again. The web search I did was on "Carla Sauer Iyers" Schiavo. Of the three nurses who spoke up on the family's behalf, Iyers was clearly the least reliable. And the court was quite unambiguous about that. Yet she was trotted out again and again, over a year later, as an important witness who was ignored, "never heard", on a trillion weblogs but also Fox News, without a single mention of how the court had looked at her affadivit and evaluated it to be wholly incredible. Check that Google link and discover how hard it is to actually find any mention of the court's evaluation of her! Page after page after page of right-wing websites that don't - that in fact deny it ever happened. The only other one mixed in for several pages is MediaMatters, which does quote it, but which I didn't want to rely on because it's a clearly partisan site itself, for the other side. I had to browse through to, I dunno, result #50 or something to find a link to the actual court document, or even as much as any news report from this year quoting from it.

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Thomas wrote:

The judge wasn't relying on hearsay. He was relying on witnesses' testimony on what Terri Schiavo had told them first hand.

Thomas:

We had this discussion on another thread. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is NOT admissible except as provided by the rules of evidence.

Michael's brother testified concerning Terri's statements. Terri is the declarant. Terri's alleged out-of-court statements were offered into evidence to prove the truth of the matter asserted. This is hearsay.

Your assertion that the judge was not relying on hearsay is completely erroneous. The hearsay does not fall within a recognized exception to the hearsay rule.

Quote:

Suppose Bob tells Clara that Alice robbed a bank; Clara hasn't seen for herself what Alice did. If the bank sues Alice for bankrobbery, and at the trial, Clara testifies to what Alice did, that's hearsay. But if Alice sues Bob for slander, and at that trial, Clara testifies to what Bob said, it's not.

You have to remember the definition of hearsay. Hearsay is an out-of-court statement offered into evidence to prove the matter asserted.

In your first example, the Bank and Alice are parties to the litigation. If Clara testifies that Bob said that Alice robbed the bank, and Bob's out-of-court statement is offered to prove the truth of the matter asserted -- that Alice robbed the bank -- then it is inadmissible hearsay. On the other hand, if Bob testified that Alice robbed the bank and was cross-examined and a charge of recent fabrication was made, Bob's prior consistent statement made to Clara is admissible to rebut the charge. Under these circumstances, a prior consistent statement by a witness is not hearsay.

In your second example, Alice and Bob are parties to the litigation. Statements of a party opponent are NOT hearsay.

Therefore, your analysis makes no sense at all. You wrote:

Quote:

In our case, the issue is what Terri Schiavo had said she wanted to happen with her if she was to fall into a vegetative state, before she actually did. Scott Schiavo and Joan Schiavo testified that they were among the people she talked to about this. So their testimony is analogous to our second hypothetical case -- Clara testifying to what Bob said in Alice's slander case.

Terri Schiavo was not a party-opponent to the litigation. Her life or death was the subject matter of the litigation, but she was not a party to the litigation. Terri allegedly made out of court statements to Michael's brother and Michael's brother's wife. Terri was unavailable by reason of incapacity to testify in court. Michael's brother and Michael's brother's wife offered Terri's out-of-court statements into evidence to prove the truth of the matter asserted, i.e., that Terri did not want to be hooked to machines. Therefore, the testimony of Michael's brother and Michael's brother's wife was hearsay.

Their testimony is not analogous to your hypothetical case of Alice vs. Bob.

Hearsay is inadmissible because it is unreliable and untrustworthy. The judge did not admit the hearsay evidence pursuant to any recognized exception to the hearsay rule. Additionally there was no independent corroboration that would lend any credibility to the hearsay. When charged with recent fabrication, the witnesses did not offer evidence of prior consistent statements (deposition testimony, affidavits, etc.).

Your basis for accepting the court's opinion as "sound reasoning" is seriously flawed.

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Debra_Law wrote:

Michael's brother testified concerning Terri's statements. Terri is the declarant. Terri's alleged out-of-court statements were offered into evidence to prove the truth of the matter asserted. This is hearsay.

I disagree. "The truth of the matter asserted" concerns what wishes Terri Schiavo has expressed. The declarants are the Schindlers and the Schiavos, all of whom claimed to have first-hand knowledge of what wishes she had expressed. All of them testified in court, under oath. By your assignment of who the declarant is, in the absence of a written will, noone short of a certified mind-reader, having read Terri Schiavo's mind, could have submitted clear and convincing evidence in his testimony. Is that really your position?

UPDATE: I just checked another source by searching for "hearsay" in Findlaw's legal dictionary. Up came three entries: "hearsay", "hearsay rule", and "evidence". The "evidence" entry, as far as it pertains to hearsay, merely repeats the "hearsay" entry. Here are the definitions given in the two other entries:

Webster's legal dictionary, as published on Findlaw's website, wrote:

hearsay: a statement made out of court and not under oath which is offered as proof that what is stated is true.

Comment: By this definition, the Schindlers and the Schiavo's testimony was not hearsay with regard to what Terri Schiavo said. But since they couldn't read Terri's mind, Debra might argue that their testimonies were hearsay with regard to what was going on inside Terri Schiavo's mind. Note, however, the next entry:

Webster's legal dictionary, as published on Findlaw's website, wrote:

hearsay rule: a rule barring the admission of hearsay as evidence

Note: The hearsay rule is stated in Rule 802 of the Federal Rules of Evidence. Hearsay is inadmissible as evidence because of the unavailability of cross-examination to test the accuracy of the statement. There are numerous exceptions to the rule, however, mainly for statements made under circumstances that assure reliability. Statements made spontaneously, for example, or as part of a business or medical record are inherently trustworthy and thus excepted from the rule. A statement need not be made orally for purposes of the hearsay rule. Written statements, gestures, and even motion pictures are included. (the italics are Findlaw's/Webster's)

So even under Debra's theory, this case would have fallen under the "numerous exceptions". Terri Schiavo's statements in question were made spontaneously, which is explicitly mentioned as one of the "circumstances that assure reliability".

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nimh wrote:

So it's interesting, cause I think you read the 2003 one but not the 2002 one, yet we came to the exact same conclusions.

You give me too much credit. I actually read only the 2000 opinion. The reason I referred to the 2003 court order was that this was the oldest reference on Findlaws page on the case, so I had assumed that was the original opinion. But that supports your point rather than contradicting it: you and I read very different parts of the paper trail, we somewhat disagree on the ethics involved, yet we come to pretty much the same conclusion about the legal side of it.

nimh wrote:

I had to browse through to, I dunno, result #50 or something to find a link to the actual court document, or even as much as any news report from this year quoting from it.

I know just what you mean. One of the good things that came to me in this discussion was discovering abstractappeal.com yesterday, which appears to do a great job covering the case. Have you known it before the Terri Schiavo case?

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Thomas wrote:

...The judge found Scott and Joan Schiavo's testimonies reliable enough to stand on their own -- reliable enough that he didn't have to decide how reliable Michael Schiavo's testimony actually was.

Looks like sound reasoning to me.

I believe that in the same trial, other witnesses testified to hearing her say opposite sorts of things about death.

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Brandon9000 wrote:

Thomas wrote:
...The judge found Scott and Joan Schiavo's testimonies reliable enough to stand on their own -- reliable enough that he didn't have to decide how reliable Michael Schiavo's testimony actually was.

Looks like sound reasoning to me.

I believe that in the same trial, other witnesses testified to hearing her say opposite sorts of things about death.

Yeah... when she was 12 years old.

You want people to act on your beliefs as they are today, or as they were 10 years ago?

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Quote:

Correct. That's why the judge didn't rely on hearsay, and did rely on witnesses who hadn't been accused of conflicts of interest.

I don't have the time to read the court documents right now. I apologize. But can anyone tell me of what conflict of interest Michael Schiavo was accused?

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Lola wrote:

I don't have the time to read the court documents right now. I apologize. But can anyone tell me of what conflict of interest Michael Schiavo was accused?

Terri Schiavo owned an estate. Because she died while Michael was still married to her, he inherited the estate. If he had divorced her to marry his girlfriend, her parents would have inherited it instead. That created a conflict of interest on both sides.

On pages 2 and 3 of the 2000 opinion, Justice Greer wrote:

Regrettably, money overshadows this entire case and creates potential of conflict of interest for both sides. The Guardian Ad Litem noted that Mr. Schiavo's conflict of interest was that if Terri Schiavo died while he is still her husband, he would inherit her estate. The record before this court discloses that should Mr. and Mrs. Schindler prevail, their stated hope is that Mr. Schiavo would divorce their daughter, get on with his life, they would be appointed guardians of Terri Schiavo and become her heirs at law. They have even encouraged him to "get on with his life". Therefore, neither side is exempt from finger pointing as to possible conflicts of interests in this case.

Source

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BBB
Terri Schiavo's brain died 15 years ago. Her body died 3/31/05.

Some people, including her blood family, were less interested in prolonging Terri Schiavo's life than they were in prolonging her death.

BBB

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Brandon9000 wrote:

I believe that in the same trial, other witnesses testified to hearing her say opposite sorts of things about death.

They did. But both testimonies contained errors and contradictions as to when Terri Schiavo made those remarks. After correcting for those errors and contradictions, the court concluded that Terri Schiavo made them when she was 11 or 12 -- not when she was 17-20, as the witness first testified.

On page 5 of the 2000 opinion, Justice Greer wrote:

There was a lot of testimony concerning the Karen Ann Quinlin case in New Jersey. Mrs. Schindler testified that her daughter made comments during the television news reports on the father's attempts to have life support removed to the effect that they should just leave her (Karen Ann Quinlin) alone. Mrs. Schindler first testified that those comments were made when Terri was between 17-20 years of age but after being shown copies of newspaper accounts agreed that she was 11 perhaps 12 years of age at the time. A witness called by Respondents testified to similar conversations with Terri Schiavo but stated that they occurred during the summer of 1982. While that witness appeared believable at the offset, the court noted two quotes from the discussion between she and terri Schiavo which raise serious questions about the time frame. Both quotes are in the present tense and upon cross examination, the witness did not alter them. The first quote involved a bad joke and used the verb "is". The second quote involved the response from Terri Schiavo and used the verb "are". The court is mystified as to how these present tense verbs would have been used some six years after the death of Karen Ann Quinlin. The court further notes that this witness had quite specific memory during trial but much less memory a few weeks earlier on deposition. At trial she mentioned seeing the television movie of Karen Ann Quinlin and had no hesitancy in testifying that this was a "replay" of that movie and she watched such replay at college in Pennsylvania. She also knew precisely what song appeared on a TV program on a Friday evening when Petitioner was away at McDonald's training school. While the court certainly does not conclude that the bad joke and comment did not occur, the court is drawn to the conclusion that this discussion most likely occurred in the same time frame as the similar comments from Mrs. Schindler. This could well have occurred during this time frame since this witness and Terri Schiavo, together with their families, spent portions of summer vacation together which would have included the mid-1970s.

Source

By contrast, the court noticed no such inconsistencies in the three Schiavos' testimonies. It found them conclusive enough to establish clear evidence of Terri Schiavo's wishes, even after disregarding Michael Schiavo's testimony for his conflict of interest.

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Has the Schiavo case Become a Political Football?

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