26-03-2005 13:34									#31
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quote:
Originally posted by notyoueither


I think he wants the patient to have her own attourney appointed so that the patient is represented, not just the parents and the husband.

You'd have to go a little further than that in cases like this though. You'd have to appoint a third party as guardian and then have that third party try to get to the bottom of what the patient really wanted and then that third party could instruct counsel. It is clear that the patient can't. endquote


I limit my concern here to where the patient can be condemned only on the oral testimony of witnesses, many of whom are family members who the Court openly acknowledges may often have adverse interests. Such is not "clear and convincing" evidence almost everywhere in the land. I give you an excerpt from the last Supreme Court case on this topic:

"It is also worth noting that most, if not all, States simply forbid oral testimony entirely in determining the wishes of parties in transactions which, while important, simply do not have the consequences that a decision to terminate a person's life does. At common law and by statute in most States, the parol evidence rule prevents the variations of the terms of a written contract by oral testimony. The statute of frauds makes unenforceable oral contracts to leave property by will, and statutes regulating the making of wills universally require that those instruments be in writing. See 2 A. Corbin, Contracts 398, pp. 360-361 (1950); 2 W. Page, Law of Wills 19.3-19.5, pp. 61-71 (1960). There is no doubt that statutes requiring wills to be in writing, and statutes of frauds which require that a contract to make a will be in writing, on occasion frustrate the effectuation of the intent of a particular decedent, just as Missouri's requirement of proof in this case may have frustrated the effectuation of the not-fully-expressed desires of Nancy Cruzan. But the Constitution does not require general rules to work faultlessly; no general rule can.

In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. We note that many courts which have adopted some sort of substituted judgment procedure in situations like this, whether they limit consideration of evidence to the prior expressed wishes of the incompetent individual, or whether they allow more general proof of what the individual's decision would have been, require a clear and convincing standard of proof for such evidence. See, e.g., Longeway, 133 Ill.2d at 50-51, 549 N.E.2d at 300; McConnell, 209 Conn., at 707-710, 553 A.2d at 604-605; O'Connor, 72 N.Y.2d at 529-530, 531 N.E.2d at 613; In re Gardner, 534 A.2d 947, 952-953 (Me. 1987); In re Jobes, 108 N.J. at 412-413, 529 A.2d [497 U.S. 261, 285] at 443; Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 11, 426 N.E.2d 809, 815 (1980).

The Supreme Court of Missouri held that, in this case, the testimony adduced at trial did not amount to clear and convincing proof of the patient's desire to have hydration and nutrition withdrawn. In so doing, it reversed a decision of the Missouri trial court, which had found that the evidence "suggest[ed]" Nancy Cruzan would not have desired to continue such measures, App. to Pet. for Cert. A98, but which had not adopted the standard of "clear and convincing evidence" enunciated by the Supreme Court. The testimony adduced at trial consisted primarily of Nancy Cruzan's statements, made to a housemate about a year before her accident, that she would not want to live should she face life as a "vegetable," and other observations to the same effect. The observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. We cannot say that the Supreme Court of Missouri committed constitutional error in reaching the conclusion that it did. 11

Petitioners alternatively contend that Missouri must accept the "substituted judgment" of close family members even in the absence of substantial proof that their views reflect [497 U.S. 261, 286] the views of the patient. They rely primarily upon our decisions in Michael H. v. Gerald D., 491 U.S. 110 (1989), and Parham v. J.R., 442 U.S. 584 (1979). But we do not think these cases support their claim. In Michael H., we upheld the constitutionality of California's favored treatment of traditional family relationships; such a holding may not be turned around into a constitutional requirement that a State must recognize the primacy of those relationships in a situation like this. And in Parham, where the patient was a minor, we also upheld the constitutionality of a state scheme in which parents made certain decisions for mentally ill minors. Here again, petitioners would seek to turn a decision which allowed a State to rely on family decisionmaking into a constitutional requirement that the State recognize such decisionmaking. But constitutional law does not work that way.

No doubt is engendered by anything in this record but that Nancy Cruzan's mother and father are loving and caring parents. If the State were required by the United States Constitution to repose a right of "substituted judgment" with anyone, the Cruzans would surely qualify. But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself. Close family members may have a strong feeling - a feeling not at all ignoble or unworthy, but not entirely disinterested, either - that they do not wish to witness the continuation of the life of a loved one which they regard as hopeless, meaningless, and even degrading. But there is no automatic assurance that the view of close family members will necessarily be the same as the patient's would have been had she been confronted with the prospect of her situation while competent. All of the reasons previously discussed for allowing Missouri to require clear and convincing evidence of the patient's wishes lead us to conclude that the State may [497 U.S. 261, 287] choose to defer only to those wishes, rather than confide the decision to close family members. 12 "

http://caselaw.lp.findlaw.com/scrip...us/497/261.html


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	26-03-2005 13:35									#32
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quote: Originally posted by notyoueither And a rolleyes back at you... SHE SHOULD BE REPRESENTED BY A COUNCEL ADVISED BY THE COURT APPOINTED GUARDIAN! Are you stiff? Do you not get it? SHE WAS NOT REPRESENTED BY A LAWYER BEFORE IT WAS DECIDED SHE SHOULD DIE!

Notyoutoo!

Do you not get it?

She was represented by guardian(s), which is what one is, when one is mentally incapacitated. She was not charged with a crime. There is no implied right of counsel in such case and if one was appointed, he or she could not represent Terri as an advocate, neither advise nor speak for her, without being able to communicate with her.

If an attorney had been appointed for her, pray tell what the heck he or she might have done for Terri?

	26-03-2005 13:37									#33
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But was there a lawyer there arguing her case as advised by the guardian?

	26-03-2005 13:38									#34
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quote: The only thing clear in this case is that neither the husband nor the parents can be counted on to accurately represent the person most affected.

Amen to that...

	26-03-2005 13:38									#35
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The entire point of getting a lawyer or determining the position of the case relies of Schiavo's wishes.

That's somewhat difficult when you are trying to discover the wishes of someone to whom the highlight of the day is a Mickey Mouse baloon floating from one end of the bed to the other.

You can't say "represent this woman" when you don't know what you are representing her for. To die or to live. Essentially there is a 50-50 chance the lawyer would represent something completely contrary to her wishes.

It's a Catch-22. You can decide the wishes of the patient, but then it's too late and there's no need for a lawyer, or you can give her a lawyer, let the lawyer decide what Schiavo's wishes are, and run a HUGE risk of putting one woman's destiny in a lawyer's hands.

It's a real shot in a dark, and a shot from a bazooka none the less.

	26-03-2005 13:40									#36
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quote: Originally posted by Capt Dizle If an attorney had been appointed for her, pray tell what the heck he or she might have done for Terri?

That's a damn good question, and it's about time we started considering it when medicine can keep a vegetable on line for years at a time, and when there may be families who bicker over it, and when the population is rapidly greying.

	26-03-2005 13:46									#37
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"But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself. "

This is the crux of the issue in my eyes. An attorney for Terri could have done nothing but witness the testimony about what Terri's wishes were and then watch the court rule. He or she could not argue one way or the other, because to do so would be to offer their opinion in place of Terri's. There is no way to know what her will is other than to rely on testimony and that was done.

How could an attorney for Terri have even questioned the testimony without prejudicing the case?

You simply cannot have an attorney go in there with a presumption that Terri would want life. That wouldn't be representation of Terri, that would be representation of a particular religious position.

	26-03-2005 13:50									#38
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Capt Dizle

An attorney cannot represent a person's wishes when said attorney does not know the wishes.

Indeed, the only people who the attorney can represent are pro-life or pro-choice campaigners, none of whom represent Terri.

	26-03-2005 13:51									#39
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quote: Originally posted by notyoueither But was there a lawyer there arguing her case as advised by the guardian?

Sigh.

	26-03-2005 13:59									#40
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quote: But was there a lawyer there arguing her case as advised by the guardian?

The guardian's decision on Terri's wishes are just as likely to be wrong as mine.

Technically if the guardian is a representative of Terri, then the guardian should be able to appoint a lawyer to represent the representative.

Again, we fall into the trap of not representing Terri, but someone else.

	26-03-2005 14:01									#41
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quote: Originally posted by Capt Dizle Sigh.

You don't get it.

It isn't up to the attourney which way to argue. It is up to the guardian, like with kids in tough cases. In a case like this the guardian needs to spend a very large amount of time becoming familiar with the pateint, her life, her friends, and her caregivers.

Then the guardian may advise/instruct a lawyer which way to go.

Given that this is the first of what will be many cases, we need to think what should be done when all parties involved might be coniving *****es, and to get to the bottom of what is right for the person whose life is on the line.

	26-03-2005 14:05									#42
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quote: Originally posted by Kalius The guardian's decision on Terri's wishes are just as likely to be wrong as mine. Technically if the guardian is a representative of Terri, then the guardian should be able to appoint a lawyer to represent the representative. Again, we fall into the trap of not representing Terri, but someone else.

What else do you do when there is a dispute among family? Leave a judge to hear 3 hours of disinterested testimony by doctors before he says 'yep, sounds like a veggie, shut the pump down?'

Or better yet, hear from both partisan sides about witnesses to he said or she said and have no power of investigation beyond sitting in the big black chair and spinning the wheel?

	26-03-2005 14:06									#43
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Drake, you were so full of it in the last thread. The husband spent all of the money on his wife's medical care and this is an established fact which the ocurt has reviewed. Terri's parents claimed her husband didn't care about her well being so the court reviewed the record to see if the parents' claim was valid. The result? The parents' claim was groundless.

Please stop spreading this complete lie that the husband is some how obsconding with a boat load of money because that's just not true.

	26-03-2005 14:14									#44
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quote: What else do you do when there is a dispute among family? Leave a judge to hear 3 hours of disinterested testimony by doctors before he says 'yep, sounds like a veggie, shut the pump down?' Or better yet, hear from both partisan sides about witnesses to he said or she said and have no power of investigation beyond sitting in the big black chair and spinning the wheel?

Terri's wishes will never be known, and it is likely they never would have been known. You can spend time with the family, with friends and with doctors, trying to know the situation, but so what? As soon as she loses the power of communication this means nothing. Situations change, and we do not know Terri's wishes, and no matter how long she is kept alive we will never know.

A decision is trying to be made on what her wishes are, but no one will ever know them, so what do we turn to? There is no capacity in our logic for making a conclusion on a premise which is absent. The only conclusion that can be made is no conclusion, which means we get nowhere.

A lawyer would be representing her guardian's "judgment" (let's not screw the facts here, the lawyer would not be representing Terri). This "judgment" is as good as anyone's guess.

	26-03-2005 14:19									#45
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quote: The husband spent all of the money on his wife's medical care and this is an established fact which the ocurt has reviewed.

No, he hasn't.

quote: At the time of the petition, a little over $700,000 remained in Terri Schiavo's trust. Reports from both sides vary on the amount left, but everyone agrees that the amount is minimal, most of it spent on authorized legal expenses. Michael Schiavo had no control over the trust fund.

http://www.footballfansfortruth.us/archives/000872.html

You're also ignoring the fact that almost all the money was in the trust fund when he placed the initial do-not-resuscitate orders on Terri and when he denied treatment for her bladder infection. By the time he petitioned the court to pull her tube, there was still $700,000 left. Seems like a conflicting interest to me.

quote: Please stop spreading this complete lie that the husband is some how obsconding with a boat load of money because that's just not true.

You're absolutely right when you say that Michael Schiavo won't be coming into a ton of money if Terri dies now. He would have, though, if the parents hadn't fought the attempts to kill her for all these years...

	26-03-2005 14:20									#46
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quote: Originally posted by Kalius Terri's wishes will never be known, and it is likely they never would have been known. You can spend time with the family, with friends and with doctors, trying to know the situation, but so what? As soon as she loses the power of communication this means nothing. Situations change, and we do not know Terri's wishes, and no matter how long she is kept alive we will never know. A decision is trying to be made on what her wishes are, but no one will ever know them, so what do we turn to? There is no capacity in our logic for making a conclusion on a premise which is absent. The only conclusion that can be made is no conclusion, which means we get nowhere. A lawyer would be representing her guardian's "judgment" (let's not screw the facts here, the lawyer would not be representing Terri). This "judgment" is as good as anyone's guess.

It behooves the state to try to get to know her wishes before flipping the switch.

There would be no problem if there were no dispute. However, there is one. The state needs to make real good and sure it makes the best choice possible. Simply saying 'it's too hard, we can't do this' doesn't cut it.

Our legal system was not set up with cases like this in mind. It is time we looked at modification. There was a time when children were never considered, because divorce was unheard of. Thankfully, that time is long gone.

	26-03-2005 14:22									#47
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The guardian felt that the husband's testimony alone was insufficient to provide clear and convincing evidence. I think the guardian stopped at that point. Made no decision as to what Terri's wishes were.

I don't see what an attorney could have done at that point. As I said before, it was simply a matter of hearing the testimony and the court ruling. An attorney would argue in which direction on what basis pray tell?

The judge agreed with the guardian and then ruled that the husbands testimony, coupled with the testimony of others, was sufficient evidence of Terri's intent. If you were the attorney that some insist should have played a role, what role would you have played?

	26-03-2005 14:27									#48
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quote: It behooves the state to try to get to know her wishes before flipping the switch. There would be no problem if there were no dispute. However, there is one. The state needs to make real good and sure it makes the best choice possible. Simply saying 'it's too hard, we can't do this' doesn't cut it. Our legal system was not set up with cases like this in mind. It is time we looked at modification. There was a time when children were never considered, because divorce was unheard of. Thankfully, that time is long gone.

You cannot know what is no one else knows. The best choice possible, to Terri, is unknown, and never will be known. But a choice must be made, but whom should it prefer? The pro-life partisans? The family or Mr. Schiavo? The doctors, they're a nice third party? A choice must be made because the system demands it, but the entire concept of the "best choice" for Terri is out the window because it's impossible to know.

You're totally correct, the legal system cannot cope with questions to which there is no answer, especially in this age of ethical reasoning.

	26-03-2005 14:30									#49
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But it must try, and be seen to be trying to reach the right decision, or the entire system is thrown into disrepute.

I'm sure a little digging by a social worker could be done, and a counsel for the patient could be appointed to present the findings of the agent for the patient.

Not every case would need it, just those where the parties could not agree and they turned to a judge to pass a death sentence.

	26-03-2005 14:32									#50
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quote: Originally posted by Kalius Terri's wishes will never be known,

Wrong. Her wishes are known because she told her husband, she told their mutual friends, and she told her sister in law.

	26-03-2005 14:34									#51
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quote: Originally posted by Capt Dizle The guardian felt that the husband's testimony alone was insufficient to provide clear and convincing evidence. I think the guardian stopped at that point. Made no decision as to what Terri's wishes were. I don't see what an attorney could have done at that point. As I said before, it was simply a matter of hearing the testimony and the court ruling. An attorney would argue in which direction on what basis pray tell? The judge agreed with the guardian and then ruled that the husbands testimony, coupled with the testimony of others, was sufficient evidence of Terri's intent. If you were the attorney that some insist should have played a role, what role would you have played?

That should have been up to the guardian. You can bet your booties that children in a bad case would be vigourously represented.

Part of the problem is the perception that 'it was just a judge' who is ordering a 'death sentence'.

That needs to be overcome, in fact and perception.

	26-03-2005 14:34									#52
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quote: Originally posted by Capt Dizle "But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself. " This is the crux of the issue in my eyes. An attorney for Terri could have done nothing but witness the testimony about what Terri's wishes were and then watch the court rule. He or she could not argue one way or the other, because to do so would be to offer their opinion in place of Terri's. There is no way to know what her will is other than to rely on testimony and that was done. How could an attorney for Terri have even questioned the testimony without prejudicing the case? You simply cannot have an attorney go in there with a presumption that Terri would want life. That wouldn't be representation of Terri, that would be representation of a particular religious position.

The attorney for Terri would have conducted an independent investigation into the matter. She could have discovered the prior inconsistent statements of Michael, his adverse interests, his prior suborning of perjury in the malpractice case and the witnesses who flatly contradict Michael's testimony on the issue. Attorneys are skilled at the law, at using discovery, at conducting depositions, at getting at the truth. Guardians who only hire doctors to conduct a medical investigation do not represent the victim adequately on the critical issue of consent.

Even Terri's parents say their position would be entirely different had Terri left a written document declaring her wishes, or had clearly communicated her wishes to them as well. But Terri stands condemned to death on the parol testimony of adversely interested witnesses who were able to introduce that testimony apparently without objection and apparently without due caution by the judge in this case who was supposed to establish the matter of consent by clear and convincing evidence. In the Cruzan case, which I cited earlier, Missouri refused to accept the parol testimony of witnesses who appeared to be disinterested as "clear and convincing." That is the right legal standard.

	26-03-2005 14:35									#53
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quote: Originally posted by Drake Tungsten [q] You're also ignoring the fact that almost all the money was in the trust fund when he placed the initial do-not-resuscitate orders on Terri and when he denied treatment for her bladder infection. By the time he petitioned the court to pull her tube, there was still $700,000 left. Seems like a conflicting interest to me.

Wow, your conspiracy theory just is a 180 compared to CNN's coverage. Now I must decide if I trust CNN or that website you linked. decisions, decisions.

	26-03-2005 14:36									#54
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quote: Originally posted by Capt Dizle The guardian felt that the husband's testimony alone was insufficient to provide clear and convincing evidence. I think the guardian stopped at that point. Made no decision as to what Terri's wishes were. I don't see what an attorney could have done at that point. As I said before, it was simply a matter of hearing the testimony and the court ruling. An attorney would argue in which direction on what basis pray tell? The judge agreed with the guardian and then ruled that the husbands testimony, coupled with the testimony of others, was sufficient evidence of Terri's intent. If you were the attorney that some insist should have played a role, what role would you have played?

You clearly do not understand the role of an attorney.

	26-03-2005 14:38									#55
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quote: But it must try, and be seen to be trying to reach the right decision, or the entire system is thrown into disrepute. I'm sure a little digging by a social worker could be done, and a counsel for the patient could be appointed to present the findings of the agent for the patient. Not every case would need it, just those where the parties could not agree and they turned to a judge to pass a death sentence.

Well, I think regardless of the decision it makes, the system is in disrepute, because people will be let down because the "law of the land" is in direct conflict with their personal oponion.

A little digging by a social worker can be done, but if you dig for evidence of a potato shortage and only look in potato farms, you're not going to find much The evidence of Mrs. Schiavo's wishes is all in the testimony of the people, and really that is awfully subjective to say the least.

There is a horrible lack of tangible proof in this case. Most cases have some tangible proof or they are thrown out. A gun with fingerprints, blood in the car, or something. The courts cannot handle a case with no tangible proof, and throwing out the case is not an option.

You simply cannot throw out a case in which both sides can claim to be prosecutors/defendants.

	26-03-2005 14:41									#56
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quote: Wrong. Her wishes are known because she told her husband, she told their mutual friends, and she told her sister in law.

But there is no tangible proof. A written document, a tape, just testimony. You cannot convict someone on the basis of pure testimony or we fall into a To Kill a Mockingbird situation.

	26-03-2005 14:42									#57
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Many child custody cases are *****es too. That doesn't mean the system isn't constructed to try to get the best result.

	26-03-2005 14:42									#58
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The Federal Judge denied most of Terri's Federal Claims in part on the basis that their was no state action. http://news.findlaw.com/cnn/docs/sc...32505ord2nd.pdf However, in the very same opinion where he cited a few lower court decisions in support, he cited the Supreme Court case of Cruzan (which I cited above for another point) which proceeded on the basis that State court action denying the parent's petition to pull the plug WAS state action. I fail to see how a state court rulling condemning the victim to death over the objections of the parents is similarly not state action.

David Bois tonight said that Terri's parents did make the right argument in the second case that her fundamental right to life was being denied by state action her in that her parents are being denied by the state courts of Florida any right to feed their daughter in absence of any sufficient evidence of her intent on the consent issue.

	26-03-2005 14:44									#59
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quote: Originally posted by Ned You clearly do not understand the role of an attorney.

Yeah, well, fine.

	26-03-2005 14:45									#60
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quote: Originally posted by Ned The attorney for Terri would have conducted an independent investigation into the matter.

That's why the court had appointed no less then a dozen differnet doctors over the years to provide an independent purely factual review. All 12 came to the same conclusion. 19 judges looked at the legal facts and listened to the individuals who testified that terri told them she did not want to live as a veggitable and they reviewded the parents claims. In the end all 19 judges agreed; one after another.

You need to let go. Terri said she wants everyone to let her go.