DEATH BY CRUEL AND UNUSUAL "JUSTICE"

An assistant news editor of the Lancaster Sunday Times (lancasteronline.org, 4/2/2005) had this to say: "The Schiavo case was wrenchingly complex, with no easy answers. But to the extremists, the answers are easy." In case you wondered: the "extremists" are "social conservatives" and the "cultural right" who think that an innocent person shouldn't be executed by starvation.

Where is the "complexity" in the tragic case of Terri Schindler Schiavo?

* Terri Schiavo was a disabled person, but she was not dying. To say, as the many defenders of her killing did, that "she should be allowed to die" or that we should "let her die" was not a matter of recognizing "complexity" but of misrepresenting her status.

* Terri Schiavo was guilty of no crime. Attorneys for Schiavo's parents and siblings argued before federal district judge James Whitemore that killing Terri Schiavo by starvation amounted to "cruel and unusual punishment," in violation of the Eighth Amendment. Judge Whitemore ruled that the protection of that amendment was unavailable to Mrs. Schiavo--because she was no criminal.

Had Mrs. Schiavo been a serial killer, any judicial ruling condemning her to death by starvation would have been immediately overturned on appeal. And the judge imposing such a sentence would have seen his career end in shame. But of course, there is the "complexity" of the case--where wrong is right, and the "judicial process" results in injustice.

Had a man in Pinellas County, Florida, killed his pet dog by slow starvation over 13 days, he would now be facing a prison sentence. And the papers and airwaves would be full of indignation about the sheer inhumanity of it. Terri Schiavo, however, was a human being--making her eligible for a "private" killing.

* Terri Schiavo was the victim of a shoddy legal process. Much has been made of the numerous appellate reviews and rulings in the Schiavo case. "The law was followed," we are told. How can "following the law" result in the legally sanctioned private and cruel execution of an obviously innocent person?

Sound legal practice requires that a person in Schiavo's condition be assigned an independent guardian if there is a substantial likelihood of the existing guardian having a conflict of interest. For a short time, Mrs. Schiavo had an independent guardian. That guardian, attorney Richard Pearse, informed Pinellas County Judge George Greer that Mr. Schiavo was not a credible witness as to his wife's wishes about her treatment in her incapacitated state. Mr. Schiavo's attorney, George Felos, then requested that the independent guardian be dismissed. Judge Greer agreed, and after that Mrs. Schiavo had no effective legal representation of her own.

"Under the law of Florida the patient's prior wishes must be demonstrated with 'clear and convincing evidence'--the highest standard of legal certainty in civil cases. In cases where this standard of proof is not met, the court must 'err on the side of life,' under the assumption that most people, even those who are profoundly disabled, would choose life rather than death. In other words, the state is not supposed to judge the comparative worth of different human beings" (Eric Cohen, Weekly Standard, 4/4/2005). Nevertheless, Judge Greer elevated hearsay from a source with a clear conflict of interest to the level of "clear and convincing evidence."

According to a statement by over 20 disability organizations, Judge Greer violated Mrs. Schiavo's due process rights. Florida law defines a "persistent vegetative state" as a condition without evidence of "responsiveness." Ignoring the statute, Judge Greer ruled that Mrs. Schiavo's actions were not consistent or reproducible enough to demonstrate "cognitive function." Judge Greer never observed Terri Schiavo.

Judge Greer's errors were compounded when a Florida appeals court restated the legal issue to its liking: The court must decide "whether Theresa Marie Schindler Schiavo after ten years in a persistent vegetative state with no hope of medical cure would choose to continue the constant nursing care and the supporting tubes , or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives" (from a quote by Eric Cohen, see above).

At the appeal level, the courts tend to treat findings of fact by the lower court with great deference and limit the review mostly to questions of procedure. That was a huge obstacle for Mrs. Schiavo, because Judge Greer's findings of fact were clearly open to challenge: Did he impermissibly elevate hearsay to the level of "clear and convincing evidence," and did he rule falsely about Mrs. Schiavo being in a persistent vegetative state? Instead of correcting the errors of Judge Greer, the appeals court commented on her pitiful condition, implied that she was dying ("permit the natural death process to take its course"), and pointed out the positive consequences of her death for others ("for her family members and loved ones to be free to continue their lives").

The courts' readiness to declare patients to be in a persistent vegetative state on flimsy evidence; to describe that state as totally hopeless, contrary to the uncertainty of the medical diagnosis and the actual outcome of many cases; and to transform starvation into "letting the natural course of dying take place" is not limited to the judiciary of Florida.

In Virginia, in the 1998 case of the court-sanctioned killing of Hugh Finn, the courts ruled that "as a matter of law, the withholding and/or withdrawal of artificial nutrition or hydration from a person in a persistent vegetative state merely permits the natural process of dying and is not mercy killing." (Quoted by Matthew Franck, national review.com, 3/30/2005.)

Laws passed by the Congress and the state of Florida in support of fair treatment of Mrs. Schiavo were ignored by the federal judiciary and declared "unconstitutional" by the state judiciary. So for now, the extra-constitutional supremacy of the judicial branch over the legislative and executive branches of government is an oppressive fact of life.

Restoring the proper balance must concern all of us.