Nat Hentoff Lays Into Obama on Schiavo
My buddy Nat Hentoff has been dealing with the issues covered here at SHS long before I was even a writer. An atheist and civil libertarian, Hentoff sees his advocacy on behalf of the equality of all human life--including in opposition to abortion--as consistent with his belief in human rights and dignity.
In this article in the Forward, Hentoff takes Senator Obama to task for his (cynical, says I)"admission" of a mistake allowing the Federal Terri's Law to pass through the U.S. Senate with unanimous consent, writing in part:
Nentoff closes with a wholly justified swipe at Judge George Greer, who ordered a helpless woman dehydrated to death without once bothering to visit the helpless woman whose life he held literally in his hand:Obama added: "I think that was a mistake, and I think the American people understood that was a mistake. And as a constitutional law professor, I knew better."
When he was a professor of constitutional law, Obama probably instructed his students to research and know all the facts of a case. The reason Congress asked the federal courts to review the Schiavo case was that the 41-year-old woman about to be dehydrated and starved to death was breathing normally on her own, was not terminal, and there was medical evidence that she was responsive, not in a persistent vegetative state.
One of the leading congressional advocates of judicial review was staunchly liberal Democratic Tom Harkin of Iowa, because he is deeply informed about disability rights. By contrast, in all of this inflamed controversy, the mainstream media performed miserably, copying each other's errors instead of doing their own investigations of what Terri's wishes actually were. Consequently, most Americans [Me: Due to media bias and malpractice] did not know that 29 major national disability-rights organizations filed legal briefs and lobbied Congress to understand that this was not a right-to-die case, but about the right to continue living.
Among them were: The National Spinal Cord Injury Association; the National Down Syndrome Congress; the World Association of Persons with Disabilities; Not Dead Yet; and the largest American assembly of disability-rights activists, the American Association of People with Disabilities.
Five witnesses testified on whether Terri would have refused artificial nutrition, including water, in the condition she was in. Her mother and a close friend of Terri testified she had said clearly she would want these essential life needs. The other three witnesses said Terri would have approved the removal of her feeding tube.Right on, Nat!
These last three were in alliance on what became a death penalty: Michael Schiavo, his brother and his sister-in-law!
It was on the basis of that 3-to-2 vote that Florida state judge George Greer ruled that "clear and convincing evidence" allowed him to remove her from life--and then 19 judges in six courts, including federal courts--agreed. Like the press, those judges did no independent investigations of their own. And those careless judges are now joined by the equally irresponsible robot-like judgment of Sen. Barack Obama. He should be proud of the Senate vote he now recants--and learn a lot more about the disabled.
posted by Wesley J. Smith @ 12:43 PM
19 Comments
19 Comments:
Wesley,
I read Nat's article. He refers to something of interest in it.
"But at a January 2000 trial — as reported by Notre Dame law school professor O. Carter Snead in "Constitutional Quarterly" (published by the University of Minnesota Law School) in its winter 2005 issue:"
Have you ever read Snead's Law Review Document on the Schiavo case?
He very clearly showed the evidence used to condemn Terri was scant and vague.
Snead clearly concluded that evidence was NOT Clear and Convincing.
I have not read Snead (who I know slightly). But no less than Alan Dershowitz (I think) said that. As a lawyer, it is clear to me too that the evidence did not rise to the C and C standard. Not anywhere close.
I have. It is a powerful article.
Unlike many journal articles, this one can be downloaded for free:
link
Thank you Susan. It's powerful and compelling law review. More people should read it. Maybe Wesley will read it.
Shame on you Wesley. As a lawyer you know perfectly well that not all testimony and evidence automatically passes muster. Some is therefore disqualified for consideration.
As an officer of the court I am surprised and appalled that you wouldn't address something so obvious and that you would lend a hand to someone trying to undermine the publics proper understanding of legal process.
Judge Greer clearly articulated a reasonable basis for disqualifying certain testimony in the case. Review upon review did not find anything arbitrary, capricious, erroneous or egregious about the rejection of the disqualified testimony.
Furthermore you should know that Nat is wrong in his claim that courts of appeal conducted no honest review and investigation or that their review was cursory or perfunctory:
http://www.2dca.org/opinion/June%2006,%202003/2D02-5394.pdf
"... this court has closely examined all of the evidence in this record. We have
repeatedly examined the videotapes, not merely watching short segments but carefully
observing the tapes in their entirety. We have examined the brain scans with the eyes
of educated laypersons and considered the explanations provided by the doctors in thetranscripts. We have concluded that, if we were called upon to review the guardianship
court's decision de novo, we would still affirm it."
Nat is flatout WRONG in his assertion that appeals courts simply rubber stamped approval after approval on Greers handling of the original case, worse- he probably knows it.
Certainly if you didn't know before YOU do now.
I look forward to your rationalizations and justifications for yourself and Nat.
You know, Mr. Know-It-All, judges can screw up, and Greer clearly did. The higher courts couldn't do much about it, hence the move by Congress to try and remedy the mistake. I suggest you read the article by Snead, but you won't, of course, because you want to push an agenda.
"Snead clearly concluded that evidence was NOT Clear and Convincing." - James
A clearly flawed conclusion since he never addressed the fact that courts have discretion in disqualifying testimony and evidence from consideration.
Testimony and evidence must survive scrutiny and impeachment.
Mr Snead presumed to substitute myth for reality in that he assesses all the testimony and evidence and pronouces it not "clear and convincing".
He should have confined himself to what was not disqualified since what was not disqualified was what was used to reach the clear and convincing standard.
What the court DID NOT consider should also not have been considered by Mr Snead in his assessment of whether the court properly reached a conclusion that what it kept in the way of testimony and evidence for consideration was in fact clear and convincing.
Instead he incorrectly inspected testimony that wasn't considered and used it as the basis for a flawed inspection of the courts conclusion.
Susan, God bless you. You presume to know me and you are clearly angry at me for pointing out what is incorrect. If I apologize will it make the truth any easier for you to accept? If I don't will it make the truth less important and will you feel better by beating me up?
No_Deception_Allowed: A big problem for Terri's family is that they had a very bad trial record. The original attorney was not experienced in these matters, as opposed to Mr. Felos, conceded things that should not have been and, frankly, did not prepare her clients well for what was to come.
So a big part of the problem was that very important evidence was never permitted into the record--which was a big reason why so many of us see this as a profound injustice. This was a case involving life and death and the Schindlers lost on procedural barriers to justice. Which was a big reason why the Feds passed the Federal Terri's law with unanimous consent in the Senate and about 40% of Democratic votes in the House.
But even what was considered, was not clear and convincing. Three witnesses with an axe to grind, with $700 K at stake, and a man living with another woman who he called his fiance, creating a personal conflict of interest.
But appeals courts place great weight on trial judge's evidentiary conclusions. It makes cases like this, where a judge says it is clear and convincing hard to overturn.
No Deception Allowed: No, it is shame on Judge Greer and I will never think otherwise. Which was one reason why the Feds passed the federal law. And the Federal judge basically refused to give a true trial de novo that would have permitted, among other things, Michael Schiavo to be cross examined, new evidence to be brought forward, credible evidence about Schiavo's desires for Terri to die from three nurses who cared for her, and etc. to be brought before a new judge. That was what the Congress had in mind and that is what was not provided.
I believe that the Schiavo case became, among other issues, a power struggle between the political and judicial branches. And I believe her life and its import got lost in that struggle. And it constitutes a black mark on the system of justice.
Interesting. First you outline that the case presented by the Schindlers and their attorney was weak but then you say "shame on judge Greer".
So it was the fault of the judge that the Schindlers presented a weak case?
As I recall there was no dispute at the time of the trial as to whether Terri Schiavo was PVS or not so it seems a little off base to say "conceded things that should not have been".
The PVS diagnosis was the only stipulation between the parties.
All the parties felt that PVS was the truth of the matter so conceding the truth is problematic in what way?
You understand that disputing the PVS diagnosis was a legal tactic that a new attorney dreamed up in a much later attempt to find a way to challenge the original decision?
As an attorney you also understand that there is a world of difference between saying "evidence was never presented (at the trial)" and "evidence was never permitted into the record"
If this evidence existed at the time and was available at the time why was it not presented? Did the Schindlers not take the matters seriously? Were they so cavalier about the case that they didn't think they needed to bring and present their best evidence and the best available evidence and ALL THE IMPORTANT EVIDENCE with them to court?
Do you suppose their lawyer didn't take the case seriously? Are you suggesting their lawyer wouldn't have made sure to bring all the important available evidence with to court? I know you claim she was hopelessly outmatched but I'm wondering what that has to do with getting all the important and available evidence for her case into court? Outmatched or not she could have brought all the great evidence the Schindlers ever had even if it took a semi truck to haul all of it.
Frankly I get the impression you don't really have much of a handle on what happened legally- you say there was credible evidence from three nurses that should have been heard- the fact is that Ms Iyer did get a shot.
Judge Greer was presented with the claim by Ms Iyer that she had been calling the Schindlers in the 90's to inform them that Michael Schiavo might be trying to harm or murder their daughter. Judge Greer again clearly articulated why he questioned the credibility of this claim.
Essentially he said he assumed the Schindlers understood the nature of the proceedings and the importance of those proceedings and therefore they would have brought their best efforts, their best witnesses and their best case and he simply couldn't accept that they would have forgotten to bring Carla Iyer with them to tell about those phone calls. I think he said it just wasn't credible.
Wesley,
Everthing I believe went back to the 2000 trial involving the Schindler's attorney, Pamela Campbell. You are correct. She performed a very poor job. She failed to depose Scott and Joan Schiavo which was a fatal mistake. She got the Schindler's to stipulate Terri was PVS which was a legal suicide manuaver that played into the hand of Felos. Campbell's cross examination were ineffectual and accomplished nothing. Campbell also failed to perform a proper pre-trial discovery.
I always believed Campbell may have been a planted. She was reccommended to take the case for the Schindlers on behalf of Michael's previous attorney, Glen Woodworth. Campbell also had ties to Mark Shames who was the judge who allowed Michael to hire Felos.
It was also disturbing that after Terri died, Campbell awarded Judge Greer an award for judicial excellence and was later made a judge.
The Schindlers clearly lost because they had a crummy lawyer and perhaps a planted lawyer who failed misearably to advocate for Terri's life.
I am not going to relitigate this, but I find Greer's refusal to permit a new trial after so much new evidence became available unconscionable. More particularly, when Terri was just going to lie ina bed for a year pending appeals, and the family asked to try rehab therapy, with some very good indications from therapists from the U of Chicago that she might be able to learn how to swallow on her own, he said no. There would have been no harm in trying, but he adamantly refused. I find that unforgivable.
But onward. There are other helpless people being dehydrated to death slowly all over this country. Maybe a few of them can be saved.
James. She wasn't planted. She did her best in a case with limited resources. Remember, Michael got to use Terri's entire $700 K on lawyers to make her dead. Didn't cost him much of anything. She was just unaware of the forces at work. She probably didn't believe it would actually be done, I have seen that before.
No deception allowed (what a joke of a handle): I have read every one of your "arguments" again and again and again, and they are full of it. You are repeating George Felos' talking points almost verbatim, and the same nonsense was spewed by too many "left" discussion boards and blogs.
YOUR problem is that like so many who supported Michael Schiavo, despite his ridiculous claims and outrageous conflicts of interest, is you had a problem with the right-to-life people supporting the Schindlers. THAT'S why there was so much support for the dubious Michael Schiavo, who changed his mind about Terri when it became convenient for him to do so, and he never could keep his lies straight. It's all political with you.
I don't support the anti-abortion crowd, either, never have, never will, but I KNOW an injustice when I see it. And it happened here.
Tell me, no deception, why did Michael promise to take care of her for the rest of her life, and then when the money came in and he had a new girlfriend, he did a 180?
You can't argue it, so you try to deceive people by claiming Judge Greer, who never saw Terri in person, was right because YOU can't accept the possibility the right-to-life people, as well as disability rights people, were RIGHT about this outrageous case.
And what about Michael, who was ready to throw in the towel near the end and give up Terri to her parents, but was talked out of it by George Felos? See, you can't argue around it, because Terri's wishes were NOT known at all. It was all about Michael Schiavo.
You are not going to persuade anybody here who has looked at this case and knows the truth about the case.
Greer should have been forced to step down as judge and even have disciplinary action taken.
I can't stand the dubious arguments made by so-called Michael Schiavo supporers who are willing to deceive because of the heavy involvement by the right-to-life groups in the case. It was a huge tactical error on their part. The disability rights groups should have been in the forefront of this case, and if that had happened, there would have been far more outrage against Greer.
Wesley and I were having a side discussion about legal process and the way it is being represented or misrepresented.
We weren't engaged in a discussion about Michael Schiavo or whether he is a good person or a bad person. I think some people are more forgiving than others.
Frankly I think if Hannibal "silence of the lambs" Lechter wasn't a character in fiction he might have proven to be blood related to Mr Schiavo. (said for a laugh...)
Susan you seem very passionate in your beliefs.
If I told you I agreed with you and thought Michael Schiavo was related to satan you'd still have issues with anything I had to say because it isn't obvious, unquestioning and loyal support for whatever you think favors YOUR perspective and YOUR opinions.
I have issues with the claim by Nat Hentoff that:
"...those judges did no independent investigations of their own. And those careless judges are now joined by the equally irresponsible robot-like judgment of Sen. Barack Obama."
He has no idea what efforts were made by judges or what was on their minds but it was obvious this case wasn't taken lightly.
You'll note that Wesley commented:
"A big problem for Terri's family is that they had a very bad trial record." (referring to the 2000 trial)
I readily agree. I also agree with Wesley that there is no reason to suspect Pamela Campbell threw the case- she was just ordinary and well intentioned and had no idea how weak her Kung foo really was until she faced a seasoned warrior.
As for Sen Barack Obama- he can kiss my flag saluting, National Anthem Singing ...
You are right Susan, Judge Greer should have stepped down. He was asked to recuse 4 times and denied them all. Interestingly enough it was Judge Greer's decision on whether to recuse or not. It was quite clear Judge Greer was NOT and unbiased judge. Judge Greer clearly had a bias against the Schindler and to Terri as well. Judge made very biased statements such "I don't want anyone feeding the girl." and "The Law of the this case in that Terri will die." Addition Judge Greer was caught discussing the case to reporters, people and even talked about the case to high ranking VIPs. Judge Greer was also legall y blind and it was questionable on whether Judge Greer could even see Terri's responses on the videos. Judge Greer also did not report in open court that he was legally blind. Judge Greer steadfastly refused to remove Micheal as guardian and also allowed Michael to overlooked statutory requirements in Michael's guardianship. Judge Greer further absolutely refused any testing of Terri Schiavo or therapy for her and refused to consider sworn affidavits given to him.
Post a Comment
Subscribe to Post Comments [Atom]
<< Home