Contributors
Patterico - Contributor

Fighting For Her Life
Inflicting 'Capital Punishment' on Terri Schiavo...
[Patterico] 11/8/03

Imagine that a court is about to decide whether you will live or die. Although it's a frightening thought, you can take comfort in your constitutional rights. Here in the United States of America, your case will be decided by a jury of your peers, which cannot condemn you to death unless it finds the essential facts to be true beyond a reasonable doubt. If the courts convict you unjustly, you can ask the governor to issue a stay, or commute your sentence. And if you do not get a reprieve, the Constitution says that the government cannot cause you to die by cruel and unusual means.

You are entitled to these protections and more -- that is, if you face a death sentence because you committed a brutal murder. And here in California, you can count on legions of activists to protest if you are threatened unfairly with death.

But the situation is quite different for Terri Schiavo, the brain-damaged Florida woman whose husband obtained court approval to have her feeding tube removed - and would even have been worse had she been a resident of California. Unlike a convicted murderer, Ms. Schiavo was ordered to die based on the findings of a single judge, applying a standard of proof typically reserved for civil cases involving monetary awards, rather than life-or-death issues. If the political left had its way, Ms. Schiavo's death warrant could not be countermanded by the governor, as could occur in a criminal case. Finally, Ms. Schiavo was ordered to die in a way -- forced starvation and dehydration -- that would never be tolerated as a means of executing a murderer. Worst of all, a patient in Ms. Schiavo's position in California would likely receive even less protection under the law than Ms. Schiavo has received in Florida.

The stakes in the Schiavo case are high, just as they are a capital murder case.

In both cases, parties are litigating whether a human being will live or die. In both cases, the burden of proof is appropriately placed upon the party seeking to end a human life. And in both cases, the wrong decision could result in the killing of a person who neither wants nor deserves to die.

Despite the high stakes involved, the life of someone like Ms. Schiavo is not protected by our judicial system the way it would be if she were on trial for capital murder. Like all criminals, suspected murderers are constitutionally entitled to have their cases decided by a jury -- bringing to bear the collective experience and wisdom of a diverse group of people. Indeed, the Supreme Court recently held that a death penalty cannot constitutionally be imposed where the facts supporting the imposition of the penalty were determined by a judge, rather than by a jury. Moreover, all criminal defendants are entitled to have their guilt decided according to the stringent "beyond a reasonable doubt" standard -- the highest evidentiary standard in our judicial system.

By contrast, Ms. Schiavo -- who killed nobody -- was condemned to death based on factual findings made, not by a jury, but by a single probate judge. That judge was not required to decide the facts of her case beyond a reasonable doubt.

Rather, the judge ordered that Ms. Schiavo be starved and dehydrated to death, after making factual findings according to the lower "clear and convincing evidence" standard applicable in many civil cases.

As Ms. Schiavo's case shows, this standard can be very malleable in the hands of a single judge. The judge in Ms. Schiavo's case found "clear and convincing evidence" that Ms. Schiavo is in a persistent vegetative state from which she will never recover -- despite testimony and statements to the contrary from several respected doctors. Moreover, videos appear to show Ms. Schiavo responding appropriately to stimuli. Finally, people like Rus Cooper-Dowda are living proof that a person can be diagnosed to be in a persistent vegetative state, and live to tell the tale. Ms. Cooper-Dowda has written of the horror of lying in her bed, listening to doctors talking about when they were going to kill her. But arguments like this failed to sway the probate judge who alone decided Ms. Schiavo's case.

He believed the doctors who supported Mr. Schiavo's position -- and that was that.

Similarly, that judge found "clear and convincing evidence" that Ms. Schiavo would want to be starved to death, despite the fact that Ms. Schiavo left no written expression of her wishes, and her own family does not recall her saying anything about the issue. The evidence of her alleged desire to die consists entirely of hearsay testimony from Mr. Schiavo, his brother, and his sister-in-law, concerning statements they say Ms. Schiavo made in casual conversation.

Watching a television movie about Karen Ann Quinlan, Ms. Schiavo allegedly said that she would not want to be hooked up to a machine, or to be a burden to others. Discussing a friend's dying baby, Ms. Schiavo allegedly said that she wouldn't want to be kept alive with "tubes." Even if this testimony were taken at face value, Ms. Schiavo's statements do not clearly reflect a considered decision that starvation and dehydration would be preferable to receiving basic nutrition through a feeding tube -- especially if she had parents willing to care for her, no painful or terminal illness, and a possible chance at being weaned off of the feeding tube and being able to swallow food on her own.

Moreover, there is substantial reason to doubt Mr. Schiavo's claims regarding his wife's stated wishes. Mr. Schiavo suffers from clear conflicts of interest -- both emotional and financial. He has lived with another woman for eight years, and has sired two children by that woman. His statement that his wife would want to die conveniently facilitates his ability to inherit what remains of a $750,000 trust fund, created pursuant to a judgment in his wife's medical malpractice case. Mr. Schiavo won that judgment by arguing to the jury that he wanted to rehabilitate his wife -- never mentioning that she supposedly did not want rehabilitation under these circumstances. Once the trust fund was set up, Mr. Schiavo quickly refused to pay for the rehabilitation.

When the stakes are life and death, the system should not allow such evidence to be rejected based on a credibility determination made by a single judge, applying the same standard that juries use to decide whether someone who spilled coffee on their lap is entitled to punitive damages. That the evidence in the Schiavo case is susceptible to more than one reasonable interpretation is illustrated by the fact that a guardian ad litem, who was appointed early in the case, declared that he was troubled by Mr. Schiavo's obvious conflicts of interest, and did not find his claim regarding his wife's alleged wishes to be credible. The guardian recommended against the requested starvation and dehydration, but that recommendation was rejected by the probate judge. If the guardian was not convinced by Mr. Schiavo's claims, isn't it possible that the probate judge got it wrong?

The availability of judicial review is cold comfort. The political left continues to repeat the refrain that this case has been reviewed by 19 (or, depending on who is making the claim, 20, or even 24) judges -- all of whom examined the facts and ruled for Mr. Schiavo. Sadly, this just isn't true. The fact is that appellate courts almost never conduct an independent review of the facts. Instead, they defer to the credibility determinations made by the trial judge -- as long as some evidence was presented by the side that won. This case is no exception. The fact that the case has been appealed several times does not change the fact that the critical facts were decided by one man, and one man alone.

In criminal cases, society recognizes that such limited appellate review is sometimes inadequate to properly evaluate an accused's claim of innocence.

For this reason, our system of checks and balances authorizes the head of the executive branch to act as a sort of fail-safe mechanism. If new evidence of innocence arises -- or if a governor believes that the judicial system has overlooked previously presented evidence of innocence -- the governor may grant a stay of execution, a commutation of the sentence, or even a full pardon.

Nobody contests the authority of a governor to perform such acts, even if he thereby reverses a final judgment of the courts, reached after twelve members of the public unanimously found the accused to be guilty beyond a reasonable doubt.

But in the Schiavo case, it took a special law to grant Florida's Governor Jeb Bush the authority to issue a one-time stay of the judicial order intended to kill Ms. Schiavo. The law was passed only after Ms. Schiavo's parents obtained several affidavits attacking the credibility of Mr. Schiavo's claims regarding his wife's wishes. For example, a former co-worker of Mr. Schiavo's executed an affidavit saying that he had repeatedly confided in her that he had no idea what Ms. Schiavo would have wanted. Also, a registered nurse executed an affidavit saying that Mr. Schiavo often said things like: "When is that bitch gonna die?" -- and would talk about all the things he was going to buy, and trips that he would take, once his wife finally died.

If issues of similar significance were raised in a capital murder case, calling into question whether courts were correct to order a death sentence, liberals would rush into action to prevent the possibility of an unjust execution. But here, where the person condemned to die was not convicted of murder, the political left seems eager to ignore any suggestion that the courts might be wrong. When Governor Bush acted to save Terri Schiavo's life, howls of outrage from the left were heard from coast to coast.

Perhaps the most disturbing distinction between Ms. Schiavo's case and that of a convicted murderer is that there is no law against subjecting Ms. Schiavo to cruel and unusual punishment. The death ordered by the courts in the Terri Schiavo case -- a slow death by dehydration and starvation -- is not a death we would wish for a dog. If the patient has any conscious awareness (as many doctors have said Terri Schiavo does), such a death can be agonizing. Patients may feel pangs of hunger and thirst. Their skin, tongue, and lips may crack. They may suffer nosebleeds, heaving, and vomiting.

It is bitterly ironic that, at the same time that many on the left argued that Terri Schiavo should be killed in this brutal way, our United States Supreme Court granted a stay to a man convicted of murdering two people, to examine his claim that lethal injection would be cruel and unusual punishment because he has collapsed veins.

Californians have special reason to be worried by the lack of protections for Terri Schiavo, because even fewer protections are available in California. The California Supreme Court has held that courts must apply the "clear and convincing evidence" standard (the standard used in the Schiavo case) to resolve whether a conservator may withhold artificial nutrition and hydration from a "minimally conscious" patient -- one able to throw and catch a ball, write letters and draw shapes, and sometimes even answer questions "yes or no." By contrast, the court said, evidence meeting that standard is not required to order the death of a patient who (like Ms. Schiavo) is ruled to be in a "persistent vegetative state."

Ideally, cases like that of Ms. Schiavo should not end up in the courts. Ideally, these sorts of life-and-death decisions should be made privately, by the patient's family, according to the best interests of the patient. Ideally, people will make their wishes known in a clear, unmistakable written form, or will vest decisionmaking power in a trusted person, using a power of attorney, or a designation of a surrogate.

But life is not always ideal, and we must recognize that there will be unfortunate situations like that of Ms. Schiavo, where relatives dispute what is the appropriate course of action in the absence of a clear directive. In such situations, the procedural protections available to criminal defendants should be made available to people who can't speak for themselves, whose very life or death hinges upon the court's decision.

Is not Terri Schiavo's life worth at least as much as that of a suspected murderer? Why, then, do we not accord her at least the same protections under the law that we would accord to someone charged with deliberate, cold-blooded murder?

copyright 2003 Patterico

§