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Tuesday, March 22, 2005

Terri's Passion 3/22

Tuesday of Holy Week

Judge Whittemore denies parents' request for relief. Schindlers file appeal to 11th Circuit Court.

Commentary: I'm not a lawyer, but I wouldn't necessarily mind playing one on TV. The judge apparanetly reviewed two separate arguments that Terri's civil rights were violated, 1.) that she has not been given due process, and 2.) that she was denied the right to practice her religion. There are three things that strike me about this that suggest this ruling is in error.

I think due process was probably followed here in form, but not necessarily in substance. First, Terri has never had a PET scan, or MRI, done, yet the judge accepted "expert testimony" that did not include the use of these widely used and widely known tools. Issuing a stay to complete due diligence here as part of a de novo record would seem justified. Second, I do not know how prevalent this is in practice, or how well I understand this, but the judge (apparently?) appointed himself as advocate, later appointing someone on his behalf, in the finding of fact, thereby creating what commonsensically would be considered a conflict of interest. Lest anyone think that this ought to have worked in Terri's favor, consider whether a person in such a situation would not bend over backwards the other way so as to not give the appearance of bias to the person on whose behalf he's acting allegedly. The third item is related to Terri's Roman Catholicism. Michael and the hospice systematically denied Terri regular access to the sacraments. That is without question. The judge claims that it was not the state that did this but Michael and the hospice. However, through repeated affirmations by the state court rulings regarding custody and care, the state has in effect assumed culpability here. Were this not the case, then during the civil rights era, many victims of discrimination could not have received the relief that they did from the federal courts. This third point is the one being hammered by David Boies of Bush v. Gore fame.

Update:
I called in sick for work today, so I ended up watching a lot of cable news. Here's are just some of the things I heard while watching and praying:

- "Justice Department and a congressman file 'friend of the court' briefs"
- "Terri's death is imminent."
- "People who disagree with the state court and the doctors are anti-science."
- "Terri received the Catholic Church's Last Rites and a few drops of blessed wine (sic) in her feeding tube before it was removed on Friday."
- "Rick Santorum is spitting mad that the judge didn't order the tube re-inserted."
- "Congress overstepped its bounds according to the American people."

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