GREER ORDERS DEATH WITHOUT DUE PROCESS BEING AFFORDED
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Posted by john w k on February 25, 2005 at 13:15:27
Today, just a short while ago, Greer ordered Terri to be left to starve to death, in spite of the fact that Terri has not been afforded fundamental and constitutionally protected rights!Some facts concerning Terri’s case.
The SCOTUS upheld in CRUZAN that a state may require a “clear and convincing evidence standard” to support the assertion that it is the patient’s wish to die. In Terri’s case that standard was never met. The Court in CRUZAN concluded 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. 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adduced at trial did not amount to clear and convincing proof of the patient's desire to have hydration and nutrition withdrawn.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 "suggested" Nancy Cruzan would not have desired to continue such measures, 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.
The judgment of the Supreme Court of Missouri is Affirmed.”The Court came to this conclusion primarily because, when in doubt as to a patient‘s wishes, “err on the side of life“!
There is no evidence from Terri’s own lips or hand indicating a carefully thought out end of life directive that she wants to be left to starve to death. In Terri’s case, her husband has gone into court to obtain a court order to carry out what he alleges to be Terri’s wishes. But a guardian does not have any authority to impose his/her own beliefs as being that of the patient‘s. In our legal system, and in order for the court to issue an order to end Terri‘s life, a legal threshold must be satisfied which requires “clear and convincing evidence” that Terri carefully considered and knowingly and willingly left an end of life directive expressing what her husband alleges are her wishes.
In Terri’s case there is no evidence from her own lips or hand expressing a carefully considered end of life directive as required under Florida law. In addition to assertions made by Michael’s brother and sister in law asserting Terri made some random and inconsequential comments about a life/death situation, there is only the flimsy testimonyof her adulterous husband who claims Terri made a few more inconsequential remarks, none of which can be legally construed to be a carefully thought out and intentional end of life directive as is required under the clear and convincing standard.
Fact is, Greer based his decision upon Terri’s medical condition and not her wishes in violation of the rule requiring “clear and convincing evidence” of Terri’s wishes.
In the Browning and Bludworth cases written directives prepared by the patient expressing their wishes were accepted by the court as being clear and convincing evidence, and in Satz v. Perlmutter the Court accepted oral testimony from the patient taken at a bedside hearing expressing an intentional and deliberate end of life directive.
In the Browning case the Court states in crystal clear language:
“As we previously noted, the right involved here is one of self-determination that cannot be qualified by the condition of the patient. In this case, as in Bludworth, the patient was unable to personally or directly exercise the right to refuse medical treatment. Significantly, the patients in both cases, while competent, “had executed written documents expressing their wishes.”
The court went on to emphatically state: “A surrogate must take great care in exercising the patient's right of privacy, and must be able to support that decision with clear and convincing evidence.”
So, contrary to what is suggested by the starve Terri to death crowd, the truth is, Terri’s adulterous husband may not waltz into court and obtain a court order to starve his wife to death because he alleges that is his wife’s desire . . . He must support that claim with “clear and convincing evidence”
The honorable Governor of Florida has called for the protection of a jury in Terri’s case. Perhaps it is now time for him to go a step further and file a 14th Amendment due process appeal in the SCOTUS asserting Terri has not been afforded the right to be represented in court by counsel, nor afforded the protection of a jury by Florida’s Judicial system in a case in which the state has been called upon to end her life. Since there is no case law which addresses these rights as could be applied in Terri’s case, an appeal limited to these two fundamental and basic rights is an appropriate question for the SCOTUS to address.
A fundamental separation of powers between judge and jury was eloquently pointed out by the SCOTUS in Sparf v. United States, 156 U.S. 51, 106, (1895):
“The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.”In Terri's case, Florida judges acted as a judge for Terri, a decision maker for Terri, legal counsel for Terri, jury for Terri and then issued a court order to end her life.
Apply the process by which the State of Florida has issued a court order to end Terri’s life in all future cases in which the state is called upon to end a person’s life and we are left with a Star Chamber Court system in which the state is free to render arbitrary decisions and ignore the fundamental safeguards our founding fathers provided in a written constitution.
Unlike most who have discussed the Terri Schiavo case, the importance of this case is not so much the outcome of the case, but the process by which that outcome has been reached. Terri has not been afforded basic fundamental constitutional protections to insure her wishes are carried out and not the wishes of her adulterous husband, her parent's wishes, or the beliefs of a judge that Terri ought to be left to starve to death because of her medical condition, which is what Greer suggested in his decision.
And what is the function of a jury which has not been afforded to Terri? Its constitutionally assigned duty is to sort out the facts of the case and “…to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the over-zealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." -- see:Taylor v. Louisiana, 419 US 522 , 530 (1975)
Governor Bush must file a 14th Amendment appeal to the SCOTUS claiming that Terri has not been afforded due process of law by Florida’s judicial system___ the protection of a jury, nor was she represented in court by her own legal counsel in a case in which the state has been called upon to end her life!
John William Kurowski
American Constitutional Research Service"The Ethics and Advocacy Task Force, as amicus curiae, raises a very legitimate concern that the "right to die" could become a license to kill. There are times when some people believe that another would be "better off dead" even though the other person is still fighting vigorously to live. Euthanasia is a crime in this state. 782.08, Fla.Stat. (1987). See 765.11(1), Fla.Stat. (1987). Despite the tremendous advances achieved in this century, the world has witnessed the extermination of retarded and mentally disturbed persons for whom a foreign government decided that death was the proper prescription. Thus, it cannot be overemphasized that the remedy announced in this opinion and the procedures designed to safeguard that remedy are based upon the patient's right to make a personal and private decision and not upon other interests. Browning, 543 So.2d at 269
- Re: GREER ORDERS DEATH WITHOUT DUE PROCESS BEING AFFORDED Dan 21:59:12 3/23/2005 (0)