Clear and Convincing Evidence

I’ve been looking around for the laws that might apply in the Terri Schiavo case and I’ve come up pretty empty. Whether that’s by design, or not, I don’t know.

This article by Chris Tisch in the St. Petersburg Times does a pretty good job of documenting how “right-to-die” precedents have evolved over the years. It’s worth noting that the “law” as it operates in the case of Terri Schiavo has been crafted entirely by the judiciary. Talk about judicial activism! In this case, however, it appears that the courts have imposed the standards for removal of life support because legislatures would not act.

In the only “right-to-die” case ever heard by The U.S. Supreme Court they ruled that families did not have an automatic right to insist that hospital workers stop feeding their relative. The court however indicated that the feeding tube could be removed if they proved by “clear and convincing evidence” that the patient had previously indicated that they would not want such treatment. The court affirmed that an incapacitated person whose wishes were clearly known could have their treatment ended.

Regardless of moralizing about Terri Schiavo, the entire case comes down to the “clear and convincing evidence” standard. Only one judge has ever viewed and ruled on that evidence (Michael Schiavo’s disputed contention that he remembered Terri saying she wouldn’t want to be kept alive on life support) – Judge George Greer, who ironically is legally blind.

Ann Coulter, on that ruling, notes:

…moreover, it’s not as if court after court has heard testimony on Terri’s wishes and have all unanimously agreed that Terri would have chosen death. One lone Florida circuit court judge, George Greer, credited Michael’s testimony, finding “clear and convincing” evidence that Terri said she would not want to be kept alive on feeding tubes. Because Judge Greer was acting as the finder of fact, his finding is essentially unreviewable by any other court. Even the notorious Florida Supreme Court – which has a history of jumping in to try to save a dead man – refused to review the case.

Judge Greer’s finding on Terri’s wishes may be immune from legal review, but it’s not immune from criticism. He’s a finder of fact – he’s not God. A few years ago, Judge Greer found that Helene Ball McGee did not have reasonable cause to believe domestic violence was imminent and denied her an order of protection. Two weeks later, Mrs. McGee was stabbed to death by her husband. So judges can make mistakes.

Judge Greer’s pivotal “finding of fact” in the Schiavo case determining a life-or-death issue is based on something Terri allegedly said after watching a TV show. Michael didn’t know his wife was bulimic, but he distinctly remembered Terri’s remarks about a TV show. (It was an episode of “Melrose Place,” during which she said that Heather Locklear’s shoes were “to die for.”)Given all the acrimony about how and when Michael Schiavo had this “revelation” in the course of the protracted legal battles it certainly seems that a review by a fresh set of judicial eyes on the ALL of the facts surrounding Terri’s wishes (or lack thereof) with regards to the “clear and convincing evidence” standard is warranted. From the looks of it, that’s what the bill President Bush is expected to sign provides for.

_{Note: If this doesn’t convince you of the worth of a living will, nothing will.}