By Steve Voigt (link)
"I don't want to get too graphic. But what my sister and I saw was absolutely horrific. For any family to have to experience what our family experienced the last two weeks, and particularly the last 72 hours was just barbaric. This whole death with dignity is an absolute lie. To see my sister suffering the way she was suffering before she died, is — I'm telling you, it's something I will never forget. And it's an image that will last with me forever."— Bobby Schindler, Terri Schiavo's brother, commenting on the last hours of Terri Schiavo's life
". . . she was gasping. It was awful. She looked absolutely horrific. It was very difficult to be in the room with her. She looked like death. It was just awful."— Suzanne Vitadamo, Terri Schiavo's sister, commenting on the last hours of Terri Schiavo's life.
Alan Keyes' Renew America, a fantastic web site (and one I happen to write a column for), last week had as its forum question, "Who killed Terri Schiavo?" As the forum discussion confirmed, there are many different opinions about who is responsible for Terri Schiavo's starvation, and these include the Florida trial court, the Florida appellate court, the Florida Supreme Court, the federal district courts, the federal appellate court, the U.S. Supreme Court, the Florida legislature, Congress, the President, the governor, her husband, the doctors, the lawyers, the ACLU, the Florida Department of Health, the assisted suicide demonstrators, the talking heads on TV who messed up the facts, pollsters for loading their poll questions, left wing politicians, and none of the above. So take your pick.Who is Responsible?
As for me, I believe the case ended in tragedy because a tumult of senseless partisanship gripped the situation and caused many to stick their heels in the mud and refuse to budge. Politics had no place in this matter, but when I flipped on the talk shows one evening a few days after the tube had been removed, it was apparent that this case was immersed in political jousting. The blues supported the judges. The reds supported the Schindler family. Then, Jesse Jackson entered stage left and started talking about nationalized health care.When I think about Terri Schiavo, I feel profoundly sad. I do not believe any one person was responsible. I believe many multitudes must bear this deed. We all failed Terri. Our society failed Terri. Our system failed Terri. No one is innocent. The culture of death prevailed. Sadly, cynicism and despair won the battle.Most folks who for whatever reason feel that Terri should have been starved to death simply do not understand the facts. I believe that had Americans really understood the truth and had we viewed this as a matter of life, not politics, to the last person, this nation would have demanded justice for Terri. At least I hope.
Terri was not brain dead. Rather, she was in a minimally cognitive state. Even if she was brain dead — she was not — no reasonable person can argue with any sincerity that there was not at very least a dispute over her cognitive state. With the existence of such a dispute, at minimum, Terri deserved a fresh trial on the evidence.
Did the Judiciary Err?With my initial statement in mind, that there is no single person entirely responsible, there is no doubt in my mind that my colleagues in the judicial branch dropped the ball.Under Article III Section 1 of the Constitution, Congress has the authority to determine the jurisdiction of federal courts. In Terri's case, Congress, led by Senator Rick Santorum of Pennsylvania, passed a special law that gave the federal district court in Florida authority to hear the evidence in the case (including new evidence) de novo. Congress' statute reflected the widespread sentiment that something terribly wrong was happening in Florida, and that our elected leaders had a responsibility to do something. The pertinent part of the act provided:
The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.
* * *Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.
Black's law dictionary defines "hearing de novo" as:
"Generally, a new hearing or a hearing for the second time, contemplating an entire trial in same manner in which matter was originally heard and a review of previous hearing. Trying matter anew the same as if it had not been heard before and as if no decision had been previously rendered."Similarly, "de novo trial" is defined as:
"Trying a matter anew; the same as if it had not been heard before and as if no decision had been previously rendered."In contradiction of the clear intent of Congress, the Middle District of Florida refused to hold a new hearing, because after reviewing the Schindler's legal brief, the district judge concluded that the Schindlers did not establish "a substantial likelihood of success on the merits." In Santorum's statute, however, Congress did not limit the court's jurisdiction to a facial review of legal arguments in briefs hastily pulled together in one day. Instead, Congress declared that the court "shall determine" any claim in a new hearing "de novo," i.e., based on the complete factual record. This did not happen. Terri died.
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