Marlowe's Shade

Wednesday, March 23, 2005

Blogburst for Terri: The Law is an Ass

After last night's ruling, I could only explain it by admitting that the judiciary has become void of any moral value. But after reading two NRO articles on Cao's Blog this morning I also realized that our legal system operates not only in a moral vacuum, but has also divorced itself from facts as well. From Rev. Robert Johansen's article:

Given the difficulty of diagnosing PVS, the high rate of error, the obvious bias of the doctor whose judgment forms the basis of the judge’s ruling that Terri is PVS, and the growing outcry from the neurological community, how is it that Judge Greer’s ruling has been sustained? The answer is that in our legal system, once a judge has ruled on a matter of fact, it is very difficult to revisit such a ruling. The lawyers’ rule of thumb is that trial courts hear and rule on questions of fact, and appellate courts rule on questions of law; it’s unusual for an appellate court to overturn a lower court’s ruling because of an issue of fact.

That’s why, at every turn in this case, the Schindlers have had to try to undo the faulty rulings of fact previously issued by Judge Greer. They’ve had to go back before Judge Greer himself and try to convince him that he was wrong, and should undo his own rulings. Judge Greer has proven unwilling to do so. The higher courts, unwilling to overturn a trial judge’s rulings of fact, have no interest in granting new hearings. Michael Schiavo and George Felos have no interest in revisiting Terri’s diagnosis, as that ruling provides the whole legal basis of their ability to end her life. Dr. Cranford has no interest in seeing his own diagnosis called into question. Dr. Bell lamented that at this point, "medical realities are no longer governing this case." He added that it seemed to him that medical issues concerning the care of the patient had been subsumed by legal issues. In our courts, he added, "once a decision is made they don't want additional information."

The whole history of Terri’s case over the past few years can be summed up as the efforts of the Schindlers, and those who value Terri’s life, to try to introduce additional information before the courts and other authorities. Some of this information consists of facts and arguments that were ignored or dismissed without adequate consideration; some has been the result of advances in the diagnosis and treatment of brain injuries over the last five years. On the side of Michael Schiavo, George Felos, and Judge Greer, their efforts have consisted almost entirely in trying to prevent any new information from being presented or considered.

The legal system’s willful blindness to facts cannot succeed forever. The truth has a way of coming out. But will it do so in time to save Terri Schiavo? Dr. Morin said to me, towards the end of our conversation, that “the law can find a way to do the right thing if it wants to.” The problem so far is that those who have the power to do the right thing seem to have no desire or inclination to do so.

The other fact his piece doesn't treat is the MSM filtering the same facts to prevent massive public outcry. But a sizable minority of the public is predisposed against Terri because of the Christian Right and anti-abortion forces that are her stauchest defenders. I wish I was as optimistic as Rev Johnson is about the truth coming out in this environment.

Also read excerpts for Mark Levin's Men in Black for more background on "judicial legislation".
papijoe 7:25 AM