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Monday, April 04, 2005

Misinterpretation and misrepresentation, part II

I’ve read over Judge George Greer’s order, dated February 11, 2000, granting Michael Schiavo’s petition to have Terri’s feeding tube removed. (The order also addressed the Schindlers’ petition to appoint a Guardian Ad Litem). I'm sure that by now most of the blogosphere has seen it. It illuminates the judicial process as well as the judicial power wielded in this particular case, as has been noted. Greer’s words are quite revealing.

I’d like to point out a few specifics, beginning with Greer’s discussion of the Schindler/Schiavo rift. This rift was apparently founded on a dispute over use of the money both Michael and Terri’s estate were rewarded from a malpractice suit.

A change in outlook on the part of Michael Schiavo surely preceded the money dispute. For several years, Michael and Terri’s parents worked together towards Terri's recovery. But after treatments failed to yield the desired effects, Michael apparently gave up on desiring even basic maintenance for Terri.

Michael Schiavo told Larry King,
Her father and mother came into the [hospice] room. And they closed the door. And they asked the big question, How much money am I going to get? And I told them I wasn't going to get any money.

Note: He received $300 000, according to Greer’s order. (p. 2)

KING: Out of the malpractice?

SCHIAVO: Out of the malpractice suit. Then he argued with me for a little while. And then he pointed at Terri in the wheelchair and says, How much am I going to get from her money?

And I said, you have to go talk to the courts about that.


...he's always wanted the money. He always wanted money out of this. He even testified in the first trial that he was angry that he didn't get any money.

According to Fr. Rob Johansen, Schindler has said: "I never asked him for money, ever." Schindler did admit to reminding Michael that they had previously discussed pursuing a certain course of treatment for Terri. It seems unclear whether Michael had actually promised to use the settlement money for this treatment. Schindler seemed to have thought he had.

Greer’s order states:

While the testimony differs on what may or may not have been promised to whom and by whom, it is clear to this court that such severance was predicated upon money and the fact that Mr. Schiavo was unwilling to equally divide his loss of consortium award with Mr. and Mrs. Schindler. ... Regrettably, money overshadows this entire case and creates potential of conflict of interest for both sides. The Guardian Ad Litem noted that Mr. Schiavo’s conflict of interest was that if Terri Schiavo died while he is still her husband, he would inherit her estate. The record before this court discloses that should Mr. and Mrs. Schindler prevail, their stated hope is that Mr. Schiavo would divorce their daughter, get on with his life, they would be appointed guardians of Terri Schiavo and become heirs at law. They have even encouraged him to “get on with his life.” Therefore, neither side is exempt from finger pointing as to possible conflicts of interest in this case. (p. 2)

It’s possible that Schindler did not actually ask Michael for money while communicating desire to have some say in how the settlement money, especially the $700 000 that Terri’s estate received, was spent. And perhaps he did hope to receive that $700 000, but there is no good reason to assume he would not have used most or all of it for Terri’s care. Did he and Mrs. Schindler have any other significant source of funding for her care, had they received guardianship? And would they have done an about-face, upon being named guardians, and petitioned to have Terri’s feeding tube removed?? Surely the Judge didn't anticipate such a scandal!

It’s clear, though, that if Terri died as result of having her feeding tube removed, Michael would receive Terri’s estate (as he in fact has) and would most certainly not spend it on Terri (except for post-mortem procedures), since Terri would be dead. How Greer failed to see or mention this, when mentioning the “potential conflict of interest that went both ways,” I cannot understand.

I also couldn’t help noticing (and maybe I read with a bias, though my intent was to not do so) that Judge Greer repeatedly and at length expressed a disdain for the testimony of the Schindlers and their witnesses, which he found to be of dubious credibility. He wrote several sentences regarding oddities in a witness' (Terri's friend) testimony, the main "oddity" of which can be explained by the fact that he was wrong about the year Karen Ann Quinlan died! (As has been noted by other bloggers.)* Greer thought that Terri’s friend's consistency in repeating the same “odd” tense usage throughout examination and cross-examination was not to her credit.

The Judge also questioned the fact that Terri’s friend had much better memory at trial than at the deposition, and appeared distrustful of her testimony that things had come back to her upon reflection. I don’t see the great unlikelihood of this happening. A friend of Terri’s wouldn’t necessarily be a “professional” witness. Greer just seems to have set the bar awfully high for Schindler testimony.

He didn’t, however, have a problem with the fact that Michael’s testimony to what Terri said about being “hooked to a machine” was corroborated only by his own family members. Greer stated that they did not appear to be “slanting” their testimony by excluding “unfavorable comments regarding those discussions” – whatever that means. And that their testimony of Terri’s phraseology lined up historically with what people “in this country in that age group” typically said about the issue. (p. 6)

I’m not aware that language regarding life support, or being “hooked up to a machine,” has changed in the last 20 years. But then I’m not exactly “hip” so maybe I missed something.

The judge also made a completely arbitrary suppostition as to why Michael Schiavo waited eight years to petition to have Terri’s feeding tube (or “life support,” as Greer refers to it) removed:

...he should not be faulted for having done what those opposed to him want to be continued. (p. 4)

As if that was the point...

If, as Greer stated, there was admittedly “potential conflict of interest” regarding money on both sides, why did he so readily give Michael the benefit of the doubt? Because of other testimony, yes...George Felos is a shrewd lawyer.

Greer also stated that it was

also interesting to note that Mr. Schiavo continues to be the most regular visitor to his wife even though he is criticized for wanting to remove her life support. (p. 4)

He did not mention, however, the evidence for his statement.

If a judge must always assume that witnesses, being under oath, are giving honest testimony, why did Greer so readily accept the Schiavos’ testimony but not the Schindlers’? He admitted that he has complete freedom to decide, on his own, who’s credible and who’s not:
The court has had the opportunity to hear the witnesses, observe their demeanor, hear inflections, note pregnant pauses, and in all manners assess credibility above and beyond the spoken or typed word. (p. 3)

But, really, how many individuals can truly “read” others without error, especially those others they don't really know? Do all judges possess superior social and logical acumen?

Why is a single individual allowed, by law, to decide whether another person lives or dies?


*Whoever typed the order didn't even know how to spell "Quinlan" -- though that's irrelevant to my point. I just find it interesting.

4 Comments:

  • You've already read more on this than I have, but perhaps the reasons for Greer's doubts about the Schindlers come from the many hours of testimony amd piles of documentation he had seen previously. I've no idea who was telling 'the truth', but I know there's a lot more to it than the final ruling. Nice post btw!

    By Blogger Paul, at 8:36 AM  

  • An excellent summary and analysis. Thanks.

    By Blogger Catez, at 10:33 PM  

  • Thanks for your thoughtful article.

    A judge does not always assume that witnesses, being under oath, are giving honest testimony, nor should he asssume this. If we were to always apply this principle, then very few cases could ever be decided since a judge would apparently have to assume, for example, that a light was both green and red at the same time because, after all two witnesses offered contradictory evidence on the same point of fact.

    A judge weighs the credibility of witnesses, and must do so. “But, really, how many individuals can truly ‘read’ others without error, especially those others they don't really know? Do all judges possess superior social and logical acumen?” I suppose that they “read” them as well, as you do when reviewing someone else’s work behind your computer screen, and probably better.

    Am I to assume that you exalt your personal assessment of the witnesses in this case over Judge Greer’s? Do you “really know” Michael Schiavo or the Schindlers? Have you seen all the witnesses on both sides? When you saw Michael Schiavo on CNN, did you really know him? Shall we shut down the whole judicial system until we can establish to your satisfaction that every judge and jury “really knows” every witness appearing on the witness stand?

    Frankly, I doubt that judges categorically possess “superior social and logical acumen,” but they are judges, nevertheless. Someone has to be a judge. Usually, in the case of state judges, he or she is a judge because he or she was elected through a democratic process, so perhaps your analysis reduces to the bland assertion that voters are stupid, which is not a novel claim.

    “Why is a single individual allowed, by law, to decide whether another person lives or dies?” I suppose that’s because we don’t decide these sorts of things by a public opinion poll, which, by the way, would have stood a substantial likelihood of resulting in precisely the same outcome. Of course, that depends on how you “slant” the polling questions, which again should give us pause to rely on such a method of decision-making. Likewise, we don’t look to legislative bodies to cast a vote on such questions since they are notoriously more likely to decide on political considerations rather than facts. Perhaps you would prefer that we have panels of judges to make such decisions, which would be good if you think highly of committees. Unfortunately, this would mean that we would need to hire more judges and make more offices for them, pay the salaries, etc., so you’ll need to pay more taxes.

    Your thorough analysis of Judge Greer’s opinion well illustrates the problems inherent in judicial decision-making or jury fact finding. People take different views of the same facts. It is really not uncommon at all, and it is not surprising. And judges and juries can and will get it wrong. Sometimes it will mean that someone loses money. Sometimes this will mean that someone loses his or her life. Believe me, it has happened before. And it will happen in the future. For example, you might compose a wonderful post on the OJ Simpson trial, just as you have with this one, and, if you are like the majority of Americans, you would, with great skill and articulate reasoning explain to us that OJ was guilty. But it won’t matter. You might even ask, how could we allow just 12 people to make a decision like that and let a killer back onto the streets? And the answer is: our system is fallible.

    Please consider the possibility, just the remote and unlikely possibility, that you are wrong about the facts of this case and that Judge Greer was correct. Everyone likes “being a judge” from the comfort of his or her armchair. Consider what it is like to be a judge, to make profound decisions, and to live with them, knowing that you might have made a mistake. Then you will begin to understand the frailty of any judicial system, and take courage that a sovereign God ultimately guards justice.

    By Blogger Res Ipsa, at 10:51 PM  

  • Thanks for your eloquent comment, Res. I have no contest with anything you’ve said. As to your final paragraph, I made a similar statement regarding “armchair judges” in “Misinterpretation and misrepresentation, part I”. You also might appreciate, a few posts back from that, “Am I my brother’s keeper?”.

    What I meant to do in this post was to shine some light on what actually happened in this case, by supplying the actual words of people involved plus a key official document. I provided my sources so that anyone who wishes to can read for themselves. Someone else might see something I missed, know something I don’t know, or have a different take on the material. I’d be happy to learn of any of these.

    What you say about the occasional wrong verdict being unavoidable because of the fallible nature of all human endeavor is of course absolutely true. But at the same time I don’t think we should allow wrong verdicts to be made if any truly can be avoided. Especially when it comes to life-and-death decisions. I do agree that ultimately we must “take courage that a sovereign God ultimately guards justice,” as you poignantly stated.

    In my post, I also hoped to provoke thought via questions and commentary. I question the judicial process in this case, as well as judicial accountability in general. I also question the way we as a society view “end-of-life” decisions.

    Am I to assume that you exalt your personal assessment of the witnesses in this case over Judge Greer’s? Do you “really know” Michael Schiavo or the Schindlers? Have you seen all the witnesses on both sides?

    No, no, and no. But I believe I distinguished facts of the case from my own questions and suggestions. It’s a fact that Greer got the date of Quinlan’s death wrong. The things that I quoted Michael Schiavo as saying are fact, unless the Larry King transcript is in error. It is a fact that, once it became clear that Terri would not improve, Michael changed his view toward caring for her. The Schindlers did not.

    As to polls, rest assured that their only value to me personally is in showing what people are thinking. I am not at all swayed by polls as far as determining right and wrong goes (being the true contrarian that I am ;-) )

    Thanks again for your great comment.

    Paul – I believe this case is the first Schindler/Schiavo dispute that Greer was involved in.

    By Blogger Bonnie, at 10:37 PM  

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