Friday, March 25, 2005

"Evolving Standards of Decency"

Bill Kristol has a sobering assessment of our robed masters:
Last month the Supreme Court saved Simmons's life. The citizens, legislators, and governor of Missouri (and those of 19 other states) had, it turned out, fallen grievously and unconstitutionally behind "the evolving standards of decency that mark a maturing society." Five justices decided that the Constitution prevented anyone under the age of 18 from being sentenced to death. So Christopher Simmons will live.

It appears, at this writing, that Terri Schiavo will not. . . .

. . . it would be wrong to suggest, as some conservatives have, that our judicial elite is systematically biased against "life." After all, they have saved the life of Christopher Simmons. It would be wrong to argue, as some critics have, that our judges systematically give too much weight to the husband's wishes in situations like Terri Schiavo's. After all, our judges have for three decades given husbands (or fathers) no standing at all to participate in the decision whether to kill their unborn children. It would be wrong to claim that our judges don't take seriously legislation passed by the elected representatives of the people. After all, our judges are committed to upholding the "rule of law"--though not, perhaps, the rule of actual laws passed by actual lawmakers.

10 comments:

Reece said...

You realize, don't you, that Judge Greer was upholding the "actual laws passed by actual lawmakers."

Particularly, Florida Statutes Section 765.305, Section 765.401, and Section 765.404.

You should be able to view these actual laws passed by actual legislators at www.myflorida.com

That's Florida's state government website. It seems to be having some trouble right now though.

Jay D. Homnick said...

With respect, rcd, he was not upholding the law, he was pretending to uphold the law - which is not quite the same thing.

The law says that in the absence of "clear and convincing evidence" that the person expressed a desire to avoid life support it must be maintained. The judge decided that her husband's report (not mentioned until seven years after the episode and after winning the cash award) that she once or twice mentioned "she wouldn't want to live that way" met that evidential standard.

As for the various nurses who reported that the husband was preventing rehab and engaging in sadistic behavior towards her, including bringing his new paramour to visit, the judge dismissed their reports as "not credible".

A few comments:
1) A woman from Stuart, Florida, wrote me a brilliant letter after reading my American Spectator article about the case. She said that if the husband would have brought that level of evidence to prove that she had willed him her car, no court would have granted him the car on that basis. Brilliant!

2) In a letter to Governor Bush, an attorney (I forget her name) makes the point that the very fact of her parents' devotion these fifteen years would be the sort of input that would alter the calculus in Terri's own mind, were she making that decision today.

In any case, Mr. Kristol's conclusion is the most reasonable. Namely, Judge Greer was not involved in a good faith effort to apply the law. He was engaged, with whatever noble intentions, in an abstract exercise of determining whether her life was worth living. In other words, either playing God, or, as Mr. Kristol whimsically phrases it, he was CREATING the law by which he ruled - thus satisfying his obligations to "the rule of law".

Reece said...

Jay, do you know the difference between law and fact?

I know it's not a difference that most people think about when they think about how the legal system works.

In any case, the way our common law system works, we have a distinction between what is legally important and the facts of the case. In many civil cases, the facts of the case are determined by a jury. That's all the jury does. It determines, based on evidence presented, what actually happened.

It is the judge who tells the jury what the law is and how to apply it.

In Schiavo's case, the Judge sat as the fact finder. This is because the case came out of a situation that would be traditionally recognized as a case in 'equity.'

The distinction between equity and law is also not an easy one to see, though it is often characterized by the different remedies that can result and the fact that equitable cases use a single judge as the finder of fact.

In this case, then, Judge Greer was doing precisely what the judicial system that has been in place in this county for over 200 years, in the colonies for another 150+, and in England for hundreds of years has allowed judges to do.

How can you say he was 'pretending' to uphold the law when he did not just what the specific laws required, but what the entiriety of our legal tradition has allowed?

Furthermore, it wasn't just Mr. Schiavo's word against her parents. His account was corroborated by his sister, who had up to 12 independent discussions with Terri regarding the subject, and his brother who also discussed it with her.

That sounds pretty clear and convincing to me.

As to your numbered points:

If you came into court with 3 people saying that you and the woman had multiple conversations about your car, then it is very likely that a jury--since a contracts case is legal, not equitable--would likely compensate you for the car.

Second, what Terri's wishes would have been given some counterfactual situation is not relevant. What is relevant is that she expressed her desires many years ago, and they have been applied in to her condition now.

How would you even go about determining how her wishes would have changed? The question is so remote as to result only in speculation.

Where's your evidence that Greer was "engaged . . .in an abstract exercise of determining whether her life was worth living"? For all your concern about evidence you haven't provided a single shred of it for this conclusion. You jump from "he incorrectly applied the law" to "he made a personal determination about the value of her life."

Finally, in a common law system, judges do make laws. That's just how it works. It's been this way for at least a thousand years. Don't like it? Then move to France.

Reece said...

Jay, I meant to add: How do you know that the nurses' reports of abuse were credible?

Please, tell me how you know they are. If you know, I want to know how you know. If you don't know, then what's your basis for denigrating Greer's decision?

He's there. He's got the statements and evidence in front of him.

What do you have--your personal belief? Is that really good enough?

Chris G. said...

I do respect Mr. Kristol's intelligence, but this is the weakest of his articles that I've ever read. He is really just passing a lot of gas.

Jay D. Homnick said...

rcd, I find the nurses credible for a series of reasons.

1) because their testimony reads like the truth. If you read Heidi Law's affidavit, you see that she quotes comments from numerous co-workers BY NAME. That is exactly the sort of thing a liar avoids. She also writes with a fine attention to small telling details. I have been a professional writer for twenty-five years. The patterns of liars are identifiable, and the two I mentioned feature prominently - they always claim that only they saw it, and tend to magnify events rather than balance them.

2) The nurses are taking a huge professional risk and have nothing to gain. (An otherwise highly intelligent friend allowed her intellect to be so stunted by partisanship to suggest that the nurses are looking for a book deal. On which planet will two little nurses who signed affidavits get a book deal? Michael Schiavo, on the other hand, will get both a book and a movie payday.)

3) The nurses represent the sum total of all evidence coming from sources other than Michael Schiavo's family, who are essentially "the party of the plaintiff". Here is where the brilliance of Jewish law is demonstrated; it allows no testimony by relatives to a case, neither beneficial nor damaging testimony. All finding of fact is determined strictly by outside information.

Jay D. Homnick said...

rcd, I find the nurses credible for a series of reasons.

1) because their testimony reads like the truth. If you read Heidi Law's affidavit, you see that she quotes comments from numerous co-workers BY NAME. That is exactly the sort of thing a liar avoids. She also writes with a fine attention to small telling details. I have been a professional writer for twenty-five years. The patterns of liars are identifiable, and the two I mentioned feature prominently - they always claim that only they saw it, and tend to magnify events rather than balance them.

2) The nurses are taking a huge professional risk and have nothing to gain. (An otherwise highly intelligent friend allowed her intellect to be so stunted by partisanship to suggest that the nurses are looking for a book deal. On which planet will two little nurses who signed affidavits get a book deal? Michael Schiavo, on the other hand, will get both a book and a movie payday.)

3) The nurses represent the sum total of all evidence coming from sources other than Michael Schiavo's family, who are essentially "the party of the plaintiff". Here is where the brilliance of Jewish law is demonstrated; it allows no testimony by relatives to a case, neither beneficial nor damaging testimony. All finding of fact is determined strictly by outside information.

Ken Brewer said...

Red: You (anonymously)junped on Jay pretty hard. My question to you is, "Do you know the difference between fact and opinion?" I'll give some examples.

Facts: 1) George Felos ended up with most of the money awarded for Terri's care. 2) Felos contributed to Judge Greer's campaign fund. 3) All of this is legal.

Opinions: 1) Felos manipulated the legal system and Michael Schiavo in order to kill Terri so that he could make more money. 2) Judge Greer accepted blood money. 3) Shakespeare was right in his assessment of the legal system, which included the common law of which you are so in awe. (Read it, if you haven't.)

Reece said...

Ken, I am quite explicitly not anonymous. The anonymous people use the 'anonymous' posting option. My name is Reece Dameron. The RCD in my tag are my initials.

Beyond that, though, why does it matter who I am? Are you more concerned about the authority of a source than the arguments he puts forth?

I do recognize the difference between fact and opinion. But it seems that everything that you have said comes out in Michael Schiavo's favor.

I'm sure that Felos is receiving compensation for his work. What's wrong with that. Lawyers get paid to do what they do. So do doctors, lobbyists, mechanics, bus drivers, architects, and business people of all stripes and skills. What's wrong with making money from your job?

Even if Felos is making the most money off this, what does that matter?

Every lawyer manipulates the legal system. The Schindler's lawyer was doing the same thing. That's what lawyers are trained to do: to work with in the system and to try to win cases. If you want to give the term manipulation some invidious meaning, have at it.

And while Shakespeare was a great playwright--certainly among the greatest if not the greatest in the English canon, his views of the legal system don't really concern me. Sorry.

Jay, so you have some vague reasons for thinking the affidavits are credible. Now, tell me why your reasons, combined with your 25 years as a professional writer, should be substituted for Greer's judgment and his 30+ years of legal experience.

Ken Brewer said...

Reece: It's nice to know your name. I apologize for accusing you of anonymity, and stand corrected. As to the rest, I'll let others comment if they deem it worthwhile.