Thursday, March 24, 2005

Slaves to the Law

We have already seen that officers of the court in general, and Judge Greer in particular, can be wrong in their assessments of fact. Still, some persist in arguing that it is the findings of a court--not evidence or truth--which constitute fact.

Galley Friend C.L. sens in this quote from Lincoln, during his first debate with Stephen Douglas, on the subject of Douglas's easy acceptance of Dredd Scott:
This man [Douglas] sticks to a decision which forbids the people of a Territory from excluding slavery, and he does so not because he says it is right in itself,--he does not give any opinion on that,--but because it has been decided by the court; and being decided by the court, he is, and you are, bound to take it in your political action as law, not that he judges at all of its merits, but because a decision of the court is to him a "Thus saith the Lord." He places it on that ground alone; and you will bear in mind that thus committing himself unreservedly to this decision, commits him to the next one just as firmly as to this. He did not commit himself on account of the merit or demerit of the decision, but it is a "Thus saith the Lord." The next decision, as much as this, will be a "Thus saith the Lord." There is nothing that can divert or turn him away from this decision.

When a judge perverts facts, evidence, and the cause of justice as Judge George Greer has done--time and again--it is our duty to challenge him.


Anonymous said...

Not sure if you've read up, Jon, but he's been challenged quite a few times. In each case, the appellate court and the Florida Supreme Court found no fault with his rulings.

But if you mentioned that pesky truth regularly, you'd have to lengthen that list of villains. Much tougher to declare that they're all out to kill Terri Schiavo that way, though.

Judging Courage:

"I continue to emphasize that I have no opinion on whether the trial judge reached the result Terri would truly want. I did not attend the trial, and having not seen the witnesses and heard them testify, experience has taught me that I am insufficiently informed to second-guess the decision -- no matter how many facts I learn about the case. I do know that a decision was made. I also know that the judicial system offers the checks necessary to ensure that the law has been properly followed. Judge Greer is part of that system, and he operated within it to perform his required role. Those who condemn him, and the judiciary that has thus far upheld his decisions, do not know what they do."

Reece said...

Factual findings of a court do constitute fact within the legal system. The findings of fact in the Schiavo case are supported by evidence--seven years worth.

Courts are not able to determine exactly what is true, and neither are you or anyone else.

Just think about it for a second. How much evidence is necessary for someone to to decide that something is true? Let's say 10 doctors had said that Terri Schiavo should not be taken off life support, and then one new doctor comes in, spends 1 hour with Terri and decides she can never recover and should have the tube removed?

Who is right? Which one is true? Can you tell or are you just ideologically driven?

The reverse is essentially what is going on right now in this case. All the doctors who have done a significant examination of Terri have found to the best of their abilities that she is not going to recover and that she is in a PVS. Why should the weight of the evidence . . . actually not just the weight of the evidence--this case has been adjudicated under heightened evidentiary standards . . . why should the strong weight of the evidence be subverted just because you, Jonathan, have some doubt?

Your analogy to Dred Scott is convenient, but not accurate. Dred Scott was decided by the Supreme Court, and the court was not deciding issues of fact. They were deciding issues of law, and they got it wrong. Do you even know how they got it wrong?

In Dred Scott, the Supreme Court decided that under the *strict original* understanding of the constitutional understanding of citizenship that free black individuals are not citizens.

All that strict constructionism, all that agency originalism that you believe, all that is what led to the Dred Scott decision.

Go to law school. Learn something before you pontificate.

Anonymous said...

Go to law school. Learn something before you pontificate.

As a lawyer, these sorts of comments infuriate me, because they reflect, with devastating accuracy, the arrogance that dominates my profession. I'm not sure whether this behaviour is learned in law school per se, or whether it's an admission requirement, but this sort of toxic attitude towards anyone who had the temerity not to attend law school and pass a bar exam is injurious to the profession, but more importantly, to the rule of law itself. It is impossible to expect citizens to respect the legal system when the lawyers and judges who have a monopoly over it are so contemptous of everyone outside of the brotherhood.

Lincoln's warnings about Douglas and his fealty to the courts are applicable whether the issue is the court's role as fact-finder or legal arbiter. The law is a human construct, and it's failures are self-evident to any person who doesn't think Marbury v. Madison was revealed to Moses as an appendix to the Ten Commandments. Whenever the laws and courts fail us, as they are doing with respect to Mrs. Schiavo, the response isn't to shrug our shoulders and bloviate about Judge Greer and the wisdom of the Florida Supreme Court. The response is to change the law, or change the judges. Either one will do in this instance.

Anonymous said...

Whether or not one agrees with Greer's decisions, Florida has an option that Americans of Lincoln's day did not when faced with bad decisions: The voters can kick him out of office. After ordering Schiavo's feeding tube removed twice, Greer had to stand for a non-partisan election in 2004. He drew an opponent for the first time in 12 years, specifically because of the Schiavo case. He won with 65% of the vote. If Terri Schiavo dies, I assume he'll face a much better organized and financed opposition in 2010, if he runs again. More on the politics of it here.

Jay D. Homnick said...

This may sound crazy but I think there is ONE way to save Terri now.

A Catholic Archbishop, one of the seven nationally, whichever one might be willing, should hold a press conference that if Terri dies he will advocate to the Church that she be beatified since she was starved to death before the eyes of the world during Holy Week.

Once the judges realize that they have just handed Catholicism a gigantic gift, they will suddenly revisit the case and return her to obscurity by letting her live.

Crazy, eh? Or crazy like a fox?

Anonymous said...

rcd256 should spared himself/herself all the effort that he/she put into that post and just typed something like, "Last, you Bloody peasant!" or "Criticize a member of the Brethren! How *dare* you?!"
The basic sentiment would have remained the same.

Anonymous said...

I don't blame Judge Greer so much as I hold George Felos to account as being thoroughly evil. He has almost all of the money allocated for Terri's medical treatment and rehabilitation, while Michael has about none of it. Why hasn't Michael turned Terri over to her parents? He has nothing to gain by her death, at least in a financial sense. The reason is Felos and only Felos, NOT Judge Greer.

Reece said...

"rcd256 should spared himself/herself all the effort that he/she put into that post and just typed something like, 'Last, you Bloody peasant!" or "Criticize a member of the Brethren! How *dare* you?!'
The basic sentiment would have remained the same."

Except for my statement at the end, which was excessive, where was I wrong?

Anonymous said...

As I posted at The Senescent Man blog:

Reading a couple of liberal blogs recently, the l-bloggers are hanging their Schiavo hats on two factors: Congress is usurping the power of the court by passing the legislation it did; and Terri Schiavo HAS had due process.

Without getting into the "Terri should die" debate, I'll make only two limited range comments.

1. I keep hearing people talk about the "separation of powers", which is of course one of the intentions of the writers of the Constitution, but I have not heard anyone write about the other side of that coin, the system of "checks and balances". While mere separation goes a long way to keeping one branch of government from abusing their power, it is not sufficient.

There is also a system of checks and balances written into the Constitution, whereby the co-equal branches of government, in addition to sharing power, also check and balance each other. In the case of the judiciary, the checks and balances are that, except for the establishment of one Supreme Court, all other Federal courts are subject to establishment by the legislative branch. Congress establishes all the inferior courts, and regulates them in terms of jurisdiction (within a few limits specified in the Constitution). Therefore, without saying whether Congress was wise to have acted in this case, I must conclude that, IMHO, they acted within the framework of the Constitution. If I am wrong in that conclusion, the Supreme Court will likely rule otherwise. Or, given this court, would that prove anything?

2. We were foster parents for a while (9 months). During that time, we learned much about guardianship of minors. All the children we took in had been in home situations which were alleged to be abusive in some way--parents (i.e. guardians) who somehow wouldn't or couldn't take care of their children in accordance with the law. The children were removed for their protection while the allegations of abuse were considered. IN EVERY CASE, although the parents were still "guardians", and still had parental rights (i.e. guardian rights and responsibilities), the child had an attorney appointed to look after THE CHILD'S interests, not the guardian's interpretation of the child's interests.

There is a difference here, of course; I'm not saying the analogy is perfect. It seems, however, that Terri is in almost the same situation as a child removed from its home. There is an allogation that her guardian is not looking after her best interests. If she were a child, she would be removed from the home and an attorney ad lietum(probably mispelled) appointed for her, and then the veracity of the allegations checked--protect the child first, ask questions later. Since Terri seems as helpless as a child, perhaps she should have been given the same protections as a child would receive. From that standpoint, I CAN see how a case could be made that she has not received due process. Our legal system should protect those least able to protect themselves. Terri qualities.

Two caveats:
- I'm working under my knowledge of Arkansas laws, acknowledging that Florida seems to have trouble protecting children, and may have different laws.
- If we are going to make an error of going too far in choices between life and death, I hope I will always err on the side of life.

Anonymous said...

If this were a murder trial, where would be a lot more process than this--and more importantly, more people.

Michael Schiavo, telling us that his wife would prefer to die, should have been testifying in front of a jury.

The nurses and aides who say that Terri was in tears after his visits--they should have spoken in front of a jury and have been rigorously cross-examined.

There should have been different people acting in the roles of judge and advocate.

The jury system is flawed too, of course, but most of us would trust a jury over a judge, and rightly so. A jury deliberates and argues and considers multiple opposing angles. A single judge can try to do that... or not. Who knows what happened here.

The other point is that with an accused killer, our system is designed to err on the side of life. Not so here.