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Thursday, March 24, 2005

Sweet Jesus, that's ignorant!

Posted by: Hammer / 4:21 PM

Media Matters posted this about the Schiavo case:
The remaining affidavits deal exclusively with events which allegedly occurred in the 1995-1997 time frame. The court feels constrained to discuss them. They are incredible to say the least. Ms. Iyer details what amounts to a 15-month cover-up which would include the staff of Palm Garden of Lago Convalescent Center, the Guardian of the Person, the Guardian ad Litem, the medical professionals, the police and, believe it or not, Mr. and Mrs. Schindler. Her affidavit clearly states that she would "call them (Mr. and Mrs. Schindler) anyway because I thought they should know about their daughter." The affidavit of Ms. Law speaks of Terri responding on a constant basis. Neither in the testimony nor in the medical records is there support for these affidavits as they purport to detail activities and responses of Terri Schiavo. It is impossible to believe that Mr. and Mrs. Schindler would not have subpoenaed Ms. Iyer for the January 2000 evidentiary hearing had she contacted them as her affidavit alleges.
Captain Ed takes issue:
Why is that so impossible to believe? Staff comes and goes at hospitals and hospices; it's more than just possible that the Schindlers couldn't remember their names by 2000, it's probably very likely, considering the vast number of nurses and caregivers that the family had encountered the previous nine years. I've dealt with the highly professional and wonder staff at Fairview University Medical Center in Minneapolis for over two years, and I haven't a clue as to the names of the nurses and technicians who have assisted the First Mate during that period. The Schindlers couldn't very well subpoena people whose names they couldn't recall and whose notes had been expunged from the official records. As far as the cover-up including the facility which Michael paid to house Terri, did the judge even consider their financial stake in continuing to receive compensation for Terri's care?

This is why Congress wanted the federal court to take a de novo look at the Terri Schiavo case -- so that Terri's fate could be considered by a finder of fact besides George Greer for the first time. Media Matters for America blunders into the truth of why so many of us have so many problems with Greer's handling of the case, although true to form, MMFA can't recognize the truth with both hands and a flashlight.

I don't know if Captain Ed is a lawyer. If he is a lawyer, he's a bad one. There's this thing at trial called "discovery". It means you get to ask questions of parties and non-parties, like witnesses. Over the course of 7 years, any decent attorney would have obtained a list of all the nurses who cared for Terri Schiavo. Cpt Ed's argument is utterly divorced from reality: it also completely misses the point. Iyer claimed in an affidavit that she contacted the Schindlers. It's not so very hard to remember the name of the nurse who calls to tell you that your daughter is being neglected or abused. The Schindlers didn't have to pick Iyer's name out of dozens or hundreds who treated Terri Schiavo. They had to remember the name of the one nurse who told them their daughter was being abused.

One more piece of news for Captain Ed -- the American system of jurisprudence is predicated on having a single finder of fact . You don't try a case to a judge or a jury, get a result, then try the same case again in front of a different fact finder. Sweet Jesus, that's ignorant! The terminology can be confusing: is it res judicata, collateral estoppel, claim or issue preclusion? But the idea that anyone in this country should be entitled to have more than one fact finder exceeds the ridiculous.

The Shiv urges me to point out that if the prior proceeding was manifestly unfair to a litigant (fraud, incomplete proceedings, exclusion of evidence), that litigant might have a right to a new trial. The Shiv does nuance; I'm not prepared to give Cpt Ed the benefit of that doubt.


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