02.20.05

Greer Allowed Unreliable Hearsay

"CLEAR AND CONVINCING" STANDARD
NOT MET IN SCHIAVO DEATH VERDICT
The Empire Journal
http://theempirejournal.com/02200556_greer_allowed_unreliabl.htm

"I don't want anyone feeding that girl….the rule of law is
that this girl must die".

Florida's Sixth Judicial Circuit Court Judge George W. Greer
has decreed that Terri Schindler-Schiavo must die.

Greer's death sentence could be carried out as early as Tuesday,
Feb. 22 if her estranged husband and guardian, Michael Schiavo and
his attorney, George Felos have their way.

As the clock ticks away, the life of Terri Schindler-Schiavo
literally hangs in the balance, now partially dependent on the
outcome of two dramatic hearings scheduled for Monday, Feb. 21
before Greer.

Attorneys for Mary and Robert Schindler Sr., Terri's parents,
will file a new motion Monday asking Greer to allow new medical
tests for the brain damaged woman based on the findings of a new
brain imaging study recently published in the journal Neurology.

A hearing is also scheduled Monday at 2:30 p.m. before Greer on
the Schindler's motion to extend the stay of Greer's 2000 court
ordered judicial homicide.
http://theempirejournal.com/021705nmtsnew_medical_tests_soug.htm

There is also a motion pending before Greer to remove Michael
Schiavo as guardian. The 2nd District Court of Appeals has been
asked to issue a stay pending the filing of a writ of certiorari in
the U.S. Supreme Court regarding the religious liberties issue
involving a papal decree which the DCA rejected earlier this month,
setting the stage for the withdrawing of the feeding tube.

Terri, 41, a patient at the Woodside Hospice in Pinellas Park,
Florida, sustained severe brain damage 15 years ago on Feb. 25,
1990, as the result of a mysterious and suspicious incident at her
home with her husband as the only known witness.

She has been the center of a extended court battle between her
parents and Michael who announced his engagement to his live-in
girlfriend shortly before initiating his petition asking the court
to cease Terri's assisted feeding which will cause her death by
starvation in 7-10 days after the removal of the tube. He has since
had two children by his fiancée.

Stricken at 26, Terri Schiavo left no living will or no known
written statement of her wishes regarding artificial life support.
However, nearly 10 years after the incident at her home and after he
had received nearly $1.7 million from medical malpractice claims,
Michael Schiavo had a sudden recollection of an alleged oral
statement Terri had made some 15 years previous in 1984.

Despite state law prohibiting self-serving hearsay testimony,
Greer ruled that his statement constituted "clear and convincing
evidence" that she would not want to be kept alive by assisted
feeding and he issued an order in 2000 to withdraw the tube by which
she is fed three times a day.

The "clear and convincing" evidentiary standard was established
by the U.S. Supreme Court in Crusan v. Director, MDH, 497 U.S. 261
(1990). A majority of the Court held that there is a constitutional
right to reject artificially provided nutrition and hydration but
that the state may require clear and convincing evidence in the case
of an incompetent patient that the rejection of nutrition and
hydration conforms to the patient's wishes while competent.

Greer bases his order on In Guardianship of Browning 568 So.
2d 4(1990), a case in which Michael Schiavo's attorney, Felos,
opposed the state in withdrawing the feeding tube of Browning, an 89-
year-old stroke victim who had left a living will stating she did
not wish life support to continue if she were terminal.

In Browning, the Florida Supreme Court held that under the
Florida Constitution, a guardian, acting as a surrogate decision
maker, must be permitted to make a decision to reject feeding
through a tube for a patient who is not presently capable of making
health care decisions and who has an incurable condition---even if
the patient is neither terminal nor in a "persistent vegetative
state"

PVS is defined as a permanent irreversible condition of
unconsciousness in which there is absence of voluntary action or
cognitive behavior of any kind and an inability to communicate or
interact purposefully with the environment.

The Schindlers say that their daughter is not PVS, a position
supported by medical experts. See the videos of Terri at
http://www.terrisfight.org.

However, the guardian must base such a life-ending decision
on "clear and convincing" evidence of what the patient wanted. The
Court specifically recognized that ***reliance on oral statements
does not have the same presumption of clear and convincing evidence
as written declarations. It stated that "the evidence of the
patient's oral declarations [must be] reliable".*** (emphasis added).

A review of the facts in the Schiavo case would seem to find
Michael Schiavo's testimony to not only be unreliable but to be
inadmissible self-serving testimony which would not suffice to meet
the required "clear and convincing" evidentiary standard needed to
cause his wife's death.

Once Greer's death edict is carried forth, it is irreversible.
Death has no parole.

The Florida Supreme Court held in Browning that when the decision
of proxy or surrogate to refuse medical treatment on behalf of an
incompetent patient is challenged, although the surrogate may rely
on oral statements allegedly made by an incompetent patient while
competent, to exercise patient's wishes to forego life-sustaining
treatment, presumption of clear and convincing evidence that
attaches to written declaration *** does not attach to purely oral
declarations. While oral evidence, considered alone, may constitute
clear and convincing evidence, surrogate (Michael Schiavo) would
bear the burden of proof if the decision based purely on oral
evidence is challenged.***

Based on the trial transcripts from the 2000 hearing conducted by
Greer, Michael Schiavo seems to have failed to sustain his burden of
proof and none of the hearsay oral statements made by him and his
relatives to the court were admissible, therefore did not and could
not constitute the "clear and convincing" evidentiary standard
needed to end the life of Terri Schindler-Schiavo.

"The court must decide whether or not there is clear and convincing
evidence that Theresa Marie Schiavo made reliable oral declarations
which would support what her surrogate (Petitioner/Guardian) now
wishes to do

"All of the other collateral issues such as the quality of the
marriage between Michael and Terri Schiavo, access or lack of access
to medical information concerning their daughter, motives regarding
the estate of Terri Schiavo if deceased, and the beliefs of family
and friends concerning end of life decisions are truly not relevant
to the issue which the court must decide."
- ***Judge Greer's February 11, 2000 Order***



January 2000

Terri Schiavo's Trial


Pretrial Investigation
A six month investigation conducted by a court appointed Guardian Ad
Litem culminated in a report filed with the court on December 30,
1998. The report stated that Michael Schiavo's sole version of
Terri's alleged oral declaration not to be kept alive if ever in her
present condition did -not- provide clear and convincing evidence of
Terri's wishes.

***Note: The Guardian Ad Litem recommended to the court that
Schiavo's Petition to remove Terri`s feeding be denied.***



Pretrial Motion
Terri's Parent's request that Judge Greer visit Terri prior to the
2000 trial in order that he will be better informed of Terri's
neurological condition. Judge Greer denied the motion. In an October
2001 Appellate Court order, he was instructed to conduct an
evidentiary hearing to determine Terri's neurological condition.

***Note: Judge Greer has never visited Terri, yet he will rule if
Terri lives or dies.***



Witness for (Michael) Schiavo
Trial Testimony:
Witnesses, Scott and Joan Schiavo surfaced a week before the trial,
one year after the investigation report cited the lack of
credibility in Michael Schiavo's lone version of Terri's wishes.
Greer's Decision: Accepted Testimony



Witness for (Michael) Schiavo
Trial Testimony:
To corroborate Michael Schiavo's statement that Terri made oral
wishes not to be kept alive, Scott Schiavo offered three different
versions of a single statement that Terri allegedly made.
Greer's Decision: Testimony Credible



Witness for (Michael) Schiavo
Trial Testimony:
Joan Schiavo testified that Terri would not want to be kept alive.
However, she never told exactly what Terri actually said.
Greer's Decision: Testimony Credible



Witness for (Michael) Schiavo
Trial Testimony:
Michael Schiavo rendered flawed testimony by adding new versions of
Terri's wishes not originally told to the court investigator.
Greer's Decision: Testimony Credible



Witness for (Michael) Schiavo
Trial Testimony:
Beverly Tyler's reported results of a regional poll on the subject
of "American's values, opinions and attitudes concerning end of life
care." Although she never met Terri, she was used to validate what
Terri said and meant in Terri's casual comment not to live.
Greer's Decision: Testimony Credible



Witness for (Michael) Schiavo
Trial Testimony:
A Diocese Priest, Father Murphy misrepresented his position,
claiming he was the spokesman for the Catholic Church
on end of life issues. Yet he stated, the removal of Terri's feeding
"would be consistent with the teaching of the Catholic Church."
The priest admitted to the court that he had no formal training as a
medical ethicist or moral theologian.
Greer's Decision: Testimony Viewed as Candid



Witness for Independent
Trial Testimony:
Court appointed Guardian ad Litem investigator testified that
Michael Schiavo's lone statement of Terri's alleged oral declaration
not to be kept alive did -not- provide clear and convincing evidence
of Terri's wishes. He cited his unawareness of the Schiavo family
witnesses.
Greer's Decision: Testimony not Reliable



Witness for Schindlers
Trial Testimony:
Terri's mother testified that throughout Terri's lifetime she never
made any statements which would indicate her wishing not to be kept
alive. Plus, Terri never said "she would not want to live like that"
when actually viewing the residents who were near death while
regularly visiting her grandmother at the nursing home. Also, the
court was told, Terri was opposed to the removal of Karen Ann
Quinlin's life support.
Greer's Decision: Testimony Not Credible



Witness for Schindlers
Trial Testimony:
Terri's father testified It was out of character for Terri to
discuss such matters and Michael Schiavo's version of Terri wishes
were fabricated to end Terri`s life so he could inherit the 750K in
Terri's medical fund.
Greer's Decision: Testimony Not Credible



Witness for Schindlers
Trial Testimony:
Terri's brother testified that Terri told him that she was going to
divorce Michael Schiavo. Claimed he was very close to Terri and she
never expressed any wishes not to be kept alive.
Greer's Decision: Testimony Not Credible



Witness for Schindlers
Terri's sister told the court of the bruises Terri incurred from
Michael Schiavo and how he berated Terri about her weight. She
indicated Terri had plans to divorce Schiavo.
Greer's Decision: Testimony Not Credible



Witness for Schindlers
Trial Testimony:
Terri's childhood girlfriend testified Terri was extremely upset
over the removal of Karen Ann Quinlan's life support depicted in a
movie they viewed just prior to Schiavo's alleged remarks about
Terri's wishes.
Greer's Decision: Testimony Not Credible



Greer has maintained virtually autonomous control over the fate of
Terri Schiavo, basing his 2000 ruling to withdraw her feeding tube
on self-serving hearsay testimony of the estranged husband and his
family members.

In the transcripts of the 2000 proceeding when Greer allowed the
inadmissible testimony and determined that Terri had stated she
didn't wish to be kept alive by artificial means, Greer concluded,
and the 2nd District Court of Appeals concurred, that Michael and
Terri Schiavo had been "happily married" even though Terri's best
friend and co-worker, Jackie Rhodes, had testified that Terri wanted
a divorce from Michael. Rhodes had testified that earlier the day of
Terri's collapse, Michael had argued with Terri about the amount
Terri had spent at the hairdresser. She also testified that Michael
Schiavo was controlling. There was also evidence of that Terri
Schiavo had indicated that she wanted a divorce from Michael Schiavo.

Chapter 90 of Florida Statutes states that no person interested
in an action or proceeding against the personal representative……of a
deceased person or agent… ***or guardian of a mentally incompetent
person shall be examined as a witness regarding any oral
communications between the interested person and the person who is
deceased or mentally ill at the time of the exam.***

According to case law, parties and interested persons are
disqualified from giving testimony as witnesses on their own behalf
because persons having a pecuniary interest in the event of a cause
are of a class especially likely to speak falsely.

Self-serving inadmissible hearsay testimony is not the
evidentiary standard required for "clear and convincing" evidence on
which Greer based his decision and order to remove the gastric tube
which provides Terri Schiavo with hydration and sustenance three
times a day.

Hearsay is defined as a statement other than one made by the
declarant while testifying at trial or hearing, offered in evidence
to prove the truth of the matter asserted.

It was only after Michael Schiavo had received an award for his
medical malpractice claims against Dr. Stephen Igel and Dr. Joel
Prawer, his wife's former physicians, that he remembered nearly 10
years after the collapse that his wife had allegedly told him that
she would not want to be kept alive by artificial means. His
brother and sister-in-law testified that they had heard Terri say
she wouldn't want to be kept alive by "tubes". Except for feeding,
there are no tubes or other artificial means of life support
attached to Terri Schiavo.

Some claim that Terri Schiavo is in a persistent vegetative
state but many doctors and medical professional disagree and believe
that Terri is very aware of her surroundings. No doctors or
medical professionals claim that Terri is in a coma.

She is not "dying." In fact, she is a healthy woman who happens
to have a disability. Terri is brain-damaged but she is not dying
of any terminal illness and is not being sustained through a
respirator. She breathes on her own and merely receives her food
and hydration through a feeding tube. Terri's family is asking to
be given legal guardianship so that they may love and care for her.

Florida law does not allow a dog to be subjected to a death by
starvation but yet Judge Geer has ordered that Terri Schiavo be
starved to death.

St. Louis neurologist William Burke has stated that "A conscious
[cognitively disabled] person would feel it just as you or I would.
They will go into seizures. Their skin cracks, their tongue cracks,
their lips crack. They may have nosebleeds because of the drying of
the mucus membranes, and heaving and vomiting might ensue because of
the drying out of the stomach lining. They feel the pangs of hunger
and thirst. Imagine going one day without a glass of water! Death by
dehydration takes ten to fourteen days. It is an extremely agonizing
death.

For more on the Terri Schiavo case,
see http://www.terrisfight.org
and
http://www.theempirejournal.com/greer_schiavo_articles.htm

Gov. Jeb Bush
850-488-4441,
email jeb.bush@...

Florida House of Representatives
850-488-6026,

Allan Bense, House Speaker
850-488-1450,
850-914-6300;

Tom Lee, Florida Senate
850-487-5072;
850-487-5229;
813-744-8633
email lee.tom.web@...

Florida Senate 800-342-1847



http://theempirejournal.com/02200556_greer_allowed_unreliabl.htm