Once more, the efforts of Terri Schiavo’s parents to save her life have been rebuffed by the federal courts.

Today, Justice Stanley F. Birch, Jr. of the 11th Circuit Court of Appeals wrote:

Any further action by our court or the district court would be improper. While the members of her family and members of Congress have acted in a way that is both fervent and sincere, the time has come for dispassionate discharge of duty.

What’s happening to Terri Schiavo, who lies in that hospice bed tonight — her 13th night without food or water — is dispassionate murder.

I continue to marvel, as I watch the ongoing coverage of the Terri Schiavo debacle and listen to all the folks weighing in with their opinions, at the number of times I hear Michael Schiavo referred to not just as Terri’s “husband,” but as her “devoted,” “loving,” “committed,” and even “faithful” husband.

It boggles my mind, frankly.

It is undisputed that Michael Schiavo moved on with his life after Terri became disabled. He has had at least several relationships with other women and has been living with his current companion, according to Terri’s brother, Bobby Schindler, for 10 years. He has fathered 2 children with that woman.

I’m not suggesting that Michael Schiavo was not free to get on with his life. I think you’d be hard-pressed to find someone who would begrudge him the chance to find love and happiness, and start a family, with someone else. After all, he and Terri were only in their 20’s when she sustained her life-changing injury and whether or not you accept the testimony of the neurologist who claim that she is in a persistent vegetative state (I do not), it is beyond dispute that, even with rehabilitative therapy, she will always be a disabled person.

So had Michael Schiavo divorced Terri, I think few people would have blamed him.

To Rose Wendland’s credit, if she was involved with someone new, she was at least discreet. While Michael and Terri did not have children, Robert and Rose had 3. The youngest, Robby, was just a youngster when Robert was involved in the car accident that left him disabled and his 2 older sisters were teen-agers. Rose was busy, by all accounts, raising the children on her own.

But when the subject of divorce came up during the Wendland case, Rose bristled. She insisted, a la Michael Schiavo, that she was attempting to carry out Robert’s pre-incapacity wishes, even though the California courts found that she did not sustain her burden of establishing that by clear and convincing evidence.

America’s Moral Decline and the Judiciary’s Refusal to Acknowledge It

Like Judge George Greer in Florida, San Joaquin County Superior Court Judge Bob W. McNatt was not interested in my attempts to introduce or elicit evidence that Rose Wendland had conflicts of interest which disqualified her from making decisions about Robert’s medical treatment.

However, as noted above, Rose Wendland’s conflicts pale in comparison to the one glaring conflict of interest that should have been deemed legally sufficient — years ago — by Judge Greer to remove Michael as Terri’s guardian. Michael effectively abandoned his marriage to Terri and the vows he made to her when he began a relationship with another woman.

How anyone can make a straight-faced assertion that Michael Schiavo has been “faithful” to Terri escapes me.

And leaves me pondering just how severely the moral fiber of this country has deteriorated when otherwise rational, intelligent adults can analyze Michael Schiavo’s circumstances and life choices, but still argue that he is Terri’s “husband” and, therefore, entitled to make decisions on her behalf.

Michael Schiavo is Terri’s “husband” only in the very strictest legal sense.

And consider the legal quagmire Judge Greer’s failure to acknowledge Michael’s conflict of interest created for Bob and Mary Schindler, Terri’s loving parents. They petitioned the court, seeking a divorce for Terri, but were blocked.

Why? Because a guardian (in California, the correct term is “conservator”) stands in place and stead of the person who has been adjudicated incompetent to make his/her own decisions. The guardian speaks for the incapacitated individual and is authorized by the court to exercise his/her rights. The guardian’s actions are governed by strict fiduciary duties. In other words, the guardian must be guided by and act at all times in accordance with the best interests of the ward.

Terri Schiavo, were she competent to make her own decisions, would have an absolute right to be divorced from Michael.

But since Michael stands, from a legal perspective, in her shoes and exercises her rights for her on her behalf . . . well, are you seeing the problem? Michael would have to petition the court on behalf of Terri, asking that Terri be divorced from . . . er . . . Michael. That would not be the case had Judge Greer, consistent with his duties, acknowledged and acted upon Michael’s inescapable conflict of interest in this matter by removing him as Terri’s guardian and appointing someone else to serve in that capacity.

Instead, Judge Greer abdicated his duties and responsibilities as the trial court judge when he refused to strip Michael of his status as Terri’s guardian.

I think John Gibson, subbing for Bill O’Reilly on his radio program on Friday, said it best. He noted that if Terri were to experience a miraculous recovery, sit up in her hospital bed and find Michael in her hospital room, along with his two children and their mother, her first questions might well be, in this order, “Who is this woman?” and “Who are these kids?”

Upon learning their identities, her first response would most likely be akin to that of 99.99% of the woman I know: “Get out and take them with you. I want a divorce.” That would certainly be my first reaction and I think any woman who tells you it wouldn’t be hers is being intellectually dishonest.

This is just one of several reasons why, in my opinion, Judge George Greer is not fit to serve as a judge.

And the fact that so many people are willing to overlook Michael Schiavo’s conduct and deem him still fit to bring about Terri Schiavo’s death by dehydration and starvation conclusively, in my opinion, the demonstrates how severely, as a nation, our moral perspective has declined.

Click here to read Wesley J. Smith’s observations.

It’s very clear that, even though Terri’s family continues to hope against hope for a miracle, the courts and Jeb Bush are not going to intervene to save Terri’s life.

Given that sad fact, it is time to pray for one thing: That death comes soon for Terri and her suffering, as well as that of her family, ends.

Terri Schiavo is being murdered. It’s just that simple. Her father, Bob Schindler, is calling what is happening “judicial homicide” and I strongly agree with him.

Putting that aside, however, on behalf of Terri and all who love her, we should all now be praying the ancient Maranatha prayer: “Come soon, Lord.”

The text of Judge Whittemore’s second denial of Bob and Mary Schindler’s request to have their daughter, Terri Schiavo’s, feeding tube reinserted can be read here. (I would post it in its entirety, but it is 11 pages long.)

Note the last paragraph of the ruling:

Finally, the court would be remiss if it did not once again convey its appreciation for the difficulties and heartbreak the parties have endured throughout this lengthy process. The civility with which this delicate matter has been presented by counsel is a credit to their professionalism and dedication to their respective clients, and Terri.

As a lawyer, I understand what motivated Judge Whittemore’s remarks. I’m sure he just wanted the world to know that he recognizes the humanity of this case, even though he was constrained to weigh only the legal considerations.

Note to Judge Whittemore: Nobody ever said it was going to be an easy job.

But from Florida comes a more thorough translation of his ruling. This was forwarded to me by a friend of the author, who wishes to remain anonymous. The person who sent it to me said the author should be identified simply as “my brilliant friend, the smartest lawyer on the planet.”

So, from “the smartest lawyer on the planet,” here is what the Federal District Court really said about the Schiavo matter.

Evidentiary errors are a matter of state law.

Translation: Evidentiary errors which cause the intentional taking of a life are a matter of . . . , um, . . . not my job.

Reasoning: Nope, those pesky evidentiary errors could have been taken care of by the state. They’re killing her, not me, no way, that’s not a federal thingy, nosiree. I only have to be responsible for those good federal evidentiary errors and I’m not gonna have any of those because I’m not taking any evidence. Not now. Not until after she’s dead. Then, all I have to find on my de novo review is that she’s dead. It’s moot. No other evidence, no evidentiary errors. Whew.

www.dictionary.com defines “de novo” this way:

* Over again, anew
* As if for the first time
* From the beginning
* Allowing independent appellate determination of issues (as of fact or law)
* Allowing complete retrial upon new evidence

And, interestingly, the entry for “de novo” includes the following:

“NOTE: A de novo review is an in-depth review. Decisions of federal administrative agencies are generally subject to de novo review in the U.S. District Courts, and some lower state court decisions are subject to de novo review at the next level.”

With that definition in mind, every rational, law-abiding citizen of the United States should be outraged by what is happening in Florida to Terri Schiavo and her family.

As usual, my pal Wesley J. Smith’s said it succinctly and cogently in his blog this morning:

When Congress directed the federal courts to take a fresh look at the Schiavo case, it was to be “de novo,” that is, to relook at the evidence with a fresh eye. Yet, Judge James D. Whittemore looks to have been more of a rubber stamp.

For example, the federal courts were to determine whether the clear and convincing evidence standard had been applied to determining Terri’s desires. Remember, all we have are hearsay statements from Michael, his brother, and his brother’s wife. Also, Michael told conflicting stories to different courts. When he wanted $, he told a
malpractice jury Terri would live a normal lifespan. When he wanted Terri
dead, he said she urged him not to live in her present circumstances.

Yet, rather than look at the evidence itself–which is what a de novo review is supposed to do– Judge Whittemore states, “The state judge applied the heightened clear and convincing evidence standard in determining her intentions, as permitted by Cruzan and in accordance with [statute # omitted].”

UNBELIEVABLE. Judge Greer stated he applied the standard so I find he applied the standard. That is not a de novo review! The sense of profound injustice in Schiavo only continues to grow.