Mr. Riddle typically has an important observation on the Terri Schiavo
situation. I’ve not commented because I don’t know the facts, so my opinion is
just that, nothing more. Others who are more involved know a lot more than I
do.
Nevertheless, there is a lot of
wild rhetoric about the case, most of it made by people don’t
have any more facts than I do. People are calling of civil disobedience and
armed insurrection against “our black robed masters.” Apparently the apocalypse is upon us. And if you don’t join in
you’re accused of being in league with the devil himself and his minions. This
is too much. The wholesale attacks on the moral integrity of judges and the legal profession are misplaced anger that will harm the cause.
Mr. Riddle’s very fair point is
that so many judges have gotten to the same result that just maybe it’s not the
judges, it’s the underlying law that’s the problem. He’s on to something there.
There are two things I wish
people caught up in this situation would understand about the law. These are discussed at length below:
The First of the Two Things: The
law has two overriding goals that are inherently in conflict with each other.
Here are the two conflicting
goals:
1. The law should do justice for each
individual.
2. The law should be predictable enough to provide order in people’s lives.
Both are noble goals. These
don’t seem to conflict but they actually conflict frequently, and courts and
legislatures are called upon to balance these two conflicting goals all the
time. The Teri Schiavo case is a good example of this conflict in action. Almost
always, the attempt on any law is to provide certainty. In fact, a law that
provides certainty will reduce the number of lawsuits precisely because people
will know the outcome if they do go to court. The principle of certainty and
finality is essential to a well functioning court system.
The other goal, do justice to each
individual is actually the opposite of certainty. This goal requires us to look at each case individually and make
individual decisions. Certainty and predictability are lesser concerns.
Here’s how the two goals
conflict---let’s assume two hypothetical laws passed by Florida:
Law #1: If a person is in a
coma, and has not left a written advance directive, all medical decision on
that person’s behalf will be made first by the spouse, if married, if not, then
by the parents, and if no spouse or parents, then by the next person who would
inherit in the absence of a will.
Law #2: If a person is in a
coma, whether or not they have left a written advance directive, all medical
decisions will be made with the unanimous consent of all adult next of kin
family members and spouse, if any. If any next of kin or spouse is not in
agreement, that person may file for a court appointment of a patient advocate.
The court upon full hearing will appoint an advocate based on the best
interests of the patient as determined by the court.
Law #1 has the virtue of
certainty. In The Schiavo case, the
spouse makes the call. The parents couldn’t even go to court. In all other cases, everyone can know in
advance who makes the decision, if you haven’t written out what you want. If
you don’t like who the law has per-designated, then you can write an advance
directive and select that person yourself. Every body is in the position of
being able to plan. However, Law #1 does not address individual circumstances
in which a spouse might not have the best interest of the patient at heart.
Law #2 has the virtue of
addressing an individual case like Scaivo. There is not unanimous consent and court could appoint a person to act
on her behalf with her best interests in mind. That person might not be the
husband or the parents. It also won’t matter if she signed an advance directive
that may or may not be out of date. Each case will have the best approximation
of justice because the court will select a person based on the best interests
of the patient, and each patient is unique. Nevertheless, this law has the
disadvantage of complete uncertainty. If you are in a coma, your mother in law,
little brother or someone else may be appointed to make a decision contrary to
your long expressed wishes in intimate conversations with your spouse. Advance
directives would be essentially useless.
In short, these goals, each of
great value, are in irreconcilable conflict. It's not possible to fully implement both of these goals in the same law. If the actual Florida law is some version of Law #1, it’s really hard to
fault the judges or the court system. I suspect Florida’s law is, in fact,
close to law #1. This is the kind of situation where the law favors broad
predictability.
The Second of Two Things People
Should Know About the Law:
In Court, you only get one bite
at the apple.
In our court system, the trial
courts resolve disputed facts and apply law. Courts of appeal rarely re-visit the facts.They only correct mistakes of law. The facts determined at the
trial court are the facts for the rest of the case.
An example of how this works:
Trail for Rape. Victim believably testifies the defendant raped her at a
specific time and location and identifies the defendant in court as the
perpetrator. She is the sole prosecution witness. Defendant believably
testifies he never met the victim before. He calls the entire church choir to
believably testify that he sang with the rest of the choir at the time the rape
took place and he was in their sight the whole time. Jury verdict: Guilty.
The court of appeal cannot set
aside the jury verdict merely because there was conflicting testimony of
witnesses. The credible testimony of a
single witness is sufficient to establish guilt beyond a reasonable doubt. The court of appeal will reverse only for legal errors: the judge excluded evidence or allowed a coerced confession, for example. Facts can’t be appealed. You only get one bite.
In the Schaivo case, there have
been numerous facts found at the trial court level. These won’t be disturbed on
appeal. That’s why the appeals courts can act so fact in this case—there are no
legal errors. There may have indeed
been factual errors—I don’t know enough to say, but it is unusual that these would
be examined on appeal. That’s why there’s very little chance of success at any
appellate court in any case. Legal errors are somewhat rare and once the facts
are determined by the trial court (She is PVS, for example) you can pretty much
guess what the appeal courts will do.
Now do trial courts get the facts
wrong? Yes, OJ Simpson, Rodney King and many, many others. To Kill a
Mockingbird is all about an unremarkable rape case. The outcome was not unusual—the defendant was convicted in spite of very strong evidecne of innocence. The unusual part and noble part of the story was the
aggressive representation by the defense attorney when he knew the likely outcome.
This is a long way of confirming Mr. Riddle’s view
that it’s not the process that’s the problem, but the underlying law. If you
got this far, thanks for reading.
