| Jay Williams 2005-04-09, 7:14 am |
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<Stockman91790@yahoo.com> wrote in message
news:1112970719.813770.168680@g14g2000cwa.googlegroups.com...
<snip>
quote:
> I disagree with those statements. Without giving examples I can think
> of a number of issues where state law was struck down because something
> was covered under fed. law. I was taught that states rights are only
> the residual of fed. law (fed. laws do trump state laws).
Feel free to disagree. Feel free to argue that black is white, that trees
do not use carbon dioxide and sunlight to photosynthesize, that dogs are
born to cats, etcetera. You are wrong. You either misunderstood your
teacher or you were taught incorrectly.
quote:
> No, I once memorized the dec. of ind. and know the difference. The dec.
> of ind. came first and stated our policy and its principles guided the
> formation of our const. I am sure our forefathers would roll over if
> they knew that our government had a legal right to kill a citizen
> because they decided they had lived long enough because of a physical
> disability.
Again, she was not killed because of a physical disability. Her wishes to
not be maintained in that miserable state were granted. An effort by
congress to ignore the 10th amendment and involve it self in a matter of
purely State jurisdiction was thwarted. I think our forefathers (who were
notoriously concerned about an overly intrusive federal government) would be
sad at the tragedy of Ms. Schaivo's medical state, but would cheer that
their carefully crafted federalism held firm.
<snip>
quote:
> ok- they didn't guarantee anything, but they certainly stated our
> rights.
Yes... the general thrust of which is that primary rule making power resides
with the States and the Congress and indeed the US Supreme Court is limited
to areas of Federal jurisdiction (see again, the commerce clause). Later,
when the Fourteenth Amendment was enacted (in response to the treatment of
blacks and former slaves in the South), the Bill of Rights was held to apply
to the States (only partially at first, it actually took until the middle
part of this century - along the time of the Warren court for the last of
the Bill of Rights to be held applicable to the States). Directly, they do
not apply. They only apply by virtue of the Due Process and Equal
Protection clauses of the Fourteenth Amendment. So in the beginning, even
the Bill of Rights did not apply to the States. This is what you either
were never taught, or misunderstood in some earlier classes or reading.
Again, this is a nuance that the average layman is not aware of.
The Tenth Amendment (the last of the Bill of Rights) states quite clearly
and plainly that those powers (Governments have powers, citizens have
rights) not specifically granted to the Federal Government by the
Constitution, were reserved to the States, respectively, and then to the
People.
quote:
>
> I do believe she lacked
> the capacity to think,
At least we agree on that. I too have seen the CT scans and cannot believe
that there was any higher brain function at all. It looks like virtually
everything except the brainstem and perhaps a bit of the midbrain had
atrophied.
<Snip>
quote:
[vbcol=seagreen]
>She stated on more
> than
> under
> order).
>
> I do not believe it and even if true would only be one of the factors
> used to decide her fate.
> I do not believe that "fact" played a role in it- the real facts are
> unknown.
The are no more unknowns here then in any other trial. Taking your argument
that, because there is no evidence of what her intentions are now because
she is unable to respond [indeed, unable to even think about the question]
then we do not KNOW for a certainty what her desire currently is. Legally,
her current desire can be gleaned from the evidence , indeed, most cases of
all kinds are those were the facts are gleaned from other evidence and
statements and no one KNOWS what happened, but can reach a conclusion using
their common sense and the evidence before them. If we had to KNOW from
personal, immediate knowlege in order to make a legal decision, then no one
could be convicted of a crime unless there was an eyewitness or a video
tape. There could be no circumstantial evidence cases. That would surely
lead to an absurd result. Let me anticipate the next argument "but this
involves death and that is different". Of course, and so does a murder case
and so it is doubly true where the death penalty is sought. However, we
execute murderers every day who were convicted on circumstantial evidence.
Usually the only eye witness is the shooter (who isn't talking) and the
deceased (who can't testify). Circumstancial evidence is perfectly legal
proof, provided it is sufficiently compelling to meet the burden of proof.
quote:
> expressed an
> in the
> claim the
> is just
> you
> findings
>
<snip>
quote:
> I did not
> read the opinion and it does not matter
And that is the crux of the matter. That is why you do not know and cannot
discuss either the facts or the law, because you refuse to learn either.
You are emotionally wounded by this event. I understand and even sympathize
with it, but that answered my final question. I will not argue with you
further after this response because of your refusal to learn the actual
facts and develop at least a rudimentary knowlege of the applicable law. If
you only want to argue it on an emotional level - isn't this terrible, what
a shame, I am so angry and feel that someone should pay, then you still have
no argument from me because I agree it is a shame. I, however, believe the
shame is in what initially happened to her. I hope the potassium imbalance
that lead to her respiratory arrest was not due to an eating disorder, and
if so, I wonder if anyone noticed (a dear friend of mine is a recovering
bulimic... They are remarkably good at hiding their activities, so it may
not be surprising that no one noticed) or if there was an attempt to treat
the condition. I'll not fault the husband, given the facts (in the order
and GAL reports you refuse to read it is clear that he was extraordinarily
devoted to her, even (perhaps particularly) after the respiratory arrest).
Fifteen years without a single decubitus is simply mind blowing. If you've
done any geriatric or nursing home care, you know what I mean. (As an aside,
I learned a few months ago on alt.emergency-services.moderated that there is
a move afoot to do away with spine boards on ambulances because the
beginnings of tissue breakdown can begin during only fifteen minutes..
Although I admit I still question the validity of that.) Likewise I'll not
fault the parents; bulimics have been hiding it from parents (even when they
live at home) for years. In some real sense bulimics are "addicted" to
binge and purge. An unfortunate truth about addicts, learned over years of
dealing with them, is they are consummate in their ability to lie about
their addiction - particularly to themselves.
The court system, however, responded exactly as it should (caveat -
actually, the court system was MORE responsive then the law provides - there
was clearly an abundance of caution used in making sure that every possible
argument or evidence the parents could raise was considered, even under
circumstances where the rules of procedure did not actually allow it... It
was treated as a special case, however, and the Courts actually bent over
backwards to give the parents every possible bite at the apple). Evidence
was taken, both sides were given a full and fair hearing on the matter, an
opinion was rendered in accordance with the statutory law and cases
construing that law, appeals were taken (in Florida the first appeal is to
the DCA (District Court of Appeal), then you can request the Florida Supreme
Court to hear an appeal if you disagree with the decision of the DCA, but
that appeal is by certiorari, not as a matter of right). More so, there
were repeated rehearings on attempts to illicit new evidence, the Florida
legislature passed a clearly unconstitutional statute allowing the Governor
of Florida to be her guardian (called "Terri's Law"), yet the court's
utilized it and re-inserted the tube until it was declared unconstitutional.
At least three Guardian Ad Litems were appointed and all of this BEFORE it
came to national attention and the Congress attempted to intervene with a
similar statute. More rehearings were granted, even though the rules of
procedure clearly barred them, but again, I think the judges involved wanted
the parents to be able to make any and all arguments they could muster.
Now, I'm sure you disagree with whether they did enough, but let's face it,
under your scenario, no one would ever be allowed to decide they didn't want
to live like that. The people of the State of Florida have, through their
elected legislators, their right to disagree with you and give that option
to their fellow citizens.
quote:
> she
>
> Absolutely, but her mindset remained unknown. And again, only a factor
> in it.
Not completely... There was evidence adduced (it's in the order and the GAL
report you refuse to read) as to her wishes at the time she was able to make
such a decision. There was no evidence she ever changed her mind. Of
course, by the time of the lawsuit, it was too late as you stated above
"> I do believe she lacked
quote:
> the capacity to think, "
<Snip>
quote:
> Then we need a fed. law to cover it. There was one just for Terri- our
> whole gov. and pres. stopped what they were doing to protect the life
> of one of our citizens and even that wasn't enough to save her. What
> you are proposing is the right to suicide- and assisted suicide.
>
Then ask your congressman and senators to pass such a law. Then it can go
to the President, who will surely sign it. Then a test case can be had and
it can go to the US Supremes for a decision on whether or not it is within
the Federal powers granted under the U.S. Constitution to pass such a law.
You may get lucky, damn near everything has been found to fall under the
commerce clause over the past fifty years or so.
BTW, do you know how kidnapping got to be within the FBI's jurisdiction?
Because so many were transported over state lines in the old days. That was
the tie-in to the commerce clause. That is why the FBI has to wait either
24 or 48 hours (I forget which, and it may have been decreased recently to
reflect the Amber alerts - I don't practice criminal law in Federal court.
When I get the urge to beat my head against a brick wall, I just go find a
brick wall... or come on here and stay up until 2:30 a.m. debating
politics) before acting. The statue allows them to presume the victim has
been taken over state lines at that point.
Federal Banking regulations exist because of the commerce clause. Federal
authority over communications (FCC) and aviation (FAA) (there's your flight
sim tie-in) exist because of the impact on commerce between the States.
<snip>
quote:
> come on,
> have
>
> I confess, I did not and won't. It would really be a waste of my time
> to do it.
<snip>
quote:
> I am dismayed that all of my replys seem to be disregarded by you
> though.
See the above. "I confess, I did not and won't. It would really be a waste
of my time to do it." If you feel that your replys are disregarded, that is
why. You probably don't realize it, but you are stating black is white, up
is down, rabbits live under water and clownfish fly in the air. You don't
realize it because you haven't "wasted your time" in learning the facts or
what legal analysis was applied (it's all there in the order).
quote:
> My basic assertion is that we have a right to life and you seem to
> dispute that and use "law" to do it. The very law has eaten away at our
> const. which gives that law. Those "laws" are used to take our life
> away and I contend they are invalid. You can rebel against the
> principle of protecting our lives but it will not change what our
> country stands for.
Believe me, as a (soon to be former) criminal defense lawyer, I genuinely
know what it is to disagree with the law, think it was poorly reasoned and
poorly written. However, I must warn you, the law is not invalid just
because you disagree with it and think it should never have been written.
The way to change a bad law you disagree with is to convince your legislator
to do so (or vote for one who will agree with you). We are all obligated to
follow the law, even the ones we disagree with. "No one has the right to
violate the rules we all share"
quote:
>
> of
> longer
[vbcol=seagreen]
>
> And conversely so. I am sorry you, yourself do not have an open mind
> about this.
Touche' I do not have an open mind on whether due process was followed
here. I've spent the better part of my professional life making sure that
due process is followed. Given the side I've been on these last fifteen
years, that often times has been all that I could do for a client. I've
been proud to do it well and vigorously.
But actually, I have an open mind on whether the current statute was well
drafted (I don't think so, a common malady - the great draftsmen are all
dead, it seems), whether the burden of proof should be higher (beyond a
reasonable doubt) - the same as in a criminal case (I do), etc. I have
suggested those as talking points at in various postings within this
heading, although not in this particular post. Again, I confess; I don't
have an open mind on whether she was given a full and fair hearing. I don't
because I've seen the door slammed shut on others too many times at a much
earlier point in the process. I do agree (and always have, albeit it is a
phrase I have used regarding death penalty cases) that "death is different"
and requires even stricter adherence by the courts, defense attorneys and
prosecutors to the burden of proof, full discovery and investigation, the
Brady rule (that prosecutors are require to disclose exculpatory evidence
even if the Defense elects not to participate in discovery), that "beyond a
reasonable doubt" must be a particularly adhered to and stringent burden of
proof in death cases. But keep in mind. In these death cases, the
defendant is not in a persistent vegitative state and has not usually told
his family and friends that he would rather be dead then in that state.
Typically, he is fighting like hell to get his conviction overturned. He is
shut down much quicker than her parents were.
I also do not have an open mind on whether I should be allowed to decide, in
advance, and tell my loved ones, that I do not want to be kept alive under
such circumstances. I cannot think of a more personal and fundamental
right, nor a right which affects any government interest less, then the
right to decide whether I should be allowed to die, or imprisoned. That
right is fundamental, and now that I have it (it is a relatively recent
invention), you'll play hell taking it away from me.
If you believe in God (and I do), then I would much prefer to be allowed to
"shuffle off this mortal coil" amd be with God, then remain in a state where
I am not aware of my own existance, cannot move purposefully, cannot affect
my environment, cannot enjoy anything of what it is to be human. I would
much rather go and meet my Maker at that point, answer for my sins (there
have been a few over the years) and suffer what ever judgment is my lot.
I love my wife. I love my daughter. The thought of missing the opportunity
to see her grow up, to be happy and live her life is almost more than I can
bear. What would hurt more, however, is for me to know that my wife and
daughter come to visit me, are wounded by the terrible state I am in, that
they hope against hope for my recovery, yet all the time, everything that
made me who I am, that made me Jay Williams, that made my life uniquely
human, is forever and irrevocably gone. I would hate for them to remember
my face drawn and tight, the muscle tone gone, my eyes blank and staring, my
frightening, purposeless, animal-sounding vocalizations, my reflexive and
flailing movements. No. Let me go. Let them think of me fondly and
remember me well. Let them remember my smile as I lifted my daughter in my
arms every day when I came home from work. Let them remember me, not my
empty shell. Let me go and let (as William Blackthorne wrote) "poor men
bless me when I die". Let them wake me well with love and Irish whiskey
(take that, Colin! <grin> ). Let us say "Good Bye" and hopefully my faith
will have been well founded and I'll be able to watch the show while they
live and hold them again after their long and happy lives are complete. If
not and I am wrong and there is no heaven and no God, then I will have not
lost anything by giving up lying in bed, unaware, unable to think or love,
and only able to cause them years of sorrow.
Try to deny me that... Try to force me to endure the indignity of lying in
that bed, nothing but an empty shell, and I swear on all that is holy, when
I eventually die, if you are still alive I will haunt you. If you are dead,
I will kick your XXX in hell for 10,000 years.
By the same token, If the government ever tries to take you off life support
(of any type) because you are "defective" and it was against your wishes,
please tell your loved ones to contact me. I'll represent your desire to
continue to recieve treatment and life support indefinately and I'll do it
for free, appearing pro hac vice if necessary, doing all I can to make them
leave the tubes in. Why? Because it is your right to decide, just as it was
Terri's. But let me warn you. You must think it through, because if you
change your mind, and there is no way for you to communicate that change
(perhaps it is every bit the nightmare I suspect it would be), you will be
stuck in that shell forever. Considering our ability to keep people alive
that otherwise would die, forever may indeed be a very, very long time.
quote:
> Your mindset is on a one tract course of using court decisions to
> affect your reasoning rather than real facts.
It is the court decisions you were complaining about, all the while stating
erroneous factual and legal information. What else were you expecting me to
discuss, the price of eggs in China?
quote:
>I do not intend that as
> an insult to you- only a conclusion I have drawn as your reasons to
> disagree with me.
> And the humor I see that I am "hard headed"- "physician heal thy self"
> should also apply to lawyers.
Well, I don't think I called you "hard headed"... at least not publicly
<grin> No telling what you and I have said about each other under our
breath over the years. <grin> Like you I mean no insult; if I have crossed
the line (and I may have), I apologize.
And I agree that perhaps lawyers lose their ability to be publicly emotional
in their arguments and deal with things purely on that level. But frankly,
that is what we bring to the table ... the ability to put the wet, often
dangerous emotion aside (although I fear I have not been completely
unemotional in this post)
In truth, I do not (and never have) meant to disuade you from feeling
passionately about this (or anything else). I'm disagreeing with some
statements you've made about what the facts are, what the controlling law
is, and some statements that I felt were incorrect, exaggerated, or unduly
inflamatory.
Of course, sometimes too much passion, too many inflamed emotions are not
just counter-productive but dangerous. Been in a courthouse lately???
You'll notice metal detectors. The recent event in Atlanta notwithstanding,
those magnetometers are not there because of fear of what the criminal
defendant's will do, its because of what the family law litigants will do.
Prior to the incident in Atlanta, criminal defendants shooting up a
courthouse was pretty much unheard of. The infamous shootings of a few
years ago were were all family law cases. Afterall, no one knows how to
push your emotional buttons like family. Where else would someone fight
vigorously for custody of a dog they always hated and intend to sell or put
to sleep, just to keep their spouse from having a beloved pet. Lawyers, not
being emotionally involved in the case are able to say "C____, you're being
unreasonable. You don't want the dog; you hate the dog. You just want to
hurt D____ and that's just not a good enough reason."
quote:
> I have said all I have to say about it also.
I doubt that <grin> but it's ok. I don't always agree with you, Stocky
(and I admit that much of the time I feel that you take the emotional
response just that Nth degree too far), but I can never claim that you don't
feel passionately about things and I truly respect that. Just like this
group needs someone like me to throw a little ice water on the fire, it
needs someone like you to feel passionately also (although a few here will
beat me about the head and shoulders for encouraging you)
Perhaps someday, in the same vein, you will appreciate my desire to calm
the passions around here and seek a less inflamed discourse. It may be we
are fated to simply provide some balance. I, for one, can live with that.
quote:
> This may post 2x because I am not sure it got posted at all.
Only showed up once for me. Looks like you were right in re-posting it.
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