| Jay Williams 2005-04-11, 6:46 pm |
| Not every statement relayed by another witness is hearsay. Hearsay if it is
used merely to prove the statement was made, and not the truth of the matter
asserted, it is not hearsay.
the evidence code in Florida is found at chapter 90, Florida Statutes.
Hearsay begins at 90.801, specifically 90.801(c) "'Hearsay' is a statement,
other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted."
http://tinyurl.com/6wwoh
I also suggest the "bible" of Florida evidence, Erhardt on Evidence.
To make a long story short, there are numerous exceptions to the hearsay
rule, depending on whether the declarant is available or unavailable and by
legislative fiat, even the statements that would be considered hearsay may
be considered not to be hearsay because the legislature says they are not
hearsay. "Hearsay" is actually one of the most complex areas of evidence.
It is one which takes weeks in law school to garner a reasonable grasp of
it's complexities and a life time to actually master (due to the exceptions
and exceptions to the exceptions). It is unfortunately, one which all to
often laypeople decide they are competent to make a determination whether
something is hearsay (and whether it falls under an excpetion) based upon
watching "Matlock" and without an appreciation of the nuances involved.
Lawyers run into this problem when speaking to or deposing witnesses who
don't tell us information they have because they believe it is hearsay. It
is now part of my routine pre-deposition speech to tell the witness not to
worry about the rules of evidence in the deposition, the lawyers will work
that out later.
The trier of fact (in this case the probate judge) determined that the
evidence standard of "clear and convincing" was met. Appellate courts from
the Florida DCA level to the US Supremes were given a chance to review the
evidence and set aside that finding. None have done so. In part, the
decision was apparently made on the basis of the husband's testimony as well
as at least two other witnesses to Terri's statements (after attending
funerals of loved ones who had been chronically ill for years) that she
would never want to be kept alive that way.
I've previously posted the link to the Guardian Ad Litem's report setting
forth the factual history. As before, a few significant facts are that in
the entire time, Terri did not develop a single decubitus ulcer (bedsore).
This is unheard of. Also, the nursing home became so frustrated with the
husband's constantly riding their XXX about her care that they actually
(unsuccessfully) sought an injunction against him.
I too have asked the question; "why did the husband continue to fight?"
Reportedly he has a new life with a new woman and children of that union.
It would be simple to divorce Terri in Florida (Florida has no-fault
divorce). He was offered approximately one million dollars on one
occassion, and ten million dollars on another to do just that and turn her
care over to her parents. It doesn't make sense then that he sought her
death because she was too much of a burden, because he has a new woman in
his life, or because he wants Terri's money. (BTW, he would be entitled to
half the marital assests anyway under Florida law). It has been postulated
he was trying to cover up his abuse of her, yet he has agreed (in fact,
requested) an autopsy by the county medical examiner. He also still fought
her parents on whether she should be cremated or buried (purportedly her
wishes were to be cremated - on the same occassions that she expressed her
desire to not be kept alive in that state, returning from a funeral, she
allegedly stated she did not want to be put in the ground with worms - a not
uncommon decision). The conclusion that I have reached is that the claims
that he has some nefarious intention do not hold water. Every argument that
I have seen regarding that simply is refuted by the evidence. I have
reached the conclusion that he fought these battles because he genuinely
believed that is what Terri wanted and that he was complying with her
wishes. As I've said before; would that someone would love me that much
when my time comes.
Some agree with the decision of the courts. Some do not. That is the way
it always is. If you don't like the law, you have legislators that you can
ask to change it. The law was applied in this case. Evidence was heard and
considered, the trier of fact made a decision based on the evidence and the
applicable burden of proof (the burden of proof was on the husband and the
level of proof was "clear and convincing"). Appellate courts reviewed that
decision (the level of review was "abuse of discretion") and the decision
upheld. Multiple rehearings were provided, multiple requests for TROs were
heared, etc. The rules regarding successive hearings and appeals were
ignored so as to give the parent's every opportunity. The hearings and
legal actions went far beyond "full and fair."
Once again, for anyone who actually cares what the evidence was, the last
GAL's findings as well as other evidence can be located here. In reality,
however, I seriously believe that those who scream the loudest will be the
least likely to want to be inconvenienced by the facts.
http://www.abstractappeal.com/ has a discussion of the Carla Iyer affidavit
http://abstractappeal.com/schiavo/infopage.html for a good timeline and
links to documents in the case.
For those that at least care what the facts and applicable law are
concerning this matter (and I suspect that as usual, that will not include
those who scream the loudest) the original order of the trial court, stating
the evidence reviewed by the trier of fact, issues regarding credibility of
the witnesses, factual findings of the trier of fact, and the order of the
court is found here http://abstractappeal.com/schiavo/trialctorder02-00.pdf
and once again the report of the GAL appointed under "Terri's Law" to advise
Governor Jeb Bush is here (and I highly recommend reading it)
http://abstractappeal.com/schiavo/WolfsonReport.pdf
The last paragraph of the standard jury instructions (read to the jury at
the end of the case and just before they retire to consider their verdict)
in Florida goes something like this...
"Even if you do not agree with the law, you must apply it. For 200 years we
have agreed to live by the law and the Constitution. No one of us has the
right to violate rules we all share."
Nothing is going to be able to change Stocky's mind (nor the parents). If a
living will were found tomorrow, those that feel strongly about this would
state it was forged. If the recently departed pope, Mother Theresa and the
Southern Baptist and Assemblies of God deceased preachers of your choice
were to appear in saintly raiment, stating that Terri was hanging out with
them, they'd just finished attending a Richie Valen's concert, and Terrie
wanted us all to know that removing the feeding tube was EXACTLY what she
wanted and she just wanted to thank everyone, those that cared enough to
remove the tube and set her free from the prison her body had become and
those who cared enough to do what THEY believed was right and fight to keep
her alive, it still would not change these folks minds.
Just like OJ Simpson, just like Michael Jackson, just like Bruno Hauptman,
Mumia what's-his-name, Sacco and Vanzetti, etc... those that are rational
will always be drowned out by the irrational ones (and there are plenty of
those on both sides of the issue).
Personally, I may occasionally correct mis-statements of Florida law
(including the evidence code) and procedure on this matter (I'll try not to,
but sometimes the errors are so patent that they grate like fingernails on a
blackboard and I find it hard to ignore them), but I will not bother to
address facts any longer. The facts are ignored and will always be ignored
by those who choose to ignore them. They were not ignored by the court, the
trial judge had the opportunity to hear and observe the witnesses and
therefore had the best opportunity to make whatever credibility
determinations needed to be made. Just as in any case, there comes a point
where the judgment stands and the matter is no longer subject for review.
That point should have been reached the first time that cert was denied by
the US Supreme Court. With any other case, it would have been. That point
has certainly been reached now.
<Stockman91790@yahoo.com> wrote in message
news:1112722238.754444.11460@o13g2000cwo.googlegroups.com...
quote:
>
> Chuck wrote:
> wishes
> you
>
> It is your time- it is your decision. I can respect a dif. opinion as
> long as it convinces me with facts that I am wrong.
>
> patients
>
> I never said "absolute right". I have treated many pts. that refused
> tmt. that I treated anyway. A pt. who is not capable to make a rational
> decision about it is treated even if they have to be tied to the bed to
> do it. We note in their chart that they are "combative" and not able to
> make a cognitive decision about it. See the distinction about it.
>
>
> A feeding tube bypasses the normal channel thru the mouth and goes
> directly into a stomach. Without food and water a person will die
> absolutely. Supplying food and water by mouth or tube is a basic nec.
> for life. It is life support but not an artificial way to do it. It
> does not take a machine to do it and food is not a medicine.
>
> A Court has had numerous hearings
> and
>
> There was nothing clear or convincing about it.
>
> , from multiple sources for and against, the court
>
> Common sense tells us that it was impossible to know her wishes since
> she had no living will, no durable power of attny, no witnesses other
> than a husband with a hidden agenda saying it and so her wishes remain
> unknown.
>
> It was appealed multiple
> want,
>
> Terri was incapable of relaying her wants.
>
> happened
> be
> the
>
> Only assault on a pt. who is capable mentally to make that decision.
>
> Alzheimers
> finish
> any
> they're
> the
> people
>
> Since being born is a death sentence, then anything that prolongs our
> life is stretching out death and that is the normal case.
> On a person who is capable of making an informed decision their wishes
> are to be complyed with regarding med. tmt.
>
> as
>
> It is not absolutely up to what Terri wished even if she indicated what
> those wishes were. Of course she is a major part of it but not the
> final decision.
>
>
> ignoring
>
> I personaly have, had no control over it but I did play a role in it in
> my work. When a person enters a hospital the papers signed by someone-
> responsible party says that they will accept medical tmt. in the best
> judgement of those treating them. Then in the course of tmt. it can not
> be argued that any "assault" has taken place when the best med.
> interests of the patient is done.
> Thanks for discussing this matter with me- an "ideogogue"- whatever
> that means.
>
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