|
 Why was the U.S. District Court judge who denied a motion to reinsert the feeding tube of Terri Schiavo, in essence affirming her death sentence, on his computer the following day reading an AOL message board dedicated to the Terri Schiavo case?
Is that how he makes his decisions---by reading the comments on the AOL message board?
San Francisco resident Dera Marie Jones has been convicted of sending an Internet death threat to Michael Schiavo and Judge James Whittemore of the Middle District of Florida although she didn't direct her alleged threat to either of them and was exercising her freedom of speech during a highly charged time in American history.
Jones was convicted in part due to a stipulated testimonial statement by Whittemore read at the defendant's jury trial, news reports say.
Whoa, let's back up here. This whole case has got some serious constitutional issues. First, there's the First Amendment issue and secondly, if Whittemore didn't appear in person to testify and some statement by him was read at the trial, then she was denied her right to confront her accuser, the witness against her. Even Whittemore should know that but then he had a big problem with the constitutional issues in the Schiavo case.
And if her attorney didn't object to this lack of confrontation, then she's probably got a Sixth Amendment ineffective assistance of counsel claim too.
According to court reports, after reading the AOL message board on March, 23, the same day that the 11th Circuit Court of Appeals upheld his denial to reinsert the tube by a 2-1 vote, Whittemore supposedly became concerned for his safety and the safety of his family. So, if Whittemore hadn't been surfing the message boards about the Schiavo case, then he wouldn't have known anything about this alleged threat. Right? How could there be any proof of intent by Jones to harm Whittemore when there's no name of any judge? Seems like a pretty flimsy complaint on which to threaten a woman with five years in prison and a $250,000 fine.
Did he have a guilty conscience? According to the court record, the message that was posted by "VobolAxe" said "If she dies, I will kill Michael Schaivo and the judge This is for real". How did Whittemore assume the poster was talking about him? By that time, there had been about 40 judges involved in Michael Schiavo's quest to kill his brain injured wife. George Greer would have come immediately to the mind of most people reading that comment, not James Whittemore. Quite frankly, we didn't see where he has any complaint in the case and couldn't be a witness against Jones. He's not even mentioned. How can anyone remotely believe that the statement was directed at James Whittemore. There's certainly no proof beyond a reasonable doubt, the standard needed for conviction and for that conviction to be upheld on appeal. Looks to us like a total abuse of the system by Whittemore for a paranoia attack he appears to have experienced.
The person that is specifically mentioned is Michael Schiavo and yet from the information we've received, Michael Schiavo didn't testify nor was any statement given by him nor any complaint made by him.
Dera Jones shouldn't have been arrested and certainly not tried---well, maybe the appropriate word here is railroaded. If this verdict is allowed to stand, it's establishing an extremely dangerous precedent.
The life of Terri Schindler-Schaivo was literally in the hands of Whittemore and he sealed her death warrant. Considering his failure to disclose his huge conflict of interest in the case, no wonder he was paranoid and surfing around the chat rooms to see what people were saying about the case.
In denying the request March 22 for a temporary restraining order to restore her feeding tube and thus save her life, Whittemore wrote that her parents, Mary and Bob Schindler Sr., didn't have a substantial likelihood of success on the merits of their arguments. Whittemore didn't even review the evidence in the case. Congress and President Bush signed legislation to granting a new review of the entire case but Whittemore bucked the President and Congress. No wonder he was reading message boards.
However, the Schindlers would have more of a likelihood of success had Whittemore disclosed his overwhelming conflict of interest in the matter that ethically prohibited him from sitting on the case.
Whitremore, who had served in the 13th Circuit Court of Hillsborough County from 1990 to 1999 ruled that "the court concludes that Terri Schiavo's life and liberty interests were adequately protected by extensive process provided in the state courts".
But there had been extensive conflicts of interest and improper rulings in the state courts against Terri Schiavo and her parents.
And those perverse conflict of interests extended into federal court.
Whittemore failed to disclose that one of the attorneys who had formerly represented Michael Schiavo had been a member of the judicial nominating commission which had recommended him for his judicial position on the 13th Judicial Circuit Court of Hillsborough County where he served until he was nominated by President Clinton for the Middle District of Florida in 1999 and confirmed.
Whittemore was allegedly chosen at random to hear the application of Schindlers for a temporary restraining order.
Congress passed and President Bush signed into law a bill that was designed to save the life of Terri Schiavo, to provide a de novo review of the case, to extend jurisdiction of the case into the federal courts, in essence the same type of review as a writ of habeas corpus in a criminal matter.
But Whittemore quickly squashed that, giving a purported de novo review of the 10-year-old court case in a little more than 24 hours following a two hour court hearing. There was no conceivable way he could have reviewed the evidence of the previous 10 years. He probably made his decision based on comments he read in the AOL chat room.
Immediately following the hearing, George Felos appeared on Fox News, stating that he was "impressed" with Whittemore, saying that the judge would not succumb to public pressure and that he was confident the Constitution would be preserved. In other words, Felos was satisfied he had the judge in his pocket. And no wonder, considering Whittemore owed his position to Felos' ex-wife.
Although obviously aware that George Felos and his ex-wife, the former Constance McCaughey, were the attorneys for Michael Schiavo, Whittemore failed to disclose his fatal conflict which ethically precluded him from being the judge which sounded Terri Schiavo's death knell.
Whittemore, as well as Schiavo's attorney, Felos, failed to disclose that Constance McCaughey had been a member of the 13th Cirucit Judicial Nominating Commission which had recommended his judicial appointment as circuit court judge, the springboard for Whittemore's federal judgeship.
According to the Florida Bar Association, McCaughey served on the judicial nominating commission from 1988 to 1992. She was named commission chairman in 1991.
The nine-member group consists of three lawyers or non-lawyers appointed by the governor, three lawyers appointed by the Florida Bar and three non-lawyers selected by the six appointed members. All members serve four-years with no compensation.
The commission nominates candidates to the Governor for judicial replacements in Hillsborough County when vacancies occur between elections.
The Governor then appoints from the commission's recommendations. The commission convenes only when there is a vacancy in an existing judgeship due to illness, resignations or retirements, or when a new judgeship has been created. After the appointment is made, the judge serves for the balance of the designated term. When the term ends, the appointed judge who is then the incumbent, must seek election and ultimately the people elect judges of the Circuit and County Courts in Florida.
But, as in political races, the incumbent always has the advantage and those judicial nominating commissions wield a great deal of power. Voters elect county and circuit court judges in supposedly non-partisan elections every six years. But contested judicial races are extremely race and under the retention system, if no one runs against a judge, his or her name never appears on the ballot.
It has been estimated that more than half of the state's over 750 judges owe their seats to governors. And that includes Whittemore---who owed his 10-year tenure in the Hillsborough circuit court to the Governor----and Constance McCaughey.
Therefore, it would naturally be a conflict of interest for the lawyers who had a role in placing the judge on the bench to then practice cases before him.
Such as Constance McCaughey.
She married George Felos in July, 1996. She was 44, he was 52. She joined him in his law practice,Felos and Felos, and entered the Schiavo case in May, 1997, when Sixth Circuit Court Judge Mark Shames allowed Michael Schiavo to use the proceeds of Terri's trust find to hire an attorney to end her life. Mark Shames---the man the Schindlers had consulted and discussed their case with when Shames was in private practice. That too was a conflict and Shames should have been sanctioned for failing to disclose that relationship and adjudicating the matter when he became judge.
Constance remained in the Schiavo case until 2001 when she and George divorced. During the guardianship proceedings on behalf of Michael Schiavo earlier in the case, McCaughey served as Felos' co-counsel.
She assisted her husband in filing Michael's first petition to remove Terri's "artificial life support" in 1998 and brought CT scans and other medical data to support the claim Terri was in a so-called persistent vegetative state. At that time the law didn't provide for removal of a feeding tube under Terri's circumstances.
In February, 2000, Pinellas County Probate Court Judge George W Greer ordered the tube removed and Constance Felos/McCaughey/D'angelis argued that the decision was sustained in numerous appeals in both the state and federal courts.
And then just prior to Terri's death, Whittemore's mentor took it a step further, issuing a statement that upon the release of the Schiavo autopsy report, she would "analyze the results and weight in on the important matters of how---by reason, not emotion---the 'persistent vegetative state' diagnosis of Terri Schiavo was arrived at, and why".
Felos, McCaughey, D'Angelis---whatever alias she travels under, was not and is not qualified to interpret or analyze a medical examiner's report. She was only licensed as an attorney and massage therapist, not a medical doctor or neurologist.
James Whittemore should have had no role in the Terri Schiavo case and from the information that we've seen so far, shouldn't have been involved in Jones case at all.
We're all in big trouble if the judges in this country are making their decisions and judgments based on their visits to message boards and chat rooms.
June Maxam 12-08-05
© 2005 North
Country Gazette
|
