Originally Posted - February 2, 2007




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Commentary

Clear and Convincing Blueprint For Murder

By June Maxam

What do Scooter Libby (left) and Michael Schiavo (right) have in common?

A bad memory.

Thing is, Libby may be acquitted because of his bad memory.

Former White House aide Scooter Libby, chief of staff to Vice President Dick Cheney, has been charged with perjury and obstruction of justice but the Government's case is built on a bunch of witnesses with bad memories.

Libby's defense is "With so much going on with national security, I don't remember who I told what when. I wasn't lying to you in the grand jury, I just don't remember".

Libby seems to have a convenient memory, a lot like Michael Schiavo.

A disabled woman died an unjustifiable premature death because of Schiavo's convenient memory---hardly the clear and convincing standard needed for a death edict.

The testimony presented so far against Libby is hardly clear and convincing evidence and certainly not the standard of proof beyond a reasonable doubt that the Government bears for a conviction.

Libby is accused of lying to investigators who were trying to determine who leaked the identity of CIA operative Valerie Plame to journalists like former New York Times reporter Judith Miller.

Miller served 85 days in jail last year for contempt for refusing to answer questions before the grand jury. She has a serious memory problem too.

Plame is the wife of former ambassador Joseph Wilson, a critic of the Iraq war and the Bush administration. Libby told investigators that he first learned of Plame's involvement with the CIA from Tim Russert, NBC reporter, on July 10, 2003 but witnesses say that he had engaged in the CIA leak in June or as late as July 6, 2003.

Libby says the dates he gave investigators differ because he has a bad memory and because he forgot that he had learned of Plame's CIA position from other government officials---like Cheney.

The prosecutor says Libby concocted a story to try to shield himself from prosecution because it's less serious to repeat rumors from reporters than it is to repeat such sensitive security information that he learned from the vice president.

Government witnesses in the Libby trial seem plagued with the "bad memory syndrome" as they have conceded they have a memory problem. One witness says his memory improved as time went on, another couldn't remember a conversation he had and another recalled a different version than the one he first told investigators.

Libby's attorneys are even trying to get the bad memory defense into evidence without Libby testifying and being subject to cross-examination.

Sounds like some of the tactics that Michael Schiavo used in the judicial homicide of his disabled wife.

However, the judge in the Libby case, U.S. District Judge Reggie Walton, seems a bit more impartial and aware of evidentiary standards than Pinellas County probate judge George Greer saying that he won't allow the defense to argue the memory defense at closing arguments if Libby doesn't testify. Did Libby lie to investigators or simply have a bad memory? How does the government expect to get a conviction using witnesses who seem to be afflicted with bad memory?

In the case of Scooter Libby, how can any jury convict him after hearing from a gaggle of witnesses against him all having an epidemic of forgetfulness.

How can the testimony of any witness be credible if they keep claiming that they have a bad memory? How can the judge and jury believe any of their testimony?

And then there's Michael Schiavo. This individual repeatedly used the excuse that he has a bad memory when he contradicted himself, when his version of events changed but yet Pinellas County Court Judge George W. Greer found that his testimony about his wife's purported wish to die was the clear and convincing evidence needed to remove the feeding tube of Terri Schindler-Schiavo, to cause a barbaric death by dehydration?

The world is supposed to believe that Michael Schiavo has a bad memory about crucial events and dates but his memory was recharged in January 2000 when he testified that his wife wanted to die by dehydration……..that she said in 1985 that she didn't want to be kept alive by artificial means when at that time a feeding tube wasn't deemed artificial life support?

At the time that Michael Schiavo hired George Felos with Terri's trust fund money earmarked for her rehabilitation and therapy, feeding tubes were not categorized as artificial life support or medical treatment but Felos and his fellow board member at the Hospice of Florida Suncoast, Gus Bilirakas, were successful in having Florida law changed in 1999, just prior to the death trial between Schiavo and Terri's parents, the Schindlers.

How can any sensible person believe that Michael Schiavo was telling the truth when he related his tale of "Terri's Wish" at the January, 2000 trial for his petition to kill his wife although he hadn't remember her so-called wish to die made 15 years earlier until after George Felos explained to him what standard and threshold he would have to meet in order to get court permission to kill his wife.

Michael Schiavo's claim that Terri Schindler Schiavo would want to die of dehydration by removing her feeding tube was simply beyond the realm of credibility, especially after he repeatedly and countlessly had stated that he had a bad memory.

In Shaw v. Shaw,334 So.2d 13 (Fla. 1976), the court held that appellate courts have a right to reject "improbable testimony or evidence".

Michael Schiavo's story about Terri's wish, after his repeated previous claims of having a bad memory, was simply totally improbable and should have been rejected by Judge George Greer, the same as Schiavo's inadmissible self-serving hearsay should have been disregarded.

There simply was no clear and convincing evidence by a credible witness that Terri Schindler Schiavo would have wanted to have the feeding tube removed to cause her death by dehydration----that she had expressed her wishes in any manner.

Evidence---clear and convincing. The level of proof sometimes required in a civil case for the plaintiff to prevail. It means the trier of fact must be persuaded by the evidence that it is highly probable that the claim or affirmative defense is true. The clear and convincing evidence standard is a heavier burden that the preponderance of the evidence standard but less than beyond a reasonable doubt.

Terri Schiavo sustained severe brain damage 17 years ago this month on Feb. 25, 1990, as the result of a mysterious and suspicious incident at her home with her husband, Michael Schiavo, as the only known witness.

But he doesn't remember what happened and every time he tells the story, it changes.

She was the center of a extended court battle between her parents and Michael who had announced his engagement to his live-in girlfriend shortly before initiating his 1998 petition asking the court to cease Terri's assisted feeding which would cause her death on March 31, 2005, seven years later, by starvation and dehydration 13 days after the removal of the tube. While waiting for permission to kill Terri, he fathered two illegitimate children with his fiancée.

Stricken at 26, Terri Schiavo left no living will or no known written statement of her wishes regarding artificial life support. In 1990, a feeding tube wasn't deemed artificial life support in Florida and it's highly unlikely that Terri Schiavo ever would have made any comment, direct or off-handed, that could have been deemed a wish not to be given food or water, natural or by feeding tube.

However, nearly 10 years after the incident at her home and after he had received nearly $1.7 million from medical malpractice claims, Michael Schiavo had a sudden recollection of an alleged oral statement Terri had made some 15 years previous in 1984.

But he couldn't remember that he didn't graduate from Bucks County Community College or earn a degree although he told the court that he had on his guardianship application.

He couldn't remember a lot of things…..because he has a bad memory.

Despite state law prohibiting self-serving hearsay testimony, Greer ruled Schiavo's statement constituted "clear and convincing evidence" that she would not want to be kept alive by assisted feeding and he issued an order in 2000 to withdraw the tube by which she was fed three times a day.

The "clear and convincing" evidentiary standard was established by the U.S. Supreme Court in Cruzan v. Director, MDH, 497 U.S. 261 (1990). A majority of the Court held that there is a constitutional right to reject artificially provided nutrition and hydration but that the state may require clear and convincing evidence in the case of an incompetent patient that the rejection of nutrition and hydration conforms to the patient's wishes while competent.

Greer based his order on In Guardianship of Browning 568 So. 2d 4(1990), a case in which Michael Schiavo's attorney, Felos, opposed the state in withdrawing the feeding tube of Browning, an 89-year-old stroke victim who had left a living will stating she did not wish life support to continue if she were terminal.

The germane difference between the Browning case and Terri Schiavo was that Estelle Browing had very clearly recited her wishes in a living will. Terri Schiavo had not.

In Browning, the Florida Supreme Court held that under the Florida Constitution, a guardian, acting as a surrogate decision maker, must be permitted to make a decision to reject feeding through a tube for a patient who is not presently capable of making health care decisions and who has an incurable condition---even if the patient is neither terminal nor in a "persistent vegetative state".

PVS is defined as a permanent irreversible condition of unconsciousness in which there is absence of voluntary action or cognitive behavior of any kind and an inability to communicate or interact purposefully with the environment.

The Schindlers say that their daughter is not PVS, a position supported by numerous medical experts. (See the affidavits at www.terrisfight.org )

However, the guardian must base such a life-ending decision on "clear and convincing" evidence of what the patient wanted. The Court specifically recognized that reliance on oral statements does not have the same presumption of clear and convincing evidence as written declarations. It stated that "the evidence of the patient's oral declarations [must be] reliable". (emphasis added).

A review of the facts in the Schiavo case would seem to find Michael Schiavo's testimony to not only be unreliable but to be inadmissible self-serving testimony which would not suffice to meet the required "clear and convincing" evidentiary standard needed to cause his wife's death.

After all, he repeatedly told the Court that he had a memory problem.

If Scooter Libby is convicted on testimony from witnesses with a bad memory, he will likely be eligible for parole.

As a result of Michael Schiavo's bad memory and hearsay, Terri was killed.

Death has no parole.

The Florida Supreme Court held in Browning that when the decision of proxy or surrogate to refuse medical treatment on behalf of an incompetent patient is challenged, although the surrogate may rely on oral statements allegedly made by an incompetent patient while competent, to exercise patient's wishes to forego life-sustaining treatment, presumption of clear and convincing evidence that attaches to written declaration does not attach to purely oral declarations. While oral evidence, considered alone, may constitute clear and convincing evidence, surrogate (Michael Schiavo) would bear the burden of proof if the decision based purely on oral evidence is challenged.

Based on the trial transcripts from the 2000 hearing conducted by Greer, Michael Schiavo seems to have failed to sustain his burden of proof and none of the hearsay oral statements made by him and his relatives to the court were admissible, therefore did not and could not constitute the "clear and convincing" evidentiary standard needed to end the life of Terri Schindler-Schiavo.

"The court must decide whether or not there is clear and convincing evidence that Theresa Marie Schiavo made reliable oral declarations which would support what her surrogate (Petitioner/Guardian) now wishes to do.

"All of the other collateral issues such as the quality of the marriage between Michael and Terri Schiavo, access or lack of access to medical information concerning their daughter, motives regarding the estate of Terri Schiavo if deceased, and the beliefs of family and friends concerning end of life decisions are truly not relevant to the issue which the court must decide." - Judge Greer's February 11, 2000 Order

But the established, unreliability of Michael Schiavo's testimony and his self-admitted bad memory was relevant and on the basis of that, should have made his testimony about the suddenly remembered death wholly improbable----certainly not clear and convincing evidence on which to base an order of death.

Greer maintained virtually autonomous control over the fate of Terri Schiavo, basing his 2000 ruling to withdraw her feeding tube on self-serving hearsay testimony of the estranged husband and his family members including ditzy Joan Schiavo who couldn't even remember where she parked her car an filed a false police report that it had been stolen.

In the transcripts of the 2000 proceeding when Greer allowed the inadmissible testimony and determined that Terri had stated she didn't wish to be kept alive by artificial means, Greer concluded, and the 2nd District Court of Appeals concurred, that Michael and Terri Schiavo had been "happily married" even though Terri's best friend and co-worker, Jackie Rhodes, had testified that Terri wanted a divorce from Michael. Rhodes had testified that earlier the day of Terri's collapse, Michael had argued with Terri about the amount Terri had spent at the hairdresser. She also testified that Michael Schiavo was controlling. There was also evidence of that Terri Schiavo had indicated that she wanted a divorce from Michael Schiavo, telling her brother that she was scared of Michael and that she wanted to divorce him.

Chapter 90 of Florida Statutes states that no person interested in an action or proceeding against the personal representative……of a deceased person or agent…or guardian of a mentally incompetent person shall be examined as a witness regarding any oral communications between the interested person and the person who is deceased or mentally ill at the time of the exam.

According to case law, parties and interested persons are disqualified from giving testimony as witnesses on their own behalf because persons having a pecuniary interest in the event of a cause are of a class especially likely to speak falsely.

Self-serving inadmissible hearsay testimony is not the evidentiary standard required for "clear and convincing" evidence on which Greer based his decision and order to remove the gastric tube which provided Terri Schiavo with hydration and sustenance three times a day.

Hearsay is defined as a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.

It was only after Michael Schiavo had received an award for his medical malpractice claims against Dr. Stephen Igel and Dr. Joel Prawer, his wife's former physicians, that he remembered nearly 10 years after the collapse that his wife had allegedly told him that she would not want to be kept alive by artificial means. His brother and sister-in-law testified that they had heard Terri say she wouldn't want to be kept alive by "tubes". Except for feeding, there are no tubes or other artificial means of life support attached to Terri Schiavo.

When he wanted a jury to award him $20 million, he told the panel that he wanted to care for Terri for the rest of his life. His attitude suddenly changed when the money was awarded and he hadn't remembered in 1992 that she had presumably said that she wouldn't want to be kept alive by artificial means---albeit at the time she supposedly said it, feeding tubes weren't considered artificial means. She wasn't on a respirator or ventilator.

She was not "dying." She was a healthy woman who had a disability. Terri was brain-damaged but she was not dying of any terminal illness and was not being sustained through a respirator. She breathed on her own and merely received her food and hydration through a feeding tube.

Florida law does not allow a dog to be subjected to a death by dehydration and starvation but yet Judge Geer ordered that fate for Terri Schiavo.

In the case of Nancy Cruzan in 1990, the U.S. Supreme Court held that a state may require a "clear and convincing evidence standard" to support the assertion that it is the patient's wish to die. In Terri's case, that standard was never met.

The court in Cruzan concluded that:

"…a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. The Supreme Court of Missouri held that in this case the testimony adduced at trial did not amount to clear and convincing proof of the patient's desire to have hydration and nutrition withdrawn. In so doing, it reversed a decision of the Missouri trial court which had found that the evidence "suggested" Nancy Cruzan would not have desired to continue such measures, but which had not adopted the standard of "clear and convincing evidence" enunciated by the Supreme Court. The testimony adduced at trial consisted primarily of Nancy Cruzan's statements made to a housemate about a year before her accident that she would not want to live should she face life as a "vegetable," and other observations to the same effect. The observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. We cannot say that the Supreme Court of Missouri committed constitutional error in reaching the conclusion that it did. The judgment of the Supreme Court of Missouri is Affirmed."

The Court came to this conclusion primarily because, when in doubt as to a patient's wishes, "err on the side of life".

There was no direct evidence from Terri, orally or in writing, indicating any end of life directive stating that she wanted to be left to die by dehydration in a prolonged death. A guardian has no authority to impose his own beliefs as being that of the patient's and in the case of Terri Schindler Schiavo, due to the well-established conflicts of Michael Schiavo and his claimed bad memory, there was not clear and convincing evidence that she had knowingly and willingly made any kind of statement expressing what Michael Schiavo claimed some 16 years later were her wishes.

In the Browning case, her written directive was accepted by the court as being clear and convincing and in the 1980 Florida of Satz v. Perlmutter in which an individual suffering from Lou Gehrig's disease sought to remove a respirator needed to keep him alive, the Court accepted oral testimony from the patient taken at a bedside hearing expressing an intentional and deliberate end of life directive.

If one reads the court decision in Browning, it is clear that Felos and Schiavo used that case as a blueprint to kill Terri Schiavo. The Browning court emphatically stated, "A surrogate must take great care in exercising the patient's right of privacy, and must be able to support that decision with clear and convincing evidence".

Schiavo had no evidence so he and Felos had to concoct some, hence only a few months before the January 2000 trial, Schiavo's bad memory was suddenly jarred and he "remembered" Terri's directive 16 years previous. The only thing was, no one else could substantiate his hearsay.

Scott Schiavo suddenly "remembered" a conversation he'd had with Terri following his grandmother's funeral but he testified that her comments had absolutely nothing to do with a feeding tube. The words allegedly expressed by Terri following the funeral were based on a discussion of ventilators and machines, not basic life support of food and water. Scott Schiavo's trial testimony had been that Terri had allegedly said, "I don't want to be kept alive on a machine" with absolutely no statement about food and water.

Michael Schiavo was supposedly sitting next to Terri at the time of her purported conversation with Scott but he doesn't remember it or didn't hear it. The seems to lend even more credence that the conversation never happened at Scott claims or is another example of Schiavo's bad memory.

People shouldn't be killed because of a spouse with a bad memory.

Schiavo says in his book that Joan Schiavo was first approached in 1999 by his attorney, George Felos only after guardian ad litem Richard Pearse had issued his 14-page report on Dec. 29, 1998, recommending that the feeding tube not be removed, saying that there was "no corroborative evidence of the ward's intentions and since the only witness claiming to have such evidence is the only person who will realize a direct and substantial financial benefit from the ward's death", he found that Schiavo and Felos had not met the clear and convincing standard needed to kill Terri Schiavo.

They didn't have any evidence so they needed to manufacture some.

George Felos brags in his book, "Litigation as Spiritual Practice" about the highly unethical and dirty tactics he employs in litigation. In this situation, he needed evidence, he created it.

In the Schiavo case, the importance of the case was not so much the outcome of the case but the process by which that outcome was achieved. The disabled woman was not afforded her basic constitutional protections to insure that it was her wishes that were carried out, not the wishes of her adulterous, mercenary husband or the wishes and beliefs of Judge George Greer who obviously believed himself that she should be euthanized due to her medical condition.

Based on the interviews and statements made by Michael and Scott Schiavo in the year following Terri's death, it's more clear and convincing than ever that the statements made by Michael, Scott and their sister-in-law, Joan Schiavo, at trial in January, 2000 were manufactured expressly for the trial, at the behest of Felos, to try and create clear and convincing evidence. Both Scott and Joan Schiavo admitted under oath that they hadn't talked to anyone including Michael, about Terri's purported wish to die until they were prompted to by Felos in late 1999 as the case was ready to go to trial and after the guardian ad litem assigned to the case had said that Michael Schiavo's credibility was in question.

His credibility and that of Scott and Joan are becoming more of an issue every day.
http://www.northcountrygazette.org/articles/060206ConvincingFraud.html
http://www.northcountrygazette.org/articles/052106JoanSchiavo.html
http://www.northcountrygazette.org/articles/052406TheWholeTruth.html

Don't forget, Michael Schiavo and his bad memory had changed his story about Terri's death wish and how it was conveyed.

After Pearse's report was issued, Schiavo suddenly concocted the story about Terri had made her comments about not wanting to be kept alive by artificial means while watching a movie at home when she was 22 years old. Several months previous he had told GAL Pearse that Terri had allegedly told him on a train trip from Pennsylvania to Florida in the mid-80s that if she were ever in a situation of being artificially maintained that she wanted the life support removed----but feeding tubes weren't then designated as life support.

So which was it---while watching a movie at home, or on a train trip to Florida---or did it happen at all?

Pearse said that when he interviewed Schiavo as guardian ad litem while preparing his report prior to the 2000 trial, that he pointedly asked Schiavo who else had ever heard Terri make her declaration, express a wish to die if she sustained serious injuries.

Schiavo said there was no one.

But after Pearse submitted his report to Greer, recommending that the feeding tube not be removed because of Michael Schiavo's conflicting and self-serving interests, and that no one could support and corroborate his contention, suddenly Michael and Felos produced two other witnesses who purportedly had heard Terri made an end-of-life decision in the mid-80's while she was in good health and without brain injuries.

So where had these people been for 10 years and why hadn't they indicated Terri's declarations and wishes previously?

And that constituted clear and convincing evidence?

A review of a transcript of the Larry King Show on Friday, March 18, 2005, prepared and released by CNN after the nutrition and hydration had been removed from his wife by the death order judge Greer, Michael Schiavo admitted on national television that "we didn't know what Terri wanted but this is what we want……"

It wasn't what Terri wanted, it was what Michael wanted.

That's clear and convincing. 2-04-07

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