Friday, March 25, 2005

This Guy Must Be A Lawyer

Good letter to Opinion Journal:
Ample Precedent for Federal Intervention
Michael J. Kelly - Philadelphia

The claim by some conservative commentators and scholars that it was wrong for Congress to grant jurisdiction to the federal courts to review the Schiavo case is bogus. The fact that some "conservatives" make an argument does not automatically make it an argument in accordance with conservative principles.

The fact is, the state court order barring feeding and hydration of Terri Schiavo--a disabled person who was not dying--was a death sentence. Terri Schiavo has a federal constitutional right not to be deprived of life without due process of law. In 1789 Congress passed the All Writs Act, which granted federal courts the power to issue any and all writs commonly recognized in English common law. The right of persons convicted in state courts to petition for federal court review of their state court convictions (and especially death sentences) pursuant to two of those common law based writs--habeas corpus and coram nobis--is well established and provide precedent for congressional intervention in the Schiavo case. The only substantive dispute over the years has been the scope of review and the number of times review may be sought.

In the Schiavo case, the state court's handling of the case as been atrocious in terms of weakly supported findings of fact and refusal to consider proffers of evidence via affidavits which contradict the court's fact-findings and which suggest, if truthful, fraud and even assault on the part of Michael Schiavo. Moreover, Terri Schiavo was never afforded a lawyer to advance her interests, and the lawyer retained by her parents in the early years of litigation was greatly outmatched by the "right to die" specialist retained by Michael Schiavo. The only solution--short of relinquishment of Terri's care by her disaffected husband to her parents--would have been for Jeb Bush, years ago--when "Terri's law" was winding its way through the Florida court system--to have ordered the state agency charged with protecting the elderly and disabled from abuse to take Terri into protective custody. It is too late for that now.

In sum, this case is the equivalent of the kind of case the federal courts have dealt with on occasion over the years--a death penalty prosecution in a state court featuring an overly aggressive prosecutor, conniving state courts and ineffective defense counsel. But unlike some of those cases, the facts will never be fully discovered and disclosed in a full-fledged evidentiary hearing in federal court.

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