Jay Sekulow made virtually the same point yesterday on talk radio.

I wonder how much 'encouragement' Michael Schiavo received from his counsel, especially since he apparently did not definitively know what Terri wanted until 7 years after her collapse.

In a capital case, incompetence of counsel is routinely raised in collateral federal habeas corpus proceedings attacking a final judgment. It is not unusual for a final judgment finding guilt or imposing a death sentence to be overturned in such a proceeding. Why shouldn't a similar collateral proceeding be allowed when life or death is at issue in a civil case?

Because "findings of fact" are really hard to overturn, as opposed to sentencing or judgments finding guilty. The trial judge is given great latitude to determine the facts of the trial.

That's one reason to hate lawyers. Need another?

(courtesy Ben Domenech)

John Thacker:

Did you mean that 'findings of fact' by a judge, as opposed to a jury, are hard to overturn? In my experience, a jury's verdict (civil or criminal) is a bit more difficult to overturn than that of a judge (generally because the jury isn't as detailed and thus provides less nits to pick on appeal). When a jury in a capital case finds a defendant guilty, that verdict is routinely attacked in a collateral federal habeas proceeding, in which the defendant challenges the factual basis for the finding of guilt. Likewise, the same collateral habeas filing challenges the facts supporting the death sentence. And, routinely, those collateral challenges (filed long after a final judgment is entered), are based on incompetence of counsel. Yes, I know, courts enforce a presumption of finality of judgment in civil cases to prevent litigants from filing multiple actions. Still, I ask, why not abandon that presumption, even in civil cases, when life or death is at issue?

I just came to that same conclusion myself in Due Process not Justice.

"It all seems to stem from a stipulation that the Schindlers made early on the case that Terri was in a persistent vegetative state.  Once that was stipulated and considered fact, no judge at the appellate level could reverse that. 

Once determined that she was in a persistent vegetative state, Michael Schiavo's memory that Terri "would not want to live like that" or "be a burden" became the clear and convincing evidence as to her wishes.  That too became a finding of fact that could not be reversed absent a legal mistake.

The judicial system of this country seems to have always had an inability to say "we were wrong." Once a bad decision has been made, you can be certain that every judge will rally around it no matter what the consequences, or obvious the error. Thus we get a Plessy v. Ferguson, a Dred Scott, a Korematsu, a Roe v. Wade, and now this case. In the past those bad decisions have taken decades to correct, often by extra-judicial means like the Civil Rights Movement, and in one case, a bloody war. It will be interesting to see how the judges have screwed this up, and at what point people realize that judges were not appointed to be infallible deities, and impose responsibilities on them.

Raoul:

It took the Court 18 years to reverse Bowers v. Hardwick. And that case would have been decided differently had Lewis Powell not been such a Southern gentleman.

The ethos can turn on a dime when some vital principle (e.g., access to the anus) is threatened. But traditional morality, that can be disposed of and will not be re-visited. That is why I think it would be very interesting to hold the 'de novo' review of the Schiavo case after Terri's death. Unseal the records and find out why Judge Greer was never really questioned. Jeb Bush may not be able to save Terri by force, but I suspect he could make this happen. And if things turn out as ugly as some suspect, then arrest the judge for murder and let the chips fall where they may.

"Unseal the records and find out why Judge Greer was never really questioned."

Which brings to mind another, related point— judges in this country are immune to malpractice suits. Oh, sure, occasionally we hear of one getting laughed off their bench, like the guy caught masturbating, but why is there this presumption that of all the possible professions, being a judge is immune to mistakes and incompetence, and there no no mechanisms in place to limit the consequences of bad judges? Why are judges so afraid of letting "We the People" judging them, or even policing themselves?

If we can't have actual term limits, we should not permit a judge to be involved in a case for longer than a year (or even six months). I suspect a large part of the problem here is that this Greer guy has been involved so long that he has a vested, personal interest in his decisions, and have no doubt he has developed conflicts of interest that would get him sent to prison if judges were regulated by the SEC. Or maybe he just likes being where the action is, getting to play God in his little courtroom, which is an even greater reason to get rid of him.