Yet another of my posts from Townhall.com's weblog

Since I seem to be doing a lot of my writing for Townhall at the moment, I am cutting and pasting again. It occurred to me this evening that a lot of non-lawyers might well be asking, "Why aren't any of these judges and courts doing anything for Terri?" So I decided to try to answer that question.

Standard of review is no standard at all for Terri Schiavo

What a lot of people do not understand about what's been happening with the Terri Schiavo case over the past week is related to what is commonly known in the legal process as the "standard of review." This relates to the criteria that appellate courts use to evaluate what was done at trial. And what most people also don't know is that it is very, very difficult to overturn the decision of a trial court.

Thomas Sowell alludes to this in his recent column, when he argues that you can't claim Terri's case - including evidence that was excluded during the original hearings - has been "heard" by a large number of judges, as some claim. In fact, what has happened - over and over again - is that the other courts, using some version of the standard of review, have refused to reexamine the case.

There are a number of different applicable standards - too complicated to go into here - but suffice it to say that an appellate court will not overturn the factual findings of a trial court unless they represent "clear error". (Or, when a jury is involved, if the verdict of the jury is "against the manifest weight of the evidence.") And just so you know how tough a standard that is to meet, you need only read a batch of appellate cases (as everyone who has been to law school and practiced law has to have done), to see over and over again that appellate courts will say, we cannot overturn the factual findings of the trial court even if we, with the same evidence, would have found differently.

This has nothing to do with the Schiavo case in particular; it is the standard operating procedure for appellate courts in general. In general terms, it is simply very difficult to win on appeal if you lose at trial. (And this is despite what Hollywood would have you believe from films and TV.)

The decisions that Judge Greer in Florida state court has made - that Terri Schiavo is in a persistent vegetative state, that she expressed her intent not to be kept alive - even with basic nutrition and hydration - these are not determinations of law; these are findings of fact. And it is precisely for that reason that no other courts have been willing to step in and overrule Judge Greer. It is also why those of us who understand the legal process in detail have held out little hope for any turnaround in this case on the part of the judiciary.

This is also why Congress drafted the "midnight statute" granting the federal court subject matter jurisdiction to hear Terri's case de novo - in other words, as from the beginning. (Congress - and only Congress - has the Constitutional authority to give the federal trial and intermediate appellate courts their subject matter jurisdiction.) Congress recognized that without some special grant of authority, the federal courts would do just what the Florida appellate courts have done - which is defer to the findings of fact made by the trial court judge - in this case, Judge Greer.

And even despite this grant of Congressional authority, the federal district court (in an opinion written by Judge Whittemore) refused to reexamine Terri's case.

That has left Terri's family with few legal options, except to ask the trial court - i.e., Judge Greer - to revisit his own findings of fact, by showing that they have new evidence, of Terri's condition, of improper or inadequate diagnoses, of her expressed intent to stay alive. But, as Judge Greer has demonstrated over and over again, trial judges are not eager to overturn themselves, either.

So, what we have left, as I have indicated in previous weblog posts, is a situation where the original findings of fact - that Michael Schiavo is a proper guardian, that he has Terri Schiavo's best interests at heart, that Terri Schiavo is in a "PVS," that she wants to be starved and dehydrated to death - are all but carved in stone.

The standard of review is intended to preserve the integrity of the trial process, acknowledging that appellate courts do not get to hear testimony, see witnesses, evaluate their demeanor and their credibility. All sensible. But this standard leaves no protection for someone like Terri Schiavo, who was unrepresented by independent counsel at trial, and whose "guardian" is the very person she needed to be protected against.