[LaggyLou]

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One possible de novo claim would come under the Fourteenth Amendment - the state of Florida had denied Terry Schaivo's right to life without due process of law. Note that for these purposes this claim does not have to be a winner, it is just representative of the type of claim that the new federal law would permit the Schindlers to bring and for which de novo review would be applied - and absent a determination that the federal law was unconstitutional, the federal court should operate on the assumption that such a claim could, in fact be brought.

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But, in fact, such a claim *was* brought. Indeed, it is this claim that was at the heart of the Schindler's first federal suit. And the District Court looked at *this claim* (and the others that were brought). And it did it "de novo" -- the District Court properly did not consider any prior adjudication of *THIS CLAIM*. So, in fact, the district court did exactly what you seem to be saying the law required it to do.

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I was unable to locate online the "In re Holliday" case (if you could provide me a link or the actual cite of the case that would be great), but in looking at the other, it was clearly not a precedent which dealt with the hypothetical I described. The hypothetical I was looking for was a situation where a federal court, having been giving jurisdiction to newly consider whether a defendant's rights have been violated, would deny a request to stay an execution in a case where the defendant in question NEVER had the opportunity to bring claims he was permitted to bring under that federal law. The Robinson case involved a defendant who, as would be expected, had previously brought his case through the federal courts and lost on the merits.


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I believe that you are changing your hypothetical, but let's set that aside. Tom Delay and his pals in Congress don't go around giving death row inmates new rights, so there isn't going to be anything precisely equivalent. The closest analogues will be cases involving newly announced Supreme Court decisions that death row inmates will say present new claims appropriate for federal review. Robinson was such a case (Robison was a state prisoner, btw, his "new" claim involved the constitutionality of the FORM of his execution, and that claim was never adjudicated in federal court). Holladay was another (citation 331 F.3d 1169). Note that it is clear in Holliday that had the inmate been unable to show a likelihood of prevailing on his claim that he is retarded, the Court would have denied the stay without the issue ever being fully adjudicated before his execution.

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As such, it is not remotely on point, and doesn't address the fundamental complaint I have with the decision of the court; namely, that an injunction was requested so that the family would be able to bring an action in the federal courts to determine if any of her rights were violated (no such action had been brought - the law which provided the family with the right to bring any such actions was passed the day the injunction was requested) - by denying the injunctive relief that was requested, the family would not be able to bring such an action b/c Terry would die prior to any resolution of such claims.

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That is simply not right. They brought the claims. They did not get a trial on the claims. The act conferred jurisdiction, it did not create any new rights.

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As such, the court effectively rendered the law meaningless, as the law serves no purpose to a dead Terry Schaivo.

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Nope. Their claims were considered in federal court and (properly) found wanting.


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It is also the reason the dissenting opinion is more compelling to me; it gives the family the right to bring a federal claim of action that the law provided for, and as I have previously explained, for purposes of ruling at the point when the court ruled, two things should have been taken as a given: (a) that the newly enacted federal law was constitutional and (b) that the law was meant to serve some purpose.

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The putpose of the law, as set forth in the statutory text, is to provide for jurisdiction and "de novo" review of federal claims. That was given. If congress wanted a specific result they should hav said so.

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I would have been fine with the federal courts ultimately determining that Florida's handling of the case was conducted such that Terry's due process rights were not violated - that is, if, in fact, the court actually ever considered this issue.

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It did. How do you think "substantial liklihood of success" was determined, anyway?


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I suspect that such would have been the likely outcome and probably should have been.

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Of course. There was plenty of due process here and the other federal claims were even worse.

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Unfortunately, no claims were brought at the federal level in respect of a law which was passed less than 2 weeks prior to her actually dying simply because the federal courts rendered a decision which for all intents and purposes mooted the newly enacted federal legislation.

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You are simply wrong about this. Read the text, read the lawsuit and read the court decisions. They were given the right to bring federal claims without prejudice to any prior determination, and the federal courts considered the federal claims without reference to any prior determination *OF THOSE CLAIMS*.

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It is also why I find odd your contention that I need to identify for you what "claims" should be subject to de novo review - the federal courts, in rendering the opinions it did, prevented any such "claims" from being passed on at all.

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Hopefully I have made the point clear to you in the above post.

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As for your question, there may or may not have been harm to Terri Schiavo depending on whether you believe there was any part of Terri left in there. Certainly if I wanted life sustaining treatment stopped and I was treated against my will I would find that harmful. I doubt, however, that she was aware of anything so I believe harm to her would have been preactically non-existent. I suppose there may have been some emotional harm to Micheal Schiavo but I don't believe that that is particularly relevant.