"It ain't over 'til it's over"

The parents of Terri Schiavo have been granted a chance to petition the federal courts one last time. Ironically, they are using the very grounds Congress tried to exclude when it gave the Federal Courts jurisdiction:

The petition, submitted by Schindler attorney David Gibbs, said the federal judges who rejected previous efforts to have Schiavo's feeding tube reinserted violated a Supreme Court precedent that requires them to consider the full record of the case, not just procedural history from the state court.

The statute gave the Federal courts the power to review this matter de novo, meaning from the beginning. The clear intent was to force the Federal courts to start proceedings anew with new evidentiary hearings, hearings that would all but require that Terri Schiavo be kept alive until the matter could be fully adjudicated in a second court system. In this way, Congress clearly hoped to sidestep the criticism that it was giving the Federal courts "super-appellate" powers in this case alone. But the law did not give the Schindlers any new legal grounds on which to pursue their case, so they had to fall back on the state court proceedings.

And now, relying still on that law to give the federal courts jurisdiction, they are claiming that the Federal courts failed to fully review the state court proceedings. In other words, the courts have failed to act as a super-appellate court after all.

"The district court reviewed only the procedural history and the results of the litigation in the state court, not the evidence adduced in the state court proceedings," the petition said.

The attorney argued that he could prove to the federal court that "the 'evidence' supporting Terri's alleged wishes is not credible, and that a reasonable fact finder would hold -- under any standard of proof -- that her wishes were to the contrary."

In other words, the District court, like an appellate court, must consider the evidentiary record, and rule on its sufficiency. It must, contrary to Congressional intent (perhaps), act as if this were an appeal, not a trial de novo.

It's a desperate legal move, and how much of a hearing this will even get is a close question. What has happened so far is simply a procedural move by the Appellate Court. They've allowed the filing of the petition after the deadline. They haven't agreed to even hear the matter. But this shows just how warped out of shape the system can be when it is bent to suit the needs of one family, no matter what their situation is. Is this what Congress intended, foresaw, expected? It no longer matters: it is in the hands of the Court system now. Fortunately, they are wiser about their system than Congress has proven to be; but that means only that we have another safeguard, not that "the system worked." What Congress intended, clearly, was to bypass the system, just this one time. That their intent was blocked, so far, simply means the system was lucky.

Lucky for us, too.