26 March 2005

Judicial "Activism"—The Other Shoe

Judge Greer really got to the heart of the desperate attempts to misuse the legal system by the "Schiavo Defenders":

Respondents do not get to pick and choose which pieces of evidence they wish to present on an issue and then, relying on the relaxed rules in this type of case, relitigate the same issue again at another emergency hearing two days later.…

Due to the critical nature of this case, this Court does not base its decision solely on the issue of waiver. While not reaching the credibility issues involved, the Court does note that according to both of these affidavits, Terri Schiavo's sounds occurred after Ms. Weller took Mrs. Schiavo's arms in both of her hands and this is consistent with evidence presented at the 2002 trial, that from time to time she responds to stimuli, that she makes limited vocalizations, and that she can move and change facial expressions. However, all of the credible medical evidence that this Court has received over the last five years is that this is not a cognitive response but rather something akin to a person jerking his/her hand off a hot stove long before he/she has thought about it. Evidence on the stimulus issue and random verbalizations were [sic] a feature of the prior trials and have [sic] been considered by this Court. These affidavits in no way show or tend to show anything to the contrary.

In re Guardianship of Theresa Marie Schiavo, No. 90–2908–GD–003 (Pinellas Cty. (Fla.) Cir. Ct., Mar. 26, 2005) (emphasis added).

In other words, Judge Greer has refused to be an activist judge and insert the legal system, and his own judgment, where it doesn't belong.