Wednesday, March 23

Homeric Efforts

"Boy, everyone is stupid except me." --Homer, 9F01

Last week Roger Ailes caught a priest named Rob Johansen and his petard in mid-hoist over at the National Review Online. Johansen had argued that one of the experts testifying in Schiavo was biased, because he was "an advocate in the 'right to die' and euthanasia movements." As Roger pointed out, the same was true of the opposing experts, in spades, a fact Johansen had, well, glossed over just a smidgen.

What interested me was the way Johansen brought the matter up: expert witnesses "...are supposed to be unbiased: disinterested in the outcome of the case. Part of the procedure in qualifying expert witnesses is establishing that they are objective and unbiased." Because frankly, supposing we need it, a moment's reflection ought to be enough to realize this is not true and would be completely unworkable if it were. Experts are recognized for reaching a level of expertise; it is their testimony which must be thorough and unbiased.

They're tussling about Schiavo over at the Corner, so I went to do a bit of rubbernecking. Here's Andy McCarthy:

I do not doubt the propriety of the people of Florida governing themselves, or that they may deny sustenance to a person who (a) actually is in a PVS and (b) actually has asserted in a knowing and intelligent way a rejection of life saving measures in certain dire circumstances. What I object to here is the appallingly suspect evidentiary record on these two crucial questions -- especially on PVS, where it seems indisputable that fairly standard tests, which would be easy to do in relatively short order and which could give us confidence in the PVS finding, have not been done. If we can be confident that Terri is a PVS case -- and particularly that her brain damage has left her largely insensitive to pain -- I seal my lips and accept the outcome, however much I may question its wisdom insofar as society's general regard for life is concerned. Under such circumstances, the Supreme Court has said sustenance may be withheld, and the absence of pain would destroy my contention that she is being tortured.

...Much as I instinctively agree with you that a spouse should be given great deference in these matters (and as I would try to ensure that my own wife had a free hand in making them for me), the law is that it is not the spouse's decision. It is the individual's decision, and it cannot be removed from the individual because you decide that in your own life you would not want intrusion into what you regard as your affairs.

I'll not waste time here thanking Andy for recognizing Florida's continuing efforts at self-governance; I'm sure they'll be sending a nice card. And I know a few people in The Palmetto Bug State, and they assure me the legislature does its damnedest to figure out What Would Andy Do? before enacting meaningful legislation. But here's my question: is it somehow too friggin' much to expect that we might first consider that two separate court cases plus appellate challenges, during which the Schindlers have had practically unlimited access to legal and professional help at now charge, just might have dealt with the relevant issues? Or that the court, or the court after that, or the other court, or that other other court, would have some rough concept of guardianship? At this late date, when someone with a vested interest in the case tells me there's been no finding of a Presistant Vegitative State, or that appropriate tests Just Weren't Done, I'd consider that an open invitation to start reading, not to start mouthing off.

Just for the record: the courts all held that Terri Schiavo is in a PVS. The "tests that would give us confidence" presumably refers to the failure to do an MRI. The Schindler's experts could have requested one in 2002, but did not. The MRI business was only raised at the 11th hour, and even then none of the experts signing the affidavits says one "would give us confidence", only that it might. The court rejected the matter because the affidavits come from doctors who have not examined Terri, only viewed edited video clips, the "new findings" they were based on involve "minimally conscious" not PVS patients, and Terri would have to undergo brain surgery before she could be given an MRI.

As for the business about it "not being the spouse's decision" well, based on no evidence whatsoever, I'm going to credit Andy with mistaking one of the particulars of the case rather than Just Making Shit Up. A legal guardian certainly can make that decision in some circumstances. In this one, because the Schindlers, who are not Terri's legal guardians, were given exceptional consideration by the courts when they disagreed with Michael Schiavo's wishes it is, in fact, the court which is operating as her guardian. But thanks for playing, just the same.

1 comment:

KathyR said...

Expert witnesses are biased by definition. They're paid a fee for their work, including their time testifying, by the party using their testimony. Their testimony, like that of all witnesses, must be truthful but it can't be unbiased. An expert's qualification as an expert permits testimony to a present opinion, something non-expert witnesses can't do.

Civil trials that bore the pants off of juries often come down to "the battle of the experts." If experts were somehow required to be neutral, there wouldn't be any.