January/February, 1998 Volume XII Number 10
Making the wrong decision for all the right reasons?
by Dana C. Cody
"I am making the wrong decision for all the right reasons," stated San Joaquin Superior Court Judge Bob McNatt, as he granted the motion for judgment sought by attorney Janie Hickok Siess. Ms. Siess, with funding from Life Legal Defense Foundation, represented Robert Wendland's mother and sister, Florence Wendland and Rebekah Vinson, who fought to keep Robert alive in opposition to Robert's wife, Rose Wendland. Rose sought to end Robert's life by stopping his nutrition and hydration, which would have resulted in death for Robert by starvation and dehydration.
The basis for granting the motion was that Rose Wendland, the "loving and devoted wife," as Judge McNatt characterized her, had not met her burden of proof to show by clear and convincing evidence that it would be in Robert's best interests to stop his nutrition and hydration. Stating he had a strong suspicion Robert would want his feeding tube removed, the judge went on to say that a strong suspicion is not clear and convincing evidence.
How it could be in Robert's best interests to kill him? Although severely cognitively disabled, he is improving. Testimony at trial revealed Robert is capable of interacting with his environment. He brightens when Florence and Rebekah enter his room. He squeezes, holds, and has kissed his mother's hand. Doctors, therapists and family members all testified that Robert recognizes them.
Amazing for a man described as a "trained animal" by experts during well over six weeks of tedious testimony. Also during trial, pro-death medical experts characterized one category of vulnerable individuals, the cognitively disabled, as minimally conscious, when not characterizing them as trained animals.
"Being minimally conscious is like being minimally pregnant," said one commentator. "You either are or you aren't."
Despite the efforts of Rose Wendland, Judge McNatt dismissed the case.
However, during trial the judge excluded as irrelevant testimony as to whether or not the "loving and devoted wife" had male companions, an issue relevant in the Michael Martin case because it went directly to Mrs. Martin's motive and bias when seeking to end her husband's life. During trial two individuals saw Rose at a local night spot with an adult male companion. A third individual saw Rose with an adult male companion at the grocery store. He referred to Rose as "honey."
You can decide how male companions factor into Rose Wendland's motive for yourself.
Also excluded as irrelevant was testimony of documented cases of involuntary euthanasia in the Netherlands and any testimony regarding the impact the legal precedent set by sanctioning Robert's death would have on life and death decisions for other mentally impaired individuals, such as Alzheimer's patients.
The United States Supreme Court and numerous other state courts in similar cases deemed relevant the issues excluded by Judge McNatt.
Some of these courts declined to head down the slippery slope that would be created by sanctioning the so-called "right to die."
Wanting to avoid heading down the slippery slope leading to the deaths of the disabled and the elderly, among others, the remainder of these courts refused to allow death by dehydration and starvation of individuals not in a coma, not in a persistent vegetative state, and not terminally ill, absent compelling evidence that the patient would refuse life-sustaining medical care.
While some lower courts ignored the impact of heading down the slippery slope, eventually all of the higher courts that heard these cases declined to take the first step down the slope. They did so on the basis of the public policy issues deemed irrelevant by Judge McNatt. These courts reasoned that not only would it not be in the individuals' best interests to end their lives, but it would not be in this country's best interests to set such a legal precedent that would ultimately lead to the deaths of vulnerable individuals whose lives would be under threat of death.
The state of Oregon may be the exception, but their case is distinguishable. It was the voters who initiated the "slide" in Oregon.
The Oregon Supreme Court upheld the vote of the citizens. In declining to sanction a constitutionally protected "right to die," the USSC left the issue to the individual states and their duly elected legislatures.
No, Judge McNatt did not make the wrong decision for the right reasons.
Somehow the right decision was made for all the wrong reasons. Perhaps subconsciously the court was influenced by the old clich‚ that a society is judged by how it cares for its weakest member. Then again, some things are unmistakably just plain wrong. Oregon will soon be a case in point.
Dana Cody is a lawyer and is director of Life Legal Defense in California.