Friday, March 25, 2005

Post Judgment

GREER: Pontius! Good to see you.

WHITTEMORE: Caiaphas. How are you doing?

GREER: I'm allright. Whew! Wall to wall. Plus, I've had my normal docket. We had to cancel the cruise, and, boy were things frosty at home. But, I think I can we can finally get away for a little bit.

WHITTEMORE: Great. Not around here I hope.

GREER: No. God, no. I have a friend with a villa on St. Croix. The season's slowing down, so it should work out fine.


GREER: Hey, listen, thanks for covering for me on the case.

WHITTEMORE: Hey, it was nothing. Washed my hands of it.

GREER: Well, I still appreciate it. You don't know how hard it was to keep a straight face on the bench for some of this. A "Congressional subpoena" no less. Then, some gal from the Adult Protective Service with a stack of affidavits. God, we were cracking up in chambers. I had my clerk special order a "Denied" stamp.

WHITTEMORE: [chuckles] I'll bet. I heard "de novo" "due process" "right to life" "starvation" "Americans with Disabilities Act", and I was thinking, "yadaydaydayda". I almost told these guys to get on the court calendar for July.

GREER: [chuckles] Hey, by the way, how many people with PVS does it take to screw in a lightbulb?

WHITTEMORE: [chuckles] I think I've heard this one before.

GREER: [chuckles] Hey, are we gonna see you down at the club tomorrow?

WHITTEMORE: Unless something blows up again... sure.

GREER: You know, Herod can play. Let me see if I can find a fourth and we'll hit 18. Say, around 8 or 9?

WHITTEMORE: Sounds good. I haven't played in a month, though, and my game sucks.

GREER: Right -- you're just gonna take my money. This is all I have [pulls out pocket full of coins].


Blogger Mike said...

The Congress required a de novo review, not a de novo trial. You may want to take that part out of this post.

For more information on the difference check out this post from Abstract Appeal.

3/30/2005 04:06:00 PM  
Blogger Mike said...

Oh, also Schiavo is going to die of thirst, not starvation.

And yes, this matters.

3/30/2005 06:41:00 PM  
Blogger Remainderman said...


Two points:

* Re the difference between starving to death and dying of thirst, you're probably correct -- Terri Schiavo probably died from the court order denying her any fluids, even by mouth. For Terri, however, this is a distinction without a difference. Why this matters is beyond me, except for the pathologically curious.

* Re the meaning of de novo, both David Boies, Gore's lead attorney in the 2000 Florida recount matter, and Black's Law Dictionary, the authoritative legal dictionary, disagree with you. De novo means to "try or hear a matter anew; the same as if it had not been heard before and as if no decisions had been previously rendered." No lawyer could maintain, with a straight face, that this matter was ever heard "anew" - that would required at least a 2 to 3 week hearing.

3/31/2005 09:13:00 PM  
Blogger Mike said...

remainderman, you obviously don't know the law.

There are de novo trials and de novo reviews. To decide which to use, consider this (it's from the link I posted that I wish you read):

"Throughout the congressional debates, and right through last night's talk show circuit, leaders supporting the Schindlers' cause have maintained that what they intended to do with this law is to make sure Terri has the same right of review in the federal courts that mass murderers have before they are executed. Mass murderers, or any criminal in state custody, do not get a whole new trial in federal court. Instead, they get a fresh review of whether the state trial proceedings complied with federal law. If the new law gives the Schindlers the right to a whole new trial -- with new testimony from experts and witnesses -- then it will not be anything like the review that criminals in state prison receive."

After considering that, you'll understand why the intention of "de novo" which alone could be a de novo review OR a de novo trial, was deemed to be a de novo review.

4/01/2005 03:34:00 AM  
Blogger Remainderman said...


Remainderman did pay attention in law school, and has had the honor of representing many persons in guardianship proceedings.

De novo means a brand new hearing, especially where a higher or different court hears a case a second time, not with appellate or other limited jurisdiction, but with original jurisdiction. A review of a record of a proceeding is merely an appellate function.

The distinction is significant, since -- despite the spin by certain media and political figures -- only one judge, George Greer, has ever made factual findings on this matter. On every appeal, those findings have been accorded deference. Even Judge Whittemore, in his written opinion, deferred to these findings.

4/01/2005 07:13:00 AM  
Blogger Mike said...

You're denying the existance of de novo reviews?

4/02/2005 12:46:00 AM  
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