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Marcia Coyle’s fine article ["Life after Schiavo," NLJ, March 28] quoted Charles Tiefer of the University of Baltimore School of Law and other experts on the pitfalls that can occur when Congress passes bills applicable to a specific case before the courts. Tiefer mentioned that at one time, bills of attainder were frequently passed for individuals until they were outlawed by the Constitution. Although Coyle did not discuss it further, the bill of attainder clause is alive and well today and, in a recent opinion of an influential appeals court, was held to apply to a private bill. In December 2003, a three-judge panel of the U.S. Court of Appeals for the District of Columbia, ruling unanimously, held that a 1996 act of Congress affecting the child custody case involving Dr. Elizabeth Morgan was an unconstitutional bill of attainder. Although the law did not, by its terms, brand anyone as a criminal, the usual test for a bill of attainder, the court held that it implicitly found Dr. Eric Foretich, Dr. Morgan’s ex-husband, to be guilty of sexually abusing the couple’s daughter. In the underlying custody case and related litigation, the D.C. courts had not found Dr. Foretich to be a child abuser. So although this clause doesn’t seem to apply to the Schiavo case, lawyers and legislators should remain aware of the continued force of the constitutional prohibition on bills of attainder. Jonathan Groner Washington The writer is the author of Hilary’s Trial (Simon & Schuster 1991), a book about the Elizabeth Morgan case. We of the Beverly Hills Bar Association express our condolences on the passing of Theresa Marie Schiavo. Her memory deserves to have the facts of her case accurately stated, to have the hate-mongering cease and not to have the law manipulated to interfere with individual rights. Judicial independence and the rule of law are part of the foundation of our country’s greatness and success. While everyone has a right to disagree with court decisions, Congress’ and the president’s legislative attempt to intervene in the Theresa Schiavo case was fundamentally flawed and set a dangerous precedent. It interfered with Theresa’s rights, and it threatens the very liberties that the president and Congress have sworn to uphold. It fostered intolerance and hate. It undermined the separation of powers. And it ignores 200 years of our tradition of judicial independence that has protected liberty and justice. Many courts have heard Theresa’s case. She has been represented by an independent court-appointed guardian. Medical experts from both sides and independent medical experts have presented evidence to the court. By clear and convincing evidence, the courts have confirmed that Theresa, herself, would not have wanted to be kept alive in her persistent vegetative state. The pseudo-retrial of her case, whether in Congress, the White House or the media, tramples on her rights. It damages the judicial independence that is at the heart of our freedoms by misleading the public as to the actual safeguards and protections afforded Theresa and the parties. Justice Antonin Scalia, one of the most conservative of judges, reminded us in Cruzan v. Director, Missouri Dep’t of Health (1990) that these life and death health care decisions are for the state courts to decide and that federal courts should stay out. Ignoring this, the president and Congress violated Theresa’s rights when they manipulated federal law for their political purposes. In 1803, Chief Justice John Marshall established the principles of judicial independence and review that made the United States a leader in the cause of freedom and justice. Judicial independence is one of the primary reasons for our success as a nation. Our fate and our access to the courts depend upon judges who make decisions based on the law and facts without fear of retribution or ridicule. Without independent judges, we are subject to the tyranny of public opinion. We cannot silently surrender those principles and allow that tyranny. Conservative judges and justices, as well as liberal, have said that Theresa’s rights should be determined in the courts, not in the street, not in the media and not in the Congress. More than 200 years of freedom and justice should not be thrown away for political gain. Kenneth G. Petrulis Beverly Hills, Calif. The writer is president of the Beverly Hills Bar Association.

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