Posted on 01/24/2004 6:11:32 AM PST by AlwaysLurking
Disclosure of Limbaugh plea talks draws rebuke
By John Pacenti, Palm Beach Post Staff Writer Saturday, January 24, 2004
WEST PALM BEACH -- The release Friday of hundreds of pages of records about the Rush Limbaugh investigation, including plea negotiations, incensed the radio commentator's attorney and brought renewed charges of a smear campaign by prosecutors.
Responding to a conservative legal foundation's request for documents to support such a theory, State Attorney Barry Krischer's office released allegedly confidential letters between Limbaugh's attorney and prosecutors in which each side rejected the other's proposal late last year to make the prescription fraud case go away.
Limbaugh's attorneys wanted pretrial intervention, a sentencing program that would require Limbaugh to continue his drug treatment for an admitted addiction to painkillers.
Krischer's office countered that, in exchange for not unsealing his seized medical records, Limbaugh could plead to one count of "doctor shopping," a third-degree felony, and take three years' probation and community service.
"Mr. Limbaugh never considered accepting the state's ludicrous offer," Limbaugh attorney Roy Black said in statement. "He was not going to plea to something he did not do."
Limbaugh's lawyers, as well as the Landmark Legal Foundation, which made the public records request Jan. 15, saw the release of the letters to the media as another example of Krischer using a double-standard in the case.
Routinely, the state attorney's office says it won't comment on plea negotiations or investigations. Krischer's office has steadfastly held that Limbaugh's rights have been scrupulously protected during the investigation.
Black said Krischer violated Florida law and legal ethics by releasing the documents.
According to the records, Krischer's office consulted with the state Attorney General's Office and the Florida Bar before releasing the information.
Landmark said it was considering taking Krischer to court over the released documents, which were given to the media. Landmark, based in Herndon, Va., and Kansas City, said Friday it had not received the documents, which were made available by the state attorney's office through a West Palm Beach copy shop.
"Depending on what's been released, we may be inviting him to join us to have a conversation in front of a judge," said Mark Levin, director of Landmark.
A former U.S. attorney said the issue most likely will be heading to court. Miami attorney Kendall Coffey said releasing settlement negotiations could have a chilling effect in future cases. For example, he said, a co-defendant could file a public records request and find out if an accomplice was negotiating with prosecutors.
"Evidently, the state attorney general has taken a broad view of what many will dispute," said Coffey, who was U.S. attorney for the Southern District of Florida from 1993 to 1996. "I don't think the ramifications of this matter are confined to high-profile subjects. They reach across the board."
Joanne Carrin, spokeswoman for the Attorney General's Office, said it's not unusual for local agencies to call and ask questions about the public records law. She said the office knows of no exceptions to the public records law for documents relating to settlement negotiations.
The Florida Bar said it couldn't comment on the Limbaugh case and does not give legal advice. But according to a memo dated Thursday from Krischer's office, the Bar told prosecutors it had an ethical obligation to release the letters.
Meanwhile, with all the hoopla over the Limbaugh case, the 53-year-old Palm Beach resident has yet to be charged.
Medical records still sealed
Limbaugh's drug use became public when his former maid, Wilma Cline, told the supermarket tabloid The National Enquirer for an October story that she provided the radio host with thousands of illegal pain pills.
According to an Oct. 3 letter from Black to Assistant State Attorney James Martz, Limbaugh offered his assistance in any investigation into Cline and her husband, David. The next week Limbaugh told his listeners he was addicted to painkillers and entered a five-week drug rehabilitation program in Arizona.
Limbaugh has denied breaking any law, saying he became addicted to prescription pills while being treated for back and ear pain.
"Mr. Limbaugh went to these doctors to relieve chronic, intractable pain. There was no doctor shopping," Black said Friday.
When he returned to the air Nov. 17, Limbaugh accused Krischer's office of investigating him for political reasons. Eight days later, investigators executed search warrants for his medical records from doctors in medical offices in Jupiter and West Palm Beach. The medical records remain sealed as Limbaugh appeals a circuit judge's decision to allow prosecutors to view them.
The American Civil Liberties Union and the Association of American Physicians and Surgeons are filing legal briefs on behalf of Limbaugh, saying release of his medical records would undermine doctor-patient confidentiality.
To obtain the court-approved search warrants, investigators used records from the Lewis Pharmacy near Limbaugh's Palm Beach mansion that showed he filled prescriptions for more than 2,000 pills of painkillers, including OxyContin, and anxiety medications.
Black, in a Dec. 11 letter, proposed that Limbaugh be referred to the pretrial diversion program. In that scenario, Limbaugh's addiction treatment would be monitored and, if successful, the case would be stricken from his record.
"Mr. Krischer told me specifically that the office policy is not to prosecute addicts/users of illegal controlled substances, but to go after the doctors who prescribed them illegally and the pushers on the street," Black wrote.
A note on top of the letter says it is confidential as part of settlement discussions under Florida law and Florida rules of criminal procedure.
In a Dec. 15 letter, Krischer's office rejected the proposal, saying the pharmacy records would support more than 10 felony counts of doctor shopping against Limbaugh. Doctor shopping is when a patient dupes at least two doctors into prescribing excessive medication.
Also in the letter, Martz told Black that, if Limbaugh pleaded guilty to one count of doctor shopping, prosecutors would recommend three years' probation, random drug tests and community service to raise public awareness of prescription drug addiction. The medical records would remain sealed and a guilty conviction would not appear on Limbaugh's record.
"We hadn't even had a chance to communicate our rejection of the state's supposedly confidential but preposterous proposal, when we received a call from a news reporter asking if it was true that Mr. Limbaugh was going to plead guilty," Black said Friday.
Incensed, Black wrote a letter to Krischer asking that his spokesman, Mike Edmondson, be criminally investigated for a deliberate pattern of disclosures "to publicly destroy Mr. Limbaugh's reputation."
"To date, our demand has been met with deafening silence," Black said.
'Journalist shopping' claim
Black told cable TV news channel MSNBC on Jan. 14 that he felt Krischer was kowtowing to public pressure. In Friday's public disclosure, more than 300 letters and e-mails from the public -- most urging Limbaugh's prosecution -- were released.
On Jan. 15, Landmark, a conservative legal firm that has sued the Internal Revenue Service and other government agencies, entered the picture, seeking documents because it was concerned Krischer may be trying "to punish Rush for his viewpoints." It accused the state attorney of "journalist shopping."
Levin, Landmark's director, said a letter faxed from Krischer's office Friday seemed to be contradictory to what was released. It stated that "communications which include references to the facts which led to the ongoing investigation" would not be part of the records released.
"I've never seen anything like this," Levin said. "They made it quite clear this is the sort of thing we wouldn't get. I don't know what game they're playing. I think this is a very serious error in judgment."
The Limbaugh camp said the disclosure was illegal and is further proof of a smear campaign. "Because the state has no case against Mr. Limbaugh they continually seek to discredit him in the media," Black said.
john_pacenti@pbpost.com
This blew up in the face of Landmark. Sure, it's easy to second guess, but WHAT WERE THEY THINKING?
Ding Ding Ding!
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