Posted on 1/29/2004, 8:57:21 PM by ambrose
Two Florida legal organizations blast prosecutors in Limbaugh case
By John Pacenti, Palm Beach Post Staff Writer Thursday, January 29, 2004
WEST PALM BEACH -- The Florida Attorney General's Office and the Florida Bar -- the two most powerful legal organizations in the state -- said Palm Beach County prosecutors misrepresented their advice in order to release confidential plea negotiations in the Rush Limbaugh investigation.
Bothorganizations said they felt they were used by State Attorney Barry Krischer. Limbaugh supporters called for an investigation or even the removal of Krischer from the prescription drug case involving one of America's most loved -- and hated -- radio personalities.
Wednesday's developments further illustrate the difficulty prosecutors face in investigating high-profile cases that deal with news coverage and the public interest, experts say.
Assistant State Attorney Ken Selvig, in a letter Wednesday to the attorney general's office, denied prosecutors were trying to justify releasing the records, saying they were simply asking if there was anything they missed in their research as to whether those records should be released.
At issue is a memo included in the release Friday of letters between prosecutors and Limbaugh's attorney Roy Black in which both sides tried to end the case through a plea deal. Krischer's office said in the memo it had consulted with the attorney general and the Florida Bar and felt, backed up by their advice, it was legally and ethically compelled to release the documents requested by the media.
But both the attorney general's office and the Bar rebut the memo.
"I don't think the Bar or any organization provides services as a straw man to hide behind," said Bar President Miles A. McGrane III. "In our opinion, misstatements were made about our role."
Assistant Attorney General Patricia Gleason, in a letter dated Wednesday to the state attorney's office, claimed Krischer's office had an ulterior motive.
"It seems to me that the purpose in contacting me about this issue may not have been to obtain impartial advice on an open government issue, but rather to use part of our conversation to justify your office's decision," she wrote. "This is disappointing to me personally and professionally."
Gleason said she told Selvig that a court might refuse to OK release of the documents based on "constitutional concerns." Joanne Carrin, attorney general office spokeswoman, said those constitutional concerns were due process and the right to a fair trial. Gleason said she recommended to Krischer's office that it seek advice from the Bar, notify the defense counsel and consider whether to seek help from a judge.
Selvig, in a two-page response to Gleason, said the office's decision to release the records was partly made after referring to the attorney general's public records law manual and determining there was no exemption for plea negotiations.
Selvig said Black "already knew about" the release of the plea negotiations. He said that according to the public records manual, a judge couldn't intervene in the matter.
Selvig also said Black should have been more clear that the negotiations discussed in the letters were confidential, even though they are noted as such.
The attorney general's office, among its many duties, assists local law enforcement agencies and prosecutes statewide crimes. The Florida Bar licenses all attorneys, investigates complaints about lawyers and advises them on ethics.
Bar wants to correct record
Late Wednesday, the Florida Bar weighed in on the matter, faxing a letter to Limbaugh's attorneys reiterating what its records show: that in no way did the Bar tell Krischer he was ethically obligated to release the plea negotiations, McGrane, the Bar's president, said.
Krischer was asking for a legal opinion, which was beyond the scope of the Bar, he said. Like the attorney general's office, the Florida Bar said Krischer might want to seek a judge's advice, records show.
"We felt it was important to correct what was represented to the public," McGrane said.
The letters, written in mid-December, were released as part of a public records request by the Landmark Legal Foundation, a conservative public interest organization. The group accused Krischer's office of trying to "punish Rush for his viewpoints."
Limbaugh has not been charged in the case.
The letters show Limbaugh, who has sought treatment for addiction to painkillers, wanted a pretrial intervention program in which he wouldn't have to plead guilty. Prosecutors wanted him to plead guilty to third-degree "doctor shopping" and receive probation. Limbaugh rejected the deal and was incensed Krischer's office leaked information to reporters.
Landmark on Wednesday filed an ethics complaint against Krischer with the Florida Bar for "creating a false record to justify the release of confidential attorney communications."
"I think it's time that Mr. Krischer step aside," said Landmark's director, Mark Levin. "It's clear he doesn't have the objectivity and independence of judgment to handle this matter."
Black has said Krischer has targeted Limbaugh, 53, because of his conservative politics and celebrity, using the media to discredit him.
"What more needs to happen before a higher authority decides to investigate the Palm Beach County State Attorney's Office for inappropriately conducting what is obviously an orchestrated smear campaign against Rush Limbaugh?" Black asked in a statement.
Proof to charge cited
Krischer's office has repeatedly said that it has scrupulously protected Limbaugh's rights since his maid went to prosecutors and said she provided the radio show host with thousands of illegal narcotic pills. Investigators then seized Limbaugh's medical records on Nov. 25, securing the search warrants by using records from a pharmacy near Limbaugh's Palm Beach mansion showing he received more than 2,000 pills from four doctors in five months.
According to a Dec. 15 letter to Black, Krischer's office said it had enough evidence to charge Limbaugh with 10 felony counts of doctor shopping, basically defined as duping two or more doctors into giving a patient overlapping prescriptions.
The case remains on hold while the 4th District Court of Appeal decides whether Krischer has a right to view Limbaugh's medical files.
Bruce Rogow, a law professor at Nova Southeastern University in Davie, said because of the released plea negotiation letters, problems might arise if Limbaugh is charged.
"It might very well create a situation where you have gross prosecutorial misconduct where the court might think about throwing the charges out," Rogow said.
13 ultra-strength painkillers per day! Wow, that was some addiction.
Rush is trying to plea, he's guilty. He's hoping the prosecutorial misconduct will get the case thrown out because that's his only hope of avoiding a felony conviction.
All of us who don't believe in a two class legal system, one for the rich, famous and connected and one for the rest of us, live there. Join us.
I coulda sworn the records were sealed by a judge, making it impossible to make such a determination.
I guess that you are busy complaining about the way the two stepping John Kerry had the fire hydrant moved from in front of his property to the front of someone elses property, since you are so interested equal treatment.
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