Rush Limbaugh Plea negotiations

The Smoking Gun ^ | January 23, 2004 | legal documents

[Sarah]

PUNK'D: Ashton Kutcher victim suit headed to trial

JANUARY 23--Plea negotiations between Rush Limbaugh and Florida prosecutors stalled last month when government officials insisted that the radio host cop to a felony, rejecting a defense suggestion that Limbaugh simply enter a pretrial diversion program and "continue to receive treatment for his addiction." In an exchange of letters (copies of which you'll find below), Roy Black, Limbaugh's attorney, and prosecutor James Martz offered starkly different versions of the punishment Limbaugh, 53, should receive were he to admit that he engaged in "doctor shopping" to score prescription painkillers and other drugs. In his December 15 letter, Martz argued that Palm Beach investigators had evidence to support "in excess of ten felony counts" against Limbaugh. Copies of the Black-Martz correspondence were released to reporters pursuant to a freedom of information request. In November, agents executed search warrants at the offices of three Limbaugh doctors in an attempt to determine whether he illegally obtainied drugs like OxyContin, Hydrocodone, and Xanax. (4 pages)

[Sarah]

uh...

[lelio]

The Limbaugh stuff was pretty dull, the Punk'd story was interesting. Its about a pre-Punk'd hidden camera show, in it a couple checks into a Vegas hotel room only to find someone lying in a pool of blood, aparently murdered. Yeah that's freakin hilarious.

[Ingtar]

LOL - they dropped the "may haves" that were in the original version and changed it to read like it was stating fact. (For example: original quotation was that they may have enough for 10 indictments...)

[patj]

Isn't this yet more proof that they are treating Rush differently than others arrested for the same thing?

[ConservativeMan55]

Rush Ping!
Search for the latest Rush Limbaugh news on Free Republic.

Rush Limbaugh Plea Negotiations.

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Doctors join Limbaugh case.

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Disclosure of Limbaugh suit draws rebuke.

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The day I wanted Limbaugh to be right.

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Prosecutors reject Limbaugh proposal.

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Blacks statement on SAO Leaks.

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Freepmail me if you would like on/off the Rush Pinglist!

[ConservativeMan55]

I guess it would help if I remembered the pings! LOL!

[Ophiucus]

Isn't this yet more proof that they are treating Rush differently than others arrested for the same thing

Basically. It also looks like a bit of petty harassment in which they don't have a case of substance but a 'perp' they are itching to nail.

[E.G.C.]

Bump in support of Rush and against this mission of malice by the Democrats against christians and conservatives.

[gitmo]

Govenor Bush needs to pardon Rush. This county is making a mockery of the justice system in order to make a political win.

[longtermmemmory]

I know I have posted this comment before on a similar thread but it bears repeating. The Palm Beach State Attorney's office is long overdue a bar complaint. (any person can report them. It does not have to be a lawyer or a participant. The Bar must investigate.) This effort has been coordinated from the very second the Clinton lawyer started representing the Cline's.

This story is a violation by the SA since he is leaking to gain advantage unjustly in a case. "Reporter Shopping" is frowned on. If the SA manipulated the existence of the Enquirer story to get rush to publicly admit his addiction, that is a ethics violation. (no jury there)

Rules Regulating The Florida Bar


4 RULES OF PROFESSIONAL CONDUCT
4-4 TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

RULE 4-4.4 RESPECT FOR RIGHTS OF THIRD PERSONS

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person.

[my comment: This is relevant for the time when Rush was not being investigated. He was a third party then. This is pre-public pressure emails and telephone calls. Since the SA has obvious relationships with certain reporters, thier shopping of the pre-investigation story through colusion to elicit the public admission of adiction, publicity pressure to initiate the investigation, and public intimidation/disparagment of Rush would be a violation.]


Comment

Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons.

=snip=

4 RULES OF PROFESSIONAL CONDUCT
4-3 ADVOCATE

RULE 4-3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) not seek to obtain from an unrepresented accused a waiver of important pre-trial rights such as a right to a preliminary hearing;


[my comment: before the enquirer story, Rush was unrepresented. No lawyer had placed his notice with the SA.]

(c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

Comment

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations such as making a reasonable effort to assure that the accused has been advised of the right to and the procedure for obtaining counsel and has been given a reasonable opportunity to obtain counsel so that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate. Florida has adopted the American Bar Association Standards of Criminal Justice Relating to Prosecution Function. This is the product of prolonged and careful deliberation by lawyers experienced in criminal prosecution and defense and should be consulted for further guidance. See also rule 4-3.3(d) governing ex parte proceedings, among which grand jury proceedings are included. Applicable law may require other measures by the prosecutor and knowing disregard of these obligations or systematic abuse of prosecutorial discretion could constitute a violation of rule 4-8.4.

Subdivision (b) does not apply to an accused appearing pro se with the approval of the tribunal, nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and silence.

The exception in subdivision (c) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.

=snip=

this is the good one

4 RULES OF PROFESSIONAL CONDUCT
4-3 ADVOCATE

RULE 4-3.6 TRIAL PUBLICITY

(a) Prejudicial Extrajudicial Statements Prohibited. A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.

(b) Statements of Third Parties. A lawyer shall not counsel or assist another person to make such a statement. Counsel shall exercise reasonable care to prevent investigators, employees, or other persons assisting in or associated with a case from making extrajudicial statements that are prohibited under this rule.

Comment

It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy


=end snip=

If the SA TOLD THE REPORTER to ask for the letters via public request that would violate Florida Bar Ethics rule 4-36(a).

Even if the Chief claims innocence. The lawyer in charge CAN BE HELD RESPONSIBLE for the acts of lawyers under him/her. This is not just 4-3.6(b)

If the SA orchestrated the release of the Cline's story to Enquirer. (made sure the had the right immunity deal to ensure Rush had to be embarrassed into a confession) this would be a violation of Rule 4-4.4 because at that time Rush was a third person and openly not part of an investigation.

This is most assuredly now a FL Bar matter. This SA is out of control. He is humiliating the profession. (not that it would be hard to do.) But even in the Bar's eyes, this guy is obviously manipulating the prosecutor's office only for political gain and. This would be dramatically true and an ethics violation if they set up the enquirer story to get a confession out of Rush when he was unrepresented.
It is time to file a formal bar complaint.

BTW, since the bar disciplinary proceedings are not court proceedings proceedings per se, the rules or evidence are looser. Privilege is far more limited.

[weegee]

Seems The Smoking Gun folks didn't bother to comment on the DA illegally leaking the letter from Rush's attorney:

This letter is being sent as part of settlement discussions and thereby
confidential pursuant to FRCP 3.172(h) and FS. 90.408.

[Sarah]

You know, you're right. Where DO they get their stuff anyway?

[RS]

FLORIDA RULES OF CRIMINAL PROCEDURE
RULE 3.172. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA
(h) Evidence. Except as otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or
criminal proceeding against the person who made the plea or offer.

Florida Statutes
90.408 Compromise and offers to compromise.--Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value.

Don't see anything in either one of these that has anything to do with keeping them confidential, just that they cannot be used as evidence.

I wonder if Black ever read them ?

[longtermmemmory]

Which is why I believe the leaking of the two letters is a violation of FL Bar rule 4-3.6.

=snip=
RULE 4-3.6 TRIAL PUBLICITY

(a) Prejudicial Extrajudicial Statements Prohibited. A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an imminent and substantial detrimental effect on that proceeding.

=end snip=

This stunt by the SA has jepordized ALL plea negotiations with a public component. The notion that the SA asked the Bar Ethics hotline if they could release the letters in response to a "request" is BS. If the SA limits the information given to the hotline, they can get the result they need.

So does anyone know how to get Judicial Watch to jump on this?

[longtermmemmory]

people forget there are no actual charges.

Jeb Bush's own adult daughter was in the same situation, Noel Bush. She went through the drug court program, even had a stumble. She completed it and her case was dropped.

Is the SA in a quagmire yet? He had Rush offering on a silver platter to consent to the jurisdiction of the courts but passed it up. Why? To spend more limited tax money? Political personal gain? Impress a girl? Hilary?

[Voltage]

The case seems to me to be much less significant than perjury and suborning perjury, and since the U.S. Sentate indicated those were no longer a crime (everyone does it!)I would never convict.

[RS]

"He had Rush offering on a silver platter to consent to the jurisdiction of the courts but passed it up. Why? "

One reason could be because Rush is still trying to convince people that he has broken no law ...

[longtermmemmory]

That notion is irrelevant to Rush consenting to the jurisdiction of the courts.

The "Why? To spend more limited tax money? Political personal gain? Impress a girl? Hilary? " is to justify the diversion from the SA doing their job as a lawyer for the government.

[Cubs Fan]

--Its about a pre-Punk'd hidden camera show, in it a couple checks into a Vegas hotel room only to find someone lying in a pool of blood, aparently murdered. Yeah that's freakin hilarious.--

I can only hope you're being sarcastic