Limbaugh's pill use not extraordinary, lawyer says

Miami Herald ^ | Jan. 26, 2004 | DANIEL de VISE

[AlwaysLurking]

Limbaugh's pill use not extraordinary, lawyer says

BY DANIEL de VISE ddevise@herald.com

Rush Limbaugh's attorney mounted an offensive Monday, accusing Palm Beach County prosecutors of smear tactics and likening his client to any ordinary American with chronic pain.

''This nation is full of people who take medication every day and will do so for the rest of their lives,'' said Roy Black, speaking in a news conference in Miami.

Discussing the prescription-drug abuse allegations in unprecedented detail, Black reasoned that the quantity of medicine Limbaugh is accused of ingesting -- 1,800 pills in 210 days -- works out to roughly 8.5 pills a day, ``certainly not an outrageous amount.''

Black questioned the motives of Palm Beach County State Attorney Barry Krischer in releasing details last week of sensitive plea negotiations between Limbaugh and prosecutors.

The December correspondence, unflattering to Limbaugh, shows the radio talk-show host proposing to settle the case through treatment, potentially averting a permanent criminal record. Prosecutors counter: Plead guilty to a single felony charge of ''doctor shopping'' and avoid prison time. Both offers were rejected.

Black said the plea negotiations shouldn't have been released. He portrayed the incident as part of a politically motivated campaign to discredit his client.

Black said the government's plea offer came with a veiled threat: If Limbaugh did not plead guilty, the state would release his confidential medical records.

''The only conclusion that I can draw is that Mr. Limbaugh ... is being singled out more than anyone else for actions that no one else in this community would be subjected to,'' Black said.

Black and other prominent South Florida attorneys said they couldn't recall another case of plea negotiations released to the public.

''There has to be some thought about the long-term consequence'' of routinely releasing such documents, said Robert Jarvis, a law professor at Nova Southeastern University. ``And the long-term consequence in this case is that no one would begin a negotiation about a plea.''

But Michael Edmondson, spokesman for the Palm Beach County state attorney, said prosecutors were confident they'd done the right thing.

Prosecutors consulted the Attorney General's Office and the Florida Bar in response to the Jan. 15 public records request by the Landmark Legal Foundation, which sought all available documents in the case. They concluded the state public records law required releasing the plea dealings, even though doing so violates ethical rules for lawyers.

''The way the Florida public records law works is, anything that is not specifically exempted under the law is permitted,'' Edmondson said. State law trumps any ethical concerns, he said.

But he offered nothing in writing to back up that account. And Limbaugh's legal team produced documents Monday that seemed to contradict it.

Telephone notes from a Florida Bar attorney, paraphrasing Kirscher himself, state that plea negotiations ``are not normally to be revealed [and] so may or may not be [a] public record.''

Attorney General spokeswoman JoAnn Carrin wouldn't say what legal advice her agency gave the chief Palm Beach County prosecutor, citing the ongoing investigation.

Prosecutors began investigating possible prescription-drug abuses by Limbaugh, 53, last year, based on a report from his former maid. Limbaugh has not been charged with any crime.

Limbaugh's attorney accused Edmondson, the state attorney spokesman, of leaking a false story last month that Limbaugh was poised to plead guilty to doctor-shopping. Edmondson denied the assertion.

Doctor-shopping is duping multiple physicians into dispensing excessive prescription medications.

''I can say categorically now that Mr. Limbaugh would not plead guilty to doctor-shopping, and that's because Mr. Limbaugh did not engage in doctor-shopping of any kind,'' Black said.

[holdonnow]

Yes, just don't know how to post it that way. Can anyone help post this as its own thread?

[holdonnow]

"This" being this:
http://www.freerepublic.com/focus/f-news/1066482/posts

[TigersEye]

If the SAO weren't leaking info to the press then Mr. Black wouldn't have to field questions from the press would he? He is trying to represent his client and these leaks concerning his discussions with the SAO compromise his ability to do that. The SAO is manipulating Rush by trying him in the press before even filing a charge.

They don't have the balls to file charges but they will leak confidential memos from the attorney in order to smear and embarrass Rush as much as possible. If they have evidence of a crime then charge him. We don't use the press to defame people as a punishment in this country, officially that is, now do we?

How can there be a plea bargain when the SAO hasn't decided upon a charge? That makes no sense.

[longtermmemmory]

FL bar. A prosecutor is not allowed to use overreaching on charges.

I doubt that is the term of art which they use. How is it overreaching if the charge they're asking the perp to plead to is the same as the charge they expect to file? This is a fictional scenario and certainly has no basis in Rush's case, since it seems clear many of the elements of doctor shopping exist.


*** ** * * **

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;

(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.

---

** * **

The issue is one of what is or is not supported by probable cause. An unscrupulous/ambitious prosecutor, the are not uncommon, could in prefiling push for a higher charge than the evidence will support.

In Rush's case, the games played by the SA is playing suggest that the offer of doctor shopping is over reaching.
The elements of doctor shoppig require the doctors not know each other (the doctors could take the 5th to protect themselves) and show Rush did not take the pills for his pain.

Proving doctor shopping on a user case is going to be near impossible in this case. It is important to note Doctor shopping is designed to go after dealers who are lying to get drugs from doctors, not users.

[wingnuts'nbolts]

Well heck, they just put Jerry Lewis in rehab and got him off steroids, helped him lose 50 lbs and voila! He is going to be entertaining us again. I can't wait. But Rush needs to be prosecuted, persecuted and denegrated because he is a republican conservative national talk radio icon. Further more he has no rights. His former housekeeper, blackmailer, who's husband is a former convicted cocaine dealer and blackmailer, received immunity to testify against Rush should they ever get the fortidude to charge Rush with something. HE HAS NOT BEEN CHARGED WITH ANYTHING!

I am angry with Rush for being stupid when he knows better . I may get over it!

[madison10]

Some of you weren't paying attention last night. Roy Black said there was a Florida statute that allows physicians to prescribe extra medication for those in excruciating pain, and the doctors will not get in trouble. Rush just had to ask for more. The maid knew Rush was addicted and used the knowledge against him. Those of you taking the maid's word as gospel...I have a sweet bridge to sell you.

IF there is such a statute, there was no reason for Rush to "doctor shop." The accusation does not even apply. "Someone" was just planting the concept with the media to get some of the dopes wrought up against Rush...and it worked.

So flame me.

[TigersEye]

Doggone it. I've seen that posted before but I just couldn't remember where. Thanks, longtermmemory, it would be nice if this would shut the weasel up but it won't. If losing arguments mattered he would have shut up a long time ago.

[an amused spectator]

Thanks, longtermmemory, it would be nice if this would shut the weasel up but it won't.

Back in the old days (when it was still marginally allowed), I had a 300+ post flame war with an anonymous poster who knew more about American colonial history than a college professor who had a PhD in American colonial history. At least, that's what the anonymous nobody on the Net claimed. ;-)

The Energizer CBG will keep going, and going, and going...

In his little pink suit & sunglasses, banging his "Rule Of Law For Thee, But Not For Me" drum :-)

[ClintonBeGone]

RULE 4-3.8 is irrelevant at this point because:
(a) I would argue the probable cause threshold in this case was validated by the judge that issued the search warrant.
(b) Rush is not unrepresented.
(c) I don't think lack of disclosure has been an issue raised by either party.

Your obsession with the theory that a prosecutor would threaten a higher charge is not present in this case. We know the potential charge and we know what the prosecutor's plea offer (if thats what it was) was. In fact the plea offer was for no jail time, while a felony conviction could result in a year or more in jail. Why do you keep on this issue when it is completely unrelated to anything that has to do with Rush's case?

"The elements of doctor shoppig require the doctors not know each other (the doctors could take the 5th to protect themselves) and show Rush did not take the pills for his pain. "

This is absurd. Why would a doctor in this case plead the 5th? He has to show he could somehow implicate himself in a crime. Florida has pain management laws that allow doctors to prescribe in a pain mgmt context without fear of unreasonable liablity (civil or criminal I dont know). Either the doctor new of Rushs other prescriptions and that would be a good admission for Rush or they didn't, and that would be a bad admission. Either way, you can't just take the 5th without some likelihood that your testimony could incriminate you in some criminal way. And before we get into that discussion, the easiest way for the prosecutor to dispose of that issue would be to give the Dr immunity and force him to testify.

So, I've wasted a lot of words refuting stuff you posted that has absolutely no relevance to this discussion or Rush's case. WHY?

[ClintonBeGone]

IF there is such a statute, there was no reason for Rush to "doctor shop." The accusation does not even apply. "Someone" was just planting the concept with the media to get some of the dopes wrought up against Rush...and it worked.

So how do you explain the prescription list showing multiple prescriptions for the same drugs from different doctors prescribed within 30 days of each other? Hmmmmm?

[Keith in Iowa]

I'd like you to explain why it's OK for the persecutor's office to relese documents clearly labeled as confidential? Is that OK in your world? Hmmmmm??

[ClintonBeGone]

I'd like you to explain why it's OK for the persecutor's office to relese documents clearly labeled as confidential? Is that OK in your world? Hmmmmm??

Is that all it takes to void a statute requiring disclosure? Stamp it confidential? Why didn't Clinton think of that??? Keith, you don't seem to be the brightest corn stalk in Iowa, but I'm sure even you can understand why that won't work.

[ClintonBeGone]

(((Crickets)))


http://www.freerepublic.com/focus/news/1065799/posts?page=350#350

[an amused spectator]

So how do you explain the prescription list showing multiple prescriptions for the same drugs from different doctors prescribed within 30 days of each other? Hmmmmm?

A real Freeper would analyze the list & the relationship between the doctors, from what is known.

Instead, you are just letting the fact of the list hang out there like a giant wet f*rt.

I know that I, for one, don't really care about your unanalyzed stinky. :-)

[longtermmemmory]

You forgot to cite the exception for legitimate use.

Doctor shopping for a user case is going to be very hard to prove under the best of circumstances. Doctorshopping was written and intended as a dealer crime not a user crime.

The providing of prescriptions would screw the SA. The Doctors can take the 5th to preclude the SA from using their testimony. (unless the SA gives blanket immunity)

Title XLVI
CRIMES Chapter 893
DRUG ABUSE PREVENTION AND CONTROL View Entire Chapter

893.08 Exceptions.--

(1) The following may be distributed at retail without a prescription, but only by a registered pharmacist:

(a) Any compound, mixture, or preparation described in Schedule V.

(b) Any compound, mixture, or preparation containing any depressant or stimulant substance described in s. 893.03(2)(a) or (c) except any amphetamine drug or sympathomimetic amine drug or compound designated as a Schedule II controlled substance pursuant to this chapter; in s. 893.03(3)(a); or in Schedule IV, if:

1. The compound, mixture, or preparation contains one or more active medicinal ingredients not having depressant or stimulant effect on the central nervous system, and

2. Such ingredients are included therein in such combinations, quantity, proportion, or concentration as to vitiate the potential for abuse of the controlled substances which do have a depressant or stimulant effect on the central nervous system.

(2) No compound, mixture, or preparation may be dispensed under subsection (1) unless such substance may, under the Federal Food, Drug, and Cosmetic Act, be lawfully sold at retail without a prescription.

(3) The exemptions authorized by this section shall be subject to the following conditions:

(a) The compounds, mixtures, and preparations referred to in subsection (1) may be dispensed to persons under age 18 only on prescription. A bound volume must be maintained as a record of sale at retail of excepted compounds, mixtures, and preparations, and the pharmacist must require suitable identification from every unknown purchaser.

(b) Such compounds, mixtures, and preparations shall be sold by the pharmacist in good faith as a medicine and not for the purpose of evading the provisions of this chapter. The pharmacist may, in his or her discretion, withhold sale to any person whom the pharmacist reasonably believes is attempting to purchase excepted compounds, mixtures, or preparations for the purpose of abuse.

(c) The total quantity of controlled substance listed in Schedule V which may be sold to any one purchaser within a given 48-hour period shall not exceed 120 milligrams of codeine, 60 milligrams dihydrocodeine, 30 milligrams of ethyl morphine, or 240 milligrams of opium.

(d) Nothing in this section shall be construed to limit the kind and quantity of any controlled substance that may be prescribed, administered, or dispensed to any person, or for the use of any person or animal, when it is prescribed, administered, or dispensed in compliance with the general provisions of this chapter.

(4) The dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan) shall not be deemed to be included in any schedule by reason of enactment of this chapter.

History.--s. 8, ch. 73-331; s. 1, ch. 77-174; s. 6, ch. 80-354; s. 4, ch. 89-281; s. 2, ch. 93-92; s. 1440, ch. 97-102; s. 105, ch. 97-264; s. 12, ch. 99-186.


The providing of a prescription would be prima facie evidence the SA has no case. No wonder the SA is desperate to elicit a confession. A confession takes the burden of proof out of their job tasks.

The SA has to show rush lied about his pain. The SA has to show the doctors did not know each other. They probably need the doctors actual testimony the medical files alone are not enough. The SA probably HAS the perscriptions from the pharmacies. (s)It this SA a lawyer?(/s)

[longtermmemmory]

Because you have no clue of reality. You have never seen a prosecutor load up on threatened charges of a weak case in order to intimidate a client into settlement.

The reason I know, is because I have been paid to deal with such stupidity from career prosecutors who are unqualified to hold the briefcase of a private attorney.

I can say this, this is already caused a change in the works for the ethics rules. The ambiguity the prosecutor has attempted to play will not be allowed to stand. The ethics rules are going to be clarified so the negotiations of future defendants will not be prejudiced by the disgusting behavior of the fellow lawyer who is the Palm Beach SA.

The key point is 4-3.8 (a) with the fact that the prosecutor HAS PERSCRIPTIONS FROM THE PHARMACY. It is very UNlikely they have probable cause. You forget Rush WAS unrepresented prior to the Enquirer story. In fact Rush could ethically be considered a third party prior to the infamous "email pressure" BS.

It has everything to do with Rush's case. They have to get the more serious charge to have a criminal record. As been repeatedly stated, if Rush is charged as a mere user, he goes to drug court and the case is ultimatly and automatically dropped. NO RECORD.

As for the Doctor's taking the 5th. There is no reason for them to cooperate, especially this particular SA. You should also read the whole statute your were selective with. It has specific penalties for doctors.

You have refuted nothing.

[Doc On The Bay]

'welcome...

Doc

[holdonnow]

Yes, "crickets" --- in your pants.

[ClintonBeGone]

The key point is 4-3.8 (a) with the fact that the prosecutor HAS PERSCRIPTIONS FROM THE PHARMACY. It is very UNlikely they have probable cause.

With your keen legal insight could you please tell the audience how a warrant was issued without probable cause?

You forget Rush WAS unrepresented prior to the Enquirer story.

The section of the rule you cited regarding an unrepresented accused says: "(b) not seek to obtain from an unrepresented accused a waiver of important pre-trial rights such as a right to a preliminary hearing;"

What rights did the prosecutor ever ask Rush to waive?

Perhaps I've refuted nothing because you've provided nothing. Nothing but gibberish.

[longtermmemmory]

Probable cause to issue a search warrant is different from Probable cause to file charges.


This is where we need more information from the SA regarding his conduct and the Clinton lawyer. Did they know the story was going to go to the enquirer? (given their current gung ho conduct at the very least suspect) Given the expectation that the public figure would be forced to either confirm or deny the addiction.

The knowledge of the intent to sell the story puts the state attorney into the arena of improper conduct pressure. FL has a "son of Sam" law which prohibits criminals profiting from their crime. Prior to immunity, the Cline's could not sell their story. If the prosecutor had knowledge of the inevitable story, Rush's admission of addition would be suppressible. Of course this is all speculation here (but speculation in the context of a prosecutor acting with clear intent), this would require production and investigation. It would require the deposition of the Cline's. It would require an investigation of communication logs. However, in that entire scenario you have a prosecutor acting to the detriment of a third party (at the time) and an unrepresented person at that time.