Proof That Limbaugh Prosecutor Lied about Having Permission to Release Confidential Plea Agreements

Rush Limbaugh Website ^

[Cubs Fan]

What the Florida States Attorney's Office (Prosecutor) Said Happened

MEMO TO THE FILE
January 22, 2004
From Ken Selvig

RE: Release of letters from attorney for Rush Limbaugh in response to a public records request

We have a received a public records request from Peter Franceschina of the Sun Sentinel for, among other things any correspondence to or from Roy Black and his law firm.  Mr. Black currently represents Mr. Limbaugh in connection with an ongoing investigation.

Yesterday by telephone I spoke with Pat Gleason, the AG's most knowledgeable person on the Public Records Law.  I did not tell her the particular case I was calling about.  The question posed was whether there is an exception to the Public Record's Law that would allow us to refuse to disclose a letter from an attorney offering to plead guilty in a case that is under investigation but not yet filed.  It is my opinion that there is no exception to the law that will allow us to withhold the letter.  Ms. Gleason agreed with my position.  She recommended and I agreed, that we should consult the Florida Bar for an opinion on whether the release of the attorneys letter would possibly raise an issue under the Rules of Professional Responsibility (RPC).

This morning, Barry spoke with Barbara Moore of the Florida Bar about the issue.  Ms. Moore's opinion is that the Florida Public records Law takes precedence over any possible issues raised by the RPC.  She said that there is an ethical obligation to follow the requirements of the law and that it would be unethical not to disclose the letter unless there is an applicable exception.  I agree.   

Therefore , we will comply with the request to disclose letters received from or sent to Mr. Black and his law firm.

What Really Happened  According to the Attorney General

Dear Mr. Selvig (Assistant State Attorney):

Thank you for your January 26, 2004 e-mail regarding our earlier conversation concerning the authority of the State Attorney to release a letter concerning plea offers in a pending criminal investigation. Your attempt to clarify that the decision to release the letters in question was made by your office is acknowledged. However, I am concerned that your memorandum to the file and the subsequent e-mail summarize only a portion of our conversation and omit critical parts of our discussion.

Specifically, I note that your records of this matter do not reflect that when you telephoned me you Indicated it seemed difficult to believe that plea negotiation letters could be releasable prior to trial. While we both agreed that we were unaware of any applicable statutory exemption, we also discussed the possibility that a court might refuse to authorize release based on constitutional concerns. For this reason, I recommended that in addition to making counsel from the Florida Bar as to any ethical concerns about releasing such materials, it was appropriate to notify defense counsel of the public records request and consider whether a Judicial resolution was advisable.

Both your file memorandum and e-mail emphasize that you did not tell me who the defendant was in this situation. However, that should not and cannot matter. Over the years, I have had many conversations with assistant state attorneys about pressing public records issues These conversations have been candid and in my view have helped the state to resolve public records issues and focus on the upcoming trial, In this case. however, 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 a part of our conversation to justify your office's decision that the documents should be released. This is disappointing to me personally and professionally.

Sincerely,
Patricia R. Gleason
General Counsel

What Really Happened  According to the Florida Bar

To Barbara B. Moore From Barry Cusher

INQUIRY

Facts: Caller's office received a public records request in Rush Limbaugh case. File includes letters from atty in SAO to Roy Black, defense counsel. Checked with AG's office and AG says the files are public records except that there are 2 letters which include plea negotiations which are not normally to be revealed so may or may not be public record. AG said to call ethics dept.

Question: guidance

Answer: Can't provide legal advice or interpret public record statute. All info in file is confidential as to his client, the state, under 4-1.6. Once legally compelled to provide info, it becomes a question of law, whether a/c privilege or public records. If client, state, only agrees to reveal what they are required to under public records law, caller must determine what is legally required and what is not. If unsure, may need to ask court to determine it for them. See 92-5 generally on confidentiality vs. privilege. How legal issues of public record statutes factor in is beyond an ethics opinion.

[RS]

Her last paragraph -

"Both your file memorandum and e-mail emphasize that you did not tell me who the defendant was in this situation. However, that should not and cannot matter."

Why is this even here ? ( Hint - I didn't know who it was about, don't get me involved )

"Over the years, I have had many conversations with assistant state attorneys about pressing public records issues These conversations have been candid and in my view have helped the state to resolve public records issues and focus on the upcoming trial,..."

Duh - that's WHY he called you - and you BOTH AGREED on the public records issue.

"In this case. however, 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 a part of our conversation to justify your office's decision that the documents should be released."

EXACTLY CORRECT - He did NOT call for advice on an open governmental issue - he asked for specific information in a facet that she is the expert on, and they BOTH AGREED.

"This is disappointing to me personally and professionally."

Sorry that you are disappointed both personally and professionally that he did value your suggestions on things which you are not the known expert on enough to act on them.

[RS]

The AG is clearly saying that just because she knows of no specific exemptions for releasing plea bargain documents in the sunshine law THAT THAT DOES NOT MEAN ITS OKAY TO JUST GO AHEAD AND RELEASE THEM.

Correct - the law says that you are REQUIRED to release them, not just that it's OK to release them.

But he went a further and checked with ethics, and again got NO OBJECTION.

BOTH experts AGREED to the release, but both SUGGESTED that he go to a judge.
He made the call, and out the door they went.

BTW - shouldn't Black be filing a lawsuit on this if he thinks he's got a case ? LLF ( Lapdog Legal Foundation ) is filing the ethics violation, but the State is still responsible...

[FBD]

Cubs Fan vs RS,
I am enjoying the exchanges between you two!

Landru, thanks for the ping, it's getting very entertaining here...
Now all I need is some popcorn and red licorice...
;^D

[RS]

"I do read them, but in context."

Perhaps you need to read them in reality - to state that the request is limited by a phrase that NEVER appears in it is simply absurd.

There is no mention of "any records of his staff's communications with the media." -
( in fact the shortend phrase "any records" does not even appear )

http://www.landmarklegal.org/latest_developments.cfm?webpage_id=564

Although there IS -

"Landmark also seeks any and all internal SAO communications and records that are not exempt from disclosure."

[NonValueAdded]

The Sunshine Law is pretty wide open but if there is to be a closing of the window in Rush's case, FRCP 3.171 [emphasis added]

RULE 3.171. PLEA DISCUSSIONS AND AGREEMENTS (a) In General. Ultimate responsibility for sentence determination rests with the trial judge. However, the prosecuting attorney and the defense attorney, or the defendant when representing himself or herself, are encouraged to discuss and to agree on pleas that may be entered by a defendant. The discussion and agreement must be conducted with the defendant’s counsel. If the defendant represents himself or herself, all discussions between the defendant and the prosecuting attorney shall be of record.

indicates the court's obvious interest in keeping the docket size down. Note the last sentence of that 3.171 doesn't apply since Rush is represented by counsel. The Sunshine manual, Section E Rule 2.051, does give broad protection to the Judiciary and their proceedings. While the SAO is executive branch and this matter has not yet gone before the court, section 9 of 2.051 covers this:

(9) Any court record determined to be confidential in case decision or court rule on the grounds that
(A) confidentiality is required to
(i) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice;

Since Judiciary rules apply and lawyers are officers of the court, then we might be under the broad exemptions in the Sunshine Law for the judiciary (separation of powers reasons, etc.).

That's my last flog of this horse. If there isn't case law out there already on this, there will be. I don't see that there is a possiblity for the orderly administration of justice if plea negotiations, which we all violently agree are not evidence, are allowed to become evidence in the court of public opinion before the negotiations have even concluded. Heck, why not let the Enquirer put someone in each SAO's office to sit in on the negotiations otherwise.

[RS]

Love it -

... and this is the one ( and only ) time I can thank someone for saying I'm on the left :-)

[NotJustAnotherPrettyFace]

Go Rush-bo & Roy Black!

[RS]

Good post - I'll take my time and read it over...

BTW - Does anyone else realize that Blacks letter offered NOTHING ?

... what he was "willing to do" was exactly what he had been doing !
Read it again... "require him to CONTINUE his addiction treatment"...

.... and what conversely? ...if they don't drop the investigation he'll start taking drugs again ?

He was admitting NOTHING and willing to give up NOTHING - it was an offer of NOTHING.

[longtermmemmory]

The prosecutor's letter sought a guilty plea.

A guilty plea is equal to a confession.

A confession is probative to the criminal investigation.

It is confidential. Settlement negotiations in general should be deemed probative to the investigation and thus confidential.

To state otherwise is absurd.

[longtermmemmory]

No don't be dense, are you new to the limbaugh threads. FL has a drug court intervention program. The offer in the letter is to consent to the jurisdiciton of that program. If you fail to complay with that program there are criminal court consequences.

It was a serious offer. It also offered the prosecutor a political bone. He would have been able to be the hero of brining Rush to the jurisdiction of the court. He would have gotten his mug shot. He would not have gotten the adjudication or confession. But when you negotiate you get some and give up other points.

I also would mean the prosecutor would be able to claim his investigation was vindicated. Now the SA has wasted MORE money and time; and in the end will have nothing but probably a reprimand or suspension. ANY Bar discipline finding will cost him his job. (and possibly the lawyers around him)

[longtermmemmory]

Comparable requests? ALL CONFIDENTIALITY REQUESTS HAVE NEVER BEEN TURNED DOWN! These are especially important when the criminal defendant is turning states witness. If negotiations become public record, the witness is DEAD.

This is a FIRST. Would they become public record in due course. Yes they would, they become public as with all materials after the case is clossed. How do you think attorneys find withheld evidence somethimes. From the prosecutor's own files.

[greasepaint]

True or false.
All business with the SA is presumed 'on the record' unless,
a) both parties agree in advance that something is off the record, or,
b) specific exemption is written in law.

[AuntB]

The doctors didn't lie. They just didn't bother, or couldn't agree or I couldn't afford the "tests" or I refused to take any more of their drugs and they said I "refused treatment". Either they are overworked, and many are, or they're incompetent. I've gone over their heads. I had to do this before to save a man with a lemon sized brain tumor that they told to just go home and die. If you get to the researchers, that WANT to talk to you, you start making sense of it all. As one told me today, "practitioners are overwhelmed" by any thing that's not "simple".

They damn near "simpled" me in the grave. But I've got a surprise or two for them left in me. BTW, it took SSA 18 mos. to finally approve this sick man, having constant siezures, for disability and another 2 years after that to get medicare. (SSI...the welfare portion of the SSA system, is for those that have not worked enought to get SSdisability. Ironically they get medicare the day they are approved.) If I hadn't spent my savings finding doctors and medicine, supporting him while he waited on the doctors and the SSA, he'd have died first. And NO, they did not pay him the 18 months back, like they say they will. 18 months, while you think you're dying. And La Raza complains if the US doesn't grant "instant citizenship". But 10 years later, I understand he's up and about and siezure free.

The whole system is BROKEN.

I'm sorry you haven't found something that works for you, it takes a lot of time and energy and humiliation..."poor you" isn't very comforting is it?. The only one, he worked for the SSA, that I had a real problem with just didn't like my politics. He saw bumper stickers on my car that ticked him off...like FR. He was half an hour late for the appointment while I waited outside in 29 degree weather, had no other patients, was a total geek. I could write pages about this nut.

[Sarah]

'That's my last flog of this horse. If there isn't case law out there already on this, there will be. I don't see that there is a possiblity for the orderly administration of justice if plea negotiations, which we all violently agree are not evidence, are allowed to become evidence in the court of public opinion before the negotiations have even concluded. Heck, why not let the Enquirer put someone in each SAO's office to sit in on the negotiations otherwise.'

The molding of public opinion, even if it was done by a officer and without the SA's knowledge, is enough to throw out the whole case?
ie: does the whole point become the leaks? What happens to the original investigation, and pending charges?

[longtermmemmory]

As a lawyer, the SA is responsible for the proper supervision of all his underlings under the Bar Rules. If a leak from his press secretary or another attorney is jeopordizing the administration of justice, the SA is responsible. If an ethics complain exits they have show how his conduct was in fact complaint in the face of such conduct.

It is not to through out the case because we currently have no case. It may be enough to have the case moved out of palm beach. The question them becomes do them move north, Bush Country or South, Gorezone. For any hope of recovering credibility they would have to go north. Thus they will go south.

The SA office is just like one big law firm, if one attorney screws up, the whole firm pays the price.

A case that is moved is actually tried by the same office, just in a new court with a different jury pool.

No judge is going to allow settlement negotiations into evidence in the absence of some form of illegal (not confused with unethical) behavior at issue. A jury will never see the letters in a trial. This case simple. The system is designed in a manner that puts this matter in drug court diversion program. It has only been the SA trying to "game" the system.

The leaks, besides being an ethics violation, become part of a demonstration of corrupt behavior. Behavior corrupted by a vendetta style prosecution.

Public corruption is very much frowned on. FL legislature just upped the penalties for criminal corruption. If the SA is sanctioned by the Bar, or faces corruption charges the case is gone as a practical matter.

[Sarah]

So basically you're OK with the outcome that Rush gets off because someone in the SA's office was chomping at the bit and leaked.
I mean these leaked negotiations were REAL negotiations, no?
Or do you say: Rush really got lucky that these guys couldn't shut their mouths, but he still may have broken the law and he's that much less a man for it. Which is to say that they MAY have had a case but now he's going to get off scott-free.

[Sarah]

complain = complaint
exits=exists
complaint=compliant
through=throw
them=then
frowned on=frowned upon

whatever...
does your secretary do all your typing usually?

[ItsTheMediaStupid]

Pickey, Pickey. I knew what he mean't. Why don't you keep your instruction limited to your English class?

[RS]

"True or false.
All business with the SA is presumed 'on the record' unless,
a) both parties agree in advance that something is off the record, or,
b) specific exemption is written in law."

Gee if I knew there was a quiz I would have studied...

But I'll guess at B since the sunshine law specifically points out that wanting something to be confidential dosn't count for anything, in or out of the SA's office ...

How'ed I do ?