PRINT PAGEFlorida Appeals Court Ruled Against Palm Beach Prosecutor in 2002 Appeals Case Where Identical Argument to Limbaugh Case Was Used

Miami, FL – March 18, 2004 – In what attorneys said was a fatal flaw in Palm Beach State Attorney Barry Krischer's argument as to why he should be allowed to unseal Rush Limbaugh's medical files, prosecutors ignored a recent Appeals Court decision suppressing evidence because police obtained it without following state statute.

This gaping hole in the prosecutor's argument was disclosed by Mr. Limbaugh's attorneys in papers filed today with Florida's 4th District Court of Appeal.

"Only two years ago, this very Court suppressed evidence in a case out of Mr. Krischer's own office because of the state's failure to follow the procedures required by another state law," said Roy Black, Mr. Limbaugh's attorney. "This 2002 case, State v. Langsford, is not even mentioned in the state's brief."

Prosecutors argued in their March 8 court filing in the Limbaugh case that the wholesale seizure last December of Mr. Limbaugh's medical files was proper because search warrants were issued in compliance with the Fourth Amendment protection against unreasonable searches and seizures.

Prosecutors argued that they did not have to follow Florida's medical privacy statute because only the Fourth Amendment applies. But the Fourth District Court had already rejected this identical argument in its Langsford decision.

"This court ruled that the Florida Legislature has the right to impose 'higher, but not lower, standards for police conduct than those required by the Fourth Amendment,'" Mr. Black said. "The Legislature did exactly that with the law that defines the procedure the state must follow before it can intrude on a patient's medical affairs. This is not just a technicality. The Legislature specifically elevated the standard for individual medical privacy rights."

The revelation that the Langsford case was ignored in Mr. Krischer's brief comes as the Appeals Court is to decide whether the state can have access to records from four of Mr. Limbaugh's doctors. Mr. Limbaugh's attorneys asked the court to keep the medical records sealed and, because the prosecutor violated the medical privacy procedure, to prohibit access to them in the future by law enforcement.

Mr. Limbaugh has not been charged with any crime. But prosecutors say that after seizing his prescription records from pharmacies near his home they are investigating possible charges of doctor shopping, which entails obtaining overlapping prescriptions from two different doctors.

In recent months, prosecutors have released to the media search warrant affidavits and confidential correspondence they had with Mr. Limbaugh's attorneys in which they claim to have evidence supporting 10 felony counts of doctor shopping.

But in their March 8 court brief prosecutors admitted that: "The State will not be in a position to know what it can charge, if anything, until the (medical) records are reviewed."

"The state did not -- because it could not -- articulate in its (brief) how any of these medical records are relevant to its investigations," Mr. Black said in his brief. "All the state could say is that it wants to fish through the privileged records to see 'what it can charge, if anything.'"

"This is precisely what Florida's medical privacy laws prohibit," Mr. Black said.

Mr. Black has said in court that there was no doctor shopping, but that Mr. Limbaugh should not have to sacrifice his right to medical privacy to prove his innocence. In his brief, he argued that prosecutors never would have been able to seize Mr. Limbaugh's entire medical files if they had followed Florida medical privacy laws.

"The state seized every single document in Mr. Limbaugh's entire medical files from four of his physicians," Mr. Black stated in his brief. "These medical records -- detailing hearing tests, or the results of a cholesterol test, or the details of a particular surgery, for example -- are irrelevant because they have no logical tendency to prove whether Mr. Limbaugh allegedly obtained overlapping prescription medications."

Mr. Krischer said in his brief that the prescription records and search warrant affidavits were publicly released last year because the Clerk of the Court asked that they be placed in the public court file. Mr. Krischer also said that "they were to be part of the record at a hearing."

Mr. Black said in his brief that this was a fabrication.

"The records were filed with the Clerk on December 4, 2003. At that time, there was no 'hearing' set and, consequently, no 'record' to make," Mr. Black's brief stated. While Mr. Limbaugh's attorneys had requested a hearing, the State Attorney's Office ignored the request.

"The state's attempt to blame a clerk for its own actions is shameful, and not in good faith," Mr. Black stated in his brief. "The truth is that the state filed the warrant affidavit in the public record so it could direct the media to the court file and publicly embarrass Mr. Limbaugh."

 


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