Pubdate: Thu, 29 Jan 2004 Source: Sun-Sentinel (Fort Lauderdale, FL) Copyright: 2004 Sun-Sentinel Company Contact: http://www.sun-sentinel.com/ Details: http://www.mapinc.org/media/159 Author: Peter Franceschina Bookmark: http://www.mapinc.org/people/rush+limbaugh Bookmark: http://www.mapinc.org/oxycontin.htm (Oxycontin/Oxycodone) PALM BEACH PROSECUTOR SLAMMED BY STATE LAWYER FOR RELEASING LIMBAUGH PLEA LETTERS The general counsel for the Florida Attorney General's Office criticized Palm Beach County prosecutors Wednesday, asserting that they mischaracterized the office's input into the prosecutors' decision to release documents last week in the Rush Limbaugh investigation. The letter gave fresh ammunition to Limbaugh and his attorney Roy Black in their attacks against Palm Beach County State Attorney Barry Krischer for his handling of the prescription drug investigation. Also on Wednesday, a conservative public-interest law firm that supports Limbaugh filed ethics complaints with The Florida Bar against Krischer and his chief assistant. Prosecutors say they released two letters between the State Attorney's Office and Black, among other records in the case, because they had to under Florida's broad public-records law. Chief Assistant State Attorney Ken Selvig wrote a one-page memo, initialed by Krischer, on the release of the documents outlining that he and Krischer checked with the Attorney General's Office and the Bar before determining the two letters were public. Pat Gleason, the general counsel, said in a Wednesday letter to Selvig that his memo about their conversation concerning whether the records were public left out "critical parts of our discussion." While Gleason said she and Selvig agreed there was nothing in Florida law preventing the release of letters discussing a possible plea negotiation, she said he omitted in his memo "that we also discussed the possibility that a court might refuse to authorize release based on constitutional concerns." "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 that the documents should be released," Gleason wrote. "This is disappointing to me personally and professionally." Prosecutors last week released a Dec. 11 letter from Black to Krischer offering to have Limbaugh enter a drug-intervention program rather than face criminal charges. Prosecutors responded in a Dec. 15 letter they released, saying they thought they have evidence that Limbaugh committed at least 10 felony violations of the state's "doctor shopping" law, which makes it illegal to secretly obtain overlapping prescriptions. Prosecutors offered to end their investigation if Limbaugh pleaded guilty to one felony and agreed to a three-year term of probation, which would include drug treatment, random drug testing and community service. Black since has said Limbaugh -- who is not charged with any crimes -- would never plead guilty because he is innocent. Selvig wrote back to Gleason on Wednesday, saying his memo was not meant to be a complete record of their conversation. He said prosecutors considered seeking a judge's review of whether the letters were public, but he cited the attorney general's Government-in-the Sunshine Manual that provides guidance on public-records issues. He cited a portion of the handbook that outlines that courts have ruled governmental agencies can't ask a judge to decide matters of public records. "None of the contacts I have had with you over the past week was intended to justify our decision regarding the public-records request we received," Selvig wrote, adding that he wanted to make sure there was nothing prosecutors had overlooked that would prevent the release of the records. In her letter, Gleason said she advised Selvig to ask the Bar about ethical considerations in releasing the letters and to notify Black about the request. JoAnn Carrin, a spokeswoman for the Attorney General's Office, said Wednesday that Gleason declined to comment on the issue. Carrin said Gleason's opinion that prosecutors should consider seeking judicial review was based on a Florida Supreme Court case. That case says the release of public records "must be balanced against the constitutional rights of a fair trial and due process." "She was referring to a section of the Sunshine Manual, which provides for the state prosecutor, or the defense, or both to go to the court if they believe material, which is public record, would violate the constitutional rights and the fair trial of the accused," Carrin said. Black has blasted Krischer since the records were released, and he continued his attacks after Gleason's letter was released. "This letter leaves no doubt that State Attorney Barry Krischer is conducting a deliberate smear campaign in the media in an effort to trash Rush Limbaugh's reputation," Black said in a statement. "The improper release to the media of confidential correspondence was a grave injustice to my client. But even more grave is the revelation that a memo initialed by Mr. Krischer himself tried to mislead the public about the positions and policies of some of the state's most senior legal officials." Krischer spokesman Michael Edmondson said prosecutors stand by their decision that the letters were public and had to be released under the law. He also said Black was aware of the pending records requests because he had been quoted in the media about them. On Monday, Black released notes taken by the Bar ethics attorney who talked to Krischer about the records. Those notes reflect that the attorney told Krischer his office must determine whether the letters are public and could ask a judge if there was a question. That advice was not included in the prosecution's memo on the release of the documents, but Selvig wrote in the memo that the Bar's attorney said, "it would in fact be unethical not to disclose the letter unless there is an applicable exception." The conservative Virginia-based Landmark Legal Foundation, which made one of the public information requests, filed ethics complaints Wednesday with the Bar, alleging Selvig and Krischer misrepresented their conversations with the Bar and the Attorney General's Office. Tony Boggs, who heads the legal division of the Bar, said Krischer does not fall under the Bar's regulatory supervision because he is an elected state official. "That kind of dissembling by that kind of high-elected lawyer would be exactly what The Florida Bar should be policing," said Mark R. Levin, president of Landmark. "Prosecutors daily have harassing complaints made against them, and this complaint will be dealt with accordingly," Edmondson said. - --- MAP posted-by: Larry Seguin