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Aired December 23, 2003 - 10:07   ET


CAROL LIN, CNN ANCHOR: We're going to bring in former federal prosecutor Kendall Coffey who's joining us live from there in Miami.
Kendall, what do you make of this decision? Is this a -- to most of us, to think that our medical records could actually be presented in open court is a bit horrifying. And I would think that most people would consider this on a personal basis a violation of right to privacy. How is it that this judge made this legal basis so that the state's attorney's office could have access to the medical records of Rush Limbaugh?

KENDALL COFFEY, FRM. FEDERAL PROSECUTOR: Well it's certainly disappointing to the defense and perhaps disconcerting to most of us, but the reality is that in an ongoing investigation, the prosecutors and the investigators are going to get a lot of latitude.

They are supposed to keep it all under seal, one of the issues addressed yesterday is the defense's concern that things were being leaked. And hopefully the judge has imposed some restrictions that will make sure that this truly does stay under seal. We all know how sensitive any kind of medical information can be.

But the reality is, Carol, that most of the time, when a defense in the course of an ongoing investigation tries to shut down the ability of the prosecution to get information that might go into making a criminal case, that's usually a very uphill battle, even when it involves sensitive and very confidential private information.

LIN: Let's go back to early December, just to remind the audience of the circumstances of this seizure. Back in early December, investigators went into a series of doctors' offices, and I think what they were trying to move was that Rush Limbaugh was what they call "doctor shopping," trying to find enough doctors to issue illegally -- well, the doctors may not know that they were illegally issuing these prescription painkillers, but that Rush Limbaugh was illegally pursuing these pain killers by finding as many doctors as he could to write these prescriptions.

The medical records, how would they play into the legal argument that he was trying to do so?

COFFEY: Well I think what we're seeing is a prosecution that feels they have to do something with this case. It's too high-profile for them simply to ignore, even though most of the time, frankly, they're not focusing on people who are users and addicts, they're going after pill peddlers rather than pill poppers. But what apparently has happened here is they've moved past the initial allegations that came from a housekeeper and husband with more baggage than a big-city airport during a holiday season. They looked at that, Carol, as not a really strong case, there's certainly not enough.

So what we've seen in early December is they're looking in a second direction. And this second direction, they can build upon records as opposed to the records of a housekeeper that may or may not be sufficiently credible.

And what they're trying to do is get the records of various doctors to show that Limbaugh, according to the prosecution theory, was in fact seeking more in the way of pills than he had any legal right to. In effect, a form of doctor shopping or false applications to these various doctors.

There are reports out there that there were a large number of pills being gathered within a short period. If the state can prove that theory, which they can presumably base upon documents rather than questionable witnesses, then they would be able to pursue a theory of perhaps a third-degree felony until Florida law.

Much too early to say where this is going. But, Carol, the tone is very adversarial. The defense of Rush Limbaugh instead of talking about working this out, was attacking them on every front. Leaks to the media, perhaps political connections between the spokesperson in the state attorney's office and prominent democrats.

So the acrimonious, increasing adversarial tone of this case tells you that this is going to be a stormy time between the prosecutors and defense in the coming months.

LIN: So do you think -- I mean Susan Candiotti talked a little bit about the parameters as to how these records would be handled in court. Do you think that it is the intent of the prosecutors to open up those medical records in open court for public testimony that we, the public, will know the intimate details of Rush Limbaugh's prescription pain as well as his pursuit in getting those medications?

COFFEY: Well, for now, and the judge is taking this one step at a time, you don't reach that issue because they're going to inquire, look into the records and determine whether or not they believe that there's a sufficient basis to go forward.

But the concern is very legitimate. What happens when you get to hearings? What happens when you get to trial, which is necessarily an open trial.

And by the way, Carol, Florida has a very strong public records act, which ordinary means that at the time that a criminal investigation is resolved, either with charges or with closing a file, the records that have been accumulated by the authorities can become subject to inspection by members of the public, including media.

And a lot of times you get not only into the defense or prosecution weighing in on whether these records become part of the public domain, but sometimes the media becomes very active in litigating these kinds of issues especially under Florida's Public Records Act.

LIN: And this is a classic tabloid case -- tabloid story as well, so I'm sure we'll see a lot more coverage of this as it unfolds today. Thank you very much, Kendall Coffey, for joining us this morning, for getting that perspective.

COFFEY: Thanks for inviting me, Carol.


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