Wendy Murphy

Wendy is an ex-prosecutor who specialized in child abuse and sex crimes cases.

Purchase her powerful book And Justice for Some through Amazon or Barnes and Noble.

Wednesday, December 2, 2009


At this week's very weird press conference, the Florida Highway Patrol announced that the investigation of Tiger Woods' incident with his golf club-swinging wife is over. Woods paid a small motor vehicle fine and the rest of the story remains a mystery. The FHP said there was insufficient evidence to subpoena Tiger's medical records from the hospital where he was treated for his injuries.

So - the cops have a quicky presser - and It all wraps up nicely.

Except that it doesn't.

The Highway Patrol is the wrong law enforcement agency to make a decision about whether a crime occurred. They may well have experience with things like drunk driving and potholes, but local police with experience in domestic violence should be the ones figuring out whether a prosecutable crime occurred.

And the Highway cops need to explain better why they can't get Tiger's medical records from the hospital where he received treatment for his injuries; records that might have helped build a case, but at least would have revealed to them more of the truth about what happened. How can they possibly know that no crime occurred without seeing the medical file? What if Tiger told the doctors that his wife beat the hell out of him?

Even a rookie cop knows that under Florida law, it's extremely easy for police to obtain medical records during a criminal investigation. They get them routinely, virtually "for the asking", by using what's called an "investigative subpoena". In the 2002 Johnson case, the Florida Supreme Court said that an "investigative subpoena" for medical records is appropriate "when there is a clear connection between illegal activity and the person whose privacy has allegedly been invaded".

Like Tiger's situation, the Johnson case involved a single car accident where the driver landed in the hospital. Cops wanted to know whether the driver was drunk - so they issued an "investigative subpoena" for the driver's medical records. The driver argued the subpoena was invalid because cops lacked "probable cause". But the court wrote that "probable cause" was not required and that it was enough that there was a "connection" between the medical records and the car incident. In another case from 2001, the Florida Appeals Court ruled that there's enough of a "connection" when cops have mere "reasonable suspicion" to believe that relevant evidence might be found in medical records. This standard is much lower than "probable cause" because
the target is entitled to advance notice and an opportunity to mount a legal challenge to the subpoena before the records are released. The higher standard of "probable cause" applies to "search warrants" because there is no similar opportunity for due process before records are seized.

One could argue that even under the higher standard of "probable cause", which means it's "more likely than not" that relevant evidence exists in the medical records, there's plenty of evidence to justify sending a subpoena. Tiger's injuries are reportedly inconsistent with having been caused by the collision; His wife smashed his car with a golf club for no apparent reason (the "helping Tiger escape" story makes no sense); Cops were certainly aware - as was the whole world - that Tiger was suspected of infidelity (even if false - it's a motive for domestic violence simply if Elin believed it was true) - and cops have a right to draw reasonable inferences from the evidence - while putting it together with the fact that Woods was half-dressed, barefoot and clearly in a rush to hightail it out of his own home at 2:30 a.m.

But even if people disagree that the evidence rises to the level of "probable cause", it is beyond dispute that cops have "reasonable suspicion" to justify an "investigative subpoena". "Reasonable suspicion" is just that - suspicion; a strong hunch that medical records might contain relevant evidence. As the Appellate court in Florida noted in Rush Limbaugh's famous legal battle to protect his medical records, "reasonable suspicion" is substantially lower than "probable cause". Clearly, cops have a suspicious hunch the records might reveal evidence of a crime.

All this raises at least one important question:

Why would Florida law enforcement officials misstate the law at a press conference meant to educate the public about their decision-making? If a single car accident was enough "reasonable suspicion" to issue an investigative subpoena for the driver's medical records in the Johnson case, why not in the Woods' case?

The public has a right to know the answer. And while the FHP claims the case was resolved without regard for Tiger's celebrity, the fact that they refused to take questions makes it impossible to say for sure.

We don't have to hear details about the motive. Whatever's in the medical records that explains WHY something happened to Tiger's face and car can be redacted. The public is not entitled to see the guy's dirty laundry but it does have a right to demand proof that this case really IS being handled like any other situation involving personal injuries, serious property damage and the possibility of domestic abuse.