At this week's very weird press conference, the Florida Highway Patrol announced that the investigation of Tiger Woods' incident with his car is over. Woods paid a small fine and the rest of the story will remain a mystery. The FHP said there was insufficient evidence to issue a subpoena for Tiger's medical records form the hospital that treated him for his injuries. So - the cops have a quicky presser - and It all wraps up nicely. Except that it doesn't.
At this week's very weird press conference, the Florida Highway Patrol announced that the investigation of Tiger Woods' incident with his car is over. Woods paid a small fine and the rest of the story will remain a mystery. The FHP said there was insufficient evidence to issue a subpoena for Tiger's medical records form the hospital that treated him 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 drunk-driving and potholes, but cops from the family violence unit 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 files; 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 file? What if Tiger told the doctors that his wife beat the hell out of him?
The public has little sympathy for Tiger at this point, now that women are coming out of the woodwork with torrid Tiger tales. But we'd probably feel a little bit bad for the guy if it turned out he was married to a violent psycho.
Just imagine the reaction if Tiger found out Elin was cheating, and then he slapped her and knocked out her car window with a five-iron. We'd expect him to be arrested, evaluated for mental fitness, and sent away for a tune-up. And we'd feel bad for Elin - even though she cheated - because we'd assume it must have been hell living with such a violent man.
We don't know enough to say any of these things about Elin - which is exactly why cops need to subpoena Tiger's medical files. If she DID go Postal with a golf club as an act of violence motivated by jealousy, it matters, because violence at the hands of a jealous spouse is the most dangerous form of domestic abuse.
Even a rookie cop with family violence experience knows this, just as they know that under Florida law it's easy for police to obtain medical records during a criminal investigation. They get them all the time, virtually "for the asking", by using what's called an "investigative subpoena" which requires nothing more than a "connection" between illegal activity and the person whose privacy is at stake so that the target of the subpoena can mount a legal challenge before the records are released.
In 2002, the Florida Supreme court issued a ruling in a case much like Tiger's. The Johnson decision involved a single car accident where the driver ended up in the hospital. Cops wanted to know whether the driver was drunk - so they issued an "investigative subpoena" for medical records. The driver argued the subpoena was invalid because cops lacked "probable cause". But the court wrote that "probable cause" was not required. 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 held that there's enough of a "connection" when cops have as little as mere "reasonable suspicion" to believe that relevant evidence might be found in medical records.
One could argue that even under the tougher standard of "probable cause", there's enough evidence to subpoena Tiger's medical records. His 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 all these facts - while putting them together with evidence 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 a level of "probable cause", it cannot be disputed that cops have "reasonable suspicion" - which is - roughly speaking - a good hunch that medical records might contain relevant evidence. As the Appeals Court in Florida wrote in Rush Limbaugh's famous legal battle to protect his medical records, the standard is substantially lower than "probable cause" because, unlike with search warrants, an individual whose privacy rights are at targeted by an "investigative subpoena" receives advance notice from police so they can mount a legal challenge before the records are released. No advance notice is needed for secretly issued "search warrants", which is why the law imposes a higher standard of "probable cause" for warrants.
All of 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.
Wendy Murphy is a leading victims rights advocate and nationally recognized television legal analyst. She is an adjunct professor at New England Law in Boston. She can be reached at email@example.com. Read more of her columns at The Daily Beast.
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