JUDGE: IN REHAB, PRIVACY LAWS APPLY

Therapists Don't Have To Testify About Noelle Bush

TALLAHASSEE - In a case that has captured the attention of legal
scholars across the nation, a judge ruled Monday that Noelle Bush's
drug therapists won't have to testify in court about the crack cocaine
found in her shoe.

Prosecutors pledged Monday to appeal the ruling by Orlando Circuit
Judge Belvin Perry Jr., who wrote that federal confidentiality laws
protect Bush as long as she resides in a drug-treatment center and
remains under the supervision of a drug-court judge.

Lawyers on both sides and national drug-treatment advocates say the
case is a critical test for the often tense relationship between
law-enforcement officials who want to prosecute drug offenders and the
therapists who treat them.

The tension is even greater in this case because Bush, 25, is the
daughter of Gov. Jeb Bush and the niece of President George W. Bush,
two politicians who have made drug policy a prominent part of their
agendas and who campaign as advocates for law enforcement.

What's more, the governor is in the midst of a reelection campaign in
which he speaks often about his record of reducing drug abuse and
cracking down on crime as he faces questions about whether his
daughter is receiving special treatment.

The ruling does not mean Noelle Bush is off the hook for the Sept. 9
crack-cocaine incident in which police were called by a fellow rehab
patient who complained that the ''princess'' gets caught repeatedly
but is never punished.

Bush must face a different judge as part of the drug-court program she
entered after her Jan. 29 arrest in Tallahassee for attempting to buy
the anti-anxiety drug Xanax with a forged prescription. The drug-court
judge could give her jail time -- as he did in July when she was
caught by therapists with prescription drugs -- or toss her from the
program and force her to face felony charges in the original case.

Indeed, Perry wrote in his 11-page order that the drug courts were
created by the Legislature specifically to deal with problems that
arise in treatment, including relapse.

''The logic of this argument is inescapable,'' Perry wrote. ``If
drug-addicted patients could be taken by the police and be delivered
to the regular criminal court for the crime of possession of drugs,
the treatment-based prevention program would be rendered
meaningless.''

Monday's ruling was greeted as a victory by drug-treatment advocates,
who argued that forcing treatment-center staff members to testify
against a patient would set a dangerous precedent in a world where
relapse is a frequent occurrence.

''With this ruling, drug treatment programs can go about their
business knowing that they will be able to do everything they need to
do,'' said Carlos Burruezo, the attorney for the Center for Drug-Free
Living in Orlando, a small facility where Bush and about 30 other
women, many of them poor, single mothers, receive treatment.

Prosecutors vowed to appeal, arguing that if the judge's ruling
stands, drug treatment centers will become safe havens for illegal
drugs.

Orlando police have said since they were called to the scene Sept. 9
that they were surprised by the lack of cooperation from
treatment-center officials.

A police officer wrote in his report that night that one of the
workers, Julia Elias, wrote a statement describing the 0.2 grams of
crack found in Bush's shoe. But when a supervisor told her not to
cooperate, Elias ripped up the statement and threw it away.

''If this order is correct, then essentially drug-treatment centers
are immune zones where you cannot be prosecuted for a drug crime,''
said Assistant State Attorney Jeff Ashton. ``We question whether
that's what Congress intended when they created the laws that are
being discussed.''

Ashton said Monday that removing police and prosecutors from the
equation gives courts far too much power to set drug policy.

The scope of the courts' authority has been at the center of debate in
Tallahassee engineered by the governor, who has pushed legislation
designed to rein in what Republicans call activist courts.

But in this case, the governor welcomed Perry's ruling as the correct
approach.

''The underlying function of drug treatment is that it is not a
naturally progressive, always-moving-forward, never-stepping-back
process,'' the governor told The Herald on Monday as he returned to
the capital from a campaign speech just miles from his daughter's
rehab center.

''The whole premise of the drug-court process is that, as you go
through this, there is always a possibility of sanctions,'' the
governor said. ``But if the treatment facility as well as the
drug-court process can't control that, then it kind of defeats the
whole purpose.''

The governor called allegations that his daughter was receiving
special treatment ``completely unfair.''

''I can tell you that [the allegation of special treatment] is
absolutely wrong,'' the governor said. ``When this is all said and
done I'll be able to speak freely about it.''

Still, lawyers and analysts have said it is unlikely the case would be
unfolding as it is if Noelle Bush were not involved.

While her own lawyer has suggested that she was targeted by law
enforcement because of her fame, a national advocate for
drug-treatment centers suggested Monday that her involvement is a
``silver lining.''

Catherine O'Neill, a lawyer for the New York-based Legal Action
Center, which advocates for patient confidentiality while in drug and
alcohol rehabilitation, said the Bush case is the most important such
ruling to be written by a judge -- in part because of the widespread
attention it will receive.

O'Neill said the issue of police wanting to investigate drug crimes at
treatment centers has arisen before, but has never received such
intense attention from a judge.

If an appeals court, or the Florida Supreme Court, reverses the
ruling, O'Neill added, ``it would be known in 30 seconds by every
treatment center in the country and by every patient who is in
treatment or thinking about getting treatment.

''It would have an immediate effect of driving away prospective and
current patients form the care they need,'' she said.