Court rejects Rehberg petition

WASHINGTON — The U.S. Supreme Court has ruled against Charles Rehberg in his appeal of an 11th U.S. Court of Appeals ruling that gave a Dougherty District Attorney's Office investigator, James Paulk, immunity from testimony before a Dougherty grand jury that Rehberg says was false.

In a "slip" unanimous opinion issued Monday, Justice Samuel Alito, writing for the high court, said law enforcement officials testifying before a grand jury have the same absolute immunity that prosecutors have.

"Clearly the U.S. Supreme Court decision issued today was the correct one," Ken Hodges, who was district attorney in Dougherty County when the case was brought to the grand jury, said in an e-mail Monday. "The Courts were required to accept all of the plaintiff's allegations as true — they were not. Jim Paulk is a good and dedicated law enforcement officer who has served the people of Albany and Dougherty County for more than 20 years.

"What seemed to sometimes get lost in the plaintiff's attempt to portray himself as a victim was that he, in concert with others, and particularly John Bagnato, admittedly sent racist facsimiles all over town in furtherance of their own personal vendettas. In my opinion, their relentless conduct was not productive or helpful to the community and was motivated by money and greed. I hope that this ends the matter and Albany can return it's focus on the things that make it truly 'The Good Life City.'"

The case involves the prosecution of Rehberg in Dougherty Superior Court following the sending out of anonymous faxes, known as the Phoebe Factoids, that were critical of Phoebe Putney Memorial Hospital's management.

"In response," Alito wrote, "the local district attorney's office, with the assistance of its chief investigator, respondent James Paulk, launched a criminal investigation of petitioner (Rehberg), allegedly as a favor to the hospital's leadership."

According to the court document, Paulk testified before the grand jury and Rehberg was indicted for aggravated assault against Dr. James Hotz, burglary for unlawfully entering Hotz's home and six counts of harassing phone calls. A few months later, Rehberg was indicted again, with both Hotz and Paulk testifying, for assault against Hotz on Aug. 22, 2004, and harassing phone calls.

While that second indictment — which Rehberg challenged on contentions that he was "nowhere near" Hotz on that date and there was no evidence of any assault taking place — was pending, Rehberg was indicted a third time, with Paulk testifying, for assault and making harassing phone calls. As with the previous two indictments, the third one was ultimately dismissed.

"I am disappointed by the Court's ruling," Rehberg said of the Supreme Court's decision Monday. "Congress enacted the civil rights law to provide a remedy for citizens who are harmed by the abuse of government power. The Court's expansion of the scope of absolute immunity reduces that protection, and I fear will mean more people will suffer, as my family and I did, from the misuse of criminal investigation and prosecution power."

Rehberg also said what the high court ruled on was only one of many counts, and that the case would continue within the walls of Albany's federal courthouse. Bryan Vroon, his attorney, confirmed he intended to move the case forward in federal court as soon as possible based on state law counts and a Section 1983 claim, specifically the retaliatory prosecution claim.

Rehberg sued Paulk under Section 1983 of the Civil Rights Act of 1871, charging that the investigator conspired to present and did present false testimony to the grand jury. Paulk argued that he was entitled to absolute immunity for his testimony before the grand jury.

"In the decades after the adoption of the 1871 Civil Rights Act, however, the prosecutorial function was increasingly assumed by public officials, and common-law courts held that public prosecutors, unlike their private predecessors, were absolutely immune from the types of tort claims that an aggrieved or vengeful criminal defendant was most likely to assert, namely, claims for malicious prosecution or defamation."

Alito wrote that prosecutors are generally responsible for the decision to present a case to a grand jury and, that in many jurisdictions, a prosecution of an indictment that is handed up cannot take place unless the prosecutor signs the indictment.

"It would thus be anomalous to permit a police officer who testifies before a grand jury to be sued for maliciously procuring an unjust prosecution when it is the prosecutor, who is shielded by absolute immunity, who is actually responsible for the decision to prosecute," he wrote.

The court also said Rehberg's argument that grand jury witnesses aren't exposed like trial witnesses to perjury because of the lack of cross-examination "overlooks the fact that a critical grand jury witness is likely to testify again at trial and may be cross-examined at that time." Rehberg's argument, Alito wrote, is "more than offset by a special problem that would be created by allowing civil actions against grand jury witnesses — subversion of grand jury secrecy."

Allowing actions under Section 1983 against grand jury witnesses "would compromise this vital secrecy," the justice wrote.

The court also found against Rehberg's argument that absolute immunity for grand jury witnesses would create an unsupportable distinction between states that use grand juries and those that do not.

"For these reasons," Alito wrote, "we hold that a grand jury witness is entitled to the same immunity as a trial witness. Accordingly, the judgment of the Court of Appeals for the Eleventh Circuit is affirmed."

Paulk did not return a message seeking comment on the decision Monday afternoon.


Cartman 2 years, 4 months ago

Thanks for fighting the good fight Charles Rehberg! Hodges is cocky now in his comments, but I've yet to hear the explanation for why it is permissible for a prosecutor to make up a ficticious case number to put on a subpoena for phone records and then turn them over to Phoebe investigators. Money wins in the end. Bye Ken. Please, don't come back.


southwestga 2 years, 4 months ago

It's disturbing that law enforcement can flat out knowingly lie to the Grand Jury without any repercussions. And why is Hotz allowed to lie too? The only positive out of the Supreme Court decision is that Throntaseeka will be able to include it in its Phoebe retrospective.


Sister_Ruby 2 years, 4 months ago

This decision probably cost JW a half million per Justice! Bad year for the Bonus yall!


dingleberry 2 years, 3 months ago

No problem, Sis. Can't you hear it in the halls of the executive penthouse? "Crank up the billing machine another notch, we have bonuses to pay! Break out the big cigars and the best liquor, we have a victory here."


southwestga 2 years, 3 months ago

Pardon me, Thronateeska. Surely a Supreme Court decision is as historical as a urinal?


chinaberry25 2 years, 3 months ago

Drug tests should also be administered to the DA's office. Wonder if they would pass?


BettyBowTie 2 years, 3 months ago

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Cartman 2 years, 3 months ago

Yeah. I forgot about that. Was Ken Hodges wife already hired to Phoebe's public relations dept when he used the DA's office subpoena powers to obtain information for Phoebe; or was she hired afterwards?


BettyBowTie 2 years, 3 months ago

After, as was his reward of being hired by Phoebe's Baudino Law Firm. Oh and Dr. Hotz was rewarded too. All the crooks came out well, for now.


BettyBowTie 2 years, 3 months ago

You cannot beat the corrupt crooked system but you can try to make life Hell for them. I intend to do so.

Betty Rehberg


dingleberry 2 years, 3 months ago

Leave it to "Honest Ken" to inject race into the process. Thanks Ken, we needed that. Can't have anything happen in Albany without playing the card, can we?


skydog 2 years, 3 months ago

This was not a good day for Liberty. DA's, Law Enforcement, & friends of the DA can lie under oath (perjury), wrongly accuse someone of a crime, deeply affect innocent people's lives, & just walk away like nothing happened. As liberalism continue's to infect our political system, our freedoms continue to disappear. This is not a conservative Supreme Court by any standards. I thought liberalism came from the word liberate which means free. Ain't nothing free about this nor several other rulings the Supreme Court ruled on this session.


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