Testifying Witness and Prosecutor Absolutely Immune from Civil Rights Claims stemming from False Testimony before Grand Jury


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Just when you think you’ve heard the worst about rogue prosecutors (here and here), some nastier, seedier episode comes along to remind you back into the reality that some prosecutors are so rogue that it defies adequate definition—even in the South where “justice” has always had a definition different from the rest of the country. Take the case of Charles Rehberg, for example. Between September 2003 and March 2004, Mr. Rehberg, a certified public accountant, became embroiled in a dispute with Phoebe Putney Memorial Hospital in Albany, Georgia.


And what was the source of the dispute? “Phoebe Factoids”! To understand this, you must understand the nature of Dougherty County. It is one of the poorest regions in Georgia where 95,000 people live. More than 60 percent of its population is African-American, many of whom are living in abject poverty. Phoebe Putney Memorial is part of the “Phoebe Putney Health System,” one of the largest health-care providers in the State of Georgia.


In 2003, Mr. Rehberg discovered financial documents which became known as the “Phoebe Factoids.” These documents showed that Phoebe Putney Memorial had $2.6 billion in cash and had transferred millions more into offshore bank accounts in the Cayman Islands, according to media sources. Under the headline of the “Top 10 Most Highly Guarded Secrets at Pheobe,” Mr. Rehberg anonymously faxed this information to businesses in Albany while criticizing and parodying the hospital’s executives. More revealing yet, Mr. Rehberg accused the “non-profit” hospital of over-charging “uninsured patients” and harassing them to make payments while its top executives ran up “lavish travel expenses for trips related to a for-profit subsidy.” These executives traveled in a private jet, spending $258 for one meal while staying at the Ritz in London and $538 for beverages during another meal—and through it all they enjoyed the finest Cuban cigars.


The picture is starting to get pretty clear here. Most of the uninsured, harassed patients were African-American while most, if not all, of these top executives were white. Of course, the Phoebe Putney executives were infuriated that this picture was given public exposure. They called upon their dear friend then-District Attorney Kenneth Hodges who, according to the Atlanta Journal-Constitution, “received political contributions from Phoebe executives and others connected to Phoebe,” not to mention that Hodges’ “wife had been hired by Phoebe Putney Memorial Hospital.” The executives demanded that Hodges investigate and take legal action against the anonymous source of the “Factoids.”


District Attorney Hodges jumped on that horse like a Texas Ranger after a desperado wanted for a hanging offense. The DA enlisted the assistance of his chief investigator James Paulk to help track down the “whistleblower” who had embarrassed his campaign contributing friends at Pheobe Putney. Hodges later admitted that “he used a grand jury subpoenas in 2003 to trace the source of the Pheobe Factoids, and then turned that information over to Pheobe Putney Hospital officials.” And what did the Pheobe Putney officials do? They hired private investigators to confront Mr. Rehberg about the Factoids he had distributed—and, worse yet, Pheobe Putney C.F.O. Kerry Loudermilk sent a check to BellSouth to pay for the “phone trace” utilized by DA Hodges to gather investigative information against Mr. Rehberg. The Eleventh Circuit Court of Appeals, in a March 11, 2010 decision, found that “from October 2003 to February 204, Defendants Hodges and Paulk prepared a series of subpoenas on Hodges’s letterhead and issued the subpoenas to BellSouth and Alltel (later Sprint), requesting Rehberg’s email records, and to Exact Advertising, an internet service provider, requesting Rehberg’s email records. Although no grand jury was impaneled at the time, the subpoenas purported to require appearance before a Dougherty County grand jury.


Rehberg’s case was not presented to a grand jury until December 14, 2005.”

By this time Rehberg had hired an attorney named Ralph Scoccimaro who informed the media that if Hodges was “investigating a public offense, there is no need for the victims, supposed victims, to give you any money.” And, in fact, a subsequent opinion by the state’s Attorney General said it a “misdemeanor for law enforcement to have third parties pay for prosecution investigations.”


And, folks, this story ain’t even got good yet!


On April 2, 2012, in REHBERG v. PAULK, the U.S. Supreme Court immunized both Hodges and Paulk from any civil liability for their criminal actions in this matter. The High Court crystallized the issue this way: “This case requires us to decide whether a ‘complaining witness’ in a grand jury proceeding is entitled to the same immunity in an action under 42 U. S. C. §1983 as a witness who testifies at trial. We see no sound reason to draw a distinction for this purpose between grand jury and trial witnesses.”


The Supreme Court then picked up the procedural and factual trail of the case:


“Petitioner Charles Rehberg, a certified public accountant, sent anonymous faxes to several recipients, including the management of a hospital in Albany, Georgia, criticizing the hospital’s management and activities. In response, the local district attorney’s office, with the assistance of its chief investigator, respondent James Paulk, launched a criminal investigation of petitioner, allegedly as a favor to the hospital’s leadership.


“Respondent testified before a grand jury, and petitioner was then indicted for aggravated assault, burglary, and six counts of making harassing telephone calls. The indictment charged that petitioner had assaulted a hospital physician, Dr. James Hotz, after unlawfully entering the doctor’s home.
Petitioner challenged the sufficiency of the indictment, and it was dismissed.


“A few months later, respondent returned to the grand jury, and petitioner was indicted again, this time for assaulting Dr. Hotz on August 22, 2004, and for making harassing phone calls. On this occasion, both the doctor and respondent testified. Petitioner challenged the sufficiency of this second indictment, claiming that he was ‘nowhere near Dr. Hotz’ on the date in question and that ‘[t]here was no evidence whatsoever that [he] committed an assault on anybody.’ ,[quoting from the Eleventh Circuit decision]. Again, the indictment was dismissed.


“While the second indictment was still pending, respondent appeared before a grand jury for a third time, and yet another indictment was returned. Petitioner was charged with assault and making harassing phone calls. This final indictment was ultimately dismissed as well.


“Petitioner then brought this action against respondent under Rev. Stat. §1979, 42 U. S. C. §1983. Petitioner alleged that respondent conspired to present and did present false testimony to the grand jury. Respondent moved to dismiss, arguing, among other things, that he was entitled to absolute immunity for his grand jury testimony. The United States District Court for the Middle District of Georgia denied respondent’s motion to dismiss, but the Court of Appeals reversed, holding, in accordance with Circuit precedent, that respondent was absolutely immune from a §1983 claim based on his grand jury testimony.


“The [Eleventh Circuit] Court of Appeals noted petitioner’s allegation that respondent was the sole ‘”complaining witness’ before the grand jury, but the Court of Appeals declined to recognize a ‘complaining witness’ exception to its precedent on grand jury witness immunity. ‘[A]llowing civil suits for false grand jury testimony,’ the court reasoned, ‘would . . . emasculate the confidential nature of grand jury testimony, and eviscerate the traditional absolute immunity for witness testimony in judicial proceedings.’ The court went on to hold that respondent was entitled to absolute immunity, not only with respect to claims based directly on his grand jury testimony, but also with respect to the claim that he conspired to present such testimony. To allow liability to be predicated on the alleged conspiracy, the court concluded, ‘would be to permit through the back door what is prohibited through the front.'”


While the civil rights statute enjoys broad civil liability sanctions, the Supreme Court more than 60 years ago in Tenney v. Brandhove held that Section 1983 did not abrogate the longstanding principle of “absolute immunity” which is “well grounded in history and reason.” The Rehberg Court pointed that the court had so frequently reaffirmed this principle that it “is now an entrenched feature of our § 1983 jurisprudence” (Examples can be found here, here, here, and here). In determining whether a given immunity (absolute or qualified) is appropriate, the Court explained:


“We take what has been termed a ‘functional approach.’ We consult the common law to identify those governmental functions that were historically viewed as so important and vulnerable to interference by means of litigation that some form of absolute immunity from civil liability was needed to ensure that they are performed ‘’with independence and without fear of consequences.’ Taking this approach, we have identified the following functions that are absolutely immune from liability for damages under §1983: actions taken by legislators within the legitimate scope of legislative authority; actions taken by judges within the legitimate scope of judicial authority; actions taken by prosecutors in their role as advocates; and the giving of testimony by witnesses at trial. By contrast, the Court has found no absolute immunity for the acts of the chief executive officer of a State, the senior and subordinate officers of a State’s National Guard, the president of a state university; school board members; the superintendent of a state hospital; police officers; prison officials and officers; and private co-conspirators of a judge …


“While the Court’s functional approach is tied to the common law’s identification of the functions that merit the protection of absolute immunity, the Court’s precedents have not mechanically duplicated the precise scope of the absolute immunity that the common law provided to protect those functions.


“This approach is illustrated by the Court’s analysis of the absolute immunity enjoyed today by public prosecutors. When §1983’s predecessor was enacted in 1871, it was common for criminal cases to be prosecuted by private parties. And private prosecutors, like private plaintiffs in civil suits, did not enjoy absolute immunity from suit. Instead, ‘the generally accepted rule’ was that a private complainant who procured an arrest or prosecution could be held liable in an action for malicious prosecution if the complainant acted with malice and without probable cause.


“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.


“This adaptation of prosecutorial immunity accommodated the special needs of public, as opposed to private, prosecutors. Because the daily function of a public prosecutor is to bring criminal charges, tort claims against public prosecutors ‘could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate.’  Such ‘harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties,’ and would result in a severe interference with the administration of an important public office. Constant vulnerability to vexatious litigation would give rise to the ‘possibility that [the prosecutor] would shade his decisions instead of exercising the independence of judgment required by his public trust.’


“Thus, when the issue of prosecutorial immunity under §1983 reached this Court, [it] did not simply apply the scope of immunity recognized by common-law courts as of 1871 but instead placed substantial reliance on post-1871 cases extending broad immunity to public prosecutors sued for common-law torts.


“While the Court has looked to the common law in determining the scope of the absolute immunity available under §1983, the Court has not suggested that §1983 is simply a federalized amalgamation of pre-existing common-law claims, an all-in-one federal claim encompassing the torts of assault, trespass, false arrest, defamation, malicious prosecution, and more. The new federal claim created by §1983 differs in important ways from those pre-existing torts.


It is broader in that it reaches constitutional and statutory violations that do not correspond to any previously known tort. But it is narrower in that it applies only to tortfeasors who act under color of state law. Section 1983 ‘ha[s] no precise counterpart in state law. . . . [I]t is the purest coincidence when state statutes or the common law provide for equivalent remedies; any analogies to those causes of action are bound to be imperfect.’ Thus, both the scope of the new tort and the scope of the absolute immunity available in §1983 actions differ in some respects from the common law.”


To say that § 1983 jurisprudence turned common law on its head is a proverbial understatement. Common law granted only a limited absolute immunity to statements made in a judicial proceeding. Complete absolute immunity under common law, for example, extended to “slander and libel” claims in a judicial proceeding, even if the statements made were maliciously false. In §1983 claims, however, the Supreme Court held that immunity for a trial witness is much broader than allowed under common law. Put simply, anything said by a trial witness, regardless of how false, was cloaked with absolute immunity because without such broad immunity for trial witnesses, “the truth-seeking process at trial would be impaired. Witnesses ‘might be reluctant to come forward to testify,’ and even if a witness took the stand, ‘might be inclined to shade his testimony in favor of the potential plaintiff” for ‘fear of subsequent liability.’”


The Rehberg Court held that such unfettered, absolute immunity must  “apply with equal force” to grand jury witnesses. The Court reasoned that if the prospect of criminal prosecution for committing perjury before a grand jury is not a sufficient deterrent, there is no reason to believe that the “possibility of civil liability” would be a more effective deterrent to false testimony.


When testifying before the grand jury, Chief Investigator Paulk did so as a “law enforcement” witness; thus, the Rehberg Court was compelled to find that such witnesses should enjoy the same absolute immunity extended to “lay witnesses.” And the Court firmly concluded that “grand jury witnesses should enjoy the same immunity as witnesses at trial. This means that a grand jury witness has absolute immunity from any §1983 claim based on the witness’ testimony. In addition, as the Court of Appeals held, this rule may not be circumvented by claiming that a grand jury witness conspired to present false testimony or by using evidence of the witness’ testimony to support any other §1983 claim concerning the initiation or maintenance of a prosecution. Were it otherwise, ‘a criminal defendant turned civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves.’ In the vast majority of cases involving a claim against a grand jury witness, the witness and the prosecutor conducting the investigation engage in preparatory activity, such as a preliminary discussion in which the witness relates the substance of his intended testimony. We decline to endorse a rule of absolute immunity that is so easily frustrated.”


So Paulk, who was acting at the behest and as a surrogate of District Attorney Hodges when he testified before the grand jury that indicted Rehberg, was granted by the Supreme Court the same immunity as prosecutor Hodges.


Why? Because “it is almost always a prosecutor who is responsible for the decision to present a case to a grand jury, and in many jurisdictions, even if an indictment is handed up, a prosecution cannot proceed 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.” The Court added:


“Precisely because no grand jury witness has the power to initiate a prosecution, petitioner is unable to provide a workable standard for determining whether a particular grand jury witness is a ‘complaining witness.’ Here, [Paulk] was the only witness to testify in two of the three grand jury sessions that resulted in indictments. But where multiple witnesses testify before a grand jury, identifying the ‘complaining witness’ would often be difficult. [Rehberg] suggests that a ‘complaining witness’ is ‘someone who sets the prosecution in motion.’ And [Rehberg] maintains that the same distinction made at common law between complaining witnesses and other witnesses applies in §1983 actions. But, as we have explained, a complaining witness played a distinctive role, and therefore even when a ‘complaining witness’ testified, there was a clear basis for distinguishing between the ‘complaining witness’ and other witnesses. Because no modern grand jury witness plays a comparable role, [Rehberg’s] proposed test would be of little use. Consider a case in which the case agent or lead detective testifies before the grand jury and provides a wealth of background information and then a cooperating witness appears and furnishes critical incriminating testimony. Or suppose that two witnesses each provide essential testimony regarding different counts of an indictment or different elements of an offense. In these cases, which witnesses would be ‘complaining witnesses’ and thus vulnerable to suit based on their testimony?”


So what does all this legalese translate into?


Rehberg was an honest whistleblower who brought to the public’s attention massive financial waste and possible fraud by an institution that was supposed to serve the public good. The Pheobe Putney officials responsible for these shenanigans were infuriated and determined to exact revenge even if it meant violating the law, suborning perjury, and trying to destroy the reputation of a man guilty only of telling the truth. And these officials had access to an unethical and unscrupulous District Attorney who was more than willing to secure their revenge as an expression of his appreciation for the political contributions they had given the DA.
You would think that these Pheobe Putney executives and District Attorney Hodges had far more ethical and legal responsibilities to worry about. For example, preventable medical errors in this country kill an estimated 98,000 people and injure countless others, according to the Centers for Disease Control (other sources place the figure at 195,000 each year). Hospitals are the sixth largest killer in America. They truly are dangerous places where the average patient has little or no control over the way they are treated by these “health care” institutions—just like those “uninsured” and poverty-stricken African Americans in Dougherty County who were harassed and harangued by Pheobe Putney to “pay up” while its top executives wined and dined in the best international restaurants, traveled worldwide in private jets, and steadily puffed away on those elegant Cuban cigars.


And when an honest, law-abiding citizen tried to expose this truth, a rogue prosecutor and his right-hand hatchet man, along with a corrupt clique of corporate executives, tried to destroy him.
But there may be a little justice in the world after all. District Attorney Hodges was replaced by Gregory W. Edwards, an African American, who will hopefully be more receptive to his poor, honest constituency than to corrupt corporate executives.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization