"no right not to be framed in the Constitution"

That was the contribution by a lawyer from the Department of Justice, appearing as amicus curiae in a hearing on Pottowattamie v. McGhee in which the Supreme Court of the United States was to decide whether a county could be held liable and ordered to compensate two men who’d spent 27 years in prison for a crime they never committed because the prosecutor in the case had fabricated the evidence to win a conviction. The SCOTUS never had to decide because the hearing went so poorly that the County offered to settle with the victims who had, after all, gotten out alive.

What the argument in that case revealed is that prosecutors enjoy absolute immunity from being accountable for any wrong that is done to defendants because it is presumed that they merely transmit information from law enforcement to the judiciary. That’s by tradition, probably because the law did not expect that officers of the court would be so crass.

Anyway, the matter is still hanging fire, so to speak. And absolute immunity is going to get more consideration when the SCOTUS turns to Rehberg v. Paulk, 10-788 later this session. That’s a case out of western Georgia which merits consideration for all sorts of reasons, although there’s only one charge against one defendant left.

The title of the case is actually Rehberg v. Paulk, 611 F. 3d 828 – Court of Appeals, 11th Circuit 2010 and the Circuit Court’s decision is well worth reading for, in addition to covering whether prosecutors enjoy immunity, how much and when, it touches on privacy rights, electronic communications and the extent to which individuals have to be damaged to merit compensation. Also, the matter all started with a person, Charles Rehberg lodging complaints with the administrator of a local hospital, Phoebe Putney Memorial Hospital, in Albany, Georgia.

Rehberg’s quarrel with Phoebe Putney has apparently been settled via the payment of an undisclosed amount of money to Rehberg. That there continue to be some bad feelings is perhaps attested by the publication on a Phoebe Putney web site

Phoebe Wants You to Know…

Phoebe Putney is a well-respected hospital whose business practices are proper and in complete accordance with industry standards. We have been recognized as a leader in health care, winning the prestigious Foster McGaw Award and most recently our fourth VHA Leadership Award. As a result, we want you to know that the Phoebe Putney Health System Board of Directors has full confidence in every aspect of Phoebe’s operations.

No doubt, this small non-profit hospital did not anticipate the negative consequences which can follow from a simple complaint, if the person who gets the complaint turns out to be a grand-stander who’s landed in a spot where he’s personally immune from being held to account.

The backstory, according to the court finding:

From September 2003 to March 2004, Plaintiff Rehberg sent anonymous faxes to the management of Phoebe Putney Memorial Hospital (the “hospital”). The faxes criticized and parodied the management and activities of the hospital.

Defendant Hodges, then the District Attorney of Dougherty County, Georgia, and Defendant Paulk, the Chief Investigator in the District Attorney’s Office, investigated Rehberg’s actions as a “favor” to the hospital, to which Hodges and Paulk are alleged to have political connections. Rehberg alleges Hodges and Paulk lacked probable cause to initiate a criminal investigation of him.

So far, so good. Given that the charges were thrown out or dismissed each of the three times they were brought, Charles Rehberg has already been vindicated. What he wants is for the perpetrators to be punished for violating his privacy, for harassment and for besmirching his reputation. Also, he’s probably really outraged that prosecutors can apparently get away with perjury.

From October 2003 to February 2004, 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 telephone records. “Mr. Paulk also prepared and issued a subpoena to Exact Advertising, the Internet service provider of one of Mr. Rehberg’s email accounts, and obtained Mr. Rehberg’s personal e-mails that were sent and received from his personal computer.”

Then, to compound the injury,

Defendant Paulk gave the results of the subpoenas, consisting of Rehberg’s personal emails and phone records, to private civilian investigators, who allegedly directed the substance of the subpoenas. These civilian investigators paid the District Attorney’s Office for Rehberg’s information, often making payments directly to Bell-South and the other subpoenaed parties, allegedly to pay debts of the District Attorney’s Office.

Then Hodges passed the hot potato to someone else, a special prosecutor whose objectivity could not be impugned and who would be absolutely immune.

On December 14, 2005, a grand jury indicted Rehberg on charges of aggravated assault, burglary, and six counts of “harassing phone calls.” Burke was the prosecutor, and Paulk was the sole complaining witness against Rehberg before the grand jury.

That was dismissed by Burke and nolprossed, but two weeks later they tried again with a new grand jury. The resulting charge was dismissed by the trial court, but yet another year later, the charges were minimized and Rehberg was actually arrested. Then those charges were dismissed by the trial court as insufficient and Rehberg filed a law suit, which ran smack dab into the principle of absolute immunity.

As the Circuit court explains:

Traditional common-law immunities for prosecutors apply to civil cases brought under § 1983….”[A]t common law, `[t]he general rule was, and is, that a prosecutor is absolutely immune from suit for malicious prosecution.'”… Absolute immunity accordingly applies to the prosecutor’s actions “in initiating a prosecution and in presenting the State’s case.”… If a prosecutor functions in a capacity unrelated to his role as an advocate for the state, he is not protected by absolute immunity but enjoys only qualified immunity.

Qualified immunity shields government officials who perform discretionary governmental functions from civil liability so long as their conduct does not violate any “clearly established statutory or constitutional rights of which a reasonable person would have known.”

And there’s the rub. Not only is the right to privacy not well established in the law, the privacy of electronic communications is in limbo. The SCOTUS has not reached a definitive position. Never mind that referring to constitutional rights muddies the matter. Since there’s obviously no directive in the Constitution permitting agents of government to engage in spying, electronic or otherwise, it ought to be outlawed to them.

Anyway, the big problem here is the grand jury where testimony is supposed to be secret, precisely to protect innocent people from being vilified. So, witness testimony being absolutely immune serves the dual purpose of getting truthful testimony (one hopes and expects) while respecting the rights of innocents. If one were to charge and try someone for perjury, the secrecy would be out the window.


It is important to point out that Hodges and Paulk generally would not receive absolute immunity for fabricating evidence, because investigating and gathering evidence falls outside the prosecutor’s role as an advocate.

but that’s if the evidence is material, as it was in the Pottawattamie v. McGhee case. In Rheberg’s case it was just lies. On the other hand,

Hodges and Paulk accordingly do not receive absolute immunity for preparing and filing subpoenas during the investigation of Rehberg.

Hodges and Paulk may, however, receive qualified immunity if Rehberg’s subpoena allegations either do not state a constitutional violation or do not state a constitutional violation that was clearly established.

Which brings us back to the assertion that there’s no right not to be framed and points up, once more, why the enumeration of prohibitions in the amendments was a bad idea because it allows for the argument that what’s written there is all you get.

The Supreme Court has not yet addressed the question of privacy rights in email material. Plaintiff Rehberg thus relies on Supreme Court precedent on privacy rights accorded to the contents of telephone communications.

See, if privacy were the default, then there’d be no question about rights being “accorded.”

The Supreme Court’s more-recent precedent shows a marked lack of clarity in what privacy expectations as to content of electronic communications are reasonable.

So, here we have expectations having to be reasonable, instead of violations of a right having to be necessary and reasonable. The burden of proof is on why a person should be left alone, not on why it is reasonable to disturb him.

The Supremes have something to decide. Which side will they come down on?