Immunity Shields Grand Jury Witnesses Who Lie

(CN) - Prosecutors who presented perjured testimony to a grand jury are entitled to immunity, the Supreme Court ruled Monday.

The unanimous decision affirms the 11th Circuit's dismissalof civil rights claims against Georgia prosecutors by Charles Rehberg in 2010.

After Rehberg had sent anonymous, critical faxes to management at the Phoebe Putney Memorial Hospital, Dougherty County District Attorney Kenneth Hodges III and his chief investigator, James Paulk, looked into the faxes as a "favor" to the allegedly well-connected hospital. Bell South, Alltel and Sprint complied with the prosecutors' subpoenas and identified Rehberg as the fax sender.

The prosecutors indicted Rehberg three times over the next six months, and the case attracted a lot of press attention as each indictment fell through for lack of evidence.

Amid "unfavorable press coverage" about the DA's political relationship with the hospital, Hodges had recused himself from the case and Kelly Burke was appointed as special prosecutor.

Rehberg sued the three officials under the First, Fourth and 14th Amendments, alleging malicious prosecution, retaliatory investigation and fabrication of evidence.

A Georgia federal judge rejected the defendants' immunity claims, but the 11th Circuit said they were entitled to dismiss most of Rehberg's claims. The 40-page decision said that a chief investigator cannot be liable for allegedly lying to the grand jury, even if he and the district attorney knew that his testimony was false.

On the conspiracy charges, the court held that the Hodges and Paulk likewise had immunity from the charge that they conspired to fabricate and present false evidence to the grand jury. Burke was found to have immunity for the same reasons against a separate claim.

Since the prosecutors stepped out of the role of advocate to perform the actual investigation of Rehberg, the court found that they could not claim absolute immunity. The judges granted them qualified immunity nonetheless as to the subpoenas because Rehberg waived his right to privacy by voluntarily sending the information to his Internet service providers.

The judges upheld the retaliatory prosecution claim under the First Amendment, but they granted the officials immunity from the charge of retaliatory investigation.

The Supreme Court took up the case in March 2011 to resolve a circuit conflict re­garding the immunity of a "complaining witness" in a grand jury proceeding.

Drawing heavily on its 1983 decision, the court said grand jury witnesses are entitled to the same immunity as trial witnesses.

"The factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses," Justice Samuel Alito wrote for the unanimous court. "In both contexts, a witness' fear of retaliatory litigation may deprive the tribunal of critical evidence. And in neither context is the deterrent of potential civil liability needed to prevent perjurious testimony. In Briscoe, the court concluded that the possibility of civil liability was not needed to deter false testimony at trial because other sanctions - chiefly prosecution for perjury - provided a sufficient deterrent. Since perjury before a grand jury, like perjury at trial, is a serious criminal offense, there is no reason to think that this deterrent is any less effective in preventing false grand jury testimony.

"Neither is there any reason to distinguish law enforce­ment witnesses from lay witnesses."

Alito also noted that allowing civil actions against grand jury witnesses could subvert grand jury secrecy.

"Allowing §1983 actions against grand jury witnesses would compromise this vital secrecy," the 17-page decision states. "If the testimony of witnesses before a grand jury could provide the basis for, or could be used as evidence supporting, a §1983 claim, the identities of grand jury witnesses could be discovered by filing a §1983 action and moving for the disclosure of the transcript of grand jury proceedings. Especially in cases involving violent criminal organizations or other subjects who might retaliate against adverse grand jury witnesses, the threat of such disclosure might seriously undermine the grand jury process."

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