Former Dougherty County District Attorney Ken Hodges can't be sued for actions he took as a prosecutor, his attorney argued Thursday before a three-judge panel in the 11th U.S. Circuit Court of Appeals in Atlanta.
Hodges, the former Albany district attorney now running for the Democratic nomination for Georgia's attorney general, is being sued along with two other men by an Albany accountant who claims the trio fabricated testimony in an attempt to frame him on behalf of a powerful southwest Georgia hospital system.
Hodges, who did not attend the hearing Thursday, was represented by Michelle Hirsch, a staff lawyer in the office of state Attorney General Thurbert Baker. Because Hodges is being sued for actions he took while a state prosecutor, Baker's office is representing him as well as co-defendants Kelly Burke, another prosecutor appointed to the case after Hodges recused himself, and James Paulk, a Dougherty County investigator.
When Hodges and Burke were building a criminal case in 2005 against accountant Charles Rehberg and Albany surgeon Dr. John Bagnato, they were doing so in their capacity as prosecutors, Hirsch said, which "falls under the cloak of immunity."
Rehberg and Bagnato were indicted by a grand jury on three occasions on charges that stemmed from their sending of anonymous faxes to business and political leaders in Albany that were critical of the Phoebe Putney Health System. After the hospital system asked Hodges to investigate, he used grand jury subpoenas to acquire phone records that led to Rehberg, even though no grand jury was investigating the case at the time. A judge dismissed the criminal charges each time.
The appeals court judges did not rule Thursday, and it is unclear when they will. The judges' questions centered not on the facts of the case but on legal precedents and rules of civil procedure. The hearing Thursday was on the defendants' appeal of the trial judge's decision to deny their motion to dismiss the case.
Rehberg's attorney, Bryan Vroon of Atlanta, argued Thursday that Hodges and Paulk, and later Burke, conspired to fabricate testimony to gain the indictments. Hodges recused himself from the case in May 2005 after The Atlanta Journal-Constitution wrote about the case. But, Vroon said, Hodges admitted he continued to work on the case, which stripped him of his immunity.
"We argue he was not entitled to immunity because his efforts were as an investigator," not a prosecutor, he said.
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