The question in Rehberg v. Paulk is whether a grand jury witness enjoys immunity for his/her testimony before the Grand Jury.

James P. Paulk, an investigator for the Albany Georgia District Attorney’s office testified three times before a grand jury. In each instance the grand jury indicted Charles A. Rehberg and in each instance the indictment was dismissed. After the final dismissal Rehberg sued Paulk for violating his civil rights. The Supreme Court upheld Paulk’s claim to absolute immunity for his testimony before the Grand Jury.

The common law has long recognized a broad right of witnesses to immunity. One exception to this is for complaining witnesses. But the Supreme Court found that complaining witnesses (those who initiate the prosecution) are not necessarily the same witnesses who testify and that in most jurisdiction only the prosecutor can initiate charges. Furthermore the court found that there was no difference between law enforcement agents and civilians. It pointed out that law enforcement agents spend much of their time testifying and would be particularly subject to suits which would limit the amount of time they would have to enforce the law. ¹ Finally the court pointed out that grand jury witnesses are similar to Preliminary Examination witnesses who receive immunit.

The Court found no difference between trial witnesses and grand jury witnesses and therefore it ruled that grand jury witnesses should get the same immunity that trial witnesses get. It pointed out that allowing grand jury witnesses to be sued for their testimony could destroy the secrecy of the grand jury and act as an inhibiting force when it come to getting witnesses to testify.

What bothers me is that the immunity given to witnesses allows them to falsify charges and lie before the grand jury without being required to take personal responsibility for their actions. The court says that witnesses who also testify at trial will be subject to cross examination. But that is different from having to making good for the damage they have done. Furthermore, one of the advantages of the Grand Jury is that it screens prosecutions and prevents individuals from the damage to their reputation without some evidence that they have committed a crime. By giving immunity to witnesses the Grand Jury loses this important task.

On April 9, 2009 at least three people invaded the Beulah, Florida residence of Melanie and Byrd Billings, murdering them and stealing a safe. Ten of their children, eight of whom were special needs children the couple had adopted were home at the time but none of them were injured.

Escambia County authorities charged eight people in the case. Leonard Patrick Gonzalez Jr., Leonard Gonzalez, Sr., Donnie Ray Stallworth, Wayne Thomas Coldiron, Frederick Lee Thornton Jr., Gary Lamont Sumner, and Rakeem Florence. were charged with murder. Florence, a juvenile was charged as an adult and plead guilty to second degree murder. The eighth person, wealthy realtor, Pamela Long Wiggins was charged with being an accessory to the the crime. Her car was used as the get away car and a safe ¹stolen from the property was buried in her back yard.

Friday, Wiggins, her husband Hugh, and a friend, Eddie Denson were indicted in Mississippi as accessories after the fact. The Wigginses brought a number of guns ² used in the invasion of the Billings residence to Denson who lived in Mississippi to keep after the murder.

Hugh Wiggins had been given immunity in Florida in exchange for giving a statement. But the immunity did not prevent him from being indicted in Mississippi. Accepting a grant of immunity has a number of problems, not the least of which is that immunity is limited to the jurisdiction that grants it. In other words immunity granted in one states does not prevent an indictment in another state. Likewise immunity granted in Federal Court does not prevent an indictment in state court and immunity granted in state court does not prevent an indictment in Federal Court.

One may question the judgment of Hugh Wiggins’ attorney for letting him get immunity in Florida when he is facing charges in Mississippi but the decision may have been a wise choice. In Mississippi he is only facing five years while his wife ³ is not only facing five years in Mississippi but she is also facing thirty years in Florida.

The Tenth Circuit Court of Appeals denied immunity to a prosecutor who reviewed a search warrant affidavit for the residence of an on-line journalist at the University of Northern Colorado.

Thomas Mink published The Howling Pig. For its editorial column he chose the name of Junius Puke with an altered photograph of Junius Peake, a professor at the school. Mr. Peake was not amused. He contacted the Greeley police. They drafted a search warrant affidavit for the home that Mink shared with his mother and presented it to Susan Knox, a deputy district attorney for review.

Mink eventually filed suit, naming among others, Knox. Knox moved for summary judgment claiming immunity and qualified immunity as a prosecutor.

The Tenth Circuit rejected both arguments. It ruled that prosecutors are only entitled to immunity for the work of an advocate and that the review and approval of a search warrant affidavit is not advocacy.

The Court stated, “Government officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” However it found that Mink alleged that Knox violated his clearly established constitutional rights and therefore she is not entitled to qualified immunity.

To successfully allege that one’s constitutional rights have been violated it is necessary to show a casual relationship between the defendant’s action and the violation of constitutional rights, an actual violation of the plaintiff’s rights and that the law was clear at the time of the violation. The Tenth Circuit found that Mink met all of the criteria. There was a direct causal relationship between Knox’s approval of the warrant and the illegal search. The search was illegal in that it was without probable cause and it was overly broad. It was without probable cause because parody is constitutionally accepted and it cannot be criminally charged as libel. Furthermore the warrant was not sufficiently particularized in that it ordered the seizure of all computers found in the residence without specifying what they were looking for on the hard drive. Thus no reasonable district attorney could believe that the affidavit met Fourth Amendment mandates for problable cause and specificity.

Lawyers for U. S. Attorney Daniel Zachem filed a writ of certiorari with the Supreme Court challenging a D. C. Circuit Court decision denying him immunity in a case in which Zachem and Suzanne Bailey-Jones, a District of Columbia Superior Court official removed Peter Atherton from the grand jury. The rule allows only the presiding judge or his/her designate to remove grand jurors. But after complaints from other members of the grand jury that Atherton was disruptive Zachem went to Bailey-Jones who removed Zachem from the grand jury.

The District Court dismissed Atherton’s suits after ruling inter alia that Bailey-Jones and Zachem were entitled to absolute immunity. The D. C. Circuit ruled that neither Bailey Jones or Zachem had absolute immunity. Absolute immunity only applies to officials when they are acting in judicial or advocacy roles. Both Bailey-Jones and Zachem were carrying out administrative duties and therefore were only entitled to limited immunity. Therefore the Circuit Court revived Altherton’s suit at least until the Supreme Court decides on the writ of certiorari.