D.A. KEN HODGES UNDER FIRE

Possible disguise for ethically challenged D.A.

(this column appeared in the 5/20/05 The Albany Journal)


It's hard to decide which was more fascinating: watching our District Attorney and Phoebe Putney Hospital do the limbo as they attempted to dodge the bullet fired in The Atlanta Journal-Constitution's (AJC) May 9th front page story "D.A. AIDED CIVIL ACTION," or waiting for the local media to figure out that the AJC expose on Ken Hodges' unseemly favors for Phoebe Putney was actual news worth reporting. For four days The Albany Herald's coverage was limited to an anonymous "squawk." Finally, on Friday the 13th, the Herald ran a story which was obviously designed to soften the blows landed on Hodges, with the first two paragraphs looking more like a press release from the D.A. than a real news story:

"Dougherty County's district attorney says allegations that he exchanged grand jury evidence for a "favor" from an Albany hospital are not true.

District Attorney Ken Hodges said Thursday that critics of his handling of evidence in connection with a lawsuit filed on behalf of Phoebe Putney Memorial Hospital are trying to get public sympathy for the plaintiff in a countersuit against the hospital."

Interestingly enough, The Herald disclosed one fact omitted from the AJC story: Hodges admitted that he is, in fact, descended from the hospital's namesake, Phoebe Putney. However, the Herald's "reporter" failed to ask the most obvious question: how does someone sending anonymous faxes with information embarrassing to a local hospital end up as the subject of a grand jury investigation? Grand juries typically only hear cases involving serious felonies, as most misdemeanors and non-violent felonies proceed by a document called an "accusation," signed by the District Attorney and filed with the Clerk of Court. Many businesses, my own included, regularly receive unsolicited faxes from various sources. But that is hardly a crime- certainly not one worth wasting one minute of a grand jury’s valuable time.

WALB-TV's Jim Wallace did a piece on the scandal on the May 11th six o'clock edition, but, as Eddie Byrd of the Northwest Albany News astutely pointed out, a story prominent enough to be featured on the front page of Georgia's leading statewide newspaper somehow disappeared by the 11:00 P.M. newscast.

The essential facts of the impropriety are not in dispute: Hodges abused the authority of his office by using grand jury subpoenas to discover who was sending out the mysterious Phoebe "factoids" faxes. According to the AJC, Hodges used grand jury subpoenas to BellSouth to unearth physician John Bagnato and accountant Charles Rehberg as the authors of the embarrassing faxes, then turned the information over to Phoebe Putney's attorney. Phoebe Putney, in an act incomprehensible for a charitable institution of healing, then allegedly sent two former FBI agents to Rehberg’s home in an attempt to intimidate him.

The AJC reported, and The Herald confirmed with Hodges, that numerous persons affiliated with Phoebe Putney contributed over $9,000 to Hodges' 2004 Democratic primary campaign in which he successfully beat back a challenge from attorney Ingrid Polite. Hodges, nominally a Democrat, had urged numerous local Republicans to pick up a Democratic ballot, figuring that his support against a black opponent would be strongest in Northwest precincts of white Republican voters.

Granted, it is legal for individuals, including lawyers who represent criminals and businesses which may come under criminal investigation, to contribute to a district attorney's campaign. But the pickle that Hodges and Phoebe now find themselves in could easily have been avoided had Hodges refused to accept contributions from persons who stood to benefit from his largesse. Both Hodges and his donors should have realized that the appearance of impropriety caused by giving confidential grand jury information to campaign contributors undermines confidence in the impartiality of a prosecutor just as if the prosecutor had accepted overt bribes to fix cases.

In the Herald story, Hodges was unapologetic, going so far as to assert that what he did was routine:

"While Hodges said he gave Phoebe information regarding the identity of the author of the Phoebe Factoids, he said that he did nothing different in the handling of the case from what he would do in any other.

"Sharing information like this happens in every single case," Hodges said.

Of course, it wasn't just the sharing of information that was scandalous enough to rate a front page story- with photo- in the Atlanta Journal-Constitution. It was the abuse of grand jury subpoenas- when no crime was committed- to get information as a favor to a campaign contributor.

When I first moved to Albany in the mid 1970's, the district attorney had just been replaced when it was discovered that he had accepted bribes to fix drunken driving cases. A former FBI agent, Billy Lee, father of current County Attorney Spencer Lee, became the caretaker of the office. Four years later, his chief assistant, Hobart Hind, defeated Lee in an election highlighted by Hind's ironic campaign slogan "Vote for a working DA." Ironic, because a few short years later, Hind was notorious for his inability to show up for work in the afternoons after a liquid lunch at Madeleine's, a restaurant across Pine Avenue from the courthouse. After eight years in office, Hind was defeated in turn by one of his former assistants, Britt Priddy. In a case of history repeating itself, eight years later Priddy was defeated by Hodges in the 1996 election- in part because computer records of courthouse entry showed that he, like his predecessor, also often failed to show up for work. After Priddy's defeat in the July 1996 primary, he collected his salary for the remainder of the year but abdicated his duties, and the office was run by his chief assistant in his absence.

In truth, the District Attorney's office has usually been run much more professionally under Ken Hodges than under his two immediate predecessors. But the system of justice suffers when a District Attorney abuses the power of his office to reward his friends and campaign contributors, and until he admits his mistake, the local media should hold his feet to the fire.