STARTLING REVELATIONS ABOUT THE FACTOIDS PROSECUTION: DA TO BE EMBARRASSED BY REHBERG & BAGNATO CASE
(This column will appear in the December 29, 2005 The Albany Journal)
I am now the proud possessor of all of the famous Phoebe Factoids. Some are funny. All are thought provoking. None are criminal.
On December 15th and 16th The Albany Herald devoted two straight days of front page, top of the fold coverage to the indictment and booking of Albany accountant Charles Adam Rehberg and physician Vito John Bagnato for six misdemeanor counts of harassing phone calls, one count of aggravated assault on physician John Hotz, and one count of burglary of Dr. Hotz’s home at 1614 Lynwood Lane. What the Herald and local television didn’t report at the time were the details that make this story unique in the annals of criminal prosecutions. After doing a little digging and asking a few questions, I discovered some fascinating facts about the “Phoebe Factoids” prosecution:
* The harassing phone call statute, which the local media didn’t bother to report, only includes “persons” as victims, not corporations or “offices.” The pertinent portion of the statute, (OCGA) §16-11-39.1, defines “harassing phone calls” as occurring
“if such person telephones another person repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another person or the family of such other person;“
Yet four counts of the indictment allege that the “victim” was something other than a person: “Phoebe Putney Memorial Hospital” (Count 1);; “Sullivan Group” (Count 4); “Bruce Melton Oxford Construction Company” (Count 5); and “Albany Land Company, Inc.” (Count 6). These counts are almost certain to be dismissed before trial.
* Count 2 charged Rehberg and Bagnato with making harassing phone calls to “U.S. Congressman Sanford Bishop” on January 13, 2004. A source confided to me that Congressman Bishop was surprised to hear that he was a victim of this “crime.” That alone will be enough to get this count dismissed, along with any other count where there is no complaining victim
* All citizens have a First Amendment right to “petition the Government for a redress of grievances.” Here’s an excerpt from a FACTOID sent to Congressman Bishop’s office:
“In an editorial January 7 [2004] Albany Herald Editor Kay Read acknowledged a serious problem facing our State- the Medicaid program is $173 Million short of funds... In our opinion, the solution is obvious. Phoebe Putney ... has accumulated massive cash reserves due to years of excessive profits... Phoebe alone reported almost $217 million in the bank when it filed its 2002 Federal information return... The solution to Georgia’s Medicaid budget problem is simple- reduce Medicaid payments to public hospitals with excess reserves and profits, and redirect these funds to other providers... Phoebe alone has enough excess funds to solve the entire State of Georgia Medicaid crisis!”
* One of the more obvious discrepancies between the harassing phone call statute and the allegations in the indictment is that the defendants aren’t alleged to have made telephone calls. People don’t “answer” fax machines- unless they want an ear splitting electronic sound inflicted on their brains. Sending a document via a fax line is no more a telephone call than sending an e-mail via the Internet- which also piggybacks on phone lines.
* The statute of limitations on misdemeanors such as harassing phone calls is two years. The statute was about to expire on counts 1 and 5 when the indictment was returned on December 14, 2005. In ordinary criminal practice, misdemeanors charges are rarely filed more than six months from the date of the offense. It is virtually unheard of for harassing phone call charges to be made almost two years later- the final charged offense allegedly occurred in March of 2004. Why the almost two year delay?
* Incredibly, Bagnato and Rehberg were also indicted for two serious felonies which carry 20 year maximum sentences, aggravated assault and burglary. Count 7 charges:
“... JIM BOWMAN, VITO JOHN BAGNATO and CHARLES ADAM REHBERG with the offense of Aggravated Assault, for that the said accused did unlawfully make an assault upon the person of Dr. James A. Hotz, by suggesting that the accused had a weapon, when the accused did confront the victim in the victim’s home, and such act placed the victim in reasonable fear of immediate serious bodily harm.”
Count 8 charges the same three gentlemen with burglary, alleging that they:
“intentionally, unlawfully and without authority enter or remain within a dwelling house of another, to-wit: residence of Dr. James A. Hotz... with the intent to commit therein the crime of Aggravated Assault...”
These charges are “incredible for three reasons:
(1) Neither Bagnato nor Rehberg have ever been to Dr. Hotz’s home;
(2) According to the Official Code of Georgia (OCGA) § 16-5-21, the crime of aggravated assault occurs“when he or she assaults... with a deadly weapon or ... any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” The indictment in this case is defective because no deadly weapon is mentioned- and sources tell me that no weapon existed. Without an aggravated assault, there can be no burglary, since an essential element of the burglary charge is the intent to commit an aggravated assault at Dr. Hotz’s home.
(3) No date is specified in the indictment for the assault or the burglary. OCGA §17-7-54 requires every indictment to “...state with sufficient certainty the offense and the time and place of committing the same.” Without a time alleged, the indictment is defective. Since Bagnato and Rehberg will obviously have an alibi- having never been to Dr. Hotz’s home- the State is required to give them notice of the date and time they were alleged to have been there.
* The Special Prosecutor, Houston Judicial Circuit District Attorney Kelley R. Burke, responded to Maverick Attorney Ralph Scoccimaro’s passionate defense of his client with some inflammatory speech of his own- comparing the Phoebe Factoids to “go[ing] onto someone else’s property and burning a cross under the guise of free speech which is tantamount to what these defendants are claiming.” Well, no. Burning a cross on someone’s lawn isn’t remotely comparable to faxing a document to a Congressman which reveals the sleazy machinations of a public hospital that has managed to stash away over $200 million in cash, much of it from government funded Medicaid and Medicare payments.
* Finally, District Attorney Ken Hodges has some “splaining to do,” as Ricky used to say to Lucy. Why did he use a 2003 grand jury to subpoena BellSouth’s phone records to unearth Bagnato and Rehberg as the source of the faxes? Why did he turn Bagnato and Rehberg’s phone records over to Phoebe’s lawyer, but not present a criminal case to that grand jury or any of the half dozen grand juries that met after that? Why did he wait over a year and a half to request a special prosecutor? Was his decision to request a special prosecutor affected by the avalanche of bad publicity from the May 9, 2005, Atlanta Journal-Constitution front page expose of his giving grand jury documents to campaign contributors at Phoebe?
* The questions we should be asking are why were these gentlemen publicly embarrassed over matters that don’t come within a thousand miles of constituting a crime, and why are taxpayer dollars are being wasted on this futile and absurd prosecution?
I am now the proud possessor of all of the famous Phoebe Factoids. Some are funny. All are thought provoking. None are criminal.
On December 15th and 16th The Albany Herald devoted two straight days of front page, top of the fold coverage to the indictment and booking of Albany accountant Charles Adam Rehberg and physician Vito John Bagnato for six misdemeanor counts of harassing phone calls, one count of aggravated assault on physician John Hotz, and one count of burglary of Dr. Hotz’s home at 1614 Lynwood Lane. What the Herald and local television didn’t report at the time were the details that make this story unique in the annals of criminal prosecutions. After doing a little digging and asking a few questions, I discovered some fascinating facts about the “Phoebe Factoids” prosecution:
* The harassing phone call statute, which the local media didn’t bother to report, only includes “persons” as victims, not corporations or “offices.” The pertinent portion of the statute, (OCGA) §16-11-39.1, defines “harassing phone calls” as occurring
“if such person telephones another person repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another person or the family of such other person;“
Yet four counts of the indictment allege that the “victim” was something other than a person: “Phoebe Putney Memorial Hospital” (Count 1);; “Sullivan Group” (Count 4); “Bruce Melton Oxford Construction Company” (Count 5); and “Albany Land Company, Inc.” (Count 6). These counts are almost certain to be dismissed before trial.
* Count 2 charged Rehberg and Bagnato with making harassing phone calls to “U.S. Congressman Sanford Bishop” on January 13, 2004. A source confided to me that Congressman Bishop was surprised to hear that he was a victim of this “crime.” That alone will be enough to get this count dismissed, along with any other count where there is no complaining victim
* All citizens have a First Amendment right to “petition the Government for a redress of grievances.” Here’s an excerpt from a FACTOID sent to Congressman Bishop’s office:
“In an editorial January 7 [2004] Albany Herald Editor Kay Read acknowledged a serious problem facing our State- the Medicaid program is $173 Million short of funds... In our opinion, the solution is obvious. Phoebe Putney ... has accumulated massive cash reserves due to years of excessive profits... Phoebe alone reported almost $217 million in the bank when it filed its 2002 Federal information return... The solution to Georgia’s Medicaid budget problem is simple- reduce Medicaid payments to public hospitals with excess reserves and profits, and redirect these funds to other providers... Phoebe alone has enough excess funds to solve the entire State of Georgia Medicaid crisis!”
* One of the more obvious discrepancies between the harassing phone call statute and the allegations in the indictment is that the defendants aren’t alleged to have made telephone calls. People don’t “answer” fax machines- unless they want an ear splitting electronic sound inflicted on their brains. Sending a document via a fax line is no more a telephone call than sending an e-mail via the Internet- which also piggybacks on phone lines.
* The statute of limitations on misdemeanors such as harassing phone calls is two years. The statute was about to expire on counts 1 and 5 when the indictment was returned on December 14, 2005. In ordinary criminal practice, misdemeanors charges are rarely filed more than six months from the date of the offense. It is virtually unheard of for harassing phone call charges to be made almost two years later- the final charged offense allegedly occurred in March of 2004. Why the almost two year delay?
* Incredibly, Bagnato and Rehberg were also indicted for two serious felonies which carry 20 year maximum sentences, aggravated assault and burglary. Count 7 charges:
“... JIM BOWMAN, VITO JOHN BAGNATO and CHARLES ADAM REHBERG with the offense of Aggravated Assault, for that the said accused did unlawfully make an assault upon the person of Dr. James A. Hotz, by suggesting that the accused had a weapon, when the accused did confront the victim in the victim’s home, and such act placed the victim in reasonable fear of immediate serious bodily harm.”
Count 8 charges the same three gentlemen with burglary, alleging that they:
“intentionally, unlawfully and without authority enter or remain within a dwelling house of another, to-wit: residence of Dr. James A. Hotz... with the intent to commit therein the crime of Aggravated Assault...”
These charges are “incredible for three reasons:
(1) Neither Bagnato nor Rehberg have ever been to Dr. Hotz’s home;
(2) According to the Official Code of Georgia (OCGA) § 16-5-21, the crime of aggravated assault occurs“when he or she assaults... with a deadly weapon or ... any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” The indictment in this case is defective because no deadly weapon is mentioned- and sources tell me that no weapon existed. Without an aggravated assault, there can be no burglary, since an essential element of the burglary charge is the intent to commit an aggravated assault at Dr. Hotz’s home.
(3) No date is specified in the indictment for the assault or the burglary. OCGA §17-7-54 requires every indictment to “...state with sufficient certainty the offense and the time and place of committing the same.” Without a time alleged, the indictment is defective. Since Bagnato and Rehberg will obviously have an alibi- having never been to Dr. Hotz’s home- the State is required to give them notice of the date and time they were alleged to have been there.
* The Special Prosecutor, Houston Judicial Circuit District Attorney Kelley R. Burke, responded to Maverick Attorney Ralph Scoccimaro’s passionate defense of his client with some inflammatory speech of his own- comparing the Phoebe Factoids to “go[ing] onto someone else’s property and burning a cross under the guise of free speech which is tantamount to what these defendants are claiming.” Well, no. Burning a cross on someone’s lawn isn’t remotely comparable to faxing a document to a Congressman which reveals the sleazy machinations of a public hospital that has managed to stash away over $200 million in cash, much of it from government funded Medicaid and Medicare payments.
* Finally, District Attorney Ken Hodges has some “splaining to do,” as Ricky used to say to Lucy. Why did he use a 2003 grand jury to subpoena BellSouth’s phone records to unearth Bagnato and Rehberg as the source of the faxes? Why did he turn Bagnato and Rehberg’s phone records over to Phoebe’s lawyer, but not present a criminal case to that grand jury or any of the half dozen grand juries that met after that? Why did he wait over a year and a half to request a special prosecutor? Was his decision to request a special prosecutor affected by the avalanche of bad publicity from the May 9, 2005, Atlanta Journal-Constitution front page expose of his giving grand jury documents to campaign contributors at Phoebe?
* The questions we should be asking are why were these gentlemen publicly embarrassed over matters that don’t come within a thousand miles of constituting a crime, and why are taxpayer dollars are being wasted on this futile and absurd prosecution?
posted by James Finkelstein (Ga.) at 9:42 PM
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