Judge Brenda S. Weaver of the Appalachian Judicial Court in Jasper, Georgia. (Photo: Rebecca Breyer)

Three years after the chief judge of Georgia's Appalachian Judicial Circuit helped orchestrate the indictment of a local newspaper publisher and his attorney, a federal judge in Atlanta has thrown out a civil rights case accusing the judge of retaliatory prosecution.

Mark Thomason, publisher of now defunct Fannin Focus, and his lawyer, Hiawassee attorney Russell Stookey, filed the suit against Chief Superior Court Judge Brenda Weaver in 2018—two years after they were arrested on felony charges stemming from a separate public records fight. The court battle stemmed from Thomason's attempts to obtain a copy of an official recording of a local court hearing and, with Stookey's help, subpoena bank records of Weaver's county judicial operating account.

In dismissing the retaliatory prosecution claim, District Judge Steve Jones said in an order handed down Sept. 17, that his decision turned on a key question: whether Weaver induced the district attorney, who was her former law clerk, to bring charges against Thomason and Stookey that wouldn't have been initiated otherwise.

Jones, the former chairman of the state's judicial watchdog commission, determined that an objective law enforcement officer could have believed Thomason's and Stookey's haphazard attempts to serve a subpoena at the bank where Weaver had her county operating account, the circumstances that prompted the subpoena, and their failure to notify the judge, provided sufficient probable cause to charge the two men with identity fraud and attempted identity fraud.

Jones also found that an objective officer could have reasonably believed probable cause existed to arrest Thomason for making a false statement in a public records request to the chairman of the Pickens County Commission in which he suggested some county checks he sought may have been illegally cashed.

"Based on the totality of the circumstances, that even if there was no probable cause for plaintiffs' arrests, there was arguable probable cause and Judge Weaver is entitled to qualified immunity," Jones held.

Qualified immunity from litigation protects government officials from liability claims associated with carrying out their public duties unless they exercise their authority irresponsibly.

The 2016 arrests of Thomason and his attorney alarmed media organizations across the state, which protested whether the criminal charges were warranted. They also voiced concern that the indictment was intended to silence a media critic.

Weaver—who launched the investigation of the journalist and his attorney and then testified before the grand jury as an alleged crime victim—soon reconsidered pursuing the case and asked the district attorney to drop the charges.

At the time, Weaver acknowledged that her own investigation had likely confused the district attorney's staff in their attempts "to objectively investigate the case."

"We're disappointed in the ruling," said Atlanta attorney Gerry Weber, who represented Thomason and Stookey. "We think it sends a chilling message to journalists who may simply be using legal processes like open records requests and subpoenas to investigate their stories. Weber was co-counsel with Atlanta attorney Jeffrey Filipovits and Joshua Kendrick of South Carolina firm Kenrick & Leonard. He said there has not been a final decision made on whether to appeal.

Weaver, who could not be reached, was represented by the Georgia Attorney General's Office.

"We respect the Court's decision," Attorney General Chris Carr's spokeswoman said. The AG, she added, routinely "and as a courtesy" provides representation to judges and employees of the judicial branch in "a wide array" of civil actions.

Last year, the state Judicial Qualifications Commission cleared Weaver of similar allegations that she violated the state Judicial Code of Conduct when she launched the investigation that resulted in felony charges against Thomason and Stookey. Weaver was the JQC chairwoman at the time. Weaver resigned after multiple complaints stemming from the indictment were filed against her with the JQC.

In his order, Jones singled out the somewhat ham-handed methods Stookey and Thomason undertook in attempting to subpoena Weaver's bank records and their failure to ensure Weaver was informed of the subpoena.

He also highlighted as false Thomason's statement in his open records request that several banks had indicated the checks were cashed illegally.

Weaver learned about the bank subpoena when she was informed of Thomason's open records allegation, according to Jones' order.

In support of her motion for summary judgment, Weaver claimed her investigation and the criminal charges against Thomason and Stookey were based, in part, on her prior knowledge that Thomason's attorney allegedly made false statements during the journalist's legal fight with a county court reporter—claims that counsel for the two men vehemently disputed. Weaver also cited Thomason's "reputation for financial difficulties" and earlier scrapes with the law, Jones noted.

Jones said that background was relevant to Weaver's argument that there was sufficient probable cause to seek criminal charges against Stookey and Thomason.

Jones also said in his order that, although Weaver knew Thomason's allegation of potential criminality in his open records request was false, "She nevertheless asked the county financial officers at each of the three counties in the circuit to review their banking records to see whether any checks for the court's operating accounts had been improperly cashed."

Letters from each of the county financial officers in the circuit concluded that no checks were cashed illegally, Jones wrote.

Jones also said that Weaver brought in the Georgia Bureau of Investigation only after the bank refused to give her a copy of Thomason's subpoena. And although Weaver testified before the grand jury that indicted Thomason and his lawyer, Weaver did not tell District Attorney Alison Sosebee what charges should be made against Thomason or Stookey, and had nothing to do with Sosebee's decision to prosecute, Jones said.