Federal Appeals Court Rules that Louisiana Prosecutor and Police Officer Who Fabricated Evidence are Not Immune from Civil Rights Lawsuit by Former Death-Row Prisoner

A pros­e­cu­tor and police offi­cer who fab­ri­cat­ed evi­dence to wrong­ful­ly con­vict a for­mer Louisiana death-row pris­on­er are not enti­tled to immu­ni­ty in a law­suit alleg­ing they ​“know­ing­ly and delib­er­ate­ly fab­ri­cat­ed” that tes­ti­mo­ny, the U.S. Court of Appeals for the Fifth Circuit ruled.

Michael Wearry, a Louisiana pris­on­er whose con­vic­tion and death sen­tence were over­turned by the U.S Supreme Court in 2016 because pros­e­cu­tors with­held excul­pa­to­ry evi­dence, had filed suit in 2018 against Livingston Parish District Attorney Scott Perrilloux (pic­tured) and for­mer Sheriff’s Deputy Marlon Kearney Foster, alleg­ing that they man­u­fac­tured tes­ti­mo­ny and coerced a vul­ner­a­ble juve­nile, Jeffery Ashton, ​“to false­ly impli­cate Wearry in the homi­cide of Eric Walber.” 

“Foster and Perrilloux detained and coerced Ashton into false­ly tes­ti­fy­ing to a nar­ra­tive that had no basis in any evi­dence gath­ered in the case, phys­i­cal or tes­ti­mo­ni­al,” wrote Judge James L. Dennis in his May 3, 2022 decision.

In response to Wearry’s 2018 law­suit, Perrilloux and Foster had each filed motions claim­ing absolute pros­e­cu­to­r­i­al immu­ni­ty. Chief Judge Shelly D. Dick of the U.S. District Court for the Middle District of Louisiana issued opin­ions deny­ing Perrilloux’s motion in June 2019 and deny­ing Foster’s motion one year lat­er, writ­ing that immu­ni­ty was not avail­able ​“for alleged­ly pulling a 14-year-old boy out of school on at least six occa­sions to intim­i­date him into offer­ing false tes­ti­mo­ny at a mur­der tri­al – false tes­ti­mo­ny con­coct­ed whole­sale by that detec­tive and pros­e­cu­tor and care­ful­ly rehearsed, the child’s com­pli­ance ensured with scare tac­tics like tak­ing him to view the mur­der victim’s bloody car.”

The Fifth Circuit agreed with the dis­trict court’s assess­ment that ​“nei­ther defen­dant [is] enti­tled to absolute immu­ni­ty for fab­ri­cat­ing evi­dence by intim­i­dat­ing and coerc­ing a juve­nile to adopt a false nar­ra­tive the defen­dants had con­coct­ed out of whole cloth.”

For pros­e­cu­tors to be enti­tled to absolute pros­e­cu­to­r­i­al immu­ni­ty, Dennis wrote in the appeal panel’s major­i­ty opin­ion, they must be act­ing in only an advo­ca­to­ry, and not inves­ti­ga­to­ry, capac­i­ty. Advocatory func­tions include ​“orga­niz­ing, eval­u­at­ing, and pre­sent­ing evi­dence,” while inves­ti­ga­to­ry func­tions include ​“gath­er­ing or acquiring evidence.”

“What is alleged here is not sim­ply that Foster and Perrilloux elicit­ed false tes­ti­mo­ny from Ashton through improp­er means, but rather that they invent­ed a false nar­ra­tive and then coerced a vul­ner­a­ble juve­nile to adopt and tes­ti­fy to it in court. Based on Wearry’s com­plaint, it does not even appear that Ashton was a wit­ness in the State’s case against Wearry until the defen­dants decid­ed to use the child to present their fab­ri­cat­ed evi­dence,” Dennis wrote. ​“It is the fab­ri­ca­tion of false evi­dence, and not mere­ly the per­jury elicit­ed at tri­al, that is the mis­con­duct at issue here.”

Wearry was not an ini­tial sus­pect in the 1998 car­jack­ing and mur­der of Eric Walber. No phys­i­cal evi­dence linked him to the mur­der, and his ali­bi wit­ness­es tes­ti­fied that he was at wed­ding recep­tion 40 miles away in Baton Rouge at the time of the murder.

The pan­el opin­ion recounts how the pros­e­cu­tion man­u­fac­tured evi­dence against Wearry. Two-and-a-half years after the mur­der, ​“Detective Foster pulled Jeffery Ashton out of school with­out his mother’s per­mis­sion and detained him at District Attorney Perrilloux’s office. Ashton was bare­ly a teenag­er at the time. Over the course of at least six sep­a­rate meet­ings begin­ning three months before tri­al, Foster and Perrilloux intim­i­dat­ed the child, who was fac­ing his own juve­nile pro­ceed­ings, into adopt­ing a sto­ry they had invent­ed that placed Wearry near the crime scene at the time of the mur­der. At one meet­ing, the District Attorney and Detective fal­si­fied the results of a pho­to array line­up, indi­cat­ing that the child had iden­ti­fied Wearry as the per­son he had seen in the fab­ri­cat­ed sto­ry. In truth Ashton had told the offi­cials he did not rec­og­nize Wearry after they point­ed him out in the pho­to array. … Before and after each of these meet­ings, Perrilloux and Foster met to con­fer upon their efforts to pres­sure Ashton into adopt­ing and tes­ti­fy­ing to the sto­ry they fabricated.”

Judge James C. Ho issued a dubi­tante dis­sent, say­ing that the majority’s deci­sion was con­trary to U.S. Supreme Court caselaw, but argu­ing that the case prece­dent should be over­turned. While “[t]here are good rea­sons to believe that the doc­trine of absolute pros­e­cu­to­r­i­al immu­ni­ty is wrong as an orig­i­nal mat­ter,” Ho wrote, ​“gov­ern­ing prece­dent requires us to grant pros­e­cu­to­r­i­al immu­ni­ty in this case.”

Wearry’s case — and the actions of Perrilloux and Foster — reflect a pat­tern of offi­cial mis­con­duct in Louisiana death penal­ty cas­es. All eleven death-row exon­er­a­tions in the state since the 1970s have involved offi­cial mis­con­duct, usu­al­ly accom­pa­nied by per­jury or false accu­sa­tion. A con­tro­ver­sial 5 – 4 U.S. Supreme Court deci­sion authored by Justice Clarence Thomas reversed a $14 mil­lion fed­er­al jury ver­dict award­ed to Louisiana death-row exoneree John Thompson, who wrong­ful­ly spent eigh­teen years in prison for a mur­der he did not com­mit. Thomas ruled that the pros­e­cu­tors in Thompson’s case had immu­ni­ty from lia­bil­i­ty — includ­ing a pros­e­cu­tor who had con­fessed on his death bed that he inten­tion­al­ly with­held excul­pa­to­ry blood evidence.