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Fifth Circuit Denies Absolute Immunity for Prosecutor Who Fabricated Evidence in Murder Conviction and Death Sentence

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit affirmed an order of the U.S. District Court for the Middle District of Louisiana that denied absolute immunity to District Attorney Scott Perrilloux and Livingston Parish Sheriff’s Detective Marlon Foster in a suit alleging they fabricated evidence in order to wrongly convict Michael Wearry of murder for which he received a death sentence.

In April 1998, high school honors student Eric Walber was brutally murdered in Livingston Parish, Louisiana. Wearry, whose alibi placed him at a wedding in Baton Rouge at the time of the murder, was initially dismissed as a suspect. For years the crime went unsolved, generating national media attention and criticism of law enforcement in Livingston Parish. Then in April 2000, a vulnerable teenager named Jeffery Ashton came forward claiming to have information directly connecting Wearry to the murder. Without any physical evidence linking Wearry to the crime, a jury convicted him and sentenced him to death. Sixteen years later, the U.S. Supreme Court — calling the State’s case “a house of cards” — overturned Wearry’s conviction. Wearry v. Cain, 577 U.S. 385 (2016).

Wearry brought suit against Perrilloux and Foster under 42. U.S.C. §§ 1983 and 1988, alleging “they fabricated evidence that deprived him of due process and a fair trial” under the Fourteenth Amendment and state law. The suit alleged that in December 2001, Foster pulled Ashton out of school and detained him at Perrilloux’s office without his mother’s consent. Over the course of at least six separate meetings, they intimidated and coerced Ashton (who had his own legal troubles and was on probation) by threatening to harm him and his family. Foster and Perrilloux forced Ashton to adopt an entirely fabricated narrative that on the night of the murder he was walking home from church alone; he heard footsteps and hid under a house; and then he saw Wearry throw Walber’s cologne bottle into a ditch and get into Walber’s car. But in truth, Ashton had been at a strawberry festival in Ponchatoula several miles away at the time of the murder.

Both prior to and after each of the meetings, Foster and Perrilloux met to discuss their efforts to pressure Ashton into testifying to their completely fabricated story.

Further, when Foster and Perrilloux showed Ashton a photo array of nine men, Ashton identified three men other than Wearry. Foster and Perrilloux then pointed out Wearry’s photo to Ashton and told him to testify that he had immediately identified Wearry. In the suit, Wearry asserted that Ashton “had no personal knowledge” of any facts implicating Wearry in the murder and that Foster and Perrilloux knowingly “provided the adolescent with a completely fabricated story,” intimidating and coercing Ashton to adopt and repeat the story in his testimony.

Foster and Perrilloux — in their Rule 12(b) motions to dismiss — argued they are entitled to absolute immunity. The District Court found that “neither defendant was 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” and denied the motions. They filed an interlocutory appeal.

The Court noted that the applicability of absolute immunity depends on whether the misconduct at issue is advocacy or not. See Buckley v. Fitzsimmons, 509 U.S. 259 (1993). Advocatory functions are protected by absolute immunity. Id.; Singleton v. Cannizzaro, 956 F.3d 773 (5th Cir. 2020). The Court explained that the advocatory function includes “organizing, evaluating, and presenting evidence,” and the “separate investigatory function” includes “gathering or acquiring evidence.” See Barbera v. Smith, 836 F.2d 96 (2d Cir. 1987). It added that information gathering is more like police investigative work than it is advocacy. Singleton. In summarizing, the Court stated: “At its core, the advocatory function is one that is ‘intimately associated with the judicial phase of the criminal process.’” Imbler.    

There are two recognized types of immunity by the Supreme Court and the Fifth Circuit, viz., qualified and absolute. See id.; see also Tenney v. Brandhove, 341 U.S. 367 (1951). Foster and Perrilloux claim absolute immunity, which is analyzed under the “functional approach.” Buckley. It first examines “the immunity historically accorded the relevant official at common law” and then identifies the “functions” carried out historically by the official whose current analogues are granted the same immunity, the Court explained. Id. For example, prosecutors were historically absolutely immune for their charging decisions. Imbler v. Pachtman, 424 U.S. 409 (1976). Consequently, prosecutors today are also absolutely immune with respect to their charging decisions. Id.

In contrast, “investigative activities” were never a “part of [prosecutors] traditional official functions, so contemporary prosecutors are likewise not protected by absolute immunity for investigative activities. Id.; see also Rehberg v. Paulk, 566 U.S. 356 (2012) (listing Supreme Court cases applying the functional approach).

In the instant case, the Court had little difficulty concluding Perrilloux’s actions in forcing Ashton to adopt a fabricated narrative constituted “information gathering” (even though the “information” was created by Perrilloux and Foster) and was “investigatory.” The Court reached the same conclusion with respect to the false identification at the photo array. Thus, the Court ruled that Perrilloux’s actions were not “advocatory” and are not protected by absolute immunity.

The Court clarified: “It is the fabrication of false evidence, and not merely the perjury elicited at trial [Ashton testifying to the made up narrative], that is the misconduct at issue here.

In regard to Foster, the Court observed that “[t]he common law has never granted police officers an absolute and unqualified immunity.” Pierson v. Ray, 386 U.S. 547 (1967). And neither has the Supreme Court or any other court. “Police, while important to the operation of the criminal legal system, are simply not so ‘intimately associated with the judicial phase of the criminal process’ as to justify expanding absolute immunity beyond its common law boundaries.” Malley v. Briggs, 475 U.S. 335 (1986).

Thus, the Court held that neither Perrilloux nor Foster “is owed absolute immunity under the facts alleged in Wearry’s complaint.”

Accordingly, the Court affirmed the order of the District Court. See: Wearry v. Foster, 33 F.4th 260 (5th Cir. 2022). 

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