A Louisiana prosecutor and a detective lost their bids for absolute immune from a former murder defendant’s lawsuit alleging that they intimidated a juvenile witness to adopt a narrative about the crime they conjured from whole cloth, reported Bloomberg.
The prosecutor was acting as an investigator, rather
than an advocate, and thus isn’t entitled to absolute prosecutorial immunity,
Judge James L. Dennis said Tuesday. Police officers also aren’t “entitled to
the absolute immunity reserved for a prosecutor,” the court said.
The 1998 murder of a pizza delivery driver in
Livingston Parish, La., was a cold case until a jail-house informant implicated
Michael Wearry. Although Wearry had an alibi, district attorney Scott
Perrilloux and detective Marlon Foster allegedly intimidated a juvenile facing
prosecution on other charges into testifying that he saw Wearry near the crime
scene.
Wearry was convicted for the murder and sentenced to
death, but the U.S. Supreme Court overturned the conviction, and the juvenile
recanted his testimony. When Wearry sued Perrilloux and Foster for violating
his civil rights by fabricating evidence, they both claimed absolute immunity.
Absolute immunity applies only when a prosecutor is
performing advocatory functions, such as organizing, evaluating, and presenting
evidence, the U.S. Court of Appeals for the Fifth Circuit said. The doctrine
doesn’t apply to investigatory functions, such as gathering or acquiring
evidence, it said.
Perrilloux and Foster detained and coerced the
juvenile into testifying to a narrative that had no basis in any evidence
gathered in the case, the court said. Fabricating evidence is evidence
creation, which is not part of the advocate’s role, but a corruption of the
investigator’s function of searching for clues and corroboration, it said.
Foster argued that since he and Perrilloux were
accused of the same fabricating acts, Perrilloux entitlement to absolute
immunity should apply to him, too. Not only has the Supreme Court rejected that
exact argument, Perrilloux isn’t immune from Wearry’s suit, the court said.
Judge Carolyn Dineen King joined the opinion.
In a dubitante opinion questioning the continued
validity of absolute prosecutorial immunity, Judge James C. Ho said “governing
precedent requires us to grant prosecutorial immunity in this case.”
The Roderick & Solange MacArthur Justice Center
represented Wearry. The Moody Law Firm represented Perrilloux. Breazeale,
Sachse & Wilson LLP represented Foster.
The case is Wearry
v. Foster, 2022 BL 153489, 5th Cir., No. 20-30406, 5/3/22.
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