Prosecutor Not Entitled to Immunity in Fabricated Evidence Suit

A Louisiana prosecutor and a detective lost their bids for absolute immunity 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, the Fifth Circuit said.

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.