No Absolute Immunity For Sheriff, Prosecutor Who Created False Testimony That Locked Up An Innocent Man For 16 Years

from the not-as-absolute-as-hoped dept

The thing about absolute immunity is it tends to be absolute. Except when it isn’t. This immunity — one that protects prosecutors, judges, and certain politicians — can be stripped, but it happens so rarely it’s little more than a rounding error in the totality of civil rights lawsuits. (Perhaps unsurprisingly, another case involving stripped absolute immunity also deals with Louisiana law enforcement.)

To lose access to this immunity, prosecutors must cross several lines. The prosecutor in this case (brought to us by the Volokh Conspiracy) did exactly that. Louisiana district attorney Scott Perrilloux and Livingston Parish Sheriff’s Detective Marlon Foster crafted a story for a 14-year-old “witness” to testify to in court, resulting in the falsely accused Michael Wearry to be convicted for a murder he didn’t commit.

Here’s part of the lower court’s ruling [PDF], which was handed down in June 2020.

The question presented by Foster’s Motion is whether a Livingston Parish Sheriff’s Office Detective, acting in concert with a local prosecutor, is entitled to absolute immunity 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 detective asked for absolute immunity, claiming the alleged misconduct was entirely related to the prosecution of Wearry. This claim conveniently omitted the obvious fact that the intimidation of the 14-year-old also contributed to (the now-deceased) Detective Foster’s “investigation.”

The ruling against both the detective and the prosecutor dives a little deeper into the allegations, showing just how severe this misconduct was and how it continued even after Wearry’s conviction was vacated (by the US Supreme Court, no less):

Perrilloux and Foster allegedly “made an intentional and deliberate decision to fabricate a narrative . . . in order to procure Wearry’s conviction and death sentence”;

Identified Jeffery Ashton, a 14 year old child who was “subject to juvenile court proceedings at the time and was vulnerable to intimidation by authorities.” Foster “picked him up from school, [drove] him to Perrilloux’s office, and then, without a parent present . . . intimidated him” and “provided [him] with a completely fabricated story to adopt and repeat” that implicated Wearry in the murder;

Foster and Perrilloux included Wearry on a list of people Ashton identified from a photo array, even though “Ashton told them he did not” recognize Wearry and, in fact, “had no personal knowledge connecting Wearry to Walber’s death”;

Foster and Perrilloux “[C]oached Ashton in at least six separate meetings to perfect the falsified story”; Persuaded Ashton that he had previously provided “details about the night of Walber’s murder that Ashton had never actually provided”;

And, after the United States Supreme Court vacated Wearry’s conviction, allegedly instructed Livingston Parish Sheriff’s Deputy Ben Ballard to “coerce Ashton into perpetuating his false testimony,” including “promis[ing] favors in exchange for favorable trial testimony” at the new trial.

At that point, the court had already denied absolute immunity to the prosecutor. In this decision, it denied absolute immunity to Detective Foster.

Foster’s survivors appealed. And the Fifth Circuit Appeals Court — which rarely sees an immunity request it doesn’t like — has affirmed [PDF] the lower court’s judgment.

As the Appeals Court points out, absolute immunity shields prosecutors (and officers hoping to be thought of as prosecutors) from lawsuits predicated on charging decisions. Once these entities start engaging in investigative work, the immunity is no longer absolute. And when they pull the shit these two did, nothing can save them.

We can discern no meaningful difference between the prosecutor’s fabrication of evidence in Buckley and the fabrication alleged here. Both involved, at bottom, a search for false witness testimony for use as evidence. As the Ninth Circuit put it succinctly: “Shopping for a dubious expert opinion is fabricating evidence, which is unprotected by absolute immunity. It follows, then, that acquiring known false statements from a witness for use in a prosecution is likewise fabricating evidence that is unprotected by absolute immunity.” Milstein v. Cooley, 257 F.3d 1004, 1011 (9th Cir. 2001) If anything, the allegations in Wearry’s complaint make out a more extreme conspiracy to manufacture false evidence than the one presented in Buckley.


When Ashton’s repeated statements to the Detective and District Attorney varied from their prescribed narrative, the officials concealed those statements. Ashton did not identify Wearry in a nine-person photo array, but instead identified others in the array. And even when the Detective and District Attorney pointed out Wearry’s photo to Ashton and asked about it specifically, Ashton stated that he did not recognize him. Yet the narrative presented by the Detective and District Attorney included Ashton’s positive identification of Wearry. Thus, while the prosecutor in Buckley shopped for false testimony to support his physical evidence theory, the defendants here falsified a witness’s statements themselves.

Put more succinctly, this is the fabrication of evidence during an investigation, not merely the suborning of perjury at trial. That’s why the pleas for absolute immunity fail… at least for the prosecutor. As noted above, the Fifth Circuit simply says that the detective has no right to avail himself of this immunity that has never been extended to local law enforcement officers during investigations. While it can be obtained when sued over testimony during a criminal proceeding, it is not available when the detective was neither a witness nor a prosecutor.

Immunity denied.

Neither Detective Foster nor District Attorney Perrilloux is owed absolute immunity under the facts alleged in Wearry’s complaint. The Supreme Court has made clear that police officers, even when working in concert with prosecutors, are not entitled to absolute immunity. Nor are prosecutors when they step outside of their role as advocates and fabricate evidence. The facts and actions alleged by the complaint are fundamentally investigatory in nature, and therefore absolute immunity is not warranted.

The only option now is to appeal this decision. But that would require asking the Supreme Court to find in favor of these law enforcement officials — ones the court criticized when vacating Wearry’s conviction. Good luck with that.

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Comments on “No Absolute Immunity For Sheriff, Prosecutor Who Created False Testimony That Locked Up An Innocent Man For 16 Years”

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That Anonymous Coward (profile) says:

“the child’s compliance ensured with scare tactics like taking him to view the murder victim’s bloody car”

If only he’d been a lump of cells they would have protected him from such horrible things. eyeroll

So after its clear he was railroaded & they had the gall to try to convict him again he might see some justice.

I wonder how horribly crafted the AL law to compensate the wrongfully railroaded is.

Of course people will brush their hands together thinking this is done with but if they were this brazen in this case, you can not for a second actually believe they never did it before.

I mean if we had a functioning government, that would hold corrupt cogs of justice accountable, some department would have descended on both offices & seized the records (to avoid any mishaps) and gone back to the beginning to ensure every case these bastards ever touched was 100% on the up and up.

Of course since a majority of those freed after decades in prison for crimes they never did aren’t white there just doesn’t seem to be the will to do anything about it.

We’ve seen the laws to make the whole again are often all talk and no dollars unless the former prisoner pays to get a new trial where actual innocence is declared.

There is no integrity in the justice system, the innocent are railroaded, some guilty can claim they didn’t know what they did was wrong & get a pass, they will attempt to reconvict someone that SCOTUS said got screwed with the same lies and then demand to not be held accountable.

People don’t want to admit there were slaves, that they up the Japanese in camps, that the entire history of the nation is an endless parade of xenophobia & believing anyone not white isn’t worth anything… we need to admit that the system can be and is racist.

Life in prison for stealing a lawnmower, the court turned down the appeal claiming it was just.
Life in prison for non-violent drug crimes, yet I have yet to see a Sackler in handcuffs.

The system is broken & people keep pretending it isn’t because we’ve always done it like that…
Well y’all used to lynch people too & never got around to even making it a crime until long after people stopped collecting the photos of mass lynchings like they were baseball cards.

Maybe just maybe we need to stop pretending there are no problems, stop screaming at each other over stupid shit, and start fixing the shitshow of unchecked racism and make sure everyone gets the same treatment under the law no matter color, sex, race, or if they have a badge.

hcunn (profile) says:

Re: Re: So defendant Wearry was guilty of something...

Thanks for this clarification.

I favor the death penalty for cops who frame an innocent man on a first-degree murder charge (call it “civil treason”?), but the “innocent” part does not seem to apply here. Even so, the extreme “zeal” of these cops needs to be punished.

wshuff (profile) says:

Re: Re: Re:

I only read a couple of articles, but it seems that Wearry initially claimed that he was somewhere else when the crime was committed, so I thought the story was going to go that he had an alibi and the detective and DA fabricated evidence to frame him. I didn’t see what happened with the alibi, but a Google search of Wearry’s name brought up several news articles from when he pled guilty. So that did paint things in a different light. I guess it turns out everybody was bad.

That Anonymous Coward (profile) says:

Re: Re:

“The manslaughter plea comes as a compromise on both sides”

You’ve been in jail for 16 yrs, on death row for something you didn’t do and someone says do this and you can be out next year…

“His family members embraced the victim’s mother outside the courtroom after 21st Judicial District Judge Robert Morrison III agreed to reduce Reed’s punishment to 20 years hard labor, a sentence his attorney said should see him out of prison within weeks.”

So someone else who was convicted in the murder, seems there were 6, who didn’t get the death penalty & had claimed no knowledge of it magically names the fellow who just got off death row after being railroaded as the ringleader just in time for the retrial.
He had never said Wearry was the ringleader before this and suddenly hes getting a sentence reduction for changing his testimony 20 years later so the state can try to put someone they railroaded back on death row? And y’all are shocked that he would take a plea that keeps him from dying after the same state that railroaded him the first time scrapes up a new witness, given time off of his sentence, to point the finger at him.

Corrupt town is corrupt.

David says:

Not as long a shot as you suggest:

The only option now is to appeal this decision. But that would require asking the Supreme Court to find in favor of these law enforcement officials — ones the court criticized when vacating Wearry’s conviction. Good luck with that.

Alito/Thomas dissented in March 2016, essentially stating that they don’t consider the Brady violations enough to vacate. Since then, Trump has added 3 justices who have demonstrated they shit on precedent and who are law-and-order. That 7/2 decision these days would likely have been 4/5.

Really, of all things Trump did, sabotaging the Supreme Court setup might have been worst for the U.S. in the long run. Even if the mastermind behind that had been Mitch McConnell, starting with the Garland hearing sabotage.

John says:

Fundamental Problem with Judicial System.

This entire shit show illustrates the major problem with the Judicial System. Namely, the employees of said system are evaluated as if Justice was a game or sport and as such win/loss percentages matter. When a prosecutor’s performance is handled in the same way a sport’s athlete performance is evaluated, then there is something extremely wrong.

We need to stop treating Justice the same way we treat sports. A win/loss record makes sense for a game or sport, it’s nonsense for a Judicial system.

David says:


It is a crime. That’s why the defendants needed immunity in the first place. And their actions were so far from inadvertent or ill-advised that the Supreme Court in 2016 was not willing to uphold immunity. Of course, the two dissenters have by now been joined by three Trump-seleted judges, so it’s unclear that in the current setup immunity would not hold after all.

David says:

Re: Re:

You probably cannot make more than “lynching” stick: bypassing/sabotaging a proper trial because of a belief in the guilt of the accused in spite of a lack of supporting evidence. Proving a belief in actual innocence is probably infeasible. Of course, abusing the court for one’s executioner comes with its own number of crimes like “perjury”.

That Anonymous Coward (profile) says:

So about the case...

It’s been a shitshow since day 1.

What I find disturbing is that the prosecutor, who KNEW they suborned perjury, gets to keep saying he’s convinced and people treat him like he isn’t a lying son of a bitch.

Witnesses from the jump who admitted they were just out to get people.
Evidence ‘missing’ so can’t DNA test.
Testimony & statements getting basic facts completely wrong.
A nearly identical attack on someone who kidnapped, threatened to kill (saying he’d done it before), then torched the car but they never considered him a suspect.


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