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

Legal Issues

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.

Filed Under: absolute immunity, livingston parish, louisiana, marlon foster, qualified immunity, scott perrilloux