No Immunity For Prosecutor Accused Of Fabricating Evidence In Death Row Case

For the second time, a federal appeals court has denied prosecutorial immunity to a Louisiana district attorney accused of falsifying testimony that sent a man to death row. Created by the U.S. Supreme Court in 1976, federal courts have granted prosecutorial immunity to prosecutors accused of falsifying evidence, coercing witnesses, and hiding evidence showing defendants’ innocence, among other unconscionable acts. The only exception to this otherwise absolute immunity is when prosecutors’ misdeeds are not connected to their role as a prosecutor, such as when they act as an investigator or a cop.

That high barrier makes the decisions by the Fifth U.S. Circuit Court of Appeals all the more remarkable. Wearry v. Foster strikes a major blow against government immunity across the Fifth Circuit, which governs Louisiana, Mississippi, and Texas.

The case stems from the brutal killing of Eric Walber, a high school honors student who was robbed, beaten, and run over with his own car while out delivering pizza in Livingston Parish, Louisiana back in 1998. For years, the case went unsolved. But in 2000, a jailhouse informant implicated Michael Wearry. Though there was no direct physical evidence tying Wearry to the crime, he was convicted of murder and sentenced to death in 2002.

While on death row, Wearry’s attorneys discovered that the prosecution had withheld significant evidence. So Wearry threw a legal Hail Mary and urged the U.S. Supreme Court to hear his case. It worked. In 2016, the High Court tossed Wearry’s conviction and ordered a new trial, declaring that “the prosecution’s failure to disclose material evidence violated Wearry’s due process rights,” and the state’s case, which resembled “a house of cards,” left room for reasonable doubt.

As Wearry awaited his second trial, he filed a civil rights lawsuit against District Attorney Scott Perrilloux and Livingston Parish Sheriff’s Detective Marlon Foster, claiming the two men fabricated evidence by coercing false testimony from a minor. According to Wearry, Perrilloux and Foster repeatedly intimidated an adolescent boy (who was 10 at the time of the murder) to testify that he saw Wearry at the crime scene, a fabricated narrative that would help send Wearry to death row.

A district court judge sided with Wearry in 2019, a decision later upheld by the Fifth Circuit in May. The court of appeals drew a firm line “between the advocatory function of organizing, evaluating, and presenting evidence, and the separate investigatory function of gathering or acquiring evidence.” Prosecutorial immunity, the court emphasized, only extends to the former.

Explaining what activities are “advocatory” versus “investigatory,” the Fifth Circuit noted that “when a prosecutor joins police in the initial gathering of evidence in the field,” as the district attorney did here, “he acts only in an investigatory role for which absolute immunity is not warranted.”

Only Judge James Ho dissented from the Fifth Circuit’s decision; he would have ruled against Wearry. But the judge penned a remarkable dubitante (“doubting”) opinion where he scathingly attacked the “unholy trinity” of immunity doctrines: prosecutorial immunity, qualified immunity, and municipal immunity.

Noting how vigorously both the Supreme Court and the Fifth Circuit have “repeatedly affirmed” and “dutifully applied” prosecutorial immunity, “even in the face of disturbing claims of prosecutorial misconduct,” Ho felt “duty-bound to follow” that precedent. Nevertheless, he was “doubtful” that those prior decisions were correctly decided, offering a compelling, full-throated argument for why “the doctrine of prosecutorial immunity appears to be mistaken.”

As Ho recounted, when Congress passed the Civil Rights Act in 1871 (codified today as Section 1983) to allow civil rights lawsuits against local and state officials, there were arguably only two available immunities that could have applied to modern prosecutors: quasi-judicial immunity and defamation immunity. The latter only covered defamation claims (which aren’t present in Wearry’s case), while the former “could be defeated by a showing of malice.”

“And that is exactly what Wearry has alleged here—a malicious effort to falsify witness testimony against him in a capital murder trial,” Ho added. Ho even cited a concurrence by the late Justice Antonin Scalia, which declared that “there was, of course, no such thing as absolute prosecutorial immunity when § 1983 was enacted.”

“Wearry’s complaint plainly alleges a bad faith, malicious violation of his constitutional rights,” Ho wrote. “That should be enough under the text and original understanding of § 1983 to proceed to the merits.” Unfortunately, in Ho’s view, modern Supreme Court precedent on prosecutorial immunity “kills Wearry’s suit. And if prosecutorial immunity didn’t do the job,” Ho further noted, “then qualified immunity presumably would.”

“Worthy civil rights claims are often never brought to trial,” Ho lamented, because “an unholy trinity of legal doctrines” (including qualified immunity and prosecutorial immunity) “frequently conspires to turn winnable claims into losing ones.” Although Congress has the power to abolish these doctrines, “it shouldn’t have to,” since they were created whole-cloth by the U.S. Supreme Court. “In short, this is a problem of the courts’ own making,” Ho added.

Perrilloux and Foster’s family filed for en banc review. In late October, the entire court of the Fifth Circuit voted 9-7 against rehearing the case, which let the earlier decision from the Fifth Circuit stand. Once again, Ho wrote an opinion that reaffirmed his belief that “absolute prosecutorial immunity is inconsistent with the text and original understanding” of Section 1983. Concurring with the decision against rehearing, Ho argued that public officials “deserve some measure of deference” when facing “life-and-death decisions.”

“By contrast, when public officials make the deliberate and considered decision to trample on a citizen’s constitutional rights, they deserve to be held accountable,” Ho argued. Wearry’s case “falls squarely in the deliberate violation bucket.”

Thanks to the Fifth Circuit, Wearry’s lawsuit can finally move forward to the merits–to determine whether Perrilloux really did fabricate evidence. As for Wearry himself, he is still behind bars for another few years, having accepted a plea deal before his second trial began: He pled guilty to manslaughter and received a 25-year prison sentence, but with credit for the many years he has already served.

“The en banc Fifth Circuit has now issued this case’s third ruling that prosecutorial immunity does not protect officials from responsibility for such conduct,” MacArthur Justice Center Attorney Eric Foley told The Advocate. “We look forward to moving this case into discovery and toward a trial to hold these men accountable.”