By Connie Reguli – June 30, 2022

SCORE for personal liberty against lying, cheating District Attorneys (and other prosecuting government attorneys like CPS) – The Fifth Circuit entered an opinion on May 3, 2022. See Wearry v. Foster, 20-30406, 5th Cir. In this opinion, the prosecutor was denied absolute immunity when he proffered the fabricated testimony of a juvenile to prosecute a defendant for murder. It took years to undo, in fact the case started in 1998 and this opinion is dated May 2022. Twenty-four years and the case is not over. The plaintiff, if he is even alive, will likely have several more years of fighting to get to trial.

42 USC Sec. 1983 is supposed to provide relief for ordinary citizens whose rights have been trampled by “state actors”, i.e., anyone who works on behalf of, under the employment of, or under the title of a government function. In this case, the lawsuit was brought against prosecutor and police officer for the investigatory acts of conspiring to bring false testimony to trial.

The Opinion described the circumstances like this:

Nothing in the story the defendants invented was based on
information the child had provided to the Detective or the District Attorney.
As Wearry’s complaint plainly puts it, “Perrilloux and Foster made an
intentional and deliberate decision to fabricate a narrative.” In the District
Attorney and Detective’s narrative, Ashton had gone to a “musician
appreciation” function at his church on the night of the murder. According
to the false narrative, as he walked home alone, he heard footsteps and hid
under a house. Following their script, Ashton testified that he then saw
Wearry throw Walber’s cologne bottle into a ditch and get into Walber’s car.
In reality, Ashton had been at a strawberry festival with his older sister in
Ponchatoula miles away from the scene on the night of Walber’s murder.
Ashton had spent the night with his sister in Hammond without coming back
to Livingston Parish. Ashton had never seen Wearry before Foster and
Perrilloux presented Wearry’s photo to him, and Ashton “had no personal
knowledge” of any facts implicating Wearry in the murder, including the
fabrications invented by the defendants. In short, Foster and Perrilloux
knowingly “provided the adolescent with a completely fabricated story” and
intimidated and coerced him to adopt and repeat the story in his testimony.
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Wearry fought the system for years before his criminal conviction was overturned by the Louisiana Supreme Court. It was only then that he could seek monetary damages for the abuse brought upon him by the government (tax payer funded) employees.

For me, someone who knows the governments abusive tactics violation civil rights everyday of the year, the 33 page opinion is a delightful read. The three judge panel provides an extensive analysis of absolute immunity, qualified immunity, and Monell. These three legal principles are the Damocles of civil rights actions. The opinion acknowledges that “worthy civil rights claims are often never brought to trial,” because of these three doctrines. The overlap and intertwining of these principles “frequently conspire to turn winnable claims into losing ones.”

After the majority of the panel agreed with the District Court that the actions of the prosecuting attorney did NOT afford him absolute immunity, the dissenting opinion found that governing precedent prevented the Court from granting this relief, even though he did not agree. Judge James C. Ho opined this:

“This case illustrates that conspiracy in action. Under the doctrine of
absolute prosecutorial immunity, Wearry cannot bring suit against the
prosecutor or the police officer who wrongly put him on death row. And that
is so even if we assume (as we must at this stage) that the prosecutor and
police officer engaged in a malicious campaign to coerce false testimony
against him. Nor could Wearry sue the municipality that employed the
prosecutor and police officer, because neither of them was operating
pursuant to an official municipal policy or custom. See id. at 691 (“Congress
did not intend municipalities to be held liable unless action pursuant to
official municipal policy . . . caused [the] constitutional tort”); id. (“[A]
municipality cannot be held liable under [42 U.S.C.] § 1983 on a respondeat
superior theory.”).
The good news for anyone outraged by this state of affairs is that the
American people have a remedy. Congress decides what our laws shall be.
Courts merely interpret and apply those laws. So if a court applies a rule of
law that seems wrong and unjust, the people can demand that the legislative
branch fix it.
In sum, Congress can abolish qualified immunity, absolute
prosecutorial immunity, and Monell. And it can do so anytime it wants to.”

Judge Ho called the problem one of the “court’s own making”, i.e, inventing qualified immunity which added a burden to the Plaintiff’s prove. Not only does the plaintiff have to show that his constitutional right was violated, but that it was clearly established at the time the act was committed.

I know from litigation experience, that the plaintiff is faced with razor sharp distinctions in the facts of the case.

Wearry is a good move by the Fifth Circuit Court, it is likely that the defendants will push this to the Supreme Court. We will keep an eye on it.