Criminal Justice

He Was Sentenced to Death After Law Enforcement Fabricated Evidence. A Federal Court Says He Can Sue.

A conservative judge expressed skepticism at the panel's conclusion before issuing a strong rebuke of prosecutorial immunity.


In 2001, a prosecutor and a police officer zeroed in on a child who they claimed could shed some much-needed light on a yearslong Louisiana murder investigation. But in reality, the law enforcement agents had pinpointed a suspect of choice, constructed a story around him, and then coerced a juvenile witness into adopting that story.

The next year, the man at the center of the investigation—Michael Wearry—was convicted of and sentenced to death for the 1998 murder of Eric Walber, after Livingston Parish District Attorney Scott Perrilloux and Sheriff's Detective Marlon Foster strong-armed Jeffrey Ashton, a young teenager facing his own separate charges, to implicate him. They allegedly fed Ashton a tale putting Wearry at the crime scene. They lied about the results of a photo line-up, indicating Ashton had selected Wearry as the culprit when he expressly picked other people. And they hid instances where Ashton departed from the agents' chosen story. All of this despite the fact that Ashton was at a strawberry festival the night of the crime, and that he maintained he'd never seen Wearry prior to Perrilloux and Foster introducing him to his picture.

Wearry's conviction was overturned in 2016. He will be permitted to sue the government agents who fabricated evidence to put him behind bars, a federal court ruled last week.

"Nothing in the story the defendants invented was based on information the child had provided to the Detective or the District Attorney," writes Judge James L. Dennis of the U.S. Court of Appeals for the 5th Circuit. "Foster and Perrilloux detained and coerced Ashton into falsely testifying to a narrative that had no basis in any evidence gathered in the case, physical or testimonial."

At question was whether the two men would be entitled to absolute prosecutorial immunity, which, true to its name, essentially makes it impossible to hold prosecutors accountable when they violate your rights while advocating for the state.

But the majority declined to award that here. The alleged misbehavior on the part of D.A. Perrilloux was investigatory, not advocatory, they said. As for Foster, the judges pointed out the obvious: He is not a prosecutor and is therefore not entitled to prosecutorial immunity. "Foster argues that since he and Perrilloux are accused of committing the same fabricating acts, any entitlement the prosecutor might have for his actions the detective should have too," adds Dennis. "The Supreme Court has rejected this exact argument."

But what perhaps makes this case most ridiculous—a stratospheric bar to meet—is that it was not at all a guarantee that Wearry's claim would succeed. Indeed, according to some, it may be wrong on the merits.

Such was the argument put forth by Judge James C. Ho in a dubitante opinion—one which disagrees with the majority's legal reasoning but, in some sense, stops short of rebuking its conclusion. In Ho's view, there's some reason to celebrate.

But not because the law was applied accurately. The problem is the law is utterly rotten, constructed of a slew of immunity doctrines that give special protections to the government by the government, all while prohibiting victims—whether of a prosecutor, a police officer, a prison guard, a judge, a legislator, a public educator—from achieving any sort of recourse.

"Worthy civil rights claims are often never brought to trial. That's because an unholy trinity of legal doctrines—qualified immunity, absolute prosecutorial immunity, and Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978)—frequently conspires to turn winnable claims into losing ones," he writes. "This case illustrates that conspiracy in action."

The conspiracy, he says, is that Wearry should not, in fact, be able to bring his suit forward. Yet that's not because it ought to be that way. It's because, according to Ho's interpretation of absolute-immunity precedent, it is that way. Unfortunately so.

"The majority says it is 'strange' to apply prosecutorial immunity here. I agree," says Ho. "But a faithful reading of precedent requires us to grant it here, no matter how troubling I might personally find it."

Ho's rebuke of the immunity doctrines—legislated into existence by the Supreme Court—is somewhat of an about-face for him. In 2019, he wrote that qualified immunity is necessary to "stop mass shootings." The legal doctrine protects state and local actors, notably police, from facing similar federal civil suits if there is no prior court case on the books explicitly ruling the alleged misconduct unconstitutional. In plainer terms, it's how previous officers have been able to avoid their day in court for stealing hundreds of thousands of dollars, blowing up an innocent person's property, shooting children, and assaulting someone before filing bogus charges. No preexisting court precedents had enough factually similar details, so the victims could not proceed.

Contrast that with Ho's most recent characterization of qualified immunity: "It requires civil rights plaintiffs to prove not only a violation of their constitutional rights, but a 'clearly established' one," he notes in his dubitante opinion. "But the 'clearly established' requirement lacks any basis in either the text or original understanding of" civil rights law.

Ho posits a remedy, and it has nothing to do with him. "Congress decides what our laws shall be," he writes. "Congress can abolish qualified immunity, absolute prosecutorial immunity, and Monell. And it can do so anytime it wants to."

He is correct. It recently had multiple chances to do so. And despite record consensus around an issue that used to be beyond obscure, Congress did what Congress does: Nothing.

NEXT: Georgia Cops Rummaged Through Student-Athletes' Luggage in a Fruitless Search for 'a Little Bit of Marijuana'

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  1. Such was the argument put forth by Judge James C. Ho in a dubitante opinion—one which disagrees with the majority's legal reasoning but, in some sense, stops short of rebuking its conclusion. In Ho's view, there's some reason to celebrate.

    Ho had a very good opinion on this one. Very clearly set out his stance on why they should get prosecutorial immunity (because it's the law and this meets the standard) and why the standard is wrong and should be corrected. Ho seems good actually for most of which I've seen from him.

    1. Absolute immunity should only be available for situations where the government agent did their job properly.

      No immunity should be available to protect those who commit actual crimes or malfeasance.

      Qualified immunity already exists to protect those who acted in good faith.

      1. "did their job properly" cannot be the criterion. Most humans fail at a challenging job from time to time. We should not expect prosecutors to be perfect. OTOH we MUST have a means to deal with prosecutorial malfeasance on this scale.

        1. "Most humans fail at a challenging job from time to time."

          And most of us can suffer major career consequences for such failures. It ought not be any different for cops or prosecutors.

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        2. I don't see why there should be the standard of law for citizens that ignorance is no excuse and mens rea isn't required. The purpose of the law is the protection of ordered liberty. It's not to be used as a shield either for miscreants or incompetence.

      2. "Qualified immunity already exists to protect those who acted in good faith."

        That's what it was supposed to do. In practice, most of the time it ends up protecting obvious malfeasance.

    2. When the law is written by the COURTS, not the people, and when the law is REPUGNANT ON ITS FACE, SCOTUS has the DUTY to overthrow the law, or let the PEOPLE do so in court by jury.
      This is COMMON LAW and it dates to the Magna Carta.

  2. Give them the same sentence he received.

    1. I have it on good authority that if Jeffrey Ashton were a teenage rape victim and wrote a book about his rape, he'd be responsible.

      1. Namby pambies. If we don't stop mollycoddling criminals then we'll just encourage this sort of stuff.

        Execute the first guy.
        Then allow his estate to sue .
        If he wins, then execute those criminals.
        Then execute the judges and media and everyone in all those jury pools to make sure none of them escape justice

  3. End the death penalty.

    1. Slight disagreement. Weapons of Wearry's choosing at dawn. Since Wearry was wronged by both Perrilloux and Foster, he gets a second of his choosing.

    2. The death penalty is necessary. It may end up saving this country from your Marxist friends.

  4. "Congress decides what our laws shall be," he writes. "Congress can abolish qualified immunity, absolute prosecutorial immunity, and Monell. And it can do so anytime it wants to."

    It was the Judicial branch of government (specifically the Supreme Court) that invented qualified immunity, not any other branch. The following would have been a more accurate statement by the judge:

    "The Judicial system decides how our laws are applied," he writes. "The Judicial system can abolish qualified immunity, absolute prosecutorial immunity, and Monell. And it can do so anytime it wants to."

  5. Binion, Congress does a few things. They bloviate, grift, spout rhetoric, and raise their own salaries.

  6. "legislated into existence by the Supreme Court . . . "

    We have very different understandings of what the word 'legislated' means, apparently.

    1. Don't you need, you know, a legislature for that?

      1. Yeah, I had a problem with that too. Isn't "legislating from the bench" precisely what actual libertarians are fighting against?

        1. re: Isn't that what libertarians are fighting against?

          Not necessarily. Procedural controls can be an important part of preserving liberty but they do not alone guarantee that the controls will be oriented toward liberty. Consider a democratically elected legislature (or even a pure democracy) that nevertheless passes extremely anti-liberty laws. Contrast that with a benevolent dictator who abolishes most laws and government functions. In the short term, which is most aligned with libertarian values?

          Regardless, the article above is criticizing the creation of (un)qualified immunity - something that was wrong both because it is inherently anti-liberty and because it was created in violation of the the procedural controls.

  7. The whole notion law enforcement officials should be held to a _lower_ standard of behaviour than everyone else is plainly nonsensical - as the rest of the world can see, but for some reason the US can't. Such positions entail greater responsibility to comply with the law, not less.

    In reality, it's quite obvious that the US has a major problem simply because it will not jail criminal police officers and similar.

    1. If I am not mistaken, even when cops are told in training that they shouldn't do X, they can still get QI because they couldn't have known that X was unconstitutional.

  8. Of course he should be able to sue. Everyone knowingly involved in the fabrication of evidence should go to prison for less than 15 years IMO. This type of should be met with extremely harsh punishments.

  9. Sue? Fabricating evidence should be a felony. When does the trial start?

    1. As soon as their fellow prosecutors decide to charge, the prosecution of these crimes can start. Should be any minute now...

    2. This isn't just fabricating evidence, this is attempted murder.


      1. No, because they actually obtained the death penalty, it should be considered MURDER and the penalty should the the penalty that the conspirators obtained against the accused, the DEATH PENALTY.
        Attempted murder is not enough.

  10. "Congress decides what our laws shall be," he writes. "Congress can abolish qualified immunity, absolute prosecutorial immunity, and Monell. And it can do so anytime it wants to."

    So why haven't the Democrats who control the legislative and executive branches of government done so? It's the same reason the Democrats cried "systemic racism" and "It's Trump's fault" after the George Floyd killing (climaxing an ongoing police abuse of blacks and poor people, including the deaths of Floyd, Breonna Taylor, Eric Garner and others) all in Democrat machine run cities, for the purpose of getting people to look the other way instead of at the people responsible.

    You see, the Democrat politicians like it that way. They want to be able to arrest the persons who oppose them politically and keep the people under their thumb. And if it suits them, let the people loot and riot.

  11. This is the WORST decision that SCOTUS ever made. It is the equivalent of setting back the advancement of justice and equality by throwing out the Magna Carta. It is saying that the PEOPLE, the JURY do not have the mental ability to decide what is right and just.
    In this case we are discussing a CRIMINAL CONSPIRACY by investigators and prosecutors. My opinion is that they should face the same penalty that they attempted to give the falsely accused, the DEATH PENALTY.
    Basically, SCOTUS has stated that any actor who is employed by the people is exempt from civil (and criminal) prosecution because they are employed by government. It is a FREE PASS to violate civil rights under colour of authority.
    I can only pray that EACH SCOTUS MEMBER has family or personally has civil rights violated under colour of authority and has their lives ruined and have no recourse. The US Constitution is stated to give inalienable rights. SCOTUS just alienated those rights and severed the people from them. This is EXACTLY what the Founding Fathers warned us to be vigilant of and to be ready to rise up against.

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