A federal judge in Baton Rouge refused Monday to throw out a malicious prosecution lawsuit against the Livingston Parish district attorney and a former top sheriff's detective, accusing them of coercing false testimony against the lead suspect in a high-profile 2002 trial over the slaying of a high school honors student.

U.S. District Judge Shelly D. Dick found the allegations against District Attorney Scott Perrilloux and Marlon Kearney Foster, the former Livingston sheriff's chief of detectives, were serious enough — calling them "brazen constitutional violations," if true — that the men weren't entitled to the civil immunity normally afforded to law enforcement.

Dick ruled Perrilloux and Foster could be pursued in court under claims that they denied the constitutional rights of the former death row defendant, Michael Wearry.


"The Court concludes that Perrilloux’s alleged use of intimidation and coercion to procure fabricated testimony went beyond the scope of the prosecutor’s role as an advocate for the state," Dick wrote in an opinion signed Monday.

Dick made clear that, under the law, she had to accept as true Wearry's allegations once they met a minimum threshold, but that she was not ruling on their veracity at this point. 

Wearry was convicted of murder and had been sentenced to death in the 1988 slaying of Eric Walber. The high school football player and honors student was robbed, beaten and run over by his own car near the Livingston-Tangipahoa parish line after his pizza delivery shift.

Prosecutors accused Wearry of being the ringleader in the robbery and slaying that led to the convictions of five others.

But the U.S. Supreme Court threw out Wearry's conviction in 2016 over the discovery of evidence that prosecutors failed to give his defense attorneys at the time, finding the prior trial evidence resembled "a house of cards" in light of the new information. 


Then, in late May 2018, as Wearry was seeking a new criminal trial, his civil lawyers sued Perrilloux and Foster, accusing them of coercing Jeffery Ashton, a then 10-year-old, to provide a fabricated story at Wearry's trial. They repeatedly shaped the tale to corroborate aspects of separate testimony from a jailhouse informant who implicated Wearry, the suit alleges.

At the time, Ashton was in the juvenile criminal system and, the suit alleges, was vulnerable to intimidation.

Wearry's suit has named Perrilloux and Foster as a defendants personally and Perrilloux as a defendant in his official capacity as district attorney. The lawsuit seeks damages the District Attorney's Office and from Perrilloux and Foster individually, but also punitive damages from two men individually.

In December 2018, Wearry pleaded guilty to manslaughter, taking him off death row and giving a 25-year prison sentence.


Foster has previously declined to comment on the lawsuit. Perrilloux, the chief prosecutor for the three-parish 21st Judicial District since 1997, said the allegations were absolutely false.

"Unfortunately, now we have use more resources on a frivolous action made by an admitted, convicted murder, but we will continue in our defense. And I'm confident the case will be dismissed," Perrilloux said.

Ashton, the juvenile at the center of the suit, recanted his prior trial testimony in a November 2017 hearing, after telling prosecutors in 2016 that he stood by that same testimony.

Jim Craig, director of the New Orleans office of the Roderick and Solange MacArthur Justice Center, said Dick's opinion "makes clear that in the United States, nobody is above the law." 

The civil rights firm is representing Wearry.

Follow David J. Mitchell on Twitter, @NewsieDave.