LIVINGSTON — A federal appeals court is weighing whether the district attorney for a part of the Florida Parishes can be sued for coaxing false testimony out of a 10-year-old witness in a notorious murder trial, two years after a judge said immunity typically enjoyed by law enforcement and other government officials doesn’t apply in this case.
A panel of judges at the 5th U.S. Circuit Court of Appeals in New Orleans heard oral arguments Thursday on whether to let a 2018 lawsuit proceed against 21st Judicial District Attorney Scott Perrilloux and a now-deceased sheriff’s detective. They're accused of coercing false evidence from Jeffrey Ashton, a young witness in the high-profile 2002 murder trial of Michael Wearry.
“The fact that District Attorney Perrilloux holds the office of prosecutor does not mean that he has absolute immunity when he detains someone for questioning or shows them a photo lineup,” Eric Foley, an attorney for the MacArthur Justice Center, told the judges. The group represents Wearry.
Wearry was convicted and condemned to die for the killing of Albany High School student Eric Walber near the Livingston-Tangipahoa parish line in May 1998. The U.S. Supreme Court threw out Wearry’s capital murder conviction in 2016 over the government's failure to share some evidence with those defending Wearry.
Two years later, as Wearry sought a new criminal trial, his civil lawyers sued Perrilloux and sheriff's detective Marlon Kearney Foster, accusing them of pushing Ashton to offer a fabricated story on the witness stand in 2002.
The officials shaped the tale to corroborate points of separate, key testimony offered by a jailed informant who implicated Wearry in killing Walber, the lawsuit alleges. The lawsuit says Ashton, who was 10 at the time of the murder and 14 during the trial, was in the juvenile criminal system and vulnerable to intimidation by law enforcement.
U.S. District Judge Shelly Dick wrote in 2019 that Wearry had met the minimum requirement for having his complaint proceed, citing "brazen constitutional violations."
"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 ruled then.
After obtaining a second trial, Wearry pleaded guilty in 2018 to manslaughter charges for Walber's death and received a 25-year prison sentence, which he is presently serving.
Thursday's hearing was over Perrilloux and Foster's appeal on the MacArthur Justice Center lawsuit.
Foster died recently of COVID-19, meaning Perrilloux is joined only by the late detective’s estate as a defendant in the case.
Attorneys for Foster’s estate and Perrilloux on Thursday offered a single statement to the 5th Circuit judges stressing the reach of absolute immunity in protecting prosecutors, as established by the U.S. Supreme Court.
Perrilloux, who did not attend the audio-conference oral arguments hearing on Thursday, said he is confident the high court will rule in favor of law enforcement officials despite the district judge’s decision two years ago.
“Frankly, I’m not very worried about this lawsuit,” the district attorney told The Advocate after the hearing. “But it would be nice to get it behind us.”
Several months could pass before the 5th Circuit decides whether the lawsuit should proceed.