Published on: Monday, May 9, 2022

In 2016, the Supreme Court tossed out the murder conviction of Michael Wearry, who was found guilty of a 1998 murder and sentenced to death in 2002. After that conviction was vacated, Wearry sued Scott Perriloux, a prosecutor, and Marlon Foster, a police officer, alleging that the prosecutor and police officer conspired to intimidate and coach a 10-year-old child into providing false testimony implicating Wearry in the murder.

Prosecutor and police officer: our conduct is protected by absolute prosecutorial immunity.

District court: no immunity.

Fifth Circuit: It's one thing for a prosecutor to allow a witness to lie on the stand, but it's quite another for a prosecutor to invent the witness's testimony out of whole cloth. Definitely no immunity. Concurrence: Absolute prosecutorial immunity is probably "wrong as an original matter" (and so are qualified and municipal immunity).

The case is Wearry v. Foster, 20-30406 (5th Cir. May 3, 2022).