June 3, 2019

Judge: District Attorney Can Be Held Liable for Fabricating Evidence in Investigation of Michael Wearry for Murder

BATON ROUGE, LOUISIANA – United States District Judge Shelly Dick today denied a motion filed by Scott Perrilloux, District Attorney for Louisiana’s 21st Judicial District, to dismiss Michael Wearry’s civil rights lawsuit that alleges Perrilloux and Marlon Kearney Foster, the former Chief of Detectives of the Livingston Parish Sheriff’s Office, fabricated an eyewitness account that implicated Michael Wearry in the April 1998 murder of Eric Walber and coerced an adolescent witness into adopting the false story.

Judge Dick noted that while prosecutors may be protected by immunity for actions taken as advocates for the state in court, the allegations in Wearry’s complaint “go beyond traditional prosecutorial advocacy into brazen constitutional violations that should not be entitled to absolute immunity simply because they can be laundered through the catch-all of ‘preparation for trial.’”

The lawsuit, filed in Federal District Court in Baton Rouge by Jim Craig, Emily Washington, and Eric Foley of the Louisiana office of the Roderick and Solange MacArthur Justice Center, alleges that Foster picked adolescent Jeffrey Ashton up from school without parental permission and took him to Perrilloux’s office. The Complaint states that “Perrilloux and Foster met with Ashton and provided the young witness with a completely fabricated story to adopt and repeat, implicating Wearry in Walber’s murder.” Ashton’s testimony at Wearry’s 2002 trial was relied on in the State’s closing argument as a reason to convict Wearry. Wearry was convicted of first-degree murder and sentenced to death. In December 2019, Wearry pled guilty to manslaughter, is no longer housed on death row awaiting execution, and will ultimately be released from prison.

Craig, who is the director of the Roderick and Solange MacArthur Justice Center’s Louisiana office, stated “Judge Dick’s opinion makes clear that in the United States, nobody is above the law. Even a prosecutor may be held accountable when that attorney directs the fabrication of evidence during a homicide investigation. We look forward to the discovery process, and ultimately to a trial, where we can confront these misdeeds in a public forum.”

The lawsuit seeks damages from Perrilloux individually, the District Attorney’s Office, and Foster. Punitive damages are also sought against the two individual Defendants.