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A prosecutor and police officer who fabricated evidence to wrongfully convict a former Louisiana death-row prisoner are not entitled to immunity in a lawsuit alleging they “knowingly and deliberately fabricated” that testimony, the U.S. Court of Appeals for the Fifth Circuit ruled.
Michael Wearry, a Louisiana prisoner whose conviction and death sentence were overturned by the U.S Supreme Court in 2016 because prosecutors withheld exculpatory evidence, had filed suit in 2018 against Livingston Parish District Attorney Scott Perrilloux (pictured) and former Sheriff’s Deputy Marlon Kearney Foster, alleging that they manufactured testimony and coerced a vulnerable juvenile, Jeffery Ashton, “to falsely implicate Wearry in the homicide of Eric Walber.”
“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,” wrote Judge James L. Dennis in his May 3, 2022 decision.
In response to Wearry’s 2018 lawsuit, Perrilloux and Foster had each filed motions claiming absolute prosecutorial immunity. Chief Judge Shelly D. Dick of the U.S. District Court for the Middle District of Louisiana issued opinions denying Perrilloux’s motion in June 2019 and denying Foster’s motion one year later, writing that immunity was not available “for allegedly pulling a 14-year-old boy out of school on at least six occasions to intimidate him into offering false testimony at a murder trial – false testimony concocted wholesale by that detective and prosecutor and carefully rehearsed, the child’s compliance ensured with scare tactics like taking him to view the murder victim’s bloody car.”
The Fifth Circuit agreed with the district court’s assessment that “neither defendant [is] entitled to absolute immunity for fabricating evidence by intimidating and coercing a juvenile to adopt a false narrative the defendants had concocted out of whole cloth.”
Attorneys for Georgia death-row prisoner Virgil Presnell, Jr. (pictured left, with his mother) have filed a lawsuit arguing that Attorney General Chris Carr violated a written agreement when his office set a May 17, 2022 execution date for their client.
Executions in Georgia have been on hold since the onset of the COVID-19 pandemic. In April 2021, Carr agreed not to set any execution dates until three conditions had been met: the expiration of the Georgia Supreme Court’s COVID-19 judicial emergency, the resumption of normal visitation at state prisons, and a COVID vaccine that’s “readily available to all members of the public.” In a lawsuit filed May 9 in Fulton County Superior Court, Presnell’s attorneys say that Carr violated that agreement in scheduling Presnell’s execution. Georgia prisons still have a modified visitation policy, and COVID vaccines are not available to children under 5.
The agreement also said that, once the criteria were met, the state first intended to seek an execution date for a different prisoner, Billy Raulerson. Raulerson’s execution was to be scheduled at least three months after the conditions were met, and the state said the next execution would be scheduled three months after that. Instead, Presnell’s execution was the first one scheduled, and his attorneys were given far less than the agreed-upon notice period. “Contrary to the agreement, the Attorney General gave the Federal Defender just two days of notice that they intended to pursue Mr. Presnell’s execution warrant instead of the promised six months after the conditions had been met,” the lawsuit says. “These actions constitute a clear breach of the Agreement and will lead to irreparable harm if not enjoined by this Court.”
