Wearry v. Foster, No. 20-30406 (5th Cir. 2022): Prosecutor not entitled to absolute immunity in fabricated evidence suit

In Wearry v. Foster, the Fifth Circuit Court of Appeals affirmed the decision of the District Court and held that a District Attorney is not entitled to absolute immunity where they have fabricated a narrative wholesale and relied on a witness to testify as to that narrative. The plaintiff alleged that the District Attorney fabricated evidence by coercing a juvenile witness into lying about information that connected the plaintiff to a murder they did not commit.  The court reasoned that the actions taken by the District Attorney were outside of the prosecutorial functions protected by absolute immunity because the conduct dealt with gathering and acquiring evidence rather than with presenting that evidence. The court rejected the defendant’s argument that the conduct was advocatory in nature because the misconduct was an effort to control the witness’s testimony and the fabricated evidence was used in trial. The court found that fabricating false evidence cannot be seen as controlling a witness’s testimony and that the Supreme Court had already rejected the argument that such conduct is advocatory in nature solely because it was presented at trial. For these reasons, the court found that the District Attorney’s actions were in their role as an investigator and they were therefore not entitled to absolute immunity.