There has always been, and will always be, a legion of rogue criminal prosecutors who, with tunnel vision to win at all cost, kill innocent people through the power of the state.
That is not hyperbole. It is an indisputable, gut-wrenching fact.
That is precisely what Louisiana’s current Livingston Parish District Attorney Scott Perrilloux tried to do in a 1998 murder case.
Some context is necessary to understand this serious accusation.
Perrilloux is a White district attorney, and the defendant he charged in the murder case is a Black man. Perrilloux was elected district in 1996 and has been reelected every four years since. He boasts of a 90% conviction rate and touts that he was president of the Louisiana District Attorney’s Association from 2005-to 2006.
On April 4, 1998, just two years into Perrilloux’s first term in office, the bloody, badly bludgeoned body of 16-year-old Eric Walber was discovered on a rural gravel road in Tangipahoa Parish, a parish adjacent to Livingston Parish. The teenager, a local high school student, was working as a pizza delivery driver on the night he was killed.
The Livingston Parish Sheriff’s Department assumed lead control of the Walber murder investigation because they believed the crime was committed in Livingston Parish. The senseless murder generated substantial local media coverage as well as statewide media coverage
Livingston Sheriff investigators questioned several people, including Michael Wearry. Investigators had received tips that Wearry may have been involved in the crime. Wearry provided investigators with an alibi that he was attending a friend’s wedding in Baton Rouge on the night of Walber killing.
Investigators questioned many people as they followed up on tips and other information, but the investigation went cold, unable to connect anyone with any meaningful evidence to the crime.
Jailhouse Snitch Primes Pump of Death Machine
Two years later, in April 2000, a “jailhouse informant” named Sam Scott, who was serving a five-year sentence in the Louisiana prison system for a drug offense, came forward and implicated Wearry in the crime.
A Louisiana Supreme Court 2006 decision described how Scott implicated Wearry:
“Ultimately, Scott gave four recorded statements to police, and one unrecorded statement, each differing in certain respects. However, in each of his statements, Scott implicated” Wearry and four others in the Walber killing. The five named suspects and Scott were all friends that grew up together in the same neighborhood.
Scott’s statements that Wearry was involved in the crime were weak because Wearry’s alibi was strong, backed by non-felon witnesses. Still, Perrilloux was able to secure a grand jury indictment against Wearry.
But the district attorney knew that without any physical evidence connecting Wearry to the crime, he would have to rebut Wearry’s alibi defense with a credible, non-felon, witness.
District Attorney and Detective Join to Fabricate Evidence
Just three months before Wearry’s capital murder trial was set to begin in March 2002, DA Perrilloux got with one of the lead investigators in the Walber murder investigation, Livingston Parish Sheriff Detective Marlon Foster, to fabricate evidence. Together they concocted a story that placed Wearry near the victim’s vehicle on the night of the murder.
In a May 3, 2022 decision, the Fifth Circuit Court of Appeals outlined in stunning, unequivocal detail how the two officials planned to kill Wearry with a death penalty jury verdict:
“In December 2001, two and a half years after Walber’s murder, Detective Foster pulled Jeffery Ashton out of school without his mother’s permission and detained him at District Attorney Perrilloux’s office. Ashton was barely a teenager at the time. Over the course of at least six separate meetings beginning three months before trial, Foster and Perrilloux intimidated the child, who was facing his own juvenile proceedings, into adopting a story they had invented that placed Wearry near the crime scene at the time of the murder. At one meeting, the District Attorney and Detective falsified the results of a photo array lineup, indicating that the child had identified Wearry as the person he had seen in the fabricated story. In truth, Ashton had told the officials he did not recognize Wearry after they pointed him out in the photo array. At another meeting, Foster took the child to see the victim’s blood-stained car. Before and after each of these meetings, Perrilloux and Foster met to confer upon their efforts to pressure Ashton into adopting and testifying to the story they fabricated.
Nothing in the story the defendants invented was based on information the child had provided to the Detective or the District Attorney. As Wearry’s complaint plainly puts it, ‘Perrilloux and Foster made an intentional and deliberate decision to fabricate a narrative.’ In the District Attorney and Detective’s narrative, Ashton had gone to a ‘musician appreciation’ function at his church on the night of the murder. According to the false narrative, as he walked home alone, he heard footsteps and hid under a house. Following their script, Ashton testified that he then saw Wearry throw Walber’s cologne bottle into a ditch and get into Walber’s car. In reality, Ashton had been at a strawberry festival with his older sister in Ponchatoula miles away from the scene on the night of Walber’s murder. Ashton had spent the night with his sister in Hammond without coming back to Livingston Parish. Ashton had never seen Wearry before Foster and Perrilloux presented Wearry’s photo to him, and Ashton ‘had no personal knowledge’ of any facts implicating Wearry in the murder, including the fabrications invented by the defendants. In short, Foster and Perrilloux knowingly ‘provided the adolescent with a completely fabricated story’ and intimidated and coerced him to adopt and repeat the story in his testimony.”
DA Perrilloux Presents Fabricated Evidence to Get Death Penalty
Based on this unethical and illegal fabricated narrative created by DA Perrilloux, a jury convicted Wearry and sentenced him to death at his March 2002 trial.
To ensure that Wearry would receive a death sentence, Perrilloux told the jury: “Some cases cry out for the death penalty. This case screams for the death penalty. It hollers and yells.”
Wearry spent the next fourteen years on Louisiana’s death row before, in 2016, the U.S. Supreme Court reversed his conviction based on Perrilloux’s prosecutorial misconduct.
In December 2018, facing a second capital murder trial, Wearry’s attorney accepted a “plea deal” with the prosecution that Wearry would enter an “Alford Plea”—a plea without an admission of guilt—in exchange for a 25-year sentence to the reduced charge of manslaughter. The plea deal made Wearry immediately eligible for release from prison.
Eight months before the plea deal, the MacArthur Justice Center filed a civil rights lawsuit in federal district court against Perrilloux and Foster on behalf of Wearry. The case against the state prosecutor and a sheriff’s detective alleged that they fabricated evidence that deprived him of due process and a fair trial.
DA Seeks to Dismiss Civil Rights Lawsuit Based on Immunity
Perrilloux, of course, moved to dismiss the lawsuit because he enjoyed absolute immunity from civil liability.
U.S. District Court Judge Shelly D. Dick rejected that defense on June 24, 2020. The judge found it offensive that Perrilloux who, along with Detective Foster, was acting outside his official capacity as a prosecutor by “flexing the muscle and power of their respective offices to intimidate a fourteen-year-old child into doing what they wanted.”
The Fifth Circuit’s May 3, 2022 decision upheld Judge Dick’s thoughtful decision. With the claim of immunity being pierced, the case can now proceed to trial.
Here is tragedy underlying the official unethical and criminal wrongdoing in the Michael Wearry case.
Wearry’s misconduct claims went through at least a dozen Louisiana judges, most if not all of who are elected Republican judges. They saw nothing wrong with Perrilloux’s official effort to execute Michael Wearry, wrongfully based upon fabricated evidence.
And two Republican-appointed U.S. Supreme Court justices, Samuel Alito and Thomas, dissented in the court’s 2016 reversal order stating that Wearry’s conviction should stand and the death sentence carried out. And the lone dissenting judge in the Fifth Circuit ruling, James C. Ho, is also a Republican-appointed judge.
At least 15 state and federal Republican judges were willing to let District Attorney Scott Perrilloux’s effort to wrongfully kill Michael Wearry proceed without either sanction or liability. It was the Democratic-appointed judges that saved Michael Wearry from being wrongfully executed, and his eventual civil rights lawsuit to proceed.
Therein lays the real tragedy in the Michael Wearry case.
Justice is viewed through a political rather than a judicial lens. In the criminal persecution of Michael Wearry, a prosecutor believed he was involved and, with the solicited assistance of a law enforcement officer, fabricated evidence to get him convicted of a crime for which the State of Louisiana could kill him. This travesty of justice is the classic case of a prosecutor attempting to get a criminal conviction to gain political points; truth be damned.
And this is not an isolated case. All eleven of Louisiana’s death row exonerations since the 1970s involved official misconduct—a willingness of prosecutors and law enforcement officials to kill innocent people through either suppressed or fabricated evidence. Louisiana, while egregious, does not stand alone. Thousands of wrongfully convicted people waste away in our nation’s prison system based on fabricated evidence, and tragically, judges allow this injustice to continue citing the finality of convictions and protecting political allies.