Paulette H. Foster, et al. v. Michael Wearry

After Respondent’s murder conviction was reversed because the prosecution had failed to disclose evidence bearing on the credibility of its witnesses, he sued the prosecutor and the detective under Section 1983 for allegedly coercing a witness to testify at trial to a fabricated story. The Fifth Circuit affirmed the denial of absolute immunity and allowed the claim to proceed. Three judges dissented from the denial of rehearing en banc based on Buckley v. Fitzsimmons, 509 U.S. 259 (1993) and Cousin v. Small, 325 F.3d 627 (5th Cir. 2003), both of which require a “functional approach” under which absolute immunity applies to conduct that is “intimately associated with the judicial phase of the criminal process” that includes “initiating a prosecution and in presenting the State’s case.” Buckley, 509 U.S. at 270 (quoting Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976)). The Fifth Circuit nevertheless deemed the conduct to be “investigative” and not subject to absolute immunity despite falling clearly within the function of preparing the State’s evidence for use at trial. The questions that are therefore presented for review in this petition are: 1. Whether preparing witnesses to bolster existing evidence intended for use at the criminal trial, after probable cause has been determined, is a function “intimately associated with the judicial phase of the criminal process” and “in presenting the State’s case” such