Ho, Dubitante

I can’t remember who said it, but someone once challenged the universe to proffer one decent thing Fifth Circuit Judge James Ho has ever done. Challenge accepted.

Worthy civil rights claims are often never brought to trial. That’s because an unholy trinity of legal doctrines—qualified immunity, absolute prosecutorial immunity, and Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978)—frequently conspires to turn winnable claims into losing ones.

This case illustrates that conspiracy in action. Under the doctrine of absolute prosecutorial immunity, Wearry cannot bring suit against the prosecutor or the police officer who wrongly put him on death row. And that is so even if we assume (as we must at this stage) that the prosecutor and police officer engaged in a malicious campaign to coerce false testimony against him. Nor could Wearry sue the municipality that employed the prosecutor and police officer, because neither of them was operating pursuant to an official municipal policy or custom. See id. at 691 (“Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy . . . caused [the] constitutional tort”); id. (“[A] municipality cannot be held liable under [42 U.S.C.] § 1983 on a respondeat superior theory.”).

Yes, you read that right. Those were the words of Judge Ho, dubitante. Dooby what?

Dubitante: Doubting. Term is affixed to the name of a judge, in the reports, to signify that he doubted the decision rendered.

In a sense, the case before the circuit was fairly straightforward, a prosecutor coerced a witness to lie on the stand to convict the defendant, Wearry, After his conviction was reversed by the Supreme Court, he sued the prosecutor and detective who framed him under § 1983. The Fifth Circuit held that the district attorney was not entitled to absolute immunity as this conduct did not occur as part of his adjudicatory function, but as part of his investigatory function. If the former, absolute immunity applies. If the latter, only qualified immunity applies.

We agree with the district court that Wearry’s complaint alleges misconduct that is fundamentally investigatory in nature. When a prosecutor joins police in the initial gathering of evidence in the field, he acts outside his quasi-judicial role as an advocate; instead he acts only in an investigatory role for which absolute immunity is not warranted. Therefore, District Attorney Perrilloux is not entitled to absolute immunity for his actions. Nor is Detective Foster absolutely immune. As the Supreme Court has made clear, a police officer is not entitled to the absolute immunity reserved for a prosecutor.

Cool, right? Enter Judge Ho, dubitante.

There are good reasons to believe that the doctrine of absolute prosecutorial immunity is wrong as an original matter. So I am tempted to join the majority and hold that prosecutorial immunity does not foreclose this case from proceeding to the merits.

But I am doubtful that governing precedent permits us to reach that result. The Supreme Court has repeatedly affirmed the doctrine of prosecutorial immunity. And our circuit has dutifully applied it—even in the face of disturbing claims of prosecutorial misconduct.

In other words, Ho isn’t arguing that the ultimate outcome, that the § 1983 suit be allowed to proceed, is a bad outcome. Rather, his argument is that the “trinity of legal doctrines” that protect prosecutors from liability for engaging in such outrageously improper conduct are wrong, but that the precedent which the court is obliged to follow doesn’t allow the court to skirt the issue by calling it “investigatory.”

As a panel, we’re bound to follow both Supreme Court and circuit precedent—whether we like it or not. Moreover, if fidelity to precedent means anything, it means construing precedent faithfully.

Of course, “judges can always draw razor-thin distinctions and contend that a particular issue is not governed by a non-originalist precedent.” Josh Blackman, Originalism and Stare Decisis in the LowerCourts, 13 NYU J.L. & Liberty 44, 51 (2019). But “judges should resist this temptation.” Id. See also Williams v. Homeland Ins. Co., 18 F.4th 806, 821 (5th Cir. 2021) (Ho, J., concurring) (same).

I see no principled basis that the panel majority could possibly invoke to distinguish Cousin. To the contrary, the theories put forth by the majority are directly contradicted by Cousin itself.

Ho argues that Cousin v Small, a 2003 Fifth Circuit decision, created a two-part test for distinguishing between a prosecutor’s fabrication of testimony against a defendant. The majority responds that Cousin did no such thing.

But our brother’s primary theory about why Cousin dictates a different outcome here is his claim that the Cousin opinion articulates a two-step test which Perrilloux and Foster satisfy. Specifically, “a prosecutor accused of falsifying witness testimony is entitled to absolute immunity if he does so (1) after indictment or determination of probable cause, and (2) with the intent of presenting that testimony at trial.” Infra at 22. Respectfully, Cousin articulated no such test. While both of the above elements existed in that case, the panel never held that they alone were sufficient to grant absolute immunity. Indeed, the latter element is mentioned only twice and merely in passing at that.

What’s curious isn’t that there is disagreement about whether Cousin applies, or what exactly was the test created in Cousin, if it created a test at all. Such disputes are hardly unusual between judges, and many decisions are open to such dispute, words being subject to interpretation. Whether the majority or Ho has the better argument is something of a toss up.

The record therefore demonstrates that, at the time of Jordan’s (and of Simino’s)  conversations with Rowell, in which Jordan allegedly told Rowell to implicate Cousin falsely in the murder and coached him on how to testify, Jordan was acting as an advocate rather than as an investigator. The interview was intended to secure evidence that would be used in the presentation of the state’s case at the pending trial of an already identified suspect, not to identify a suspect or establish probable cause.^[10] Jordan therefore is entitled to absolute immunity with respect to this claim.

There are also significant issues based on the state of the case, as the Cousin court affirmed absolute immunity under summary judgment, which shifts the burden to the plaintiff to show a triable issue of fact. But I digress.

Could Judge Ho have just gone along for the ride if, as he asserted dubitante, that he approved of the outcome, even if his beef was with the faithful application of precedent? Could he have nonetheless concurred in the result while raising the “unholy trinity,” the originalist efficacy of which he doubted? Of course he could have, but even with this astounding position toward this “conspiracy,” he’s still Judge James Ho.