Cousin v. Small, et al

REVISED MARCH 27, 2003
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 01-30745
_______________
SHAREEF COUSIN,
Plaintiff-Appellant,
VERSUS
ANTHONY SMALL, ET AL.,
Defendants,
BYRON BERRY, ROGER JORDAN,
AND HARRY CONNICK,
INDIVIDUALLY AND IN HIS CAPACITY AS DISTRICT ATTORNEY FOR ORLEANS PARISH,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
March 24, 2003

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2
Before SMITH and BENAVIDES, Circuit
Judges, and FITZWATER,* District Judge.
PER CURIAM:
Shareef Cousin sued employees of the po-
lice department and the district attorney’s of-
fice, alleging various violations of his constitu-
tional rights in connection with his prosecution
for the murder of Michael Gerardi. The dis-
trict court found for defendants on immunity
grounds. Finding no error, we affirm.
I.
On March 2, 1995, Gerardi and Connie
Babin emerged from dinner at a New Orleans
restaurant. As they neared Gerardi’s car, three
black men approached and robbed them; one
of the men confronted Gerardi and fatally shot
him.
Later that month, Cousin, then sixteen
years old, was charged with the murder. At
trial, the state relied solely on testimonial ev-
idence, including Babin’s identification of
Cousin as the perpetrator. The prosecution al-
so presented testimony from witnesses who
claimed to have seen three black men in the
vicinity of the crime. At a photo line-up three
weeks after the murder, two of these witnesses
tentatively had identified Cousin as one of the
three men.
Finally, the state presented the testimony of
James Rowell, a friend of Cousin’s. The pro-
secution claimed in its opening statement that
in August 1995 Rowell had told police of a
conversation he had with Cousin in March
1995, in which Cousin admitted to killing a
man in the New Orleans French Quarter during
an unsuccessful armed robbery. When called
to testify, however, Rowell denied that Cousin
had made such a statement and claimed that
his assertions had been coerced by promises of
favorable treatment on pending charges.
The prosecution then called, as impeach-
ment witnesses as to what Rowell had told
police regarding Cousin, the attorney who had
represented Rowell on the pending charges
and a police officer who was present at the
August 1995 meeting. The prosecution later
relied on this impeachment testimony as sub-
stantive evidence of Cousin’s guilt.
The defense presented evidence that at the
time of the murder, approximately 10:26 p.m.,
Cousin was playing in a city recreation depart-
ment basketball game. Two recreation depart-
ment supervisors, Cousin’s coach, and an op-
posing team’s player testified that the game
had started late and ended late, and the coach
testified that he dropped Cousin off at his
house at approximately 10:45 p.m.
The jury convicted Cousin and sentenced
him to death. Cousin spent over a year on
death row, but the conviction was overturned
for prosecutorial misconduct. State v. Cousin,
710 So. 2d 1065 (La. 1998).1 The court based
*District Judge of the Northern District of
Texas, sitting by designation.
1 In his opening brief on appeal, Cousin, with-
out citation to the instant record, makes the follow-
ing assertion:
The prosecutorial misconduct identified
by the Louisiana Supreme Court . . . turned
out to be the tip of the iceberg. Indeed, the
arrest and conviction were the product of a
sustained campaign to frame Cousin. A
significant part of that effort involved
unlawful and unconstitutional actions by
numerous officers of the New Orleans
(continued...)

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3
its reversal on the admission of the testimony
of Rowell’s attorney and the police officer as
impeachment evidence, holding that “even if
the issue of admissibility was close, we would
be compelled to reverse this conviction be-
cause of the prosecutor’s flagrant misuse of
that evidence for purposes that the prosecutor
himself admitted was an improper use of such
evidence” (i.e. the misuse of the testimony as
substantive evidence of guilt). Id. at 1072.
The court also noted that Jordan had with-
held obviously exculpatory material, although
the court did not base its judgment on that
conduct. Id. at 1067 n.2, 1074 n.8. The court
explained that, when questioned on the night
of the murder, Babin told the police that she
did not get a good look at the gunman and
probably would not be able to identify him.
She also stated, in an interview three days lat-
er, that she was not wearing her corrective
lenses on the night of the murder and could see
only patterns and shapes. The prosecutors did
not disclose these statements to the defense,
even though the statements would have cast
serious doubt on the veracity of Babin’s subse-
quent identification of Cousin.
The state thereafter announced its intention
to retry Cousin, but eventually, in January
1999, it dismissed all charges. One year later,
Cousin filed the present action under 42
U.S.C. §§ 1983 and 1985, alleging misconduct
by the police and the prosecution. Cousin
charged that, from the outset, he was the vic-
tim of an effort to frame him for the murder
and that the police had engaged in numerous
instances of misconduct in an effort to manu-
facture a case against him. Cousin also con-
tended that the prosecutors, Byron Berry and
Roger Jordan, had abused their positions in an
effort wrongfully to secure his conviction.
Cousin also brought claims against the district
attorney, Harry Connick, seeking to hold him
liable for the alleged failure adequately to train
and supervise the prosecutors in his office.
Berry, Jordan, and Connick moved to dis-
miss the claims under FED. R. CIV. P. 12(b)(6)
or for summary judgment. The district court
granted the motions, holding that Berry and
Jordan were protected by the doctrine of abso-
lute prosecutorial immunity and that Connick
was entitled to summary judgment because the
claims against him were barred on grounds of
qualified immunity. The judgment did not dis-
pose of Cousin’s claims against the police
defendants, which have been stayed pending
the resolution of this appeal.
II.
Defendants claim this court lacks jurisdic-
tion over the instant appeal. After the district
court granted the motions for dismissal and
summary judgment, Cousin filed a notice of
appeal. The judgment did not dispose of all
defendants, and when Cousin filed his notice,
the court had not yet issued an unequivocal
certification under FED. R. CIV. P. 54(b). Cou-
sin requested, and the court issued, a rule
54(b) final judgment nunc pro tunc. Defen-
dants contend that Cousin’s notice of appeal is
1(...continued)
Police Department. For the most part, the
specifics of thse actions are not directly
before this Court because they support
claims against other defendants in the
caseSSpolice officersSSwho are not entitled
to absolute immunity, and whose cases re-
main in the district court.
We express no view on the accuracy of this
statement, except to agree with Cousin that our
disposition of the appeal by the current appellants
is not intended to affect any ongoing proceeding
against certain police officers.

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4
defective because it was filed before the court
entered the rule 54(b) judgment and that, as a
result, we lack appellate jurisdiction. We dis-
agree.
“A notice of appeal filed after the court an-
nounces a decision or orderSSbut before the
entry of the judgment or orderSSis treated as
filed on the date of and after the entry.” FED.
R. APP. P. 4(a)(2). Under rule 4(a)(2), an ap-
peal from a nonfinal decision may serve as an
effective notice of appeal from a subsequently
entered final judgment if the nonfinal decision
“would be appealable if immediately followed
by the entry of judgment.” FirsTier Mortg.
Co. v. Investors Mortg. Ins. Co., 498 U.S.
269, 276 (1991).
This court has applied the FirsTier rule in
the context of the entry of a rule 54(b) certifi-
cation after a prematurely filed notice of ap-
peal, precisely the situation presented by this
case. Barrett v. Atl. Richfield Co., 95 F.3d
375 (5th Cir. 1996). “Because the district
court’s order would have been appealable if
followed by Rule 54(b) certification and order,
rule 4(a)(2) permits this court to exercise its
jurisdiction,” where a final judgment was actu-
ally entered subsequent to the filing of the no-
tice of appeal. Id. at 379. Under Barrett,
therefore, we have jurisdiction.
III.
Cousin challenges the dismissal of his
§ 1983 claims against prosecutors Berry and
Jordan on the basis of absolute prosecutorial
immunity. We review dismissals under rule
12(b)(6) de novo, accepting all well-pleaded
facts as true. Morin v. Moore, 309 F.3d 316,
319 (5th Cir. 2002).
Section 1983 creates a damages remedy for
the violation of federal constitutional or statu-
tory rights. Although the section contains no
reference to official immunity, “Congress in-
tended the statute to be construed in the light
of common-law principles that were well set-
tled at the time of its enactment.” Kalina v.
Fletcher, 522 U.S. 118, 123 (1997) (citing
Tenney v. Brandhove, 341 U.S. 367 (1951);
Briscoe v. LaHue, 460 U.S. 325, 330 (1983)).
Therefore, the immunities existing at common
law at the time of § 1983’s enactment are ap-
plicable to actions brought under it.
In Imbler v. Pachtman, 424 U.S. 409
(1976), the Court held that prosecutors are
shielded from liability under § 1983 for certain
conduct. After analyzing the absolute immu-
nity afforded prosecutors at common law, the
Court concluded that the policy underlying
that immunity supports its application to
§ 1983 claims. Id. at 427. Consequently,
“prosecutors are absolutely immune from
liability under § 1983 for their conduct in
‘initiating a prosecution and in presenting the
State’s case,’ insofar as that conduct is ‘inti-
mately associated with the judicial phase of the
criminal process[.]’”2
The prosecutorial immunity recognized in
Imbler, however, does not apply to any and all
actions taken by a prosecutor. Rather, the
Court fashioned a functional test under which
prosecutors are absolutely immune with re-
spect to activities that are “intimately associ-
ated with the judicial phase of the criminal pro-
cess.” Id. at 430. Conduct falling within this
category is not limited “only to the act of
initiation itself and to conduct occurring in the
courtroom,” Buckley v. Fitzsimmons, 509 U.S.
259, 272 (1993), but instead includes all ac-
2 Burns v. Reed, 500 U.S. 478, 486 (1991) (ci-
tations omitted) (quoting Imbler, 424 U.S. at 430-
31).

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5
tions “which occur in the course of [the prose-
cutor’s] role as an advocate for the State,” id.
at 273.
Therefore, the central question with respect
to each of Cousin’s claims against Berry and
Jordan is the nature of the conduct upon which
the claim is based. If the conduct is advoca-
tory, and therefore related to the defendants’
prosecutorial function, absolute immunity ap-
plies, and the district court’s rejection of the
claim was not error.
A.
Cousin maintains that Berry and Jordan
coerced and intimidated Rowell so that he
would give false trial testimony that would
implicate Cousin in the Gerardi murder. There
is no indication in Cousin’s complaint, how-
ever, that he alleged a coerced testimony claim
concerning Rowell. Although this complete
failure seems logically to support dismissal for
failure to state a claim, defendants appear to
have assumed, in moving for dismissal or
summary judgment, that Cousin had asserted
such a claim; they did not seek dismissal on the
ground that he had not. And Cousin and
defendants briefed the claim as though it had
been pleaded. We therefore will not affirm on
the basis of rule 12(b)(6). Defendants, how-
ever, also moved for summary judgment,
which we conclude is warranted, because the
record establishes that Jordan and Berry3 were
acting as advocates.
1.
At the summary judgment stage of a § 1983
action, a defendant asserting immunity is not
required to establish the defense beyond per-
adventure, as he would have to do for other
affirmative defenses.4 “The moving party is
not required to put forth evidence to meet its
summary judgment burden for a claim of
immunity. It is sufficient that the movant in
good faith pleads that it is entitled to absolute
or qualified immunity.” Beck v. Tex. Bd. of
Dental Exam’rs, 204 F.3d 629, 633 (5th Cir.
2000). “Once the [movant] asserts this affir-
mative defense, the burden shifts to the plain-
tiff to rebut it.” Id. at 633-34 (quoting What-
ley v. Philo, 817 F.2d 19, 20 (5th Cir.1987))
(internal quotation marks omitted).
Defendants asserted, in their summary judg-
ment motion, that they are entitled to absolute
immunity. Accordingly, the burden shifted to
Cousin to introduce summary judgment evi-
dence that would permit a reasonable trier of
fact to find that, when Jordan allegedly told
Rowell to lie, Jordan was functioning as the
equivalent of a detective rather than as an
3 Because the summary judgment evidence
shows that Berry’s involvement was exceedingly
limited, we restrict our discussion to Jordan. Row-
ell did not refer to Berry in his declaration; in his
trial testimony, he stated that, on one occasion,
another district attorney had accompanied Jordan
to meet with him. Although Rowell could not iden-
tify the individual, Berry confirmed, in his de-
(continued...)
3(...continued)
position, that he had been present once when Jor-
dan and Rowell met.
4 Cf. Chaplin v. NationsCredit Corp., 307
F.3d 368, 372 (5th Cir. 2002) (“To obtain
summary judgment, ‘if the movant bears the
burden of proof on an issue . . . because . . . as a
defendant he is asserting an affirmative defense, he
must establish beyond peradventure all of the
essential elements of the . . . defense to warrant
judgment in his favor.’” (quoting Fontenot v.
Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986))
(omissions in original)).

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6
advocate preparing for trial.5
2.
Citing Buckley, Cousin contends that the
interrogation of Rowell constitutes investiga-
tory activity, because Jordan was seeking to
acquire evidence for later presentation at trial.
In Buckley, 509 U.S. at 274, however, the
prosecutors sought to develop evidence, in the
absence of probable cause, to arrest the sus-
pect or initiate judicial proceedings. Although
Buckley did not explicitly hold that all witness
interviews conducted after indictment are ad-
vocatory in nature, the Court’s reasoning
strongly indicates that many, perhaps most,
such interviews are likely to be advocatory
rather than investigative.
In Buckley, the Court focused on the lack
of probable cause to arrest the suspect as an
indication of the investigative nature of the
prosecutors’ conduct and noted that “[a] pro-
secutor neither is nor should consider himself
to be, an advocate before he has probable
cause to have anyone arrested.” Id. The nec-
essary implication is that after probable cause
has been established, it is more likely that the
prosecutor acts as an advocate. Although the
Court noted that a determination of probable
cause “does not guarantee a prosecutor abso-
lute immunity from liability for all actions tak-
en afterwards,” id. at 274 n.5, the Court’s
treatment of the issue demonstrates that the
existence of probable cause with respect to a
particular suspect is a significant factor to be
used in evaluating the advocatory nature of
prosecutorial conduct.6
“There is a difference between the advo-
cate’s role in evaluating evidence and inter-
viewing witnesses as he prepares for trial, on
the one hand, and the detective’s role in
searching for the clues and corroboration that
might give him probable cause to recommend
that a suspect be arrested, on the other hand.”
Id. at 273. In this case, therefore, the question
of absolute immunity turns on whether Cousin
had been identified as a suspect at the time
Rowell was interviewed and whether the in-
terview related to testimony to be presented at
trial.
In response to the summary judgment mo-
tion, Cousin cited Rowell’s trial testimony7
5 See Buckley, 509 U.S. at 273 (“We have not
retreated, however, from the principle that acts un-
dertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and
which occur in the course of his role as an advocate
for the State, are entitled to the protections of
absolute immunity.”).
6 Cousin cites Moore v. Valder, 65 F.3d 189,
194 (D.C. Cir. 1996), which held that absolute im-
munity is inapplicable with respect to allegations of
witness tampering, because such activity is directed
at “the collection of information to be used in a
prosecution.” Moore, however, is inconsistent with
Brandley v. Keeshan, 64 F.3d 196, 201 (5th Cir.
1995), in which we held that the prosecutor
retained his absolute immunity even in the face of
allegations that he had directed the intimidation of
witnesses in an effort to suppress their testimony.
Further, the conclusion of the District of Columbia
Circuit, in Moore, that the collection of
information for use in a prosecution is necessarily
investigative rather than advocatory conduct dem-
onstrates a much narrower conception of the ad-
vocatory role than is justified by Imbler, in which
the Court explicitly recognized that “[p]reparation,
both for the initiation of the criminal process and
for a trial, may require the obtaining, reviewing,
and evaluating of evidence.” Imbler, 424 U.S. at
431 n.33 (emphasis added).
7 Rowell’s trial testimony included an in-
(continued...)

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7
and a declaration from Rowell. Rowell’s trial
testimony addresses in detail his allegations
that prosecutor Jordan and his defense coun-
sel, George Simino, told him to lie about Cou-
sin to avoid a lengthy sentence for armed
robbery.
It is uncertain from this evidence whether
Cousin had already been charged or arrested at
the time of the events alleged. On the one
hand, Rowell seemed to aver that Simino and
Jordan had given him these instructions after
Cousin had already been charged with mur-
der.8 On the other hand, Rowell testified that
when he spoke with two homicide detectives,
he had already been told to lie.9 This suggests
that Jordan was still functioning as an investi-
gator, and it might permit a reasonable trier of
fact to find in Cousin’s favor on the immunity
issue.
Rowell’s declaration, however, eliminates
this ambiguity and establishes, without genuine
dispute, that Jordan was functioning as an
advocate when he allegedly instructed Rowell
to lie. Rowell makes it plain that, before he
and Jordan ever met, he had already talked to
the police, Simino had already advised him that
he “needed to give up Shareef on the murder,”
and Jordan had already talked with Simino. It
also demonstrates that, when Jordan met with
Rowell, he did so to tell him how he should
testify in court and to rehearse his testimony
with him. Rowell stated, in relevant part:
2. In my initial statements to the
police, I never said nothing in that state-
ment about no murder because I didn’t
know anything about it. Later, George
Simno [sic], my lawyer, came to me and
told me I was looking at a [sic] 800
years unless I had something for them
on Shareef committing the murder.
Simno told me, “then you’d get 15
years, otherwise life.” I argued about
taking the 15 years and being able to tell
them nothing since I did not know any-
thing. Simno insisted, “you need to give
up Shareef on the murder to get the 15
years.” It was clear from this exchange
that he had talked to the prosecutor
(who turned out to be Jordan) before he
ever brought the issue up with me.
3. I met with Roger Jordan two
times. Jordan provided me with the
questions I would be asked in court and
the answers, always telling me “the main
thing is just to emphasize how Shareef
was bragging to you all about doing the
murder.” During the time before trial, I
was housed at OPP and would get “at-
torney visit” callouts. I would be es-
corted to a visitation room at OPP and
7(...continued)
chambers conference that involved the state court,
counsel for the parties, and Rowell. The confer-
ence appeared to relate primarily to admonitions
from the court and from counsel that Rowell not
cause a mistrial by testifying about other bad acts
that Cousin had committed. Rowell foreshadowed
in chambers, however, what he would later assert
in court: that the district attor ney and Rowell’s
attorney had instructed him to implicate Cousin
falsely.
8 Rowell testified, “My lawyer came to me with
a file, and he said the only [w]ay I can get you less-
er time is if I testify against Shareef Cousin on a
murder charge.”
9 The colloquy was as follows: “[Question:]
Now, do you also remember telling homicide de-
tectives . . . about this conversation you had with
Shareef Cousin on March 4, 1995? [Answer:]
I only told them what you all told me to say.”

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8
find Jordan waiting for me there. We
would practice what I should say there.
* * *
5. Jordan told me to lie about
whether I had a deal with the State. But
I knew that the reason my sentencing
date kept getting moved back was to
make sure that it would occur after the
trial date, so they could hold that over
me. I knew I had a deal, and they knew
it too. If I testified for them, I would
get 15 years. Jordan tried to get me to
lie on a number of points. He was not
asking me what I was going to say; he
was telling me what to say.
* * *
(Emphasis added.)
The record therefore demonstrates that, at
the time of Jordan’s (and of Simino’s) conver-
sations 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 immu-
nity with respect to this claim.
B.
Cousin alleges that the prosecution sup-
pressed significant exculpatory evidence in vi-
olation of Brady v. Maryland, 373 U.S. 83
(1963). Cousin notes Berry’s and Jordan’s
failure to disclose that Babin, the witness who
identified Cousin as the perpetrator, had poor
vision and was not wearing her glasses or con-
tacts at the time of the murder and that, as a
result, her subsequent identification of Cousin
was suspect. Cousin also alleges that the pro-
secutors failed to disclose information linking
other potential suspects to the crime. Al-
though these allegations, if true, would estab-
lish prosecutorial misconduct, the suppression
of exculpatory evidence is shielded by absolute
immunity.11
Cousin concedes that absolute immunity
generally applies to Brady violations, but he
notes that prosecutors are not shielded from
liability for conduct beyond the scope of their
jurisdiction; he contends that, in cases of dras-
tic and systematic departure from the proper
exercise of prosecutorial power, prosecutors
should be deemed to have acted without jur-
isdiction. In effect, Cousin argues for an egre-
giousness exception to the doctrine of prose-
cutorial immunity.
For purposes of immunity determinations,
however, the presence or absence of jurisdic-
tion is determined with reference to whether
the challenged activity falls within the category
of conduct in which a prosecutor is generally
authorized to engage, rather than with refer-
ence to the wrongful nature or excessiveness
10 See Hill v. City of New York, 45 F.3d 653,
662-63 (2d Cir. 1995) (holding that the existence
of probable cause determines whether fabrication
is investigatory or advocatory); see also Milstein
v. Cooley, 257 F.3d 1004, 1011 (9th Cir. 2001)
(holding fabrication not protected because no
probable cause).
11 See Henzel v. Gerstein, 608 F.2d 654, 657
(5th Cir. 1979); see also Reid v. New Hampshire,
56 F.3d 332, 336 (1st Cir. 1995); Robinson v.
Volkswagenwerk AG, 940 F.2d 1369, 1373 n.4
(10th Cir. 1991).

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9
of the conduct.12 Wilful or malicious prosecu-
torial misconduct is egregious by definition,
yet prosecutors are absolutely immune from
liability for such conduct if it occurs in the ex-
ercise of their advocatory function. See Im-
bler, 424 U.S. at 430.
Absent immunity, the specter of litigation
could undermine prosecutors’ ability to exer-
cise their independent judgment with respect
to the initiation and conduct of criminal pro-
ceedings. See id. at 422-28. In essence, the
existence of the doctrine of absolute prosecu-
torial immunity represents a determination that
the need for “vigorous and fearless perfor-
mance of the prosecutor’s duty,” id. at 427,
justifies its regrettable but necessary cost,
namely, that it may sometimes bar the court-
house door to potentially meritorious claims.
We decline to adopt an exception to the doc-
trine of prosecutorial immunity that upsets that
balance.
C.
Cousin also challenges Berry’ s and Jor-
dan’s allegedly unlawful use of subpoenas to
interrogate several potential witnesses. Even
if these individuals were unlawfully forced to
discuss the case with the prosecution, how-
ever, Cousin, at most, has alleged a violation
of their constitutional rights, not his own. Al-
though Cousin’s constitutional rights may have
been violated by Berry’s and Jordan’s sub-
sequent decision to suppress exculpatory
evidence obt ained through the use of these
subpoenas, the suppression of exculpatory evi-
dence is shielded by absolute immunity, as we
have discussed.13
D.
Cousin’s final claim of prosecutorial mis-
conduct relates to the alleged detention of sev-
eral defense witnesses. Cousin contends that
during trial, Barry and Jordan, without inform-
ing the defense, either directly or through in-
termediaries, instructed several defense wit-
nesses to proceed to the district attorney’s of-
fice and remain there for the duration of the
trial. Cousin further avers that, as a result of
such interference, he was unable to locate
those witnesses and present their testimony,
depriving him of the right to call witness on his
own behalf, a right that has “long been rec-
ognized as essential to due process.” Cham-
bers v. Mississippi, 410 U.S. 284, 294 (1973).
The district court held that this conduct,
occurring as it did during the trial, was prose-
cutorial in nature and therefore shielded by ab-
solute immunity. Cousin contends the court
erred and that, despite the pendency of a judi-
cial proceeding, the relocation of the witnesses
was administrative action to which absolute
prosecutorial immunity does not apply.
Cousin correctly notes that, because the
test for absolute immunity is functional rather
than temporal, the mere fact that prosecutors
engage in certain conduct during trial should
not render them immune. What Cousin fails to
acknowledge, however, is that the timing of
events, while not determinative, can be highly
relevant to the inquiry into function.14 The
12 See Kerr v. Lyford, 171 F.3d 330, 337 (5th
Cir. 1999) (citing Stump v. Sparkman, 435 U.S.
349, 356-57 (1978)).
13 See Henzel, 608 F.2d at 657; see also Reid,
56 F.3d at 336; Robinson, 940 F.2d at 1373 n.4.
14 See Buckley, 509 U.S. at 274 (considering
stage of criminal justice process in determining
(continued...)

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10
pendency of a judicial proceeding is logically
related to the determination whether a prosecu-
tor’s “activities [are] intimately associated with
the judicial phase of the criminal process, and
thus [are] functions to which the reasons for
absolute immunity apply with full force.”
Imbler, 424 U.S. at 430.15
The question of absolute immunity there-
fore turns on whether, given the pending crim-
inal trial, Berry and Jordan undertook the de-
tention of these witnesses pursuant to their
role as advocates. Because their conduct was
directly related to the trial process, was en-
tered into in the context of an ongoing trial,
and was designed to secure a conviction, it
cannot be characterized as anything other than
advocatory. Therefore, the detention of wit-
nesses to prevent them from testifying in crim-
inal proceedings, while unlawful and improper,
is nonetheless shielded by absolute immunity.16
This result comports with our treatment of
other improper attempts to control witness
testimony and the presentation of evidence at
trial.17 Further, the contrary rule would have
the anomalous result of extending absolute im-
munity to the prosecutor who silences a wit-
ness through coercion or intimidation,
Brandley, 64 F.3d at 201, but denying it to the
prosecutor who achieves the same result
through deceit.
IV.
Cousin challenges the summary judgment
for Connick that was based on qualified
immunity. We review a summary judgment de
novo. Green v. CBS Broadcasting, Inc., 286
F.3d 281, 283 (5th Cir.), cert. denied, 123
S. Ct. 132 (2002).
Even when viewed in the light most
favorable to Cousin, the evidence does not
raise a genuine issue of material fact. To
succeed on his claim of failure to train or
supervise, Cousin must demonstrate that “1)
the [defendant] failed to train or supervise the
officers involved; 2) there is a causal
connection between the alleged failure to
supervise or train and the alleged violation of
the plaintiff’s rights; and 3) the failure to train
or supervise constituted deliberate indifference
to the plaintiff’s constitutional rights.”
Thompson v. Upshur County, 245 F.3d 447,
14(...continued)
functional characterization of the conduct); see
also Carter v. Burch, 34 F.3d 257, 263 (4th Cir.
1994) (considering pendency of judicial pro-
ceedings in making immunity determination).
15 See Hill, 45 F.3d at 662 (immunity appli-
cable because conduct occurred “after the prose-
cutorial phase of the case had begun”); Carter, 34
F.3d at 263 (holding pendency of post-conviction
judicial proceedings relevant to immunity deter-
mination); see also Milstein, 257 F.3d at 1011
(holding conduct unprotected because it occurred
before empanelment of grand jury or determination
of probable cause).
16 See House v. Belford, 956 F.2d 711, 721-22
(7th Cir. 1992) (finding prosecutor entitled to abso-
lute immunity where he denied that he had in-
structed deputy to bar courtroom to defendant’s
family and potential witnesses); cf. Brandley, 64
F.3d at 201 (holding that prosecutor retained ab-
(continued...)
16(...continued)
solute immunity despite allegations of witness in-
timidation in attempt to suppress testimony).
17 Brandley, 64 F.3d at 201 (witness intimi-
dation); Henzel, 608 F.2d at 657 (suppression of
exculpatory evidence and introduction of perjured
testimony).

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11
459 (5th Cir. 2001). To satisfy the deliberate
indifference prong, a plaintiff usually must
demonstrate a pattern of violations and that
the inadequacy of the training is “obvious and
obviously likely to result in a constitutional
violation. Id.
Cousin’s evidence is insufficient to create a
genuine issue of material fact as to whether
Connick’s alleged failure to sufficiently
enforce the office’s Brady policy constituted
deliberate indifference to the violation of
constitutional rights. As evidence of a pattern
of constitutional violations, Cousin relies
primarily on cases in which courts have found
that prosecutors under Connick’s supervision
failed to disclose exculpatory evidence as re-
quired by Brady. The district court noted that
Connick’s office handled tens of thousands of
criminal cases over the relevant time period,
and we agree with the court’s conclusion that
citation to a small number of cases, out of
thousands handled over twenty-five years,
does not create a triable issue of fact with re-
spect to Connick’s deliberate indifference to
violations of Brady rights.18
In any event, Cousin also failed to
demonstrate that the training or supervision
obviously was inadequate and plainly would
result in violations of constitutional rights. As
Cousin concedes, Connick’s policy and
training program was adequate. Therefore, it
is his failure to impose sanctions on
prosecutors responsible for Brady violations
that must be shown to render his supervision
inadequate.
Connick’s enforcement of the policy was
not patently inadequate or likely to result in
constitutional violations. Where prosecutors
commit Brady violations, convictions may be
overturned. That could be a sufficient
deterrent, such that the imposition of
additional sanctions by Connick is
unnecessary.
Further, prosecutors exercise independent
judgment in trying a case, and they have the
legal and ethical obligation to comply with
Brady. It is not apparent that these
prosecutors, who, Cousin concedes, are
adequately trained with respect to Brady
requirements, are so likely to violate their
individual obligations that the threat of
additional sanctions is required.
AFFIRMED.
18 On this point, Cousin also points to state-
ments by Connick and other attorneys with respect
to Brady rights, an open letter from a judge to the
office of the district attorney expressing concern
over its discovery practices, and evidence that Con-
nick promoted Jordan despite Jordan’s prior Brady
violations. Even taken together, these pieces of ev-
idence do not create a genuine issue with respect to
a pattern of Brady violations sufficient to establish
deliberate indifference.

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