REVISED MARCH 27, 2003



## In the



# United States Court of Appeals

for the Fifth Circuit

_______________



### m 01-30745

_______________



### S HAREEF 

### C OUSIN



### ,

Plaintiff-Appellant



### ,

VERSUS



### A NTHONY 

### S MALL



### , ET AL



### .,

Defendants,



### B YRON 

### B ERRY



### , R OGER 

### J ORDAN



### ,

AND 

### H ARRY 

### C ONNICK



### ,

I NDIVIDUALLY AND IN H IS C APACITY AS D ISTRICT A TTORNEY FOR O RLEANS P ARISH

,



### Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________

March 24, 20032

Before S MITH

and B ENAVIDES , Circuit

Judges, and F ITZWATER

, * District Judge.

P ER C URIAM :

Shareef Cousin sued employees of the police department and the district attorney’s office, alleging various violations of his constitutional rights in connection with his prosecution

for the murder of Michael Gerardi. The district co urt 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 , t hen sixteen

years old, was charged with the murder. At

trial, the state relied solely on testimonia l evi dence, including Babin’s identification o f

Cousin as the perpetrator. The prosecution also prese nt ed testimony from witnesses who

clai med t o have seen three black men in the

vicinit y 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 prosecution claimed in its opening statement that

in August 1995 Rowell had told police of a

conversation he had with Cousi n in March

1995, in which Cousin admitted to killing a

man in the New Orleans French Quarter during an unsuccessful arme d 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 impeachment witnesses as t o what Rowell had told

police regarding Cousin, the attorney who had

represented Rowell on the pending charges

and a po lice officer who was present at the

August 1995 meeting. The prosecution later

relied on this impeachment te st imo ny as substantive 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 department basketball game. Two recreation department supervisors, Cousin’s coach, and an opposing team’s pla yer testified that the game

had started late and ended late, and the coach

testified that he dropped Co u sin off at his

house at approximately 10:45 p.m.

The jury conv ict ed Cousin and sentenced

him to death. Cousin spent over a year o n

death row, but the conviction was overturned

for prosecutorial misconduct. S tate v. Cousin

, 710 So. 2d 1065 (La. 1998). 1 The court based

* District Judge of the Northern D i strict of

Texas, sitting by designation. 1 In his opening brief on appeal, Cousin, without citation to the instant record, makes the following assertion:

The prosecu torial 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

sustaine d campaign to frame Cousin. A

significa nt part of that effort involved

unlawful and unconstitutional actions by

numerous officers of the New Orleans

(continued...)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 admissibilit

y was close, we would

be compelled to reverse this conviction because of the prose cut o r’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 withheld obviously exculpatory material, although

the court did not base its judgment on that

conduct. I

d. at 1067 n.2, 1074 n.8. The court

explained that, when questioned on t h e night

of the murder, Babin told the police that she

did not ge t a good look at the gunman and

probably would not be able to id ent ify him.

She also stated, in an interview three days later, 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 t hough the statements would have cast

serious doubt on the veracity of Babin’s subsequent 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

b y the police and the prosecution. Cousin

charged that, from the outset, he was the victim of an effort to frame h im fo r the murder

and that the police had engaged in numerous

instances of misconduct in an effort to manufacture a case against him. Cousin also contended that the prosecutors, Byron Berry and

Roger Jordan, had abused their positions in an

effort wrongfully to secure his convicti on.

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 dismiss the claims under F ED

. R. C IV

. P. 12(b)(6)

or for summary ju dgment. The district court

granted the mo tions, holding that Berry and

Jordan were protected by the doctrine of absolute prosecutorial immunity and that Connick

was entitled to summary judgment because the

claims against him were barred on grounds of

qualified immunit y. The judgment did not dispose of Cousin’s claims against the police

defendants, which have been sta yed pending

the resolution of this appeal.

II.

Defendants claim this court lacks jurisdiction over the instant appeal. After the district

court granted the motions for dismissal and

summary judgment, Cousin filed a notice of

a ppeal. The judgment did not dispose o f all

defendants, and when Cousin filed his notice,

the court had not yet issu ed an unequivocal

certification under F ED

. R. C IV

. P. 54(b). Cousin requested, and the court issued, a rule

54(b) final judgment nunc pro t unc . Defendants contend that Cousin’s notice of appeal is 1 (...continued)

Police Department. For the most part, the

specifics of thse actions are not d irectly

b efore this Court because they sup port

claims agains t other defendants in the

case SS police officers SS

who are not entitled

to absolute immunity, and whos e cases remain in the district court.

We express no view on th e accuracy of this

statement, except to agree with Cousin that our

disposition of the appeal by the current appellants

is not in tended to affect any ongoing proceeding

against certain police officers.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 disagree.

“A notice of appeal filed after the court announces a de c ision or order 

### SS but before the

entry of the judgment or order 

### S S is treated as

filed on the date of and after the entry.” F ED

. R. A PP

. P. 4(a)(2). Under rule 4(a)(2), an appeal from a nonfinal decision may serve as an

effective notice of appeal from a subsequently

entered final judgment if the nonfinal decision

“ w ould be appealable if immediately followed

by the entr y of judgment.” F irsTier Mortg.

Co. v. Investors Mor tg. Ins. Co. , 498 U.S.

269, 276 (1991).

This court has applied the FirsT ier rule in

the context of the entry of a rule 54(b) certification after a prematurely filed notice of appeal, precisely the situation presented by this

case. B ar r ett v. Atl. Richfield Co.

, 95 F.3d

375 (5th Cir. 1996). “Bec a use the district

c ourt’s order would have been appealable i f

followed by Rule 54(b) certification and order,

rule 4(a)(2) permit s t his court to exercise its

jurisdiction,” where a final judgment was actually entered subsequent to the filing of the notice of appeal. I

d

. at 37 9. Under B arrett

, therefore, we have jurisdiction.

III.

Cousin cha llenges the dismissal of his

§ 1983 claims against prosecutors Berry and

Jordan on th e basis of absolute prosecutorial

i mmunit y. We review dismissals under rule

12(b)(6) de no vo , 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 statutory rights. Although the section contains no

r eference to official immunity, “Congress intended the statute to be construed in the light

of common-law principles that were well sett led at the time of its enactment.” K alina 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 immunit

ies existing at common

law at the time of § 1983’s enactment are applicable to actions brought under it.

In Imbler v. Pachtman

, 42 4 U.S. 409

(1976), the C ourt hel d that prosecutors are

shielded from liabilit

y under § 1983 for certain

conduct. After analyzing the absolute immunity afforded prosecutors at common law, the

Court concluded that the policy underlying

that immunit y supports its application to

§ 19 83 claims. I

d. at 427. Consequently,

“prosecutors are absolutely im m une from

liabilit y under § 1983 for their conduct in

‘initiating a prosecution and in presenting the

State’s case,’ insofar as that co nduct is ‘intimately associated with the judicial phase of the

criminal process[.]’” 2

The prosec u torial immunit y recognized in

Imbler

, however, does not apply to any and all

actions tak en by

a prosecutor. Rather, the

Court fashioned a functional test under which

prosecutors are absolutely immune with r e

spect to activities that are “int imately associated with the judicial phase of the criminal process.” Id . at 430. Conduct falling within this

category is not limit ed “onl y to the act of

initiation itself and to conduct occurring in the

courtroo m,” B uckley v. Fitzsimmons

, 509 U.S.

259, 272 (1993), but instead includes all ac2 Burns v. Reed

, 500 U.S. 478, 486 (1991) (citations omitted) (quoting Imbler

, 424 U.S. at 430-

31).5

tions “which occur in the course of [the prosecutor’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

th e claim is based. If the conduct is advocatory

, and there fore related to the defendants’

prosecutorial function, absolute immunit y applies, and the district court’s rejec t ion of the

claim was not error.

A.

Cousin maintains that Berry a nd 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 complain t, however, that he alleged a coerced testimony claim

concerning Rowell. Although this complete

failure seems logically to support dismissal for

failure to st at e 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 tho u gh it had

been pleaded. We therefore will not affirm on

the basis of rule 12(b)(6). Defendants, however, also moved for su mmary judgment,

which we conclude is warr a nted, because the

record establishes that Jordan and Berry 3 were acting as advocates.

1.

At the summary judgment stage of a § 1983

act ion, a defendant asserting immunity is no t

required to establish the defense beyond peradventure, 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 fo r a claim of

immunit y. It is sufficient that t he movant in

good faith pleads that it is entitled to absolute

or qualified immunit

y.” B eck v. Tex. Bd. of

Dental Exam’rs

, 204 F.3d 629, 633 (5th Cir.

2000). “Once the [movant] a sserts this affirmative defense, the burden shifts to the plaintiff to rebut it.” Id

. at 633-34 (quoting Whatley v. Philo , 817 F.2d 19, 20 (5th Cir.1987))

(internal quotation marks omitted).

Defendants asserted, in their summary j udgment motion, that they are entitled to absolute

immunit y. Accordingly, the burden shifted to

Cousin to introduce summary judgment evidence th at would permit a reasonable trier of

fact to find that, whe n Jordan allegedly told

Rowell to lie, Jord an was functioning as the

equivalent of a detect ive rather than as an

3 Because the

summary judgment evidence

shows that Berry’s involvement was exce e dingly

limited, we restrict our discussion to Jordan. Rowe ll did not refer to Berry in his declaration; in his

trial testimony, he stat ed that, on one occasion,

another district attorney had accompanied J ordan

to meet with him. Although Rowell could not identify the individual, Berry confirmed, in his de-

(continued...) 3 (...continued)

po sition, that he had been present once when Jordan and Rowell met.

4 Cf. Chaplin v. NationsCredit Corp.

, 307

F.3d 368, 372 (5th Cir . 2002) (“To obtain

summary judgment, ‘if the m ovant bears the

burd en of proof on an issue . . . because . . . as a

defendant he is asserting an affirmative defense, he

must esta blish beyond peradventure a ll 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)).6

advocate preparing for trial. 5

2.

Citing Buckley

, Cousin contends that the

interrogation of Rowell constitutes investigatory activity, bec ause Jordan was seeking to

acquire evidence for later presentation at trial.

I n Buckley

, 509 U.S. at 274, howeve r, the

prosecutors sought to develop evidence, in the

absence of probable cause, to arrest the suspect or initiate judicial proceedings. Although

Buckley did not explicitly hold that all witness

interviews conducted after indictment are advocatory in nature, t he Court’s reasoning

strongly in dicates that many, perhaps most,

such interviews are likely to be advocatory

rather than investigative.

In Buckley

, the Court focused on the lack

of probable c a use to arrest the suspect as an

indication of the investiga t ive nature of the

prosecutors’ conduct and noted that “[a] prosecutor neither is nor should consider himself

t o be, an advocate before he has probable

cause to have anyone arrested.” Id . The necessary implication is that after probable cause

has been established, it is more likely that the

prosecutor acts as an advocate. Although the

Court noted t hat a determination of probable

cause “does not guarantee a prosecutor absolute immunit

y from liabilit

y for all actions taken afterwards,” id

. at 27 4 n.5, the Court’s

treatment of the issue demo nstrates that the

existence of probable cause w ith respect to a

particular suspect is a significant factor to be used in evaluating t h e advocatory nature of

prosecutorial conduct. 6

“There is a difference between the advocate’s role in evaluating evidence and interviewing witnes ses as he prepares for trial, on

t he o ne hand, and the detective’s role in

searching for the clues and corroborati on 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 immunit

y turns on whether Cousin

had been identified as a susp ect at the ti m e

Rowell was interviewed and w het her the interview related to testimony to be presented at

trial.

In response to the summary judgment motion, Cousin cited Rowell’s tri al testimony 7

5 See Buckley

, 509 U.S. at 273 (“We have not

retreated, however, from the principle that acts undertaken by a prosecutor in preparing f or the

ini tiation of judicial proceedings or for trial, and

which occur in the course of his role as an advocate

f or the State, are entitled to the protect ions of

absolute immunity.”). 6 Cousin cites Moore v. Valder , 65 F.3d 189,

194 (D.C. Cir. 1996), which held that absolute immunity is inapplicable with respect to allegations of

witness tamperin g, because such activity is directed

at “ the collection of information to be used in a

prosecution.” M

oore

, however, i s inconsistent with

Brandl ey v. Keeshan , 64 F.3d 196, 201 (5th Cir.

1995), in which we held that the pro secutor

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 M oore

, that the collection of

information for use in a prosecution is necessarily

investigative rather than advocatory conduct demonstrates a much narrower conception of the advocatory role than is justified by Imbler , in which

the Court explicitly recognized that “[p]reparation,

both for the initiation of the cr iminal process and

for a trial, may require the obtaining

, reviewing,

a n d evaluating of evidence.” I mbler

, 424 U.S. at

431 n.33 (emphasis added).

7 Rowell’s trial test imony included an in-

(continued...)7

and a declaration from Rowell. Rowell’s trial

testimony addresses in detail h is allegations

that prosecutor J o rdan and his defense counsel, George Simino, told him to lie about Cousin 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 e vent s alleged. On the one

hand, Rowell seemed to aver that Simino and

Jordan had given him these instructi ons after

Co u sin had already been charged with murder. 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 investigator, and it might permit a reasonable trier of

fact to find in Cousin’s favor on the immunit y

issue. Rowell’s declaration, however, eliminates

this ambiguity an d establishes, without genuine

dispute, t hat Jordan was functioning as an

advocate when he allegedly instructed Rowell

t o 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 statement about no murder because I didn’t

know anything about it. Later , George

Simno [ sic ], my lawyer, came to me and

t old me I was looking at a [sic] 8 0 0

years unless I had something for them

on Shareef committing the murder.

Simno told me, “the n 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 anything. 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 w ith me.

3. I met w ith Roger Jordan tw o

times. Jordan provided me w ith the

questions I would be asked in court and

the answers

, always t elling 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 “attor ney visit” callouts. I would be escorted to a visit ation room at OPP and 7 (...continued)

chambers conference that involved the state court,

c ounsel for the parties, and Rowell. The conference appeared to relate primarily to admonit ions

fro m 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 a ttor ney and Rowell’s

a ttorney had instructed him to implicate Co usin

falsely.

8 Rowell testified, “My lawyer came to me with

a file, and he said the only [w]ay I can get you lesser time is if I testify against Shareef Cousin on a

murder charge.”

9 The colloquy w as as follows: “[Question:]

Now, do you also remember tel l ing homicide detectives

. . . about this conversation you had with

Shareef Cousin on March 4, 1995? [Answer:]

I only told them what you all told me to say.”8

find Jo rdan waiting for me there. W e

would practice what I should say there.

* * *

5. Jordan to ld 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 th ey 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 numb er of points. He was not

a sking 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) conversations with Rowell, in which Jordan allegedly

told R o well to implicate Cousin falsely in the

murder a nd co ached him on how to testify,

Jordan was acting as an advocate rather t han

as an investigator. The interview was intended

to secure evidence that wo uld 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. B.

Cousin alleges that the prosecution suppressed significant exculpatory evidence in violation 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 contacts a t t he time of the murder and that, as a

result, her subsequent identification of Cousin

was suspect. Cousin also alleges that the prosecutors failed to disclose information linking

other potential suspects to the crime. Although these allegations, if true, would establish prosecutorial misconduct, the suppression

of exculpatory evidence is shielded by absolute

immunit y. 11

Cousin concedes that ab s olute immunit y

generally applies to Brady v io lations, but he

notes that prosec u tors are not shielded from

liability for conduct beyond the scope of their

jurisdiction; he contends that, in cases of drastic and systematic departure from the proper

exercise of prosecutorial power, prosecutors

should be deemed to have acted wi thout j urisdiction. In effect, Cousin argues for an egregious n ess exception to the doctrine of prosecutorial immunity.

For purposes of immunit

y de t erminations,

however, the presence or absence of jurisdiction is determined wi t h reference to whether

the challenged activity falls within the category

of conduct in

which a prosecutor is generally

authorized to engage, rathe r than with reference to the wrongful nature or excessiveness

10 See Hill v. City of New York , 45 F.3d 653,

662-63 (2d Cir. 19 95) (holding that the existence

of probable cause determines whether fabrication

is investigatory or advocatory); s ee also Milstein

v. Cooley

, 257 F.3d 1004, 1011 (9th Ci r. 2001)

(holding fabrication not pr otected because no

probable cause). 11 See Hen zel v. Gerstein , 608 F.2d 654, 657

(5th Cir. 1979); see also Reid v. New Hampshire

, 56 F.3d 332, 336 (1st Cir. 19 95); R obinson v.

Volkswagenwerk AG

, 94 0 F.2d 1369, 1373 n.4

(10th Cir. 1991).9

of the conduct. 12 Wilful or malicious prosecutorial misconduct is egregious by definition,

yet prose cut o rs are absolutely immune from

liabilit y for such conduct if it occurs in the exercise of their advocatory f unction. S ee Imbler , 424 U.S. at 430.

Absent imm

unit y, the specter of litigation

could undermine prosecutors’ abilit y to exercise their independent judgment wi t h respect

t o the initiation and conduct of criminal proceedings

. S ee id. at 422-28. In essence, the

existence of the doctrine of absolute prosecutorial immunit

y represents a determination that

the need fo r “vigorous and fearless performance of the prosecutor’s duty,” id. at 427,

justifies its re g rettable but necessary cost,

namely, that it may so metimes bar the courthouse door to potentially meritorious claims

. We decline to adopt an exception to the doctrine of prosecutorial immunit y that upsets that

balance.

C.

Cousin also challenges Berry’ s and Jordan’s alle gedly unlawful use of subpoenas to

interrogate several potential witnesses. Even

if these individuals were unlawf ully forced to

discuss the case wit h the prosecution, however, Cousin , at most, has alleged a violation

of their constitutional rights, not his own. Although Cousin’s constitutional rights may have

been violated by Berry’s and Jordan’s subsequent decision to suppress excul p atory

evidenc e obt ained through the use of these

subpoenas, the suppression of exculpatory evidence is shielded by absolute immunit y, as we have discussed. 13

D.

Cousin’s final claim of prosecutorial misconduct relates to the alleged detention of several defense witnesses. Cousin contends that

during trial, Barry and Jordan, without informing the defense, either directly or through intermediar ies, instructed several defense witnesses to proceed to the district attorney’s office and remain there for the duratio n of the

trial. Cousin further avers that, as a result of

such interf

e rence, 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 “ lo ng been reco gnized as essential to due process.” Chambers v. Mississippi

, 410 U.S. 284, 294 (1973).

The district court held that this conduct,

occurring as it did during the trial, was prosecutorial in nature and therefore shielded by absolute immunit y. Cousi

n contends the court

erred and that, despite the pendency of a judicial 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 certai n co nduct during trial should

not render them immune. What Cousin fails to

acknowledge, however, is that the t iming of

events, while not determinative, can be highly

relevant to the inquiry int o function. 1 4 The

12 See Kerr v. Lyford , 171 F.3d 330, 337 (5th

C ir. 1999) (citing S tump 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

sta g e of criminal justice process in determining

(continued...)10

pen d ency of a judicial proceeding is logically

r elated to the determination whether a prosecutor’s “activiti es [are] intimately associated with

the judicial phase of the criminal process, and

thus [are] functions to whic h the reasons for

absolute immunit

y apply with full force.”

Imbler , 424 U.S. at 430. 15

T he question of absolute immunit y there

fore turns on whether, given the pending criminal trial, Berry and Jordan undertook the detention of these wit nesses pursuant to their

role as advocates. Because their conduct was

directly related to the trial proc e ss, was ent e red 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 det ent ion of witnesses to prevent them from testifying in criminal proceedings, while unlawful and improper,

is nonetheless shielded by absolute immunit y. 16 This result com ports with our treatment of

other improper attem

pts to control witness

testimony and the presentation of evidence at

trial. 17 Further, t he contrary rule would have

the anomalous result of extending absolute immunity to the prosecutor who silences a wit

nes s through coercion or intimidation,

Brandley

, 64 F.3d at 201, but denying it to the

prosecutor who achieves t he same result

through deceit.

IV.

Cousin challeng es the summary judgment

for Conn ick t hat was based on qualified

immunit y. We review a summary judgment d e

novo

. G reen v. CBS Broadcasting, Inc.

, 286

F.3d 28 1, 283 (5th Ci r.), c ert. denied

, 123

S. Ct. 132 (2002).

Even when viewed in the light most

favorable to Cousin, the evidence does not

r aise a genuine issue of material fact. To

succeed on his cl a im of failure to train or

supervise, Cousin must demonstrat e that “1)

the [defendant] failed to train or supervise the

officers invol v ed; 2) there is a causal

connection between the alleg e d failure to

supervise or train and the alleged violation of

the plaint iff’s rights; and 3) the failure to train

or supervise constitut e d deliberate indifference

to the plaintif

f’s constitutional rights.”

Thom pson v. Upshur County , 245 F.3d 447, 14 (...continued)

functional characteriza tion of the conduct); s ee

also Carter v. Burch

, 34 F.3d 257, 263 (4th Cir.

1994) (considering pendency of judicial proceedings in making immunity determination).

15 See Hill

, 45 F.3d

at 662 (immunity applicable because conduct occurred “after the prosecutorial phase of the case had begun”); Carter

, 34

F.3d at 263 (holding pende ncy of post-conviction

judicial proceedings relevant to immunity determination ); see also Milstein , 257 F.3d at 1011

(holding conduct unprotected because it occurre d

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 absolute immunity where he denied that he h ad instructed deputy to bar courtroom to defendant’s

family and potential witnesses); cf. Brandley , 64

F.3d at 201 (holding that prosecutor retai ned ab-

(continued...) 16 (...continued)

solute immunity despite allegations of witness intimidation in attempt to suppress testimony).

17 Brandley

, 64 F.3d

at 201 (witness intimidation); Henzel

, 608 F.2d at 657 (suppressio n of

exculpatory evidence and introduction of perjured

testimony).11

459 (5th Cir. 2001). To satisfy the deliberate

indifference prong, a plaint iff 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 s u fficient ly

enforce the office’s B rady policy constituted

delibe rat e indifference to the violation of

constitutional rights. As evidence of a pattern

of constitutional violations, Cousin r elies

primarily on cases in which courts have found

that prosecutors under Connick’s supervision

failed to disclose exculpat o ry evidence as required by Brady

. The district court noted that

Connick’s office handled tens of thousands of

criminal case s 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 o ver twenty-five years,

does not create a triable issue of fact with respect to Connick’s deliberate indiffer ence to

violations of Brady rights. 18

In any event, Cousin also failed to

demonstrate that the training or supervision

obviou sly 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 o f t he policy was

not patently inadequate or likely to res u lt in

constitut io nal violations. Where prosecutors

commit Brady violations, convictions may be

overturned. That could be a sufficient

deterrent, such that the imp osition of

additional sanctions by Co nnick is

unnecessary.

F urther, prosecutors exercise independen t

j udgment in trying a case, and they have the

legal and ethical obligation to co mply with

Brady

. It is not apparent that these

prosecutors, who, Cousin concedes, are

a dequately trained with respect to Br ady

requirements, are so likely to v iolate their

in dividual obligations that the threat of

additional sanctions is required.

AFFIRMED.

18 On this point, Cou sin also points to statements by Connick and other attorneys with respect

to Brady rights, an open letter from a judge to the

offi ce of the district attorney expressing concern

over its discovery practices, and evidence that Connick promoted Jordan despite Jordan’s prior Brady

violations. Even taken together, these pieces of evidence do not create a genuine issue with respect to

a pattern of Brady violations sufficient to establish

deliberate indifference.