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
2

Before SMITH and BENAVIDES, Circuit 

Judges, and FITZWATER,

*

 District Judge.

PER CURIAM:

Shareef Cousin sued employees of the police department and the district attorney’s office, alleging various violations of his constitutionalrightsin connectionwith his prosecution

for the murder of Michael Gerardi. The district 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 evidence, including Babin’s identification of

Cousin asthe perpetrator. The prosecution also 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 afterthe murder, two ofthese 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 Cousin in March

1995, in which Cousin admitted to killing a

man in the New Orleans FrenchQuarter 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 impeachment witnesses as to what Rowell had told

police regarding Cousin, the attorneywho 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 substantive evidence of Cousin’s guilt.

The defense presented evidence that at the

time ofthe murder, approximately 10:26 p.m.,

Cousin was playing in a city recreation department basketballgame. Two recreation department supervisors, Cousin’s coach, and an opposing 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 prosecutorialmisconduct. 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, without citation to the instant record, makes the following assertion:

Theprosecutorial 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...)
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 because 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 withheld 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 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 though the statements would have cast

serious doubt on the veracity ofBabin’ssubsequent identification of Cousin. 

The state thereafter announced itsintention

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 victim of an effort to frame him for 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 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 dismiss the claims under FED. R. CIV. P. 12(b)(6)

or for summary judgment. The district court

granted the motions, holding that Berry and

Jordanwere 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 immunity. The judgment did not dispose of Cousin’s claims against the police

defendants, which have been stayed 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

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). Cousin requested, and the court issued, a rule

54(b) final judgment nunc pro tunc. Defendants 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 remain 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.
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 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 appeal 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) certification after a prematurely filed notice of appeal, 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 byRule 54(b) certification and order,

rule 4(a)(2) permits this court to exercise its

jurisdiction,” where a final judgment was actually entered subsequent to the filing of the notice 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 damagesremedy for

the violation of federal constitutional or statutory rights. Although the section contains no

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

of common-law principles that were well settled 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 applicable 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 immunity 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 ‘intimately associated with the judicial phase ofthe

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 respect to activities that are “intimately associated with the judicial phase ofthe criminal process.” 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, 509U.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 centralquestionwith respect

to each of Cousin’s claims against Berry and

Jordan isthe nature ofthe conduct upon which

the claim is based. If the conduct is advocatory, and therefore related to the defendants’

prosecutorial function, absolute immunity applies, 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 Gerardimurder. There

is no indication in Cousin’s complaint, however, that he alleged a coerced testimony claim

concerning Rowell. Although this complete

failure seems logically to support dismissalfor

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, however, also moved for summary judgment,

which we conclude is warranted, because the

record establishesthat 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 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 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 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, intheirsummaryjudgment motion, that they are entitled to absolute

immunity. Accordingly, the burden shifted to

Cousin to introduce summary judgment evidence 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. Rowell 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 identify the individual, Berry confirmed, in his de-

(continued...)

3

(...continued)

position, 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 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)).
6

advocate preparing for trial.5

2.

Citing Buckley, Cousin contends that the

interrogation of Rowell constitutes investigatory activity, because Jordan was seeking to

acquire evidence for later presentation at trial.

In Buckley, 509 U.S. at 274, however, the

prosecutorssought 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, 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] prosecutor neither is nor should consider himself

to 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 that a determination of probable

cause “does not guarantee a prosecutor absolute immunity from liability for all actions taken 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 advocate’s role in evaluating evidence and interviewing 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 interview related to testimony to be presented at

trial.

In response to the summary judgment motion, Cousin cited Rowell’s trial testimony7

5

See Buckley, 509 U.S. at 273 (“We have not

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

initiation of judicial proceedings or for trial, and

which occur in the course of hisrole 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 immunity isinapplicablewith respect to allegations of

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

theCourt 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...)
7

and a declaration from Rowell. Rowell’s trial

testimony addresses in detail his allegations

that prosecutor Jordan 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 alreadybeen 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 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 immunity

issue.

Rowell’s declaration, however, eliminates

this ambiguityand 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 alreadyadvised himthat

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

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 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 with me.

3. I met with Roger Jordan two

times. Jordan provided me with the

questionsI would be asked in court and

the answers, alwaystellingme “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 “attorney visit” callouts. I would be escorted to a visitation room at OPP and

7

(...continued)

chambers conference that involved the state court,

counsel for the parties, and Rowell. The conference 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 attorney 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 lesser 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 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 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 ofJordan’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 wasintended

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

identifya suspect or establishprobable 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 at the 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 isshielded byabsolute

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 contendsthat, in cases of drastic and systematic departure from the proper

exercise of prosecutorial power, prosecutors

should be deemed to have acted without jurisdiction. In effect, Cousin argues for an egregiousness exception to the doctrine of prosecutorial immunity. 

For purposes of immunity determinations,

however, the presence or absence of jurisdiction is determined with reference to whether

the challenged activityfalls within the category

of conduct in which a prosecutor is generally

authorized to engage, rather 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. 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).
9

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

yet prosecutors are absolutely immune from

liability for such conduct if it occurs in the exercise of their advocatory function. See Imbler, 424 U.S. at 430. 

Absent immunity, the specter of litigation

could undermine prosecutors’ ability to exercise their independent judgment with respect

to the initiation and conduct of criminal proceedings. See id. at 422-28. In essence, the

existence of the doctrine of absolute prosecutorialimmunityrepresents a determinationthat

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

justifies its regrettable but necessary cost,

namely, that it may sometimes bar the courthouse door to potentially meritorious claims.

We decline to adopt an exception to the doctrine of prosecutorialimmunitythat upsetsthat

balance.

C.

Cousin also challenges Berry’ s and Jordan’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, however, Cousin, at most, has alleged a violation

of their constitutional rights, not his own. AlthoughCousin’s constitutionalrights may have

been violated by Berry’s and Jordan’s subsequent decision to suppress exculpatory

evidence obt ained through the use of these

subpoenas, the suppressionofexculpatoryevidence is shielded by absolute immunity, as we

have discussed.13

D.

Cousin’s final claim of prosecutorial misconduct relatesto the alleged detention ofseveral defense witnesses. Cousin contends that

during trial, Barry and Jordan, without informing the defense, either directly or through intermediaries, instructed several defense witnesses to proceed to the district attorney’s office 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 callwitness on his

own behalf, a right that has “long been recognized 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 immunity. Cousin contends the court

erred and that, despite the pendency of a judicialproceeding, the relocation ofthe 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 themimmune. 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...)
10

pendency of a judicial proceeding is logically

related to the determination whether a prosecutor’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 therefore turns on whether, given the pending criminal trial, Berry and Jordan undertook the detention of these witnesses pursuant to their

role as advocates. Because their conduct was

directly related to the trial process, was entered 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 witnessesto prevent them from testifying in criminalproceedings, while unlawfuland improper,

is nonethelessshielded byabsolute 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 anomalousresult of extending absolute immunity to the prosecutor who silences a witness 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’srights; and 3) the failure to train

orsupervise 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 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 pendency of post-conviction

judicial proceedings relevant to immunity determination); 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

(7thCir. 1992)(finding prosecutor entitled to absolute immunity where he denied that he had instructed 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 intimidation in attempt to suppress testimony).

17 Brandley, 64 F.3d at 201 (witness intimidation); Henzel, 608 F.2d at 657 (suppression of

exculpatory evidence and introduction of perjured

testimony).
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 required 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 respect 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 constitutionalrights. 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 statements 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 thatConnick 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.