Justices Consider Time Limits for Fabricated Evidence Claims

A view of the Supreme Court in Washington on March 15, 2019. (AP Photo/Susan Walsh)

WASHINGTON (CN) – After surviving two election fraud trials brought by a “beyond biased” prosecutor accused of falsifying sworn statements and interfering with DNA testing, a former commissioner on a New York county elections board implored the Supreme Court justices Wednesday to keep his civil case against the prosecutor alive.  

Fraud plagued the 2009 primary election in Troy, a city in upstate New York, with an investigation turning up several dozen forged absentee ballots in the contest. A judge in Rensselaer County appointed Youel Smith as a special prosecutor to look into the claims, which had narrowed in on three suspects, one of whom had worked on the regular district attorney’s campaign.

Instead of looking at the three initial suspects, Smith turned his attention on Edward McDonough, then a commissioner on the Rensselaer County Board of Elections.

McDonough says Smith tried to pressure him into pleading guilty and at one point even blamed McDonough’s father, chair of the local Democratic Party, for “turn[ing] his back” when Smith wanted to run for district attorney.

McDonough claims Smith’s conduct got worse after McDonough refused to plead guilty, as the prosecutor allegedly helped one of the suspects in the case draft a falsified sworn statement implicating McDonough in the scheme. When DNA testing did not initially tie McDonough to envelopes that held forged ballots, McDonough says Smith told the lab to use a “new” method for testing DNA.

One witness who testified before a grand jury about the forgery initially did not point the finger at McDonough, but allegedly changed his story after receiving a phone call from Smith telling him to do so.

The investigation resulted in a 74-count indictment against McDonough.

The first trial, which allegedly featured more false testimony against McDonough, ended in a mistrial. The jury acquitted McDonough in the second, which ended on Dec. 21, 2012.

McDonough turned around three years later and filed a civil suit in federal court against Smith, seeking justice for the allegedly rampant fabrication of evidence. But the district court dismissed the suit, saying the three-year statute of limitations on the claims had run out.

The district court, and later the Second Circuit, said the clock on the statute of limitations started when McDonough first knew about the allegedly falsified evidence, not when his trial ended.

Before the U.S. Supreme Court on Wednesday, McDonough’s attorney Neal Katyal with Hogan Lovells said this was the wrong holding.

The provision under which McDonough brought his suit does not have its own statute of limitations, but borrows that of the most similar common law claim, which Katyal said in this case is malicious prosecution. The statute of limitations on that type of claim does not run until after the criminal proceeding ends and the person being prosecuted has won, which would make McDonough’s suit timely.

Katyal said any other statute of limitations requirement would make criminal defendants file lawsuits against the people prosecuting them in the middle of a trial, an arrangement that would bring with it all sorts of hazards.

“When you’re dealing with this unique thing, I think this is the right rule,” Katyal said. “It allows the court to do, I think, a very narrow, straightforward thing, which is to just say, look, the whole point of the favorable termination requirement is to avoid collateral duplicative litigation, to make sure that we’re not chilling defendants who now have to walk out of their federal criminal trial while it’s ongoing and file a lawsuit and possibly risk their Fifth Amendment incrimination rights and resources and distraction and all of that.”

The federal government argued on Katyal’s side, with Principal Deputy Solicitor General Jeffrey Wall saying McDonough’s claim is “the essence of malicious prosecution.”

The justices appeared generally more favorable to McDonough’s side of the arguments, though Justice Neil Gorsuch did wonder whether the court was too quick to take the case with so little clarity on what exactly constitutes a fabrication of evidence claim.

“Why wouldn’t we be better off, before trying to figure out what the limitations period is, actually take a case and figure out whether this tort exists and what its elements actually are?” Gorsuch asked Wall. “Because even you and the petitioner cannot agree on the elements of this claim.”

Thomas O’Connor, with the Albany firm Napierski, VanDenburgh, Napierski & O’Connor, said it is sensible to require people like McDonough to bring their claims as quickly as possible because that allows the claims to be investigated promptly.

“I’d be disappointed if the court sacrificed the correct to the convenient,” O’Connor said. “And there’s something to be said for maintaining, particularly in this area where there’s a lot of confusion, maintaining an orderly approach to accrual.” 

O’Connor said McDonough’s claims are best seen as constitutional claims, with each use of allegedly fabricated evidence a violation of his due process rights. That would make the statute of limitations timer begin when the evidence was used against him, O’Connor argued.

But the justices were troubled by O’Connor’s arguments, particularly the idea that people prosecuted on the basis of fabricated evidence would need to file lawsuits in the middle of their criminal case. Chief Justice John Roberts said even if a court automatically stayed the civil suit until the criminal case ended, it could still hamper the criminal proceeding.

“I mean, I think it is a serious concern while the criminal prosecution is going on to say, well, let’s file a lawsuit against the assistant district attorney and see if that makes him a little less inclined to enter into a plea agreement or other situations,” Roberts said. “It does complicate all that’s going on in what, for a criminal defendant falsely accused, as it turns out, is already in a pretty dire place. And I can certainly see that suing the people who are trying to prosecute you may not be the best strategy.”

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