The window of time to file any lawsuit is limited. The period usually begins to run when the plaintiff first knows that something went wrong. In special circumstances, however, fair policy requires that the window to sue opens, or as lawyers say, the claim “accrues,” at a different time. Today, in McDonough v. Smith, a case in which Cause of Action Institute filed two briefs, the Supreme Court identified one of those special situations.
McDonough was an election official in New York whom Smith prosecuted for fraud during a primary contest. Smith’s first prosecution ended in a mistrial. McDonough was acquitted the second time around. Smith’s prosecutions were abusive from the get-go and throughout because he used fabricated evidence, false testimony, and bad DNA work both to get the indictments from grand juries and to try McDonough. After he was acquitted McDonough sued Smith in a separate action for these obvious constitutional violations. The limitations period to bring such a lawsuit in New York is three years.
The dispute arose because McDonough sued within three years of his acquittal at the end of the second trial, but that was more than three years after he first learned that Smith used fabricated evidence. The Second Circuit Court of Appeals affirmed the dismissal of McDonough’s fabrication-of-evidence claim because he had learned about Smith’s misconduct during the first trial, which was more than three years before he filed his civil rights action. The Second Circuit’s rule was different from the rule in the Third, Ninth and Tenth Circuits. Those courts all hold that a fabrication-of-evidence claim accrues, and the limitation period begins to run, only after criminal proceedings have ended which, in this case, would have been after McDonough was acquitted in the second trial. McDonough’s claim was timely under their rule.
Cause of Action Institute filed two successful friend-of-the-court, or amicus curiae, briefs in the case. Our first amicus brief urged the Supreme Court to hear the case because the split between the circuit courts meant that geography would control whether lawsuits were timely from place to place rather than their essential common allegation of flagrant prosecutorial misconduct. Then, after the Supreme Court agreed to hear the case, Cause of Action filed a second amicus brief urging the Court to overturn the Second Circuit’s rule on the merits.
The Court agreed with the position that Cause of Action urged. It reversed the Second Circuit decision, ruling that the period to bring the fabrication-of-evidence claim should not begin to run until the criminal prosecution is terminated even if the injured prosecution-defendant knew before then that the prosecutor was using fabricated evidence. Any other result, such as under the Second Circuit rule, would increase the probability of having simultaneous civil and criminal actions about the same subject matter, the results of which might conflict. Under the Second Circuit’s rule, a criminal defendant could be placed in the unenviable position of publicly accusing in court the person currently prosecuting them of the worst form of prosecutorial misconduct while that prosecutor was still seeking a conviction, a situation the Supreme Court found “untenable.” The rule chosen by the Supreme Court will also avoid unnecessary, collateral, civil-lawsuit attacks on criminal judgments.
Fabricated evidence is a more common problem than many people realize and can impact thousands of people falsely accused of crime. Even if a defendant immediately knows a police officer had fabricated evidence, as recently happened in nearly 2,000 cases in Baltimore, it is almost impossible for that defendant to have enough evidence to successfully file a lawsuit. Imagine sitting in an interrogation room when fabricated evidence is first used against you. Imagine the police just said you were seen leaving the house after a robbery occurred. You know you weren’t there, so why is someone saying that? Are they mistaken? Lying for their own benefit? Or did the police induce them to lie so the case would be closed? Only the last explanation justifies a lawsuit like McDonough’s even though your criminal prosecution for the robbery might not even begin, let alone be completed, for many months. The Second Circuit’s rule, had it not been reversed, would have sharply limited the practical ability of persons in just that situation to bring a lawsuit to remedy such abusive, unconstitutional prosecutorial conduct.
Mike Geske is counsel at Cause of Action Institute and appeared on the amicus briefs for Cause of Action Institute, along with John Vecchione and John McGlothlin.
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