With plenty of head-shaking and sharp questioning, much of the U.S. Supreme Court appeared dubious that the clock for people to file civil suits over bogus evidence used against them in a criminal action should start before their criminal case comes to a close.
In a lively hearing on Wednesday, judges on both ends of the ideological spectrum voiced concerns that a strict take on a murky statute-of-limitations question could force defendants to sue prosecutors or police over fabricated evidence even as they still faced criminal charges built on that same evidence.
Among them was Chief Justice John Roberts, who suggested that defendants in such dire circumstances needed time to "put together the pieces of their shattered lives" and shouldn't be burdened with a fast deadline to file civil rights suits over ginned-up evidence.
And wouldn't a stricter accrual rule also ultimately hurt defendants as they tried to negotiate favorable settlements with prosecutors? he asked.
"I can certainly see that suing the people who are trying to prosecute you may not be the best strategy," Justice Roberts said.
A jury in 2012 acquitted Edward McDonough, a former Democratic commissioner with the Rensselaer County Board of Elections, of ballot forgery, setting up the present case before the U.S. Supreme Court on the time limit for suing over fabricated evidence. (Mike McMahon | The Record)
That probe, which was led by Smith as a special county prosecutor, found evidence of fraudulent absentee ballots, and resulted in dozens of felony forgery and other charges against McDonough.
After an initial mistrial, McDonough was acquitted at a second trial that ended in December 2012. All the charges were later revealed to be based on bogus evidence, including fabricated affidavits Smith presented to a grand jury.
With days to go before the three-year mark from that acquittal, McDonough sued Smith and others at the close of 2015, alleging constitutional violations related to the fabricated evidence.
A district court dismissed McDonough's claim under Section 1983 — the statute through which people can sue state officials for civil rights violations — and concluded that the statute of limitations began running when he became aware the evidence was false, which occurred before his acquittal. The court also tossed McDonough's malicious prosecution claim on prosecutorial immunity grounds.
On appeal to the Second Circuit, McDonough argued that his fabricated evidence allegation under Section 1983 against the prosecutor could and should be viewed as analogous to a malicious prosecution tort claim.
Under that theory, McDonough argued, Smith violated his constitutional rights continually throughout the criminal case, not just at the time that the evidence was fabricated, thus making his suit timely filed.
But last summer the Second Circuit ruled against McDonough and concluded that the clock starts for a fabricated evidence claim under Section 1983 when a defendant "knew or should have known" that tainted evidence was being used.
The court did acknowledge that its conclusion diverged from the approach of the Tenth, Ninth and Third Circuits, which have decided cases involving fabricated evidence and pegged the accrual start to a "favorable termination" of the criminal matter for the defendant.
The case has drawn considerable attention from the criminal defense bar and other groups, which have argued that the Second Circuit rule will force defendants to abandon meritorious civil rights claims in order to focus on shedding the faulty criminal cases based on that evidence.
In one of several amicus briefs filed in support of McDonough at the high court, D.C.-based watchdog group Cause of Action Institute said the Second Circuit standard was bad public policy that would only work to jack up the adversarial relationship between defendants and prosecutors or police.
"By declaring Section 1983 claims to accrue at the moment a defendant becomes aware of fabricated evidence, the Second Circuit effectively asks criminal defendants to walk directly from the police station to the courthouse," the group said.
Those kinds of big-picture impact questions animated much of the high court hearing, during which Smith's own attorney described his client's misconduct as "stunning."
At one point, Justice Sonia Sotomayor questioned the attorney, Thomas O'Connor of Napierski VanDenburgh Napierski & O'Connor LLP, about why the court should even care how long it took to bring such a case in light of how seriously McDonough's rights were violated.
"Something that shocks the conscience appears to me to be so egregious that we should ensure, even with delayed time, that the victim of that conduct would not be deprived of a day in court because of a hastily imposed statute of limitations," she said.
O'Connor did appear to have some traction with his argument that McDonough failed to "pinpoint" which of his constitutional rights were violated.
Some of the justices also grappled with what deprivation of rights McDonough was claiming he suffered, whether the fabricated evidence went beyond a due process violation, and whether it made sense to endorse a statute-of-limitations rule in a case in which the constitutional issues typically raised in Section 1983 cases were less than clear.
Justice Neil Gorsuch also noted the disagreement between Smith's arguments and the U.S. government's. In a filing backing McDonough, the federal government argued for a reversal of the Second Circuit decision and supported a "favorable termination" rule for starting the clock on a Section 1983 fabrication-of-evidence claim but disagreed with some key elements of his arguments.
"It's only because of the happenstance here that we want a longer limitations period, that we want to tack it in and create this rather bespoke tort that we cannot identify where it swims from or to," Justice Gorsuch said.
Lisa Soronen of the State and Local Legal Center, which represents state and local officials and filed a brief in support of Smith, told Law360 those grumblings, which were also voiced by Justice Samuel Alito and other justices, might lead the court to dismiss the case.
"It's not a sexy argument, it's a pragmatic argument, but when statutes of limitations are really long, it's harder for local governments to defend them," said Soronen, who attended the hearing.
A message left for an O'Connor counsel was not returned Wednesday. McDonough attorney Neal Katyal declined to comment.
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