On a number of occasions, we have discussed cases involving an officer’s liability where the officer drafts an affidavit or arrest report that contains untruthful information or fails to disclose exculpatory information learned during the course of the investigation. Today’s case – McDonough v Smith1 – solves a conflict among the circuit courts concerning when the statute of limitations begins to toll for a Section 1983 claim where the plaintiff alleges officers falsified evidence. A majority of circuit courts had ruled that the statute of limitations tolled when the prosecutorial action ends in the defendant’s favor. However, a number of courts, including the 2nd Circuit, held the belief that the statute of limitations tolled at the point the defendant became aware that the prosecution was using tainted evidence and he had suffered a loss of liberty.
Of course, the best defense to these types of claims is to be sure to use factually correct information and be sure to include any exculpatory information in arrest reports and affidavits. So, with that thought in mind let’s look at the facts in the McDonough case.
Edward McDonough was the Commissioner of the County Board of Elections and was responsible for processing the ballots during a 2009 primary election in Troy, New York. Following the election there were charges that absentee ballots had been forged and that McDonough processed the ballots even though he knew they were forged. Youel Smith was hired as a Special District Attorney to investigate and prosecute the claims of election fraud.
McDonough claims that during the course of the investigation Smith leaked false information to the press, fabricated evidence, falsified affidavits, coached witnesses to lie and orchestrated a questionable DNA analysis on a ballot envelope. McDonough further claimed that Smith’s motives stemmed, in part, from a long- standing political feud between the McDonough and Smith families.
Following the investigation, Smith secured a grand jury indictment and McDonough was arrested, arraigned and confined to his home pending trial. The first trial resulted in a mistrial and a second trial resulted in an acquittal. McDonough claims the falsified affidavits and testimony was proffered by Smith during the grand jury process and at each of the two ensuing trials.
McDonough then filed a Section 1983 action alleging two constitutional violations – Malicious Prosecution and one for fabrication of evidence. The District Court dismissed the malicious prosecution claim based on prosecutorial immunity and dismissed the fabrication of evidence claim on the grounds that the time for bringing such a claim had run out. The 2nd Circuit Court of Appeals affirmed, finding that the 3-year time period to bring the fabrication of evidence claim began at the point McDonough knew that the evidence being used against him was false and he had suffered a loss of liberty. McDonough then appealed to the US Supreme Court and the Court granted certiorari to settle the conflict between the various appellate courts.
The Court’s biggest concern with the 2nd Circuit ruling was the logistical issues that would come with the possibility of managing parallel criminal and civil proceedings. Clearly, McDonough was aware during the first trial that evidence proffered by Smith was false and, by 2nd Circuit standards, that was the point at which McDonough should have initiated his civil proceedings. SCOTUS disagreed, finding that:
“The proper approach in our federal system generally is for a criminal defendant who believes that the criminal proceedings against him rest on knowingly fabricated evidence to defend himself at trial and, if necessary, then to attack any resulting conviction through collateral review proceedings. McDonough therefore had a complete and present cause of action for the loss of his liberty only once the criminal proceedings against him terminated in his favor.”
The Court reversed the appellate court decision and the case now returns to the District Court for further proceedings.
While the Court’s ruling in this case extends the time, an officer may be exposed to civil suit, the ruling certainly makes sense from a legal and practical point of view. Under the appellate court’s ruling defendants could attack evidentiary offerings at a criminal trial on parallel tracks – filing motions to suppress in the criminal court while filing a civil action in federal court alleging evidence was fabricated. I’m sure you could imagine the problems that could result from this scenario.
That said, I go back to my introductory remarks – every officer involved in an investigation has a responsibility to collect evidence and record witness testimony in a manner that assures such evidence can be properly presented in court. Officers also have a duty to document any exculpatory evidence learned during the course of the investigation and ensure that prosecutors and any reviewing judges or magistrates have all the facts, in writing, when they are reviewing affidavits supporting search or arrest warrants.
1McDonough v. Smith, U.S., No. 18-485, (U.S. Jun. 20, 2019)