Amicus Curiae Brief — McDonough v. Smith (No. 18-485)

No. 18-485

IN THE

Supreme Court of the United States

EDWARD G. MCDONOUGH, PETITIONER,

Vv.

YOUEL SMITH, INDIVIDUALLY AND AS SPECIAL

DISTRICT ATTORNEY FOK THE COUNTY OF RENSSELAER,

NEW YorK, AKA TREY SMITH.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

BRIEF FOR THE CENTER ON THE

ADMINISTRATION OF CRIMINAL LAW AT

NYU SCHOOL OF LAW, THE AMERICAN

CIVIL LIBERTIES UNION, THE NEW YORK

CIVIL LIBERTIES UNION, AND

THE BRENNAN CENTER FOR JUSTICE

AT NYU SCHOOL OF LAW AS AMICI CURIAE

tN SUPPORT OF PETITIONER

Courtney M. Oliva Mark W. Mosier

Executive Director Counsel of Record

CENTER ON THE Rafael Reyneri

ADMINISTRATION OF James O. Strawbridge

CRIMINAL LAW AT COVINGTON & BURLING LLP

NYU SCHOOL OF LAW 850 Tenth Street, NW

139 MacDougal Street Washington, DC 20001

New York, NY 10012 (202) 662-6000

(212) 998-6612 mmosier@cov.com

Counsel for Amici Curiae

(Additional counsel listed on inside cover)

Priya Raghavan

Counsel, Justice Program

BRENNAN CENTER FOR

JUSTICE AT NYU SCHOOL

OF LAW

120 Broadway, 17th Floor

New York, NY 10013

Philip Desgranges

Christopher Dunn

NEW YORK CIVIL LIBERTIES

UNION FOUNDATION

125 Broad St., 19th Floor

New York, NY 10004

Mariana Kovel

Ezekiel Edwards

AMERICAN CIVIL LIBERTIES

UNION

125 Broad St., 18th Floor

New York, NY 10004

David Cole

Somil Trivedi

AMERICAN CIVIL LIBERTIES

UNION

915 15th St., NW

Washington, DC 20005

i

TABLE OF CONTENTS

TABLE OF AUTHORITIBG.............sc0rsessssorssscesseeeess iii

INTEREST OF AMICI CURIAE ...........0c.sssscessseeeeees l

INTRODUCTION AND SUMMARY OF

PTT sie citascenieniinciabenisievadpniaayesnutainemeniasuainn 3

MIE sinerserncisscnenstnccnetemnuesnininvminennived 6

|. By Discouraging the Filing of Section 1983

Suits, the Second Circuit’s Rule Undermines

a Critical Tool for Deterring Prosecutorial

III, cincsc te, dinarcaieatiuishananidnetsasasapentocinwiaieseue 6

A. Section 1983 Suits Play an Important

Role in Deterring Prosecutorial

B. The Second Circuit’s Rule Reduces the

Deterrent Effect of Section 1983 Suits

by Discouraging Plaintiffs From Filing

Even Meritorious Claims. .......................... 12

Il. By Inviting Parallel Criminal and Civil

Proceedings, the Second Circuit's Rule

Interferes with the Fair and Efficient

Administration of the Criminal Justice

III, cecicsanvnncssnviscesassatsnasnennmernenszenunsonneineunianctens 15

A. Parallel Proceedings Needlessly Divert

the Parties’ Attention from the

Criminal Proceeding. .......c..0scccsssscocsscseesseess 16

B. Parallel Proceedings Distort the Parties’

I TI vcsnseciccesnncnvcsnactvncnesicinins 20

C. Parallel Proceedings Can Lead to

Conflicting Decisions That Undermine

Public Confidence in the Judiciary............ 21

CONCLUSION

SRR RRR RR RETR RRR ERE RRR EER

ill

TABLE OF AUTHORITIES

Page(s)

Cases

Afro-Lecon, Inc. v. United States,

820 F.2d 1198 (Fed. Cir. 1987)...................04 20, 23

Allen v. McCurry, 449 U.S. 90 (1980)................. 15, 21

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..............c.. 13

Berger v. United States,295 U.S. 78 (1935)................ 3

Bradford v. Scherschligt,

803 F.3d 382 (Oth Cir. 2015)...................sccsscccseenenes 6

Carlson v. Green, 446 U.S. 14 (1980)......................006 7

Castellano v. Fragozo,

352 F.3d 939 (Gth Cir. 2O03)...............ccccsseseesserees 6

City of Riverside v. Rivera,A77 U.S. 561 (1986) ......... 7

Degen v. United States, 517 U.S. 820 (1996)............ 18

Floyd v. Attorney General,

oo Pee fe Bh Le Se ee 6

Heck v. Humphrey, 512 U.S. 477 (1994)........... passim

Imbler v. Pachtman, 424 U.S. 409 (1976)......... 7,9, 10

Landis v. N. Am. Co., 299 U.S. 248 (1936)............... 18

Mills v. Barnard, 869 F.3d 473 (6th Cir. 2017).......... 6

iv

Mondragon v. Thompson,

S19 F.3d 1676 CIGD Cir. BOOB)........c0scccccceccesccescss. 6

Montana v. United States,440 U.S. 147 (1979)........ 22

Murphy v. Waterfront Comm'n of

New York Harbor, 378 U.S. 52 (1964)................. 20

Owen v. City of Independence, Mo.,

af A NESS reer 7,8

Patsy v. Bd. of Regents of Fla.,

gO era See 19

Schaffer ex rel. Schaffer v. Weast,

ao cenlslinsientions 20

Scheuerman v. City of Huntsville,

373 F. Supp. 2d 1251 (N.D. Ala. 2005)................ 19

Standard Sanitary Mfg. Co. v.

United States, 226 U.S. 20 (1912) .............00.c0000e 19

United States v. Atkinson,

8) aR SPE ae ee a or 22

United States v. Olano, 507 U.S. 725 (1993)............ 22

Wallace v. Kato, 549 U.S. 384 (2007)...................000 18

Weil v. Markowitz,

829 F.2d 166 (D.C. Cir. 1067)..........0ccercsccseeseeeeses. 18

Wyatt v. Cole, 504 U.S. 158 (1992)...............cccceccseeeeees 7

Younger v. Harris, 401 U.S. 37 (1971).......... 15, 21, 22

Statutes

Vf ed eee

1 le Oe E chcteisntersextieasicvetenipeninsens

Other Authorities

Cal. Comm'n on the Fair Admin. of

Justice, Final Report (2008) .............

CTR. FOR Pus. INTEGRITY, Harmful

Error: Investigating America’s Local

fg Lo

Editorial Board, A Prosecutor Is

Punished, N.Y. TIMES (Nov. 8, 2013)

Lauren-Brooke Eisen et al., Federal

Prosecution for the 21*' Century,

BRENNAN CENTER FOR JUSTICE,

Ey SE MENS Sccadcecrsecbiisceuschencceacetse

Myriam E. Gilles, Jn Defense of Making

Government Pay: The Deterrent

Effect of Constitutional Tort

Remedies, 35 GA. L. REV. 845 (2001)

Margaret Z. Johns, Reconsidering

Absolute Prosecutorial Immunity,

2005 BYU L. REV. 53 (2005) .............

JUSTICE POLICY INSTITUTE, Bail Fail:

Why the U.S. Should End the

Practice of Using Money for Bail

Es SUIIIEE ‘apucsdisletcasnsiatleicslegiseedincabanster

senesianeia passim

vi

David Keenan et al., The Myth of

Prosecutorial Accountability After

Connick v. Thompson: Why Existing

Professional Responsibility Measures

Cannot Protect Against Prosecutorial

Misconduct, 121 YALE LJ. ONLINE

a emctandonseiued 14

N.Y. State Bar Ass'n, Final Report of

the N.Y. State Bar Ass’n’s Task Force

on Wrongful Convictions (2009) .......................... 1]

Joanna C. Schwartz, How Governments

Pay: Lawsuits, Budgets, and Police

Reform, 63 UCLA L. REV. 1144 (2016).................. i)

P

Joanna C. Schwartz, What Police Learn

from Lawsuits, 33 CARDOZO L. REV.

I a la oc eipsentda pominesi 8,9

Alexa Ura, Anderson to Serve 9 Days in

Jail, Give Up Law License as Part of

BEE, Ti, TU, CHORD. ©, TBD ivcececctevescescstescescoes 10

]

INTEREST OF AMICI CURIAE

Amici curiae are four organizations that have an

interest in the fair and efficient administration of

criminal justice. '

Center on the Administration of Criminal

Law at NYU School of Law. The Center is dedicated

to defining and promoting good government practices

in the criminal justice system through academic re-

search, litigation, and public policy advocacy.? The

Center regularly participates as amicus curiae in

cases raising substantial legal issues regarding inter-

pretation of the Constitution, statutes, regulations, or

policies. The Center supports challenges to practices

that raise fundamental questions of defendants’

rights or that the Center believes constitute a misuse

of government resources. The Center also defends

criminal justice practices where discretionary deci-

sions align with applicable law and standard practices

and are consistent with law-enforcement priorities.

American Civil Liberties Union. The ACLU is

a nationwide, nonprofit, nonpartisan organization

with nearly 2 million members dedicated to the prin-

ciples of liberty and equality embodied in the

Constitution and the nation’s civil-rights laws.

' No party or counsel for any party authored any part of this brief

or made a monetary contribution intended to fund the prepara-

tion or submission of this brief. The parties have consented to the

filing of this brief.

* Amici the Center on the Administration of Criminal Law and

the Brennan Center for Justice are affiliated with New York Uni-

versity, but no part of this brief purports to represent the views

of New York University School of Law or New York University.

2

Founded nearly 100 years ago, the ACLU has partici-

pated in numerous cases before this Court involving

the scope and application of constitutional rights, both

as direct counsel and as amicus curiae. Through its

Criminal Law Reform Project, the ACLU engages in

nationwide litigation and advocacy to enforce and pro-

tect the rights of people accused of crimes.

New York Civil Liberties Union. The New York

Civil Liberties Union is the New York State affiliate

of the American Civil Liberties Union and is a non-

profit, non-partisan organization with over 180,000

members. The NYCLU is devoted to the protection

and enhancement of fundamental rights and liberties.

Among the most fundamental are the rights to justice

and fairness for defendants in the criminal justice sys-

tem. The NYCLU regularly participates as amicus

curiae in cases that raise questions about fundamen-

tal rights and liberties.

Brennan Center for Justice at NYU School of

Law. The Brennan Center is a non-profit, nonparti-

san public policy and law institute that seeks to secure

our nation’s promise of “equal justice for all” by creat-

ing a rational, effective, and fair criminal justice

system. The Brennan Center advocates for reshaping

‘aws and public policies that undermine this vision.

Amici’ interests are directly affected by the issues

presented in this case. The Second Circuit adopted a

rule for accrual of Section 1983 claims based on fabri-

cation of evidence that interferes with the fair and

efficient administration of criminal justice. Because

the Second Circuit’s rule threatens the legitimacy of

the criminal justice system and the public’s faith in it,

3

amici respectfully request that the Court reverse the

decision below and hold that Petitioner’s Section 1983

claim did not accrue until his criminal proceedings

ended in his favor.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Constitution’s guarantee of a fair and impar-

tial criminal justice system can be achieved only if

prosecutors are committed to ensuring “that justice

shall be done.” Berger v. United States, 295 U.S. 78,

88 (1935). This Court long ago rejected the notion that

prosecutors should try to secure convictions at all

costs, because “[i]t is as much [the prosecutor’s] duty

to refrain from improper methods calculated to pro-

duce a wrongful conviction as it is to use every

legitimate means to bring about a just one.” Jd.

The fairness and legitimacy of the criminal justice

system depend on the safeguards that deter prosecu-

tors from engaging in misconduct. Civil lawsuits

seeking monetary damages under 42 U.S.C. § 1983

play a critical role in deterring prosecutorial miscon-

duct, but the Second Circuit’s decision in this case

threatens to weaken their effectiveness.

Under the Second Circuit’s ruling, a Section 1983

claim based on fabrication of evidence accrues when

the defendant “learn{s] of the fabrication of the evi-

dence and its use against him in criminal

proceedings.” Pet. App. 13a. The limitations period

thus begins to run for many defendants at the start of

criminal proceedings, when defendants are “indicted

and arrested” and learn of the evidence being used

against them. /d. Because criminal proceedings often

4

take years to conclude, starting the limitations period

for a fabrication-of-evidence claim so early means that

many defendants are forced to make a difficult choice:

they must either forgo bringing a Section 1983 suit or

initiate parallel civil actions while their criminal pro-

ceedings are ongoing. Regardless of which choice a

defendant makes, the justice system and our trust in

it suffer.

I. Section 1983 suits play an important role in de-

terring prosecutorial misconduct. They deter

prosecutorial misconduct because the threat of mone-

tary damages affects a prosecutor’s behavior, as will

the reputational costs that accompany public accusa-

tions that the prosecutor has violated the Constitution

or other federal law. Although this Court has sug-

gested that prosecutorial misconduct can also be

deterred through criminal prosecutions and bar disci-

plinary proceedings, prosecutors are subject to those

sanctions so infrequently and unsuccessfully that

they do not adequately deter misconduct. Those pro-

ceedings are also inadequate because they do not

provide redress to the victims of constitutional mis-

conduct, nor do they typically halt illegal practices at

a systemic level, as Section 1983 claims can.

Section 1983 suits cannot deter misconduct if crim-

inal defendants do not file them. By requiring the

defendant to file a civil suit before criminal proceed-

ings are complete, the Second Circuit's rule

discourages Section 1983 suits, even when they have

merit. Faced with the prospect of initiating parallel

pr-ceedings, many criminal defendants will reasona-

bly give up the prospect of monetary damages in a civil

5

suit because pursuing that remedy may prejudice res-

olution of the criminal proceeding. This prejudice can

take many forms. Filing a civil suit against a prosecu-

tor could sufficiently anger the prosecutor that he or

she will seek a longer sentence, add charges or en-

hancements, or be less willing to negotiate a plea

agreement—all of which are virtually unreviewable

acts of discretion. Filing a civil suit also could require

the criminal defendant to reveal his defense strategy

and risk self-incrimination. And for those defendants

willing to file a civil suit while criminal proceedings

are pending, they still may not do so because the

strength of the suit will be hard to determine before

the criminal proceedings conclude. As a result, finding

a lawyer to bring the case could prove to be too diffi-

cult—particularly for low-income defendants.

Il. Even if a criminal defendant risks filing a Sec-

tion 1983 suit while criminal proceedings are ongoing,

that suit will come at a significant cost to the criminal

justice system. Parallel criminal and civil proceedings

interfere with the fair and efficient administration of

the criminal justice system in at least three ways.

First, parallel proceedings split the parties’ resources

and attention between the criminal and civil proceed-

ings. Second, parallel proceedings affect the parties’

strategic decisions. Third, parallel proceedings create

the risk of inconsistent rulings and judgments in the

criminal and civil proceedings, which undermines the

legitimacy of the criminal proceedings.

This Court can avoid these problems by rejecting

the Second Circuit's rule in favor of the approach

taken by the overwhelming majority of the courts of

appeals that have decided the issue. Those courts

6

have held that a Section 1983 claim based on fabrica-

tion of evidence accrues upon the conclusion of

criminal proceedings in the defendant's favor.* See

Heck v. Humphrey, 512 U.S. 477, 484 (1994) (endors-

ing approach that “avoids parallel litigation”).

ARGUMENT

I. BY DISCOURAGING THE FILING OF

SECTION 1983 SUITS, THE SECOND CIR-

CUIT’S RULE UNDERMINES A CRITICAL

TOOL FOR DETERRING PROSECUTO-

RIAL MISCONDUCT.

Prosecutions involving fabricated evidence deprive

defendants of fair judicial proceedings and undermine

public confidence in the judicial system. The integrity

of the criminal justice system therefore demands that

prosecutors, police officers, and other state officials

are adequately deterred from fabricating evidence for

use in criminal proceedings. Civil lawsuits seeking

monetary damages under Section 1983 provide a pow-

erful deterrent for the prosecutorial misconduct at

issue here. Yet the Second Circuit’s ruling threatens

to weaken the deterrent effect of Section 1983 suits by

5 See Floyd v. Attorney General, 722 F. App’x 112, 114 (3d Cir.

2018); Castellano v. Fragozo, 352 F.3d 939, 959-60 (5th Cir.

2003) (en banc); Mills v. Barnard, 869 F.3d 473, 484 (6th Cir.

2017); Bradford v. Scherschligt, 803 F.3d 382, 387-89 (9th Cir.

2015); Mondragén v. Thompson, 519 F.3d 1078, 1083 (10th Cir.

2008). The Second Circuit stands alone as the only court of ap-

peals to hold that a fabrication-of-evidence claims accrues when

the plaintiff learns that the prosecution has relied on fabricated

evidence. See Pet. App. 12a-13a.

7

discouraging criminal defendants from bringing these

suits, even when their claims have merit.

A. Section 1983 Suits Play an Im-

portant Role in Deterring

Prosecutorial Misconduct.

1. Section 1983 claims are a “vital component of

any scheme” for addressing prosecutorial misconduct,

like fabrication of evidence. Owen v. City of Independ-

ence, Mo., 445 U.S. 622, 651 (1980). This is because

Section 1983 serves two purposes: it compensates in-

dividual plaintiffs and, equally important, deters

future misconduct. See Wyatt v. Cole, 504 U.S. 158,

161 (1992) (Section 1983 acts “to deter state actors

from using the badge of their authority to deprive in-

dividuals of their federally guaranteed rights and to

provide relief to victims if such deterrence fails.”). The

statute embodies Congress’s determination that “the

public as a whole has an interest in the vindication of

the rights conferred by [Section 1983], over and above

the value of a civil rights remedy to a particular plain-

tiff.” City of Riverside v. Rivera, 477 U.S. 561, 574-75

(1986).

“It is almost axiomatic that the threat of damages

has a deterrent effect.” Carlson v. Green, 446 U.S. 14,

21 (1980); see also Imbler v. Pachtman, 424 U.S. 409,

442 (1976) (“It should hardly need stating that, ordi-

narily, liability in damages for unconstitutional or

otherwise illegal conduct has the very desirable effect

of deterring such conduct.”). The knowledge that a

government actor will be liable for misconduct creates

an “incentive for officials who may harbor doubts

about the lawfulness of their intended actions to err

8

on the side of protecting citizens’ constitutional

rights.” Owen, 445 U.S. at 651—52. The threat of dam-

ages also encourages policymakers to adopt rules and

programs aimed at minimizing the infringement of

constitutional rights, which “are particularly benefi-

cial in preventing [] ‘systemic’ injuries.” Jd. at 652.

Finally, “valuable information is unearthed and ex-

posed” over the course of Section 1983 litigation,

which can engender policy changes either because this

information was “previously unknown” or because pol-

icymakers are pressured by “publicity that attends

the exposure of the information.” Myriam E. Gilles, Jn

Defense of Making Government Pay: The Deterrent Ef-

fect of Constitutional Tort Remedies, 35 GA. L. REV.

845, 859-61 (2001).

Section 1983 suits have proven to have a deterrent

effect in practice. Police departments have used law-

suit data—information generated during civil

litigation, including damages awards and evidence

uncovered by discovery—to identify systemic prob-

lems and calibrate personnel and training decisions

accordingly. See Joanna C. Schwartz, What Police

Learn from Lawsuits, 33 CARDOZO L. REV. 841 (2012).

For example, the Portland police department per-

formed trend analyses on lawsuit data, which allowed

it to identify that excessive force claims involving

blows to the head were disproportionately being as-

serted against officers at one police station. Jd. at 854.

Following training, those claims declined. Jd. The Los

Angeles Sheriffs Department similarly used litigation

data as part of a semiannual review to identify that

two of its 23 stations were responsible for 70 percent

of all police misconduct litigation over the six-month

period under review. /d. at 855. That finding led to an

9

investigation into those stations, which triggered

staffing changes and training. /d. at 856. As a result,

“the number of shootings at the station ... dropped

dramatically, even as the crime statistics and arrests

remained stable.” /d.4

2. The Court has expressed concern that Section

1983 suits may over-deter prosecutors as a general

matter, causing them to “shade [their] decisions in-

stead of exercising the independence of judgment

required by [their] public trust.” Jmbler, 424 U.S. at

423. Prosecutorial immunity thus bars suits against

prosecutors for their prosecutorial functions. And the

powerful deterrent effect of Section 1983 suits is un-

necessary, the Court has explained, because a

prosecutor engaging in misconduct may face criminal

prosecution or bar disciplinary proceedings. See id. at

429. But the Court’s reasons for prohibiting certain

kinds of Section 1983 claims against prosecutors do

not apply when, as here, a prosecutor is accused of fab-

ricating evidence.

The Court should not be concerned about prosecu-

tors being overly deterred when the issue is whether

to fabricate evidence for use in criminal proceedings.

Prosecutors must frequently exercise discretion and

‘ Section 1983 claims even have a deterrent effect on government

agencies who are insured from having to pay damages awards.

See Joanna C. Schwartz, How Governments Pay: Lawsuits,

Budgets, and Police Reform, 63 UCLA L. REV. 1144, 1211 (2016)

(‘Insured agencies may feel pressures associated with payouts

even more acutely, regardless of whether they directly contribute

to insurance premiums.”). This is because public agency insur-

ers, like other insurers, engage in risk management by pricing

insurance based on past conduct and using limits and deducti-

bles to reduce moral hazard. See id. at 1205.

10

make tough judgment calls, but deciding whether to

fabricate evidence and introduce it at trial is not such

a decision. Indeed, the district court correctly recog-

nized that a prosecutor's immunity does not extend to

allegations that he fabricated evidence, because the

fabrication of evidence is not a prosecutorial function.

See Pet. App. 61a. Section 1983 suits for fabricating

evidence do not run the risk of punishing the “honest

prosecutor’ who in good faith steps over the constitu-

tionally permitted line. See Imbler, 424 U.S. at 425.

Rather, they serve the necessary purpose of deterring

the dishonest prosecutor contemplating whether to

fabricate evidence.

Section 1983 suits are necessary to deter prosecu-

tors from fabricating evidence. The possibility that

prosecutors could face criminal charges for their mis-

conduct is too remote to affect their behavior. A 2003

study of more than 2,000 cases involving prejudicial

prosecutorial misconduct found that none of the pros-

ecutors faced criminal charges for their actions. See

CTR. FOR PUB. INTEGRITY, Harmful Error: Investigat-

ing America’s Local Prosecutors, at app. 79-90 (2003);

see also Margaret Z. Johns, Reconsidering Absolute

Prosecutorial Immunity, 2005 BYU L. REv. 53, 60

(2005).5 Federal prosecutions under 18 U.S.C. § 242

5 Since the study was completed, one prosecutor was criminally

prosecuted and convicted for obtain.ng a wrongful conviction by

withholding evidence and making false statements to the court.

See Alexa Ura, Anderson to Serve 9 Days in Jail, Give Up Law

License as Part of Deal, TeX. TRIB. (Nov. 8, 2013),

https://www.texastribune. org/2013/11/08/ken-anderson-serve-

jail-time-give-law-license. The newsworthiness of this conviction

demonstrates how rare these prosecutions are. See The Editorial

Board, A Prosecutor Is Punished, N.Y. TIMES (Nov. 8, 2013),

11

confirm this point. This provision was enacted in 1866

to provide criminal liability for government officials

who violate constitutional protections. Johns, supra,

at 71. But in the 153 years since its enactment, only

one prosecutor has been convicted under the statute.

See id.

Disciplinary actions by state bars are similarly in-

effective as a deterrent. Of the more than 2,000 cases

involving prejudicial prosecutorial misconduct identi-

fied in the Center of Public Integrity report,

prosecutors were disciplined in only 44 cases. CTR. FOR

PUB. INTEGRITY, supra, at app. 79. State bar associa-

tions—who are tasked with policing prosecutorial

misconduct—recognize the problem. A New York Bar

Association task force concluded that, among the 53

wrongful conviction cases it surveyed, it did not find

any “public disciplinary steps against prosecutors,”

and concluded that prosecutors face “little or no risk”

as a result of their misconduct. N.Y. State Bar Ass’n,

Final Report of the N.Y. State Bar Ass’n’s Task Force

on Wrongful Convictions, at 29 (2009),

https://www.nysba.org/wcreport. Similarly, a Califor-

nia commission analyzed 54 cases_ involving

prejudicial misconduct and found that none of these

cases resulted in a report to the state bar—even

though state law requires judges to give such notice.

https://www.nytimes.com/2013/11/09/opinion/a-prosecutor-is-

punished. html (“The 10-day jail sentence for the prosecutor, Ken

Anderson, is insultingly short—the victim of his misconduct, Mi-

chael Morton, spent nearly 25 years in prison. But because

prosecutors are so rarely held accountable for their misconduct,

the sentence is remarkable nonetheless.”).

12

See Cal. Comm’n on the Fair Admin. of Justice, Final

Report 71 (2008), https://bit.ly/2T pp6fq.

In short, when fabrication of evidence is at issue,

over-deterrence should not be a concern, and criminal

and disciplinary proceedings are insufficient. Section

1983 suits are thus essential to deter prosecutorial

misconduct.

B. The Second Circuit’s Rule Reduces

the Deterrent Effect of Section 1983

Suits by Discouraging Plaintiffs

From Filing Even Meritorious

Claims.

Section 1983 suits can deter prosecutorial miscon-

duct only if plaintiffs are willing to file them. Under

the Second Circuit’s rule, many criminal defendants

will reasonably choose not file Section 1983 suits—

even if they have a strong claim—because of the risk

inherent in filing a civil suit before criminal proceed-

ings have concluded. Many defendants will make a

strategic decision to give up the prospect of monetary

damages in the civil suit to maximize the likelihood of

prevailing in the criminal proceeding. And for those

defendants who do not make this strategic choice,

they still may not file a Section 1983 suit for a practi-

cal reason: many defendants—in particular, low-

income defendants—could have difficulty finding a

lawyer to take the case.

1. A criminal defendant may rationally decide not

to pursue a meritorious Section 1983 claim because

doing so while his criminal proceedings are pending

could hurt his chances of achieving a favorable resolu-

tion in the criminal proceedings.

13

A criminal defendant often chooses not to testify at

trial and instead exercises his Fifth Amendment right

not “to be a witness against himself.” U.S. Const.

Amd. V. But a plaintiff in a Section 1983 suit typically

cannot adopt this same strategy. To meet the civil

pleading standard required to state a Section 1983

claim, see Ashcroft v. Iqbal, 556 U.S. 662 (2009), the

criminal defendant must explain when he or she be-

came aware of fabricated evidence and how he or she

knew it was fabricated. This explanation would risk

disclosing the defendant’s trial strategy to the prose-

cutors to whom he or she is adverse in parallel

criminal proceedings.

The concerns over filing a civil suit during the

criminal proceedings are even greater for defendants

who are considering resolving the criminal charges

through a plea agreement.® In negotiating a plea deal,

defendants are seeking leniency from the government,

including by displaying a willingness to cooperate.

But naming the prosecutor as a defendant in a civil

case could anger the prosecutor, which could imperil

the possibility of a favorable plea agreement. Even

worse, filing the civil suit could cause the prosecutor

to revoke the plea offer entirely, add charges or en-

hancements, or seek a harsher sentence upon

conviction—all of which are virtually unreviewable

acts of discretion. Indeed, this concern is one of the

reasons why few criminal defendants file state bar

complaints even when they are aware of prosecutorial

® Given that more than 90 percent of criminal cases are resolved

by plea bargain, this is virtually every defendant. See, e.g., Lau-

ren-Brooke Eisen et al., Federal Prosecution for the 21“ Century,

BRENNAN CENTER FOR JUSTICE, 27 (Sept. 23, 2014),

https://bit.ly/2UbiJ JL.

14

misconduct. See David Keenan et al., The Myth of

Prosecutorial Accountability After Connick v. Thomp-

son: Why Existing Professional Responsibility

Measures Cannot Protect Against Prosecutorial Mis-

conduct, 121 YALE L.J. ONLINE 203, 211 (2011).

2. Criminal defendants also are less likely to file a

Section 1983 suit before criminal proceedings con-

clude because they will have more difficulty retaining

counsel to bring the suit. Attorneys are more likely to

bring Section 1983 fabrication-of-evidence claims once

they can see that the claims have some merit. But the

strength of a Section 1983 claim is typically difficult

to judge until after the criminal proceedings are com-

plete. See id. at210 (“vast majority of known

instances of prosecutorial misconduct” are substanti-

ated over the course of a trial or appellate

proceedings).

This concern is especially great for low-income

criminal defendants. Such individuals are more likely

to be subjected to pretrial incarceration. See JUSTICE

POLICY INSTITUTE, Bail Fail: Why the U.S. Should

End the Practice of Using Money for Bail, at 10 (Sept.

2012), http://www.justicepolicy.org/uploads/justice

policy/documents/bailfail.pdf (since 1992, use of

money bail has increased 32 percent and average bail

amounts have increased by $30,000). And individuals

who are detained pretrial are less able to secure and

work with counsel to prepare their case. See id. at 13.

Section 1983 suits can serve as a powerful deter-

rent to prosecutorial misconduct only if criminal

defendants are willing and able to file them. The Sec-

ond Circuit’s rule, by forcing many plaintiffs to file

15

suit while their criminal proceedings are ongoing, dis-

courages filing of meritorious suits, and thus weakens

the deterrent effect of these suits.

Il. BY INVITING PARALLEL CRIMINAL

AND CIVIL PROCEEDINGS, THE SEC-

OND CIRCUIT'S RULE INTERFERES

WITH THE FAIR AND EFFICIENT AD-

MINISTRATION OF THE CRIMINAL

JUSTICE SYSTEM.

Despite the practical obstacles to, and strategic

reasons for not filing a Section 1983 suit while crimi-

nal proceedings are ongoing, some defendants will

surely still initiate a parallel civil proceeding. Because

of the difficulties inherent in administering parallel

proceedings, those suits—while potentially protecting

the defendant’s rights—threaten to harm the criminal

justice system more broadly.

This Court has long recognized the importance of

“avoid[ing] parallel litigation.” Heck, 512 U.S. at 484.

Parallel litigation is undesirable in part because it

raises a host of practical problems. It also wastes ju-

dicial resources and increases the costs of litigation.

Moreover, parallel proceedings raise difficult legal is-

sues related to the preclusive effect decisions in one

forum have in the other. See, e.g., Allen v. McCurry,

449 U.S. 90, 105 (1980) (applying collateral estoppel

to Section 1983 claims). As a result, the Court has

sought to “avoid a duplication of legal proceedings ...

where a single unit would be adequate to protect the

rights asserted.” Younger v. Harris, 401 U.S. 37, 44

(1971).

16

Here, parallel criminal and civil proceedings would

interfere with the fair and efficient administration of

the criminal justice system in at least three ways.

First, they split the parties’ resources and attention

between the criminal and civil proceedings. Second,

they distort the strategic decisions that the parties

make. Third, they create the risk of inconsistent rul-

ings and judgments in the criminal and civil

proceedings, which can call the legitimacy of both pro-

ceedings into question. The Court should avoid these

problems by rejecting the Second Circuit's rule.

A. Parallel Proceedings Needlessly Di-

vert the Parties’ Attention from the

Criminal Proceeding.

A criminal proceeding carries such serious conse-

quences, for both the defendant and the general

public, that the prosecutor and defendant should be

allowed to focus their attention on that matter. Only

once the criminal proceeding has completed should

the parties turn their attention to the civil rights mat-

ter. By instead encouraging criminal defendants to

file parallel civil suits, the Second Circuit's rule inter-

feres with both the prosecutor’s ability to prosecute

the case and the defendant’s ability to defend himself.

1. Section 1983 lawsuits filed during criminal! pro-

ceedings threaten to divert both parties’ time and

resources from the criminal proceedings. Parallel pro-

ceedings may require prosecutors to prepare for trial

in the criminal proceeding while they sit for deposi-

tions or respond to discovery requests in the civil case.

The potential for distraction is even greater for crimi-

nal defendants who file civil actions. They cannot

17

simply focus on developing a defense strategy that

best serves their interests in the criminal proceeding.

They must instead devote considerable resources to

the civil action, advancing their own legal theories

and conducting the discovery necessary to prove them.

Given the importance of criminal proceedings—where

defendants often face the possibility of decades in

prison—they should give their complete attention to

defending their liberty, rather than simultaneously

focusing on damages actions.

2. The problem of diverting the parties’ attention

from the criminal matter is exacerbated by the fact

that the parties may devote substantial time and ef-

fort to litigating issues that would not arise if the civil

suit were brought after the criminal proceedings con-

clude.

For example, the Second Circuit's rule risks

spawning needless litigation over when the Section

1983 claim accrued. Under the majority rule, a fabri-

cation-of-evidence claim accrues when the criminal

proceedings con. lude in the defendant’s favor. This ac-

crual date can be determined without discovery by

referring to the docket in the criminal case. In con-

trast, a fabrication-of-evidence claim accrues under

the Second Circuit rule when the defendants knows,

or should have known, about the fabrication of evi-

dence. See Pet. App. 13a. Intrusive discovery—

potentially including discovery involving the defend-

ant’s communications with his defense lawyers—will

often be necessary to determine when the defendant

learned of the fabricated evidence. Indeed, it is telling

that the Second Circuit did not specify when the fab-

rication-of-evidence claim accrued under its rule,

18

stating only that it was somewhere between when Pe-

t.tioner was “indicted and arrested” and when his first

trial concluded. Pet. App. 13a—14a.

3. Given the problems created by parallel proceed-

ings, a party in the civil case may seek a stay pending

completion of the criminal proceeding. See Wallace v.

Kato, 549 U.S. 384, 393-94 (2007). But the possibility

of a stay hardly alleviates the problems caused by par-

allel litigation. This Court has never suggested that a

stay should be granted as a matter of course. Instead,

as discussed below, whether to grant a stay requires

balancing the equities in a particular case. Even when

those equities favor a stay, the parties still must liti-

gate the stay motion in each case. And doing so will

require expending time and resources that would be

better spent on the criminal proceedings.

District courts have broad discretion over whether

to grant a stay. When faced with a request to stay civil

proceedings or limit civil discovery, they must “weigh

competing interests” arising from the parallel pro-

ceedings, Landis v. N. Am. Co., 299 U.S. 248, 254-55

(1936), and consider what “the interests of justice” re-

quire, Degen v. United States, 517 U.S. 820, 826-27

(1996). Because “[a] total stay of civil discovery pend-

ing the outcome of related criminal matters is an

extraordinary remedy,” Weil v. Markowitz, 829 F.2d

166, 174 n.17 (D.C. Cir. 1987), some courts may per-

mit discovery to avoid prejudicing the plaintiff in the

civil lawsuit.

But even when the civil case is stayed, parallel pro-

ceedings still are inefficient and interfere with the

19

parties’ ability to focus on the criminal matter. To ob-

tain a stay of the civil lawsuit, a party must show that

a stay is necessary—a fact-intensive and time-con-

suming process that distracts from the criminal

proceeding as well as the merits of the allegations

raised in the civil action. See, e.g., Schewerman v. City

of Huntsville, 373 F. Supp. 2d 1251, 1258 (N.D. Ala.

2005) (prosecutors seeking a stay must “explain in de-

tail” the impact of civil discovery on the related

criminal proceeding).’

In short, parallel proceedings will necessarily di-

vert the parties’ attention from the matter that should

take priority—the criminal proceedings. Both the

prosecutor and criminal defendant are better served

by focusing first on the criminal matter, and then

turning to Section 1983 litigation, if necessary, once

the criminal proceedings conclude.

7 The Court should not adopt a rule allowing for automatic stays

of Section 1983 suits, because automatic stays are at odds with

the purpose of those suits—‘“to interpose the federal courts be-

tween the States and the people, as guardians of the people's

federal rights.” Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 503

(1982); see also Standard Sanitary Mfg. Co. v. United States, 226

U.S. 20, 52 (1912) (‘An imperative rule that the civil suit must

await the trial of the criminal action might result in injustice.”).

And if the Second Circuit's accrual rule can be efficiently admin-

istered only if district courts automatically issue stays, then the

rule has no practical value. This outcome would undermine the

purpose of an early accrual date by prohibiting claims from ad-

vancing before criminal proceedings conclude.

20

B. Parallel Proceedings Distort the

Parties’ Strategic Decisions.

The Second Circuit's rule also undermines the fair

and efficient administration of criminal justice be-

cause it affects the strategic decisions that the parties

make. When the parties are involved in related crimi-

nal and civil matters, they cannot simply make

decisions based on the criminal proceeding. They also

must consider how their actions affect the civil action.

Criminal defendants are most severely harmed by

the need to balance potentially conflicting strategies.

As defendants in the criminal matter, they may re-

main silent and force the government to carry its

burden of proving guilt beyond a reasonable doubt.

Murphy v. Waterfront Comm’n of New York Harbor,

378 U.S. 52, 55 (1964) (privilege against self-incrimi-

nation reflects “our sense of fair play which ...

requir[es] the government in its contest with the indi-

vidual to shoulder the entire load”). In contrast, as

plaintiffs in the Section 1983 case, they bear the bur-

den of proving their claims and therefore must

advance their own legal theories and develop the evi-

dence to prove them. Schaffer ex rel. Schaffer v. Weast,

546 U.S. 49, 56 (2005) (noting “ordinary default rule

that plaintiffs bear the risk of failing to prove their

claims”). Moreover, any evidence that a prosecutor ob-

tained during the civil case likely would be admissible

in the criminal proceeding. E.g., Afro-Lecon, Inc. v.

United States, 820 F.2d 1198, 1200 (Fed. Cir. 1987).

As a result, a defendant’s ability to defend himself in

the criminal proceeding could be undermined by any

discovery the prosecutor obtains in the civil proceed-

ing. To maximize their chances of success in both

21

proceedings, criminal defendants must often make

strategic decisions that differ from the choices they

would make based solely on the criminal proceeding.

Rather than permit a pending civil suit to affect

the strategy—and perhaps the outcome—of the crim-

inal proceeding, the Court should reject the Second

Circuit’s rule and hold that a Section 1983 claim based

on fabrication of evidence does not accrue until the

criminal proceeding has ended.

C. Parallel Proceedings Can Lead to

Conflicting Decisions That Under-

mine Public Confidence in the

Judiciary.

By encouraging parallel litigation, the Second Cir-

cuit’s rule will increase conflict between federal and

state courts, threatening to undermine public confi-

dence in the judiciary.

As this Court has recognized, parallel litigation

poses a fundamental risk to our federalism. By en-

couraging federal courts to use Section 1983 claims to

preempt state-court decisions, the rule adopted below

threatens to erode the “proper respect for state func-

tions,” see Younger, 401 U.S. at 43—44, that is “a

bulwark of [our] federal system” of government, see

Allen, 449 U.S. at 96. This concern for comity, as well

as the more practical problems of parallel litigation,

provide the basis for this Court’s policy against federal

interference in state criminal proceedings. See Heck,

512 U.S. at 484 (noting the “strong judicial policy

against the creation of two conflicting resolutions aris-

ing out of the same or identical transaction”).

22

Maintaining an appropriate “sensitivity to the le-

gitimate interests of both State and National

Governments,” Younger, 401 U.S. at 44, is fundamen-

tal to preserving public confidence in our criminal

justice system. That confidence is rooted in the orderly

administration of justice and the finality of judicial

decisions. Cf. Montana v. United States, 440 U.S. 147,

154 (1979) (“[M]inimizing the possibility of incon-

sistent decisions” is desirable in part because it

“fosters reliance on judicial action”); United States v.

Atkinson, 297 U.S. 157, 159 (1936) (noting “the public

interest in bringing litigation to an end after fair op-

portunity has been afforded to present all issues of law

and fact”).

A rule that encourages parallel litigation under-

mines the orderly administration of justice and

finality and thus threatens to erode public confidence

in the judiciary. Cf. Heck, 512 U.S. at 484—85 (“This

Court has long expressed ... concerns for finality and

consistency and has generally declined to expand op-

portunities for collateral attack.”). Put differently, a

rule that requires federal courts to respect state court

proceedings will encourage the public to do the same.

Cf. United States v. Olano, 507 U.S. 725, 736 (1993)

(allowing appellate courts to correct plain forfeited er-

rors affecting substantial rights if such errors

“seriously affect[{] the ... public reputation of judicial

proceedings”).

The Second Circuit’s rule harms both federal-state

relations and public confidence in the judiciary. First,

it undermines the orderly administration of justice.

For instance, the Second Circuit rule requires many

criminal defendants to initiate parallel proceedings in

23

federal court in order to preserve their evidence-fabri-

cation claims, but it also implies those same

defendants must halt federal litigation if and when a

conviction occurs—and then restart it if and when the

conviction is reversed so that the Heck bar no longer

applies. See Pet. App. 16a.

Second, by encouraging parallel proceedings, the

Second Circuit's rule promotes federal-state conflicts,

wastes resources, undermines finality, and raises a

host of difficult legal issues. For example, the Second

Circuit’s rule would routinely force federal courts to

confront issues such as the effect a denial of a motion

to suppress allegedly fabricated evidence would have

on a parallel Section 1983 claim. Cf. Afro-Lecon, 820

F.2d at 1200 (addressing whether district court erred

in failing to stay civil proceedings where (1) plaintiff

initiated civil case, (2) government indicted the plain-

tiff, (3) plaintiff's motions (one before and one after the

indictment) to stay the civil case were denied, (4) gov-

ernment used deceptive means to obtain civil

discovery for use in its criminal case, (5) now-criminal

defendant’s motion to suppress evidence in question

in the criminal case was denied in part, and (6) civil

plaintiff appealed the decision in the civil case, before

a criminal trial had occurred).

The majority rule avoids these concerns. And by

promoting respect for state courts, the orderly admin-

istration of justice, and the finality of judicial

decisions, the majority approach also promotes public

confidence in our criminal justice system.

24

CONCLUSION

For the foregoing reasons, the Second Circuit’s

judgment should be reversed.

25

Courtney M. Oliva

Executive Director

CENTER ON THE

ADMINISTRATION OF

CRIMINAL LAW AT NYU

SCHOOL OF LAW

139 MacDougal Street

New York, NY 10012

(212) 998-6612

Priya Raghavan

BRENNAN CENTER FOR

JUSTICE AT NYU SCHOOL

OF LAW

120 Broadway, 17th Floor

New York, New York 10013

Philip Desgranges

Christopher Dunn

NEW YORK CIVIL LIBERTIES

UNION FOUNDATION

125 Broad St., 19th Floor

New York, NY 10004

March 2019

Respectfully submitted,

Mark W. Mosier

Counsel of Record

Rafael Reyneri

James O. Strawbridge®

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

mmosier@cov.com

(202) 662-6000

Mariana Kovel

Ezekiel Edwards

AMERICAN CIVIL LIBERTIES

UNION

125 Broad St., 18th Floor

New York, NY 10004

David Cole

Somil Trivedi

AMERICAN CIVIL LIBERTIES

UNION

915 15% St., NW

Washington DC 20005

Counsel for Amici Curiae

® Member of the Bar of Maryland, District of Columbia Bar mem-

bership pending; supervised by principals of the Firm.

26

Attorney’s Office decided to pursue a retrial—with the

death penalty yet again as an option.

On August 8, 2016, Wright’s retrial began. The

prosecution relied on the same fabricated evidence as

at Wright's first trial. On August 23, 2016, the jury

deliberated for less than ten minutes before acquitting

Wright on all charges. As the jury foreperson

explained, “[t]he evidence was so compelling for Tony

that there really could not have been any other

verdict.”®

Wright was finally released from prison on

August 23, 2016—more than 25 years after he was

first wrongly incarcerated based on fabricated

evidence, and nearly two years after his conviction

was first vacated. Wright was 20 years old when he

was arrested and 45 years old when he was finally

freed. He was deprived not only of decades of his own

life but also the opportunity to watch his son—who

was 4 years old when he was arrested—grow up.

After his acquittal, Wright brought a § 1983

wrongful conviction suit against the PPD detectives

who framed him by fabricating his confession and

other inculpatory evidence against him. Wright also

brought claims against the City of Philadelphia,

alleging that systematic failures in supervision and

discipline created a Wild West atmosphere where

detectives routinely engaged in egregious misconduct.

6 Vernon Odom, Supporters Speak Out After Wrongly-

Convicted Man Freed After 25 Years, ABC6 Philadelphia (Aug.

24, 2016), https://perma.cc/3YAT-G68Y.

27

The lawsuit settled in June 2018.7 Evidence of

patterns of misconduct uncovered as part of Wright’s

suit is now being considered as a part of claims that

the same detectives framed other innocent African-

American men.®

7 Mensah M. Dean & Mark Fazlollah, Philly Man, Wrongly

Imprisoned for 25 Years, Gets Nearly $10 Million from City, The

Inquirer (June 6, 2018), https://perma.cc/26Y7-HNEM.

® Chris Palmer & Jeremy Roebuck, Could One Philly

Man’s Exoneration Prompt Larry Krasner to Examine Other

Decades-old Murders?, The Inquirer (Feb. 16, 2018),

inttps://perma.cce/3SDV-WH3K.

28

Chart 4: Anthony Wright’s Case

— 1991

1998

25-year wrongful detention

Under Heck, Wright could not have brought his

§ 1983 suit until his conviction was vacated on

September 22, 2014. At that time, though, he was

facing re-prosecution with potential capital charges.

Under the majority rule, accrual of his § 1983 suit

would be further delayed until the criminal

29

proceedings finally resolved in his favor with the

acquittal. But had the Second Circuit’s accrual rule

applied to his case, accrual would not have been

deferred while those charges remained pending.

Wright would have had to file a § 1983 suit while

fighting to defend his life or risk being deprived of the

opportunity to seek accountability and compensation

for his 25 years of wrongful incarceration. Indeed,

Wright was acquitted on August 23, 2016—one month

before Pennsylvania’s two-year statute of limitations

on his § 1983 claims would have run. Had the

prosecution been granted even one more

continuance—or had this happened in one of the

jurisdictions with a one-year statute of limitations for

§ 1983 claims—Wright would not have known

whether he was acquitted or re-convicted until, under

the Second Circuit's rule, his opportunity to file a

§ 1983 suit had already expired.

2. The case of John Restivo’

John Restivo spent 18 years wrongly imprisoned

for a crime he did not commit before being exonerated

by DNA evidence. As with Anthony Wright, even

after Restivo’s conviction was vacated, the prosecution

continued to prosecute him based on the same tainted

evidence. After the charges were ultimately

dismissed, Restivo brought a § 1983 claim for

fabrication of evidence. Under the Second Circuit’s

rule, the statute of limitations on Restivo’s claim

would have begun to run when his criminal conviction

was vacated, despite the fact that he remained subject

° All facts are taken from pleadings filed on the dockets at

Restivo v. County of Nassau, No. 06-cv-6720 (JS)(SIL) (E.D.N.Y.

2006), and Restivo v. Hessemann, No. 14-cv-4662 (2d Cir. 2014).

30

to an ongoing criminal proceeding, again exposing

him to the very likely outcome of forfeiting his § 1983

claim on statute-of-limitations grounds.

On December 5, 1984, the body of 16-year-old

Theresa Fusco was found near railroad tracks in

Lynbrook, New York. Fusco—who had been missing

for nearly three weeks—had been raped, strangled

with a rope and left naked. Understandably, there

was immense community pressure to solve this

horrific crime.

After months with no arrests, Nassau County

detectives became convinced that 26-year-old John

Restivo had committed the crime, believing he had

abducted Fusco in the van used by his family moving

business along with two coworkers. But detectives

knew they lacked evidence to make a case against

Restivo, and so lead detective Joseph Volpe fabricated

some: he took hairs that had been removed from

Fusco’s body at autopsy and planted them among

debris collected during a search of Restivo’s van. A

subsequent microscopic hair comparison confirmed

that these hairs were Fusco’s, providing the sole

physical or forensic evidence linking Restivo to the

crime.

At trial, Restivo and his co-defendant Dennis

Halstead both testified to their innocence and

presented alibis. Nevertheless, in December 1986,

both men were convicted based on Volpe’s fabricated

forensic connection. Both were sentenced to thirty-

three-and-one-third years to life in prison.

Restivo relentlessly sought to prove his

innocence. From 1993 to 2003, he repeatedly sought

31

DNA testing as the technology improved and

additional evidence was located. Finally, in 2003,

testing on the spermatozoa taken from a vaginal swab

collected at Fusco’s autopsy definitively excluded

Restivo, Halstead and the third defendant, John

Kogut, as the source.

On June 11, 2003, the court vacated the

convictions of all three men. But the Nassau County

District Attorney remained determined to retry them.

Despite consistent evidence that 16-year-old Fusco

was a virgin, prosecutors spun speculative theories

that the semen could have been left by a mysterious

consensual partner or an alleged fourth co-conspirator

whose identity had remained secret for nearly 20

years. In a vain attempt to prove guilt, DNA testing

was ultimately conducted on an astonishing 86 other

people—essentially everyone Fusco, Restivo or

Halstead knew. But when each person tested was

eliminated, that only further confirmed innocence.

Two and a half years after the vacatur—on December

19, 2005—prosecutors finally dropped the charges

against Restivo and Halstead.

Restivo and Halstead then sued Volpe and the

other detectives under § 1983 for fabricating evidence

against them. In addition to the evidence of

innocence—which proved Fusco’s hairs could not have

been found in Restivo’s van because she had never

been in his van—additional forensic evidence proved

the hairs had been planted. The hairs allegedly found

in Restivo’s van bore signs of decomposition that take

days post-mortem to develop. But the medical

evidence established that Fusco’s body had been left

where it was found by the railroad tracks within an

hour of her death. In other words, this evidence

32

proved the planted hairs had been collected at the

autopsy—after several weeks of decomposition—not

left in the van during the alleged abduction as police

had claimed.

During discovery in the § 1983 suit, Restivo also

learned for the first time of significant exculpatory

evidence that had been hidden throughout the entire

criminal proceedings. It turned out Volpe and the

other detectives had received a tip, the day after

Fusco’s body was found, that Fusco’s murder was

connected to a car theft. The car had been stolen

around the time Fusco disappeared and within a mile

from where she was last seen. When the car was

discovered, several weeks later, it was missing a rope

(consistent with the murder weapon) and had a pair

of striped ladies blue jeans, turned inside out, on the

rear floorboard. Those distinctive jeans matched the

description of what Fusco was last seen wearing;

when her body was found, her clothes were missing.

Although detectives spent days investigating this

lead, they were unable to determine who had stolen

the car. They later buried this exculpatory lead—

which likely would have led to the true killer—to

protect their case against Restivo and his co-

defendants.

In 2014, after years of litigation, a Long Island

jury found that Volpe had fabricated evidence and

withheld exculpatory evidence, causing Restivo and

Halstead’s wrongful convictions. The Second Circuit

later affirmed the verdict in full.

33

Chart 5: John Restivo’s Case

1985

1986

20-year wrongful detention

h

200! acated but

re prosecuted

~~ 2006 Dismissed

criminal

—.

of

a

Like Wright, Restivo had to wait years after his

conviction was vacated for the criminal prosecution to

be resolved in his favor. Under the majority rule, his

time to bring a § 1983 suit would not begin to run until

after the charges were dismissed. But had the Second

Circuit’s accrual rule been applied to him, the statute

of limitations would have been running from the time

34

of the vacatur, even as the criminal charges

simultaneously remained pending. As a result,

Restivo could easily have missed any opportunity to

bring a § 1983 suit against the detective who framed

him.

D. Prolonged pretrial detention—the case

of Jonathan Barr’

Jonathan Barr spent 18 years’ wrongly

imprisoned—more than four years of it in pretrial

detention—for a rape and murder he did not commit,

before he was exonerated by DNA. Were the Second

Circuit’s rule to apply, Barr’s claim for damages

incurred pretrial would have accrued when the

fabricated evidence was first used against him, long

before he was tried and convicted. And because Heck

only defers accrual for claims that arise at the time of

trial, under the Second Circuit’s rule Heck would not

extend the time to seek damages for his pretrial

detention. By the time he could actually sue—after

his exoneration—Barr would have been unable to

seek any damages for those first 4 years of wrongful

incarceration.

In November 1991, 33-year-old convicted sex

offender Willie Randolph abducted, raped, and

murdered 14-year-old Cateresa Matthews, leaving

her body, naked from the waist down, in a field in

Dixmoor, Illinois. Jonathan Barr, Matthews’s

10 All facts are taken from pleadings filed on the docket at

Barr v. Kachiroubas, 12-cv-8327 (ARW) (N.D. Ill 2012), unless

otherwise noted.

35

14-year-old friend and middle school classmate, had

nothing to do with these horrific crimes.

But as months went by without an arrest, Illinois

State Police investigators began to focus on Barr and

four other African-American teenagers. Lacking any

true evidence implicating the innocent teens, they

interrogated 15-year-old Robert Veal, who had

learning disabilities and an IQ of 56. Detectives

handwrote a false confession implicating Veal, Barr

and the other three teens and coerced Veal to sign it.

The statement included nonpublic details about the

murder—including the specific clothing Matthews

was wearing and the location of her injuries. The

detectives falsely claimed these details had originated

with Veal and proved the teens’ guilt. Although police

attempted to fabricate a statement from Barr—

providing him a prewritten statement and falsely

promising him if he signed it without reading it he

could go home—Barr _ steadfastly refused.

Nevertheless, based on Veal’s fabricated statement

and a similar one from another teen, all five were

charged with Matthews’s rape and murder.

Trial was delayed while the parties sought DNA

testing, then in its infancy. When the results came

back, they demonstrated that—contrary to the story

in the false confessions—none of the five charged were

responsible for Matthews’s rape. Nevertheless, the

prosecutors refused to drop the charges. At trial, the

prosecutors relied on the fabricated evidence, arguing

the nonpublic details in the statements were “like

mini lie detectors” that proved guilt because “if they

weren't there, they wouldn’t know that.” Barr \ as

convicted in 1997—over four years after he was first

36

jailed based on the fabricated evidence—and

sentenced to 85 years’ imprisonment.

Nearly 14 years later, more advanced DNA

testing identified Willie Randolph as the source of the

semen found in Matthews’s body. In 2011, all five

convictions were vacated and the charges later

dismissed. Barr was finally released in November

2011, at age 34. During his over 18 years of wrongful

imprisonment, both of Barr’s parents died. He was

not even permitted to attend their funerals. As Barr

later explained, “At the end of the day, I can’t get

those years back. We lost everything ... My parents,

grandparents, everyone is gone. ... They don’t even

know the truth now.”!' Barr was later granted a

certificate of innocence.

Barr and his co-defendants then brought a § 1983

wrongful conviction suit against the detectives who

framed them by fabricating the false confessions. The

lawsuit was settled in June 2014. Randolph would

later be charged with Matthews’s rape and murder in

August 2016.

\! Naomi Nix, “Dixmoor 5” Sue Police, Claim Confessions

Were Coerced, Chicago Tribune (Oct. 18, 2012),

https://perma.cc/69PB-U68M.

37

Chart 6: Jonathan Barr’s Case

1997 Convicted

19-year wrongful detention

—— ZO?

am“ mmmaamaay

BRijHeck bar in effect

Had the Second Circuit’s accrual rule been

applied to Jonathan Barr’s case, he would not have

been able to seek damages for the over four years of

wrongful detention before his 1997 wrongful

conviction. That claim would have accrued at some

point long before his criminal trial, and the statute of

limitations would have expired while he was still

incarcerated. Barr would thus have been worse off

than an exoneree who spent the exact same total

Vaeated and dismissed

38

number of years wrongly incarcerated, merely based

on the date of his trial.

And had Barr prevailed at his 1997 criminal trial,

it would have then been too late to sue the officers

whose fabrication of evidence caused his four years of

detention.

* * *

An innocent person facing criminal prosecution

based on fabricated evidence is subject to an

inexcusable deprivation of his constitutional rights.

The Second Circuit’s accrual rule places a remedy for

that violation out of reach. The individual cannot

know in advance of trial whether he will be convicted

(in which case any future § 1983 fabrication claim

would be Heck barred), or he will be acquitted (in

which case any such claim may already be too late).

The practical result of this rule would be that

some meritorious § 1983 fabrication claims would

never get their day in court. That would only serve to

compound the injustice affected exonerees endure.

Officers who engaged in serious misconduct would not

be held accountable. The deterrent effect of successful

§ 1983 suits create would be lost. And the public, over

all, would be worse off.

CONCLUSION

The Second Circuit’s accrual rule for § 1983

claims that fabricated evidence caused pretrial

detention is inconsistent with the universally

recognized accrual rule for § 1983 wrongful-conviction

claims provided by Heck v. Humphrey. For all the

39

same reasons deferred accrual applies to § 1983

wrongful-conviction claims, the Court should adopt

the same rule here. Additionally, the combination of

the Heck rule with the Second Circuit's rule produces

arbitrary and irrational disparities between otherwise

similarly situated parties. This Court should reverse

the Second Circuit and clarify that all § 1983

fabrication claims do not accrue until favorable

termination of the relevant criminal proceedings.

March 4, 2019

Respectfully Submitted,

BENJAMIN GRUENSTEIN

Counsel of Record

YONATAN EVEN

JONATHAN L. BAKER

MICHAEL W. MARVIN

CRAVATH, SWAINE & MOORE LLP

Worldwide Plaza

825 Eighth Avenue

New York, NY 20019-7475

(212) 474-1000

bgruenstein@cravath.com

Counsel for Amicus Curiae