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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0863%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2019

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0863%3A14. Public record. Not legal advice.