High court to rule on law­suit

Civil rights charge against pros­e­cu­tor reaches Supreme Court

Albany Times Union - - FRONT PAGE - By Steve Hughes

The U.S. Supreme Court will de­cide whether a civil law­suit that re­sulted from a con­vo­luted 2009 Rens­se­laer County elec­tion fraud case can con­tinue.

The court agreed to hear an ar­gu­ment over a le­gal ques­tion that will de­cide whether Demo­cratic Rens­se­laer County elec­tion com­mis­sioner Ed­ward G. Mcdonough was too late fil­ing an $8 mil­lion fed­eral civil rights law­suit against for­mer spe­cial pros­e­cu­tor Trey Smith.

Smith’s at­tor­ney, Thomas O’con­nor, said the Supreme Court felt the is­sue at hand was one of na­tional sig­nif­i­cance.

“It’s an in­ter­est­ing case and we’ll see what hap­pens,” he said.

Mcdonough was ac­cused of com­mit­ting 74 felonies as part of a scheme in the 2009 pri­mary elec­tion to forge more than 50 ab­sen­tee bal­lots to ben­e­fit Demo­cratic can­di­dates in city coun­cil races. He was ac­quit­ted twice of forgery and pos­ses­sion of a forged in­stru­ment charges, with the sec­ond ac­quit­tal com­ing on Dec. 21, 2012.

On Dec. 18, 2015, Mcdonough sued Smith, in­ves­ti­ga­tors and wit­nesses in the case as well as Rens­se­laer County. Most of the suit was dis­missed and he ap­pealed.

In the law­suit he al­leges that Smith fab­ri­cated ev­i­dence to use against Mcdonough — vi­o­lat­ing his con­sti­tu­tional rights — as well as ma­li­cious pros­e­cu­tion. The suit also al­leged that the other Democrats con­spired to have Mcdonough take the fall and Smith went along with it as

part of a po­lit­i­cal vendetta he had against Mcdonough.

The ques­tion be­fore the Supreme Court is based on the tim­ing of the law­suit.

Mcdonough filed the law­suit in De­cem­ber 2015 un­der Sec­tion 1983 of a fed­eral law which states that de­fen­dants can sue of­fi­cials over civil rights vi­o­la­tions. In these types of cases, there is no fed­eral statue of lim­i­ta­tions and state law ap­plies, which in New York is three years.

The U.S. Sec­ond District Court of Ap­peals ruled in Au­gust 2018 that Mcdonough filed his suit too late, de­cid­ing that he should have filed the suit af­ter his first trial when he would have re­al­ized that false ev­i­dence was al­legedly be­ing used against him, ac­cord­ing to a pe­ti­tion to the Supreme Court by Mcdonough’s at­tor­ney Neal Katyal.

Katyal served as the act­ing so­lic­i­tor gen­eral un­der Pres­i­dent Barack Obama af­ter Elena Ka­gan was ap­pointed to the U.S. Supreme Court.

In the pe­ti­tion, Katyal ar­gues that the Sec­ond District’s time­line for the ap­pli­ca­tion of the statute of lim­i­ta­tion goes against rul­ings from five other fed­eral courts of ap­peal.

Those courts have ruled that in­stead, the clock be­gins to run when crim­i­nal ac­tion against a de­fen­dant ends, so in Mcdonough’s case, the end of his sec­ond trial.

Katyal ar­gues that the Sec­ond District is mak­ing up a new rule, one that would cre­ate an un­equal play­ing field where the statute of lim­i­ta­tions would de­pend on the district where a law­suit was filed.

He also ar­gued that fil­ing a fed­eral civil rights law­suit un­der Sec­tion 1983 be­fore a de­fen­dant’s crim­i­nal trial was com­plete was dis­ad­van­ta­geous for both the de­fen­dant, prose­cu­tors and po­lice.

The in­ves­ti­ga­tion in the fate­ful 2009 pri­mary also im­pli­cated four then-city coun­cil­men, the city coun­cil pres­i­dent, the city clerk as well as two po­lit­i­cal op­er­a­tives in a le­gal saga that con­tin­ued for three years.

Four of the men pleaded guilty and re­ceived vary­ing sen­tences. Two other men re­ceived im­mu­nity for agree­ing to tes­tify for the pros­e­cu­tion. One of the coun­cil­men, Michael La­porto, was also twice ac­quit­ted and filed a fed­eral law­suit seek­ing $80 mil­lion in dam­ages.

The sta­tus of his law­suit was not im­me­di­ately avail­able on Sun­day.

MCDONOUGH: Sued spe­cial pros­e­cu­tor for al­legedly fab­ri­cat­ing ev­i­dence and ma­li­cious pros­e­cu­tion.

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