We got forgery all around in this election fraud case arising from the Northern District of New York, where the Democratic Election Commissioner was prosecuted in connection with forged absentee ballot signatures. After the Commissioner was acquitted in criminal court (following an earlier mistrial), he went after the special prosecutor, claiming the special prosecutor fabricated evidence against him in violation of the Due Process Clause. The Commissioner's case is now gone-goodbye.
The case is McDonough v. Smith, issued on August 3. McDonough's case fails not because he does not have a case but because it runs afoul of the statute of limitations. McDonough also brought a malicious prosecution claim against the jackals who went after him, but that case also fails in the Court of Appeals because of the three-year statute of limitations.
You have the right under the Constitution not to be deprived of liberty as a result of fabricated evidence. For statute of limitations purposes, your right to sue accrues when you first learn of the fabrication and your liberty is deprived in some way. As it happens, we got a Circuit split here, as the Third, Ninth and Tenth Circuits have held the statute of limitations starts to run only after the criminal proceeding has ended. There might be some logic to that. Can you imagine bringing a fabrication-of-evidence claim against the police while the underlying prosecution is still proceeding against you? With the Second Circuit going the other way on this issue, we are ripe for Supreme Court intervention.
But for now, Second Circuit law is Second Circuit law. Plaintiff's claim fails no matter what the prosecutors did to him because the statute of limitations began to run, at the earliest, when he was indicted and arrested and, at the latest, when the first trial ended in a mistrial. That was more than three years before plaintiff brought this action.
What about the malicious prosecution claim? That fails also, because the prosecutor-defendant in this case has absolute immunity, which prevents any lawsuits for prosecutorial acts that are "intimately associated with the judicial phase of the criminal process" and their role as advocates, which includes initiating prosecutions or trial-work. Since plaintiff sues the prosecutor for work he did in his prosecutorial function, the case is dismissed.