Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondents.

Argument: First, there must be a specific reason not to apply the Eighth Amendment to the Constitution to servicemembers. As there is no issue of military importance that excludes servicemembers from the protections of the Eighth Amendment, rape of an adult cannot be an “offense punishable by death.” Under the Supreme Court’s interpretation of the Cruel and Unusual Punishment Clause of the Eighth Amendment, the crime of rape of an adult cannot be punishable by death. Petitioner has not met its burden to provide a military-specific exception for the application of the Eighth Amendment to servicemembers. Here, the Petitioner offers policy prescriptions and “national security” reasons which are insufficient to deprive a service-member of his or her constitutional rights. Further, canons of statutory interpretation require that Article 43 must be read to protect applicable constitutional rights. Specifically, sections in the same statutory scheme should be read in pari materia, or interpreted together. Article 43, at the time of Respondents’ alleged offenses, had no statute of limitations for crimes punishable by death, including rape, but established a five-year limitation otherwise; however, Article 55 prohibits cruel and unusual punishment, mirroring the Eighth Amendment. Applying Supreme Court precedent that precludes death as a punishment for rape of an adult, Article 43 read in conjunction with Article 55 requires that rape was subject to a five-year statute of limitations at the time of the alleged offenses. Lastly, civilian law must inform the interpretation of the UCMJ. The CAAF may not freely disregard Supreme Court precedent without a “legitimate military necessity or distinction.” Therefore, the CAAF’s decision to reverse Respondents’ convictions should be affirmed.

Board member Tim O'Toole's written statement to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security regarding proposed changes to the laws governing public corruption charges, as outlined in the Clean Up Government Act of 2011 (H.R.2572).

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioners.

Argument: The statute of limitations in government penalty actions is not extended by a discovery rule. The Second Circuit’s rule will hamper the ability of individuals and corporations to arrange their affairs. And repose for penalty actions supplies an important check against abuses of enforcement power.

Brief of Criminal Defense Organizations, Civil Rights Organizations, and the Cato Institute as Amici Curiae in Support of Petitioner

Argument: An accrual rule that turns on the “awareness of the evidence and its improper use” is confusing and unworkable. The rule fails to provide clear guidance to plaintiffs and is unworkable. The awareness rule is inconsistent with most other accrual rules for claims stemming from prosecutorial misconduct and will encourage piecemeal litigation. Any rule that encourages litigants to file §1983 lawsuits during pending criminal proceedings is divorced from the realities of criminal litigation. Filing a §1983 claim during a criminal prosecution incentivizes the prosecutor to secure a conviction. Because of the breadth of civil discovery, parallel civil and criminal litigation harms defendants. Filing a §1983 suit during a criminal proceeding prejudices an innocent person’s criminal defense and his §1983 claim. An accrues-during-prosecution rule functionally forecloses many §1983 evidence-fabrication claims and would have devastating consequences. Evidence fabrication is a systemic problem. An accrues-during-prosecution rule will functionally bar many meritorious evidence-fabrication claims. In many cases, an evidence-fabrication claim under §1983 is the only effective form of redress.

Brief of Criminal Defense Organizations, Civil Rights Organizations, and the Cato Institute as Amici Curiae Supporting Petitioner (on petition for a writ of certiorari)

Argument: The decision below held that an individual must bring a claim for the unlawful fabrication of evidence under 42 U.S.C. § 1983 within three years of when that person “learned of the fabrication of the evidence and its use against him in criminal proceedings,” and “was deprived of a liberty interest by,” for example, an arrest or trial. McDonough v. Smith, 898 F.3d 259, 267 (2d Cir. 2018). For nearly all innocent defendants with valid claims, their claims would accrue immediately upon commencement of the proceedings—when they first learn the facts alleged at arraignment, they discern that some fact is fabricated, and bail is set. Consequently, to avoid the time bar, many criminal defendants will be forced to mount § 1983 suits either during a pending criminal trial or while still pursuing its appeal. That result directly conflicts with this Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), which held that one of the elements an individual must plead and prove to win an evidence-fabrication claim is termination of the criminal proceeding in the accused’s favor. The decision below literally begins to run the statute of limitations on claims that courts are required, under Heck, to dismiss. It also conflicts with this Court’s broader pronouncements about the appropriate relationship between federal civil and state criminal litigation. This Court has consistently held that federal civil litigation must come after the conclusion of state criminal proceedings, both to respect the prerogative of states to adjudicate alleged violations of state law and to bolster the strong judicial policy against inconsistent adjudications in parallel proceedings. The decision below directly conflicts with this Court’s precedents governing the relationship between civil and criminal cases. The decision below is divorced from the realities of criminal litigation. Filing a § 1983 suit during a criminal trial prejudices a defendant’s criminal defense and a defendant’s § 1983 claim. The question presented is exceptionally important as evidence fabrication is a systemic problem, the decision below will functionally bar many meritorious evidence-fabrication claims, and, in many cases, an evidence-fabrication claims under § 1983 is the only effective form of redress.