Smith v. Holtz

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

4-13-2000

Smith v. Holtz, et al.

Precedential or Non-Precedential:

Docket 99-7046

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Filed April 13, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-7046

JAY C. SMITH,

Appellant

v.

JOHN J. HOLTZ, Bureau of Technical Services,

Pennsylvania State Police; RONALD F. COYLER,

Bureau of Technical Services, Pennsylvania State

Police; VICTOR DOVE; JOHN J. PURCELL,

Special Agent in Charge, Central Regional Office,

Bureau of Criminal Investigations, Office of the

Attorney General; WILLIAM J. LANDER, Bureau

of Criminal Investigations, Office of the Attorney

General; PAUL YATRON

Appeal from the United States District Court

for the Middle District of Pennsylvania

Civil No. 93-cv-01428

District Judge: Hon. James F. McClure, Jr.

Argued: July 27, 1999

Before: SLOVITER, NYGAARD and McKEE, Circuit Judges

(Filed: April 13, 2000)

GERALD J. WILLIAMS, ESQ.

(Argued)

Williams & Cuker

One Penn Center at Suburban

Station

1617 JFK Boulevard, Suite 800

Philadelphia, PA 19103

LESLIE M. FIELDS, ESQ.

Costopoulos Foster & Fields

831 Market Street

P. O. Box 222

Lemonye, PA 17043

Attorneys for Appellant

D. MICHAEL FISHER, ESQ.

Attorney General

GREGORY R. NEUHAUSER, ESQ.

(Argued)

Senior Deputy Attorney General

CALVIN R. KOONS, ESQ.

Senior Deputy Attorney General

JOHN G. KNORR, III, ESQ.

Chief Deputy Attorney General

Office of the Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

Attorneys for Appellees

OPINION OF THE COURT

McKEE, Circuit Judge.

Jay C. Smith, the former principal of Upper Merion High

School in Upper Merion, Pennsylvania, appeals from a jury

verdict in favor of defendants in the civil rights suit he filed

under 42 U.S.C. S 1983. The suit arose from an infamous

murder and prosecution that were the subjects of books by

noted author, Joseph Wambaugh, as well as Smith's

criminal defense attorney. The prosecution also generated a

host of criminal and civil litigation. See Smith v. Holtz, 30

F. Supp.2d 468, 471 (E. D. Pa. 1998)(collecting cases).

2

In 1986, Smith received three death sentences following

conviction for the murder of Susan Reinert and her two

children. Reinert had been an English teacher at Upper

Merion High School while Smith had been the principal.

The Pennsylvania Supreme Court subsequently vacated

Smith's murder convictions, and remanded for a new trial

because prejudicial hearsay had been improperly admitted

during his trial. However, before Smith could be retried, he

learned that the prosecution had not disclosed certain

evidence that Smith claimed was exculpatory. The trial

court found prosecutorial misconduct, but refused to bar

retrial. However, on appeal of that decision, the

Pennsylvania Supreme Court held that the double jeopardy

clause of the Pennsylvania Constitution prohibited retrial,

and ordered Smith's release.

Thereafter, Smith filed the instant civil rights action. He

alleged that the defendants' deliberate suppression of

exculpatory evidence violated the holding of Brady v.

Maryland, 373 U. S. 83 (1963), and that he was therefore

entitled to compensation for the resulting denial of his

constitutional right to due process of law. The jury returned

a verdict in favor of all of the defendants, and the District

Court denied Smith's post-trial motions. Smith v. Holtz, 30

F. Supp.2d 468 (E. D. Pa. 1998). This appeal followed. We

will affirm.

I. BACKGROUND1

The events leading to Smith's criminal prosecution began

to unfold on Monday, June 25, 1979, at about 5:20 a. m.,

when a police officer found Susan Reinert's nude body in

the hatchback trunk of her car. "The body showed evidence

that Ms. Reinert had been chained and beaten, and her

nude body was left lying in the fetal position in the back of

her car. . . ." Id. at 471. At the time of her death, Reinert

taught English at Upper Merion High School.

A forensic pathologist examined Reinert's body and

_________________________________________________________________

1. Our recitation of the facts is taken from the reported opinions of the

Pennsylvania Supreme Court, the Pennsylvania Superior Court and the

United States District Court for the Middle District of Pennsylvania.

3

"determined that Ms. Reinert had sustained massive

hemorrhaging in the eye area and abrasions over her body.

He also opined that certain prominent bruises on the back

of the body . . . were consistent with the imprint of a chain.

The cause of death was determined to be asphyxiation from

an overdose of morphine, which was consistent with having

been caused by criminal agency." Commonwealth v. Smith,

568 A.2d 577, 583 (Pa. 1989). The pathologist opined that

Reinert's death probably occurred during the morning

hours of Sunday, June 24, 1979. Id.

Mary Grove, Reinert's next door neighbor, and Ms.

Grove's granddaughter, Beth Ann Brook, saw Reinert and

her two young children, Michael (age 10), and Karen (age

11) on Friday, June 22, 1979, at about 9:20 p. m., on

Reinert's front porch. Shortly thereafter, Ms. Grove and

Beth Ann heard Reinert and her children drive away in

Reinert's car. Beth Ann noticed that Karen was wearing a

small green pin with a white "P". This was the last known

time that anyone saw Michael or Karen Reinert. Id. at 548.

Following the discovery of Susan Reinert's body, the local

and state police conducted an extensive search in an effort

to locate Michael and Karen. Karen and Michael had close

relationships with their father -- who was divorced from

their mother -- and their paternal grandmother. Both

children knew where their father and paternal grandmother

lived, and both children knew how to reach them by

telephone. Id. at 587. However, neither the father nor the

paternal grandmother ever heard from the children after

June 22, 1979.

In addition to the search by local and state police, the

Federal Bureau of Investigation opened a "missing persons

case" and assigned eighteen agents full-time to a

nationwide search that lasted five months. However, neither

the FBI nor the state or local police ever found a trace of

either of the two missing children. Id. at 587.

Soon after Reinert's body was discovered, suspicion

focused on William Bradfield (who was also an English

teacher at Upper Merion High School), and on Smith. Police

were eventually able to build a case against Bradfield, and

he was charged with the murders of Reinert and her two

4

children. In 1983, a jury convicted him of those murders,

and he was thereafter sentenced to three consecutive life

sentences. See Commonwealth v. Bradfield, 508 A.2d 568

(Pa. Super. 1986). Bradfield died in prison in 1998 without

ever disclosing the location of the bodies of the Reinert

children.

In 1986, three years after Bradfield's trial, Smith was

arrested and also charged with the Reinert murders based

upon evidence that he had conspired with Bradfield.2

During the ensuing trial, the Commonwealth introduced

evidence that Bradfield had been involved in a romantic

relationship with Reinert from 1973 until the time of her

death. Reinert had made Bradfield the primary beneficiary

under her will, the sole beneficiary of her $730,000 in life

insurance, and the guardian of her children in the event of

her death. She did all this because she believed Bradfield's

promise that he would marry her. However, unbeknownst

to Reinert, Bradfield had a lover named Susan Myers.

Bradfield told his friends and Myers that he was not

interested in Reinert even though Reinert was enamored

with him. Commonwealth v. Smith, 568 A.2d at 604.

As noted above, Smith was the principal of the high

school where both Reinert and Bradfield taught. Smith's

relationship with Reinert appeared to be strictly

professional, but his relationship with Bradfield was quite

nefarious. The Commonwealth's theory during Smith's

prosecution was that Smith and Bradfield conspired to kill

Reinert so they could share in her life insurance proceeds,

and the testamentary assets that would go to Bradfield

upon Reinert's death. The Commonwealth believed that

Bradfield and Smith abducted Reinert and her two children

pursuant to that conspiracy, and that Smith then killed

them somewhere in Pennsylvania. Smith v. Holtz , 30 F.

Supp.2d at 473.

According to the Commonwealth, the illicit relationship

between Smith and Bradfield began shortly after Smith's

arrest on charges of theft. Smith had been charged with

_________________________________________________________________

2. At the time of his arrest, Smith was in prison for convictions for

theft

by deception, receiving stolen property, possession of a firearm without

a license and possession of marijuana. Attorney General's Br. at 8.

5

theft from a Sears in St. David's Mall in Montgomery

County, Pennsylvania, in August of 1977, and Bradfield

had been Smith's alibi witness at Smith's theft trial.

Commonwealth v. Smith, 568 A.2d at 604. The

Commonwealth theorized that Bradfield's alibi testimony

had been perjured, and that Smith's motives for killing

Reinert included preventing her from disclosing that his

defense had consisted of perjured testimony.3

During Smith's murder trial, the Commonwealth

contended that Smith and Bradfield formed their

conspiracy to kill Reinhert and her children sometime after

the theft trial. Although Bradfield's testimony had

established Smith's alibi, the Commonwealth introduced

testimony during Smith's murder trial that established

that, contrary to Bradfield's alibi testimony, Smith had

actually been inside the Sears store when the theft

occurred. Id. That evidence was introduced at Smith's

murder trial to demonstrate the nature of the relationship

between Bradfield and Smith.

The Commonwealth also introduced physical evidence

that linked Smith to the Reinert murders. A green pin with

a white "P", similar to the one that Beth Ann Brook saw

Karen Reinert wearing on June 22, 1979, was recovered

from under the front seat of Smith's car. A hair similar to

Susan Reinert's was found inside Smith's home, and

testimony was offered to establish that fibers found on

Reinert's body were similar to fibers from a carpet in the

basement of Smith's home. In addition, Smith's former

military reserve unit was named 79 USARCOM, and a comb

imprinted with "79 USARCOM" was found in Reinert's car

under her body. The prosecution also introduced a bag of

identical combs that had been recovered from Smith's

home. Finally, the prosecution introduced a letter that

Smith had written to his wife while he had been

incarcerated on the theft charges. In that letter, Smith

asked her to dispose of the carpet in their home (the one

_________________________________________________________________

3. It is not clear why Smith would be that concerned with Bradfield's

perjury being disclosed. Inasmuch as the jury convicted Smith despite

Bradfield's alibi testimony, the jury clearly rejected that testimony, and

Smith's alibi defense.

6

with fibers similar to fibers found on Reinert's body), and

clean the interior of his car (where Karen Reinert's pin was

later found). Id.

The Commonwealth also presented the testimony of two

inmates who had been incarcerated with Smith. One

inmate testified that Smith asked him to kill state police

detectives investigating the Reinert murders. The other

testified that Smith had confessed his complicity in the

Reinert murders to him, and that Smith had admitted to

killing Reinert both for money and because he was afraid

she would reveal that Bradfield had offered perjured alibi

testimony. Id. at 605.

Bradfield was not called as a witness during Smith's

murder trial. Nonetheless, the Commonwealth was allowed

to present the testimony of several people who were either

Bradfield's close friends or lovers. The first of these

witnesses was Vincent Valaitis, another English teacher at

Upper Merion High School. Valaitis testified that Bradfield

told him in the fall of 1978 that he (Bradfield) had

volunteered to serve as an alibi witness at Smith's theft

trial. Valaitis also testified about several conversations he

had with Bradfield in which Bradfield made statements

incriminating Smith and suggesting that Smith was a Mafia

hitman. Id. at 606. Valaitis said that Bradfield had urged

him to join Bradfield, Susan Myers, and another teacher,

Chris Pappas, on a trip to the seashore resort of Cape May,

New Jersey, on the weekend that Reinert was killed.

Valaitis claimed that Bradfield told the group that Smith

was going to kill Reinert during that weekend and that their

presence with Bradfield in Cape May would give him an

alibi. Id. Chris Pappas was allowed to testify that Bradfield

said that Smith had gone through with his threats and

killed Reinert after he learned of Reinert's death. Id.

Other witnesses, including Susan Myers, also testified

about conversations they had with Bradfield in which

Bradfield described Smith's murderous intentions. Still

other witnesses were allowed to testify about other out-of-

court statements Bradfield had made, including statements

that Smith was mentally unstable, that Smith intended to

kill several persons including Reinert, and that Smith

7

wanted to kill anyone remotely connected with the Reinert

investigation.

Smith did not testify in his own defense. However, he

attempted to construct a defense around the theory that

Bradfield had killed Reinert at the beach in Cape May, New

Jersey, where Bradfield, Myers and Pappas were when the

murders occurred.

Smith's instant civil rights suit arises from the testimony

of Corporal John Balshy, a Pennsylvania State Trooper who

testified for the Commonwealth. Corporal Balshy was one of

the investigators assigned to the Reinert investigation, and

he had been present during Reinert's autopsy. He testified

that before the autopsy began, he examined Reinert's body

for physical evidence, and found the red fibers that were

subsequently linked to the carpet in Smith's home. He also

testified that he noticed what he termed a "sparkle" on the

feet of Susan Reinert, and that he used rubber "lifters" to

collect the material from her feet. Smith v. Holtz, 30 F.

Supp.2d at 472.4 He used a total of five lifters to collect

material. He testified that two lifters each contained one

grain of this "sparkle" material, and that the material was

lifted from Reinert's left foot and left heel.5 Balshy said that

he thought that the material lifted from Reinert's feet was

dust or lint that was of no evidentiary value, but he

conceded that it "could have been sand."6 Id. at 473. Balshy

_________________________________________________________________

4. The lifter is a flat piece of rubber with adhesive on one side. When

used, a clear piece of cellophane is removed to expose the adhesive

surface. The lifters are so named because they usually are used to "lift"

fingerprints from a crime scene. Smith v. Holtz, 30 F. Supp. at 472.

5. The precise location of this material is not clear. During Smith's

murder trial Balshy "testified on cross-examination that he had used the

. . . lifters to remove granular particles which looked like sand from

between the victim's toes." Commonwealth v. Smith, 615 A.2d at 182.

However, testimony during the trial on the instant civil rights complaint

caused the District Court to conclude, "[n]o[particles] were found on the

lifters used between the toes of Susan Reinert." Smith v. Holtz, 30

F.Supp 2d at 478.

6. This testimony was given on cross-examination. During the trial of

Smith's S 1983 claims, William C. Costopoulos, Smith's criminal defense

counsel, testified that he had known beforehand that Balshy would

8

gave the lifters to State Trooper Ronald F. Coyler, who was

collecting evidence during the investigation. Id. The

existence of sand on Ms. Reinert's feet supported Smith's

theory that Reinert was killed at the seashore. However, the

Commonwealth did not disclose the existence of the lifters

to Smith or his trial counsel and they were never

introduced into evidence.

The District Court concluded that the prosecutor,

Richard Guida of the Office of the Attorney General of

Pennsylvania, did not know of the lifters during the trial. 30

F. Supp.2d at 473. However, the Pennsylvania Supreme

Court concluded otherwise. That Court concluded that

Guida knew of them during the trial, and that he realized

their importance to the defense (though it is still not clear

exactly when the Court believed he first learned of them).

The Pennsylvania Supreme Court stated:

The adhesive "lifters" used to remove and retain the

sand from between the victim's toes were discovered by

the Commonwealth during appellant's trial but were

not disclosed to appellant despite the prosecutor's

awareness of their importance. This is established by a

mid-trial memorandum from the assistant attorney

general who prosecuted appellant to his superior, the

executive deputy attorney general stating: "It is obvious

from [defense counsel's] tactics thus far that he will

attempt to establish that Mrs. Reinert was killed at the

shore in Cape May, New Jersey by William Bradfield,

Chris Pappas, and Susan Myers. The sand, therefore,

is extremely material to the defense case."

_________________________________________________________________

testify about finding something that could have been sand on Reinert's

feet. Balshy retired from the state police in 1981 and began working as

a private investigator. Apparently, Balshy provided investigative services

to a member of Costopoulos' firm before Costopoulos was appointed to

represent Smith as defense counsel. It was as a result of Balshy's work

for Costopoulos' firm that Costopoulos learned about the lifters and

learned of Balshy's observations. However, despite that knowledge,

Costopoulos did not ask the Commonwealth to produce the lifters. App.

520a-522a.

We take no position on whether defense counsel's failure to demand

the lifters precludes Smith's S 1983 claim.

9

Commonwealth v. Smith, 615 A.2d 321, 323 (Pa. 1992)

(emphasis added). However, regardless of when Guidafirst

learned about the lifters, it is clear that Guida honed in on

Balshy's testimony about lifters and attacked Balshy's

credibility during Smith's murder trial despite the damning

nature of so much other physical and circumstantial

evidence establishing Smith's guilt. Guida went so far as to

imply that Balshy had fabricated testimony and planted the

lifters and particles after the autopsy. Id. Guida also

presented the testimony of other State Troopers who were

present at Reinert's autopsy who remembered nothing

about sand or lifters. During his summation, Guida even

argued that Smith had paid Trooper Balshy to concoct his

testimony.7 Id.

After the Commonwealth rested its case, State Trooper

Victor Dove was assigned the duty of gathering up

evidence. 30 F.Supp.2d at 473. On April 24, 1986, while

gathering the evidence, he found the lifters in an evidence

locker at the barracks of the state police. 615 A.2d at 323.

According to the District Court, Dove waited one week, until

May 1, 1986, the day after Smith's trial ended, before he

told John Holtz -- the chief State Police investigator

assigned to the case -- of the discovery. 30 F. Supp.2d at

473. Holtz immediately contacted Guida, who told Holtz to

bring him the lifters the next day. Holtz did so, but Guida

still did not disclose their existence to Smith's counsel.

Rather, the lifters were turned over to the State Police

Bureau of Professional Responsibility which, at Guida's

recommendation, was conducting an investigation into

Balshy's possible perjury. Id. That investigation was being

conducted by Paul Yatron, Executive Director of the

Attorney General's Office, and by Special Agent John

Purcell, also of the Attorney General's Office. However,

Yatron also failed to disclose the existence of the lifters to

Smith's counsel.

_________________________________________________________________

7. Guida also recommended to the Deputy Executive Attorney General

that Balshy be investigated for possible perjury charges. 615 A.2d at

323. However, investigations conducted after the trial by the state police

and the Office of the Attorney General concluded that there was no

evidence of perjury or falsification of evidence by Balshy. Id. at 324.

10

Smith was convicted of the first-degree murders of

Reinert and her children on April 30, 1986. However, just

before sentencing, he filed a motion for a new trial based on

after discovered evidence. He alleged that the prosecution

allowed Raymond Martray (one of the inmates who testified

for the Commonwealth) to testify without disclosing that

Martray had open criminal charges, and expected leniency

in return for testifying against Smith.

Specifically, [Smith] learned that the Commonwealth's

chief witness [Martray], who denied the existence of

any bargain in exchange for his testimony against

[Smith], was in fact awaiting sentencing for unrelated

crimes and did in fact receive favorable treatment by

the Commonwealth at his sentencing. [Smith] was

thereby precluded from impeaching Mr. Martray's

veracity by exposing his motivation to testify falsely

against appellant in order to minimize his own

punishment.

615 A.2d at 323. After an evidentiary hearing, the trial

court concluded that the prosecution's misconduct did not

warrant a new trial and it denied Smith's motion. Id.

Thereafter, Smith was sentenced in accordance with the

jury's earlier verdicts.

Smith's death sentences were subject to automatic review

by the Pennsylvania Supreme Court;8 and on appeal, Smith

raised nineteen claims of error that he argued required a

new trial. These included challenges to the sufficiency of

the evidence, the admission of numerous hearsay

statements, and the Commonwealth's failure to disclose

Martray's pending criminal prosecution. 568 A.2d at 605-

606.

By the time Smith's appeal was decided, Guida had

resigned from the Attorney General's Office and another

Assistant Attorney General, Robert Graci, had been

assigned to represent the Commonwealth during the appeal

process. In July of 1988, Graci first learned that the lifters

existed. He immediately recognized their implication and

_________________________________________________________________

8. See S 9711(h) of the Pennsylvania Sentencing Code, 42 PA. CONST. ST.

ANN. S 9711(h).

11

importance, and concluded that the lifters had to be

disclosed to Smith's counsel. Executive Director Yatron did

not agree that the lifters had to be disclosed, but he did not

attempt to dissuade Graci from doing so. Accordingly, on

July 12, 1988 -- more than two years after Smith's

convictions for the Reinert murders -- the Commonwealth

officially informed Smith's counsel of the existence of the

lifters. 615 A.2d at 324; see also Smith's Br. at 7.

That disclosure prompted Smith's counsel to file a motion

in the Pennsylvania Supreme Court requesting that Smith's

sentences be vacated based upon prosecutorial misconduct.

Smith also argued that the constitutional guarantee against

double jeopardy prevented his retrial. When the motion was

filed, the Pennsylvania Supreme Court had not yet decided

the merits of Smith's automatic direct appeal. Inasmuch as

the record did not contain the circumstances surrounding

the concealment of the lifters or the Commonwealth's

alleged deal with Martray, the Supreme Court remanded

the matter to the trial court for an evidentiary hearing on

both issues. On remand, the trial court denied Smith any

relief though it concluded that the prosecution had been

guilty of serious misconduct. The trial court then forwarded

its findings and conclusions of law to the Pennsylvania

Supreme Court. 591 A.2d at 731.

On December 22, 1989, the Pennsylvania Supreme Court

reversed Smith's convictions and granted him a new trial

on grounds unrelated to the lifters or Martray's testimony.

Commonwealth v. Smith, 568 A.2d 600 (Pa. 1989). It found

that the evidence was sufficient to sustain Smith's

convictions, Id. at 605, but held that allowing the

aforementioned prejudicial hearsay statements into

evidence constituted reversible error. Id. at 605-609.

Inasmuch as that error warranted a new trial, the Court did

not consider whether the Commonwealth's suppression of

the lifters would also require a new trial. Instead, it noted

that "[t]his evidence will now be available at a subsequent

trial, and the jury will be given the opportunity to assess its

import within the totality of the evidence presented." Id. at

610 n.8.

However, Smith was never retried. On remand, Smith

once again filed a motion arguing that the guarantee

12

against double jeopardy prohibited retrial. The trial court

denied that motion, and the Superior Court affirmed.

Commonwealth v. Smith, 519 A.2d 730 (Pa. Super. 1991).

However, the Pennsylvania Supreme Court reversed despite

its earlier statement that the lifters would be available at

any subsequent trial. The Court held that prosecutorial

misconduct barred Smith's retrial under the double

jeopardy clause of the Pennsylvania Constitution, and the

Court ordered Smith's discharge. Commonwealth v. Smith,

615 A.2d 321 (Pa. 1992). In doing so the Court stated:

It is a gross understatement to conclude, as stated by

the trial court and Superior Court that "neither the

Attorney General's Office nor the Pennsylvania State

Police can take any great pride in the manner in which

this case was handled during the trial and on appeal."

Deliberate failure to disclose material exculpatory

physical evidence during a capital trial, intentional

suppression of the evidence while arguing in favor of

the death sentence on direct appeal, and the

investigation of Corporal Balshy's role in the

production of the evidence rather than its own role in

the suppression of evidence constitute prosecutorial

misconduct such as violates all principles of justice

and fairness embodied in the Pennsylvania

Constitution's double jeopardy clause.

Id. at 324 (citation omitted).

Smith was released from prison on September 18, 1992.

II. DISTRICT COURT PROCEEDINGS

On September 15, 1993, Smith filed the instantS 1983

claim against State Troopers John Holtz, Ronald Coyler and

Victor Dove; and Paul Yatron, John Purcell and William

Lander of the Office of the Pennsylvania Attorney General.9

He alleged that the defendants had deprived him of rights

guaranteed under the Fifth, Sixth and Fourteenth

Amendments of the United States Constitution by

deliberately concealing the lifters during his criminal trial,

_________________________________________________________________

9. Lander was the Assistant Director of the Bureau of Criminal

Investigation of the Attorney General's Office.

13

and his direct appeal.10 After extensive pretrial motions not

relevant to this appeal, the suit proceeded to trial. At trial,

over Smith's objection, the District Court allowed the jury

to determine whether the lifters were material and

exculpatory evidence under Brady v. Maryland. The issue

was submitted to the jury in the form of a special

interrogatory. The claims against the remaining defendants,

(Holtz, Dove and Yatron), were also submitted to the jury in

the form of special interrogatories.

The jury found that the lifters were not material and

exculpatory evidence, and returned answers to all special

interrogatories in favor of the defendants. Thereafter, the

District Court directed the entry of judgment in favor of the

defendants. Post-trial motions were denied, Smith v. Holtz,

30 F. Supp.2d 468 (M. D. Pa. 1998), and this appeal

followed.

III. DISCUSSION

Smith first argues that the District Court erred in failing

to rule as a matter of law that the lifters were material and

exculpatory under Brady. Second, he argues that the

District Court erred in not deferring to the Pennsylvania

Supreme Court's holding that the lifters were exculpatory

under Brady. He also argues that the District Court erred

in allowing the jury to determine whether the lifters were

material and exculpatory evidence; though this is merely a

restatement of his second argument. Third, he argues that

even if that issue was properly submitted to the jury, the

District Court erred in not informing the jury of the

Pennsylvania Supreme Court's rulings on the Brady issue.

Finally, Smith argues that the District Court erred in

refusing to grant his motion for a new trial.

By itself, S 1983 does not create any substantive rights,

but it does provide a remedy for violation of rights created

by the Constitution. Baker v. McCollan, 443 U. S. 137, 144

_________________________________________________________________

10. The civil rights claims did not include any cause of action based

upon the perjured testimony of Martray, and Smith voluntarily dismissed

his claims against Lander and Coyler prior to trial. He voluntarily

dismissed his claim against Purcell during the trial.

14

n.3 (1979). Thus, Smith can not prevail on his S 1983 claim

unless he can establish the denial of a constitutional right.

See Parratt v. Taylor, 451 U. S. 527 (1981). The

constitutional deprivations that he alleges rest squarely

upon the disclosure requirements of Brady. If suppression

of the lifters does not amount to a constitutional violation

under Brady, Smith can not establish a cause of action

under S 1983. Accordingly, we begin our analysis with a

review of Brady v. Maryland and its progeny.

In Brady v. Maryland, the Supreme Court held that "the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the

prosecution." 373 U.S. at 87. The Court subsequently held

that the prosecution's duty to disclose favorable evidence is

not dependent upon a request from the accused. United

States v. Agurs, 427 U. S. 97, 107 (1976).11 Evidence is

favorable to the accused under Brady "if it would tend to

exculpate him or reduce the penalty. . . ." Id. at 87-88. The

duty of disclosure is not limited to evidence the prosecutor

is aware of. Rather, it includes "evidence known only to

police investigators and not to the prosecutor." Kyles v.

Whitley, 514 U. S. 419, 438 (1995). Thus, under Brady,

"the individual prosecutor has a duty to learn of any

favorable evidence known to the others acting on the

government's behalf in the case, including the police." Id. at

437.

Even though this duty of disclosure is tightly tethered to

constitutional guarantees of due process, "the Constitution

is not violated every time the government fails or chooses

not to disclose evidence that might prove helpful to the

defense." Id. at 436-37 (citation omitted). Rather, the

prosecution's failure to disclose evidence rises to the level of

a due process violation "only if the government's evidentiary

suppression undermines confidence in the outcome of the

trial." Id. at 434. Thus, "[t]he question is not whether the

_________________________________________________________________

11. The affirmative duty to disclose reaches impeachment evidence as

well as exculpatory evidence. United States v. Bagley, 473 U. S. 667, 676

(1985).

15

defendant would more likely than not have received a

different verdict with the [concealed] evidence, but whether

in its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence." Id.

Here, the jury determined that the lifters were not subject

to disclosure under Brady, and the District Court agreed.

The court stated, "Smith's argument is obviated by our

conclusion that the jury properly found that the lifters were

not Brady material." 30 F. Supp. 2d at 479-80. The court

concluded that the lifters were not subject to Brady

disclosure because they were not material, and the court

reasoned that they weren't material because concealment of

them did not diminish confidence in Smith's murder

convictions. The District Court stated, "[e]vidence is

material if its suppression undermines confidence in the

outcome of the trial." 30 F.Supp. 2d at 473 (citing Bagley,

473 U.S. 667, 678 (1985)). However, the District Court's

analysis improperly conflates two separate and independent

components of Brady into a single inquiry. The question of

whether the prosecution must disclose evidence, i.e.

whether the evidence is Brady material, must be

determined independently of an inquiry into whether

suppression of that evidence undermines confidence in the

outcome of a criminal trial, i.e., whether the evidentiary

suppression constitutes a Brady violation.

Following oral argument before us in this case, the

Supreme Court clarified this distinction between Brady

material, and a Brady violation. In Strickler v. Greene, ___

U. S. ___, 119 S. Ct. 1936 (1999), the Court wrote:

[T]he term "Brady violation" is sometimes used to refer

to any breach of the broad obligation to disclose

exculpatory evidence -- that is, to any suppression of

so-called "Brady material" -- although, strictly

speaking, there is never a real "Brady violation" unless

the nondisclosure was so serious that there is a

reasonable probability that the suppressed evidence

would have produced a different verdict. There are

three components of a true Brady violation: The

evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed

16

by the State, either willfully or inadvertently; and

prejudice must have ensued.

Id. at 1948.12

Evidence of sand on Ms. Reinert's feet is certainly

consistent with Smith's claim that she was killed at the

seashore -- where Bradfield was on the weekend of her

death. As noted above, the prosecutor clearly thought such

evidence exculpatory, and stated as much in the

memorandum he wrote mid-trial. The prosecutor believed

that when viewed in context with Smith's trial tactics, "[i]t

is obvious . . . that . . . [t]he sand . . . is extremely material

to the defense case." 615 A.2d at 323. The Pennsylvania

Supreme Court also concluded that the lifters were

favorable to the defense. See Id. at 324 (Condeming the

prosecution's "[d]eliberate failure to disclose material

exculpatory physical evidence during a capital trial.").

We agree that the lifters were Brady material, and we

therefore disagree with the District Court's ruling to the

contrary. See 30 F. Supp.2d at 479 (Agreeing with jury's

determination that the lifters did not constitute Brady

material). However, we nevertheless conclude that the

District Court's ultimate holding that Smith failed to

establish a Brady violation was correct. 13

Smith repeatedly claims that the lifters were material

and, therefore, that their concealment violated his due

process right to a fair trial.14 However, Smith's argument

_________________________________________________________________

12. The District Court here obviously did not have the benefit of the

holding in Strickler during the course of this trial.

13. Inasmuch as we hold that Smith failed to establish a due process

violation, we need not now determine if the District Court erred in

allowing the jury to determine if the lifters were"material and

exculpatory."

14. Although the affirmative duty to disclose is placed upon the

prosecutor, we will nonetheless assume for the purposes of this appeal

that investigating police officers also have an affirmative duty to

disclose

exculpatory evidence to an accused if only by informing the prosecutor

that the evidence exists. But see Kelly v. Curtis, 21 F.3d 1544, 1552

(11th Cir. 1994). We will further assume that aS 1983 claim alleging a

due process violation under Brady can, therefore, be asserted against

police officers. See McMillian v. Johnson, 88 F.3d 1554, 1567 n.12 (11th

Cir. 1996), amended, 101 F.3d 1363 (11th Cir. 1996).

17

confuses "Brady material" with the Brady materiality

standard required to establish a due process violation.

Evidence "is material only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different. A `reasonable probability' is a probability

sufficient to undermine confidence in the outcome." United

States v. Bagley, 473 U. S. at 678.

The lifters containing two grains of quartz crystals that

could have been beach sand were favorable to Smith. They

were exculpatory to the extent that they corroborated his

contention that Bradfield killed Reinert at the Cape May

shore. Thus, the Commonwealth had an affirmative duty to

disclose them to Smith, and the Pennsylvania Supreme

Court so held. We share that Court's condemnation of the

prosecutorial misconduct that occurred here. The

reprehensible and unethical conduct of some of those

involved in that prosecution is not, however, relevant to our

inquiry in determining if Smith has made out his cause of

action under S 1983. Despite the prosecutorial misconduct,

Smith must establish the prejudice required for the due

process violation that is the sine qua non of his claim for

relief. He has not done so.

Balshy testified at the civil trial as he had at Smith's

criminal trial. He told the jury about noticing the sparkle

on Reinert's feet and using the lifters to collect them.

Although he testified at Smith's criminal trial that the

material could have been sand, he testified at the trial in

the instant suit that he was not qualified to make a

scientific determination as to the exact nature of the

material. Other witnesses testified that the material was

quartz and that it was "ubiquitous" on the earth's surface.

The District Court described the testimony as follows:

The quartz was examined by two forensic geologists.

One was Christopher Fiedler of the FBI laboratory in

Washington, D.C. He concluded that the quartz was

"common sand," probably originating from opal or

amethyst. Mr. Fiedler testified that quartz is found over

most of the earth's dry surface, perhaps as much as

65% of the earth's crust. He termed the material he

18

found "ubiquitous," and opined that he wouldfind at

least two crystals on the body or in the clothing of any

person in the courtroom at the time he testified.

30 F. Supp. 2d at 478. In a supplemental footnote, the

court noted: "a search of internet sources" discovered one

reference that concluded: " `Quartz is the most abundant

mineral in the Earth's crust. Quartz has been found in

meteorites and in some rocks collected on the moon.' " Id.

at n.7.15 The court then summarized its assessment of the

impact that withholding such evidence had on the integrity

of Smith's murder convictions as follows: "It appears then

that having these crystals on one's feet is as indicative of a

trip to the moon as a trip to the beach." Id . Although the

court was clearly engaging in hyperbole, we nevertheless

share its conclusion that the post-conviction disclosure of

the lifters, and the particles on them, falls woefully short of

undermining confidence in Smith's murder convictions.

Smith introduced the report of an expert he had retained

for the hearings ordered by the Pennsylvania Supreme

Court. That expert opined that the quartz found on

Reinert's feet was consistent with beach sand. However,

that testimony is not inconsistent with Fielder's testimony.

The quartz crystals could well have been beach sand.

However, even if we completely credit Smith's expert's

testimony, and completely ignore Fielder's statement that

the two quartz crystals are "ubiquitous," and would have

been found on anyone in the courtroom, all that is

established is that two grains of sand that were found on

Reinert's feet were consistent with beach sand. 16

_________________________________________________________________

15. The court's quotation was taken from a site entitled, "DesertUSA

Magazine." See http://www.desertusa.com/mag98/mar/index.html. The

reference is consistent with information contained in the online version

of the Encyclopedia Britannica. See http://www.britannica.com/

bcom/eb/article/7/0,5716,63757+1,00.html.

16. It could be argued that the fact that only two grains of sand were

found on Ms. Reinert's foot strongly suggests that she was not killed at

the beach as one would expect to find far more than two grains of sand

on a victim's foot if she were killed on a beach. Thus, the quartz

crystals

are not unlike the proverbial "two edged sword" that cuts both for and

against one's position.

Nevertheless, we can not allow disclosure decisions under Brady to

turn upon whether the prosecution thinks evidence is consistent only

with innocence. Here, the evidence did support the defense theory, and

should have been disclosed.

19

As noted above, at Smith's criminal trial the

Commonwealth introduced physical evidence that

inexorably tied Smith to Reinert's murder and the

disappearance of her two children. Given the inquiry we

must make under Brady, that evidence is worth repeating.

The prosecution introduced the green pin with the white "P"

that Beth Ann Brook saw Karen Reinert wearing when

Karen was last seen, which the jury clearly believed was

Karen's, and which was recovered under the front seat of

Smith's car. A hair similar to Susan Reinert's was found

inside Smith's home. Carpet fibers found on Reinert's body

were similar to fibers from a carpet in the basement of

Smith's home. A comb found under Reinert's body in her

car contained the name of Smith's military unit, and was

identical to combs found in Smith's home. Finally, Smith

wrote a letter to his wife asking her to dispose of the

incriminating carpet, and clean the interior of his car where

Karen Reinert's pin was subsequently found.

Even if we ignore the hearsay statements that were

improperly admitted against Smith, and even if we also

ignore Martray's suspect testimony, our confidence in

Smith's convictions is not diminished in the least. We

remain firmly convinced of the integrity of those guilty

verdicts. Accordingly, there was no due process violation for

purposes of Smith's S 1983 claim. A Brady violation is

established "by showing that the favorable evidence could

reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict."

Kyles, at 435. The two grains of quartz can not possibly

offset the evidence of Smith's guilt that was presented to

the jury that convicted him of murdering Susan Reinert

and her two children. Smith has not come close to

demonstrating "a reasonable probability that the[criminal]

jury would have returned a different verdict if the

information had been disclosed. . . ." Buehl v. Vaughn, 166

F.3d 163, 181 (3d Cir. 1999). Accordingly, he has not

established that withholding Brady material resulted in a

Brady violation, and we can therefore dispose of Smith's

remaining issues with only brief discussion.

In light of our discussion, Smith's claim that the District

Court erred by not finding as a matter of law that the lifters

20

were material and exculpatory is meritless. His assertion

that the District Court erred in submitting that issue to the

jury is therefore also meritless.17 In fact, that argument

elevates form over substance because the District Court

expressly found that "had the question been left to the

court, we would have agreed with the jury's conclusion." 30

F. Supp.2d at 479. Therefore the District Court clearly

stated that it would have decided that the lifters were

immaterial as a matter of law. We disagree with that

conclusion insofar as the court believed the lifters were not

what is generically referred to as Brady material. However,

we conclude the lifters were immaterial in that they would

not have changed the outcome of Smith's criminal trial and

their suppression was not, therefore, a Brady violation.

Smith's argument that the District Court erred in not

deferring to the Pennsylvania Supreme Court's decision on

the Brady issue or, in the alternative, that it should have

allowed the jury to learn of that decision is also meritless.

Smith claims that the Pennsylvania Supreme Court was

"the only court which conducted a full review of the

evidence presented at plaintiff 's criminal trial, and reviewed

the entire evidentiary record regarding the lifters,[and]

concluded that they were Brady evidence." Smith's Br. at

18. His argument refers to the Pennsylvania Supreme

Court's holding that prosecutorial misconduct barred

Smith's retrial. See 615 A.2d 321 (Pa. 1992).

Smith misstates the Pennsylvania Supreme Court's

decision. That court never performed an analysis to

determine if the Commonwealth's unethical conduct

constituted a Brady violation. Rather, the Court focused

upon whether the Commonwealth's conduct during Smith's

murder trial (including the prosecutor's failure to disclose

Martray's pending criminal charges), the continued

suppression of favorable evidence while arguing in favor of

Smith's execution during the appellate process, and the

Commonwealth's excoriation and investigation of Corporal

Balshy, constituted the kind of egregious prosecutorial

overreaching that precluded Smith's retrial under the

_________________________________________________________________

17. As noted above, this is merely a restatement of the preceding

argument.

21

double jeopardy clause of the Pennsylvania Constitution.

The Court answered that inquiry in the affirmative, but it

never inquired into whether the Commonwealth's conduct

undermined confidence in the murder convictions, and it

never held that the Commonwealth's conduct amounted to

a Brady violation.

Smith also argues that the doctrine of offensive collateral

estoppel barred relitigation of the materiality of the lifters

because their materiality and exculpatory nature had

already been established by the Pennsylvania Supreme

Court. However, Smith could not prevail on this argument

even if the Pennsylvania Supreme Court had decided that

issue as Smith says. As we have stated, the Pennsylvania

Supreme Court did not address the due process component

of a Brady violation. Therefore, the doctrine does not apply.18

_________________________________________________________________

18. Here, several factors preclude the application of offensive collateral

estoppel. Neither Holtz, nor Dove, nor Yatron made the decision not to

disclose the existence of the lifters. Although Dove waited one week

before he told anyone about the lifters, he did eventually turn them over

to Holtz who immediately informed Guida. It was Guida, the prosecutor,

who made the decision not to disclose the lifters to Smith's counsel. At

the time he made that decision Guida represented the Commonwealth's

interests, not the interests of Holtz, Dove or Yatron. However, Guida, as

prosecutor, has absolute immunity from liability in Smith's S 1983 action

so long as he was functioning in his prosecutorial capacity when he

made that decision. Imbler v. Pachtman, 424 U. S. 409 (1976); see also

Buckley v. Fitzsimmons, 509 U. S. 259 (1993) ( prosecutor has absolute

immunity in S 1983 action for the initiation and pursuit of a criminal

prosecution, including presentation of the state's case at trial). Since

Guida has absolute immunity, the State Troopers and Attorney General

personnel are the only Commonwealth actors Smith can sue under

S 1983. See Smiddy v. Varney, 665 F.2d 261, 266-67 (9th Cir. 1981).

The Pennsylvania Supreme Court did not blame any one individual for

the unethical misconduct that it found. Instead, it cast blame upon "the

Commonwealth" in general, and "the prosecutor" in particular. Smith's

civil action is against the defendants in their individual capacities, but

they are not in privity with the government in a prior criminal

prosecution when sued in their individual capacities. See Morgan v.

Gertz, 166 F.3d 1307, 1309 (10th Cir. 1999); see also 18 CHARLES A.

WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND

PROCEDURE S 4458, at 508 (1981) ("[A] judgment against a government

does not bind its officials in subsequent litigation that asserts a

personal

22

Finally, Smith makes three arguments in support of his

contention that the District Court erred in denying his

motion for a new trial. Smith argues that he is entitled to

a new trial because the jury's findings in favor of Dove and

Yatron are against the weight of the evidence. As a general

rule, "[w]e review the district court's order ruling on a

motion for a new trial for abuse of discretion unless the

court's denial is based on the application of a legal precept,

in which case the standard of review is plenary." Rotondo v.

Keene Corp., 956 F.2d 436, 438 (3d Cir. 1992)."[T]he

district court ought to grant a new trial on the basis that

the verdict was against the weight of the evidence only

where a miscarriage of justice would result if the verdict

were to stand." Klein v. Hollings, 992 F.2d 1285, 1290 (3d

Cir. 1993). For the reasons we have previously discussed,

the jury's findings here clearly do not result in a

miscarriage of justice, and Smith's argument to the

contrary is frivolous.

Absent a showing that the suppression of the lifters

constituted a Brady violation, Dove and Yatron are not

liable to Smith under S 1983. Equally without merit is

Smith's argument that the District Court erred by

permitting the defendants here to introduce certain

inculpatory evidence that supported the Commonwealth's

criminal case against him. Smith argues that the only

relevant inquiry at his S 1983 trial was whether the

defendants intentionally suppressed evidence. However, as

we have already explained, this misstates the relevant

inquiry.

Essentially, . . ., the question we must resolve is: when

viewed as a whole and in light of the substance of the

prosecution's case, did the government's failure to

provide . . . Brady . . . evidence to the defense . . . lead

to an untrustworthy guilty verdict . . .?

_________________________________________________________________

liability against the officials."). Therefore, the District Court did not

abuse its discretion in refusing to apply the doctrine of offensive

collateral estoppel. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322,

331

(1979). (The application of the doctrine of collateral estoppel is within

the

"broad discretion" of the trial court.)

23

U.S. v. Pelullo, 105 F.3d 117, 123 (3d Cir. 1997)(emphasis

added). Here, the answer is a resounding "no." There is

nothing untrustworthy about Smith's conviction for

murder. Therefore, even if the District Court erred in

allowing additional evidence of guilt to be introduced during

Smith's civil trial, the error was harmless.

Finally, Smith argues that the District Court erred in not

granting his motion to bifurcate his trial into liability and

damages phases. Smith apparently actually asked the court

to "trifurcate" the trial into three phases to separately

determine the "due process violation, injury, and damages."

30 F. Supp. 2d at 480. We review the court's refusal to

"bifurcate" the trial for an abuse of discretion. Barr

Laboratories, Inc. v. Abbott Laboratories, 978 F.2d 98, 105

(3d Cir. 1992). Smith has not established the court's

determination of the best way to proceed was an abuse of

discretion. Moreover, inasmuch as he did not establish a

Brady violation, we fail to see how he was prejudiced by the

court's decision to deny Smith's request to divide the trial

into three separate phases.

IV.

Accordingly, we will affirm the order of the District Court.

Our confidence in Smith's convictions for the murder of

Susan Reinert and her two children is not the least bit

diminished by consideration of the suppressed lifters and

quartz particles, and Smith has therefore not established

that he is entitled to compensation for the unethical

conduct of some of those involved in the prosecution.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

24