                                                                                                                           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Precedential or Non-Precedential: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
