2000 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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"Smith v. Holtz, et al." (2000). 2000 Decisions. Paper 78.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/78
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-ofcourt 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