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D ock e t 99-7046

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" S mith v . H o ltz , e t al

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. e du/thir dc ir c uit_2000/78Filed 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 Judge s

(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 infa mous murder and prosecution that were the subjects of bo oks by noted author, Joseph Wambaugh, as well as Smith's criminal defense attorney. The prosecution also gen erated a host of criminal and civil litigation. See Smith v. Holtz, 30 F. Supp.2d 468, 471 (E. D. Pa. 1998)(collecting cas es).

2In 1986, Smith received three death sentences follo wing

conviction for the murder of Susan Reinert and her two children. Reinert had been an English teacher at Up per Merion High School while Smith had been the princip al. The Pennsylvania Supreme Court subsequently vacated Smith's murder convictions, and remanded for a new trial because prejudicial hearsay had been improperly adm itted during his trial. However, before Smith could be re tried, he learned that the prosecution had not disclosed cert ain evidence that Smith claimed was exculpatory. The tr ial court found prosecutorial misconduct, but refused t o bar retrial. However, on appeal of that decision, the Pennsylvania Supreme Court held that the double jeo pardy clause of the Pennsylvania Constitution prohibited retrial,
and ordered Smith's release.

Thereafter, Smith filed the instant civil rights ac tion. 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 ther efore entitled to compensation for the resulting denial o f his constitutional right to due process of law. The jur y returned a verdict in favor of all of the defendants, and th e District Court denied Smith's post-trial motions. Smith v. H oltz, 30 F. Supp.2d 468 (E. D. Pa. 1998). This appeal follow ed. 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 bo dy in the hatchback trunk of her car. "The body showed ev idence that Ms. Reinert had been chained and beaten, and h er nude body was left lying in the fetal position in t he back of
her car. . . ." Id. at 471. At the time of her deat h, Reinert taught English at Upper Merion High School.

A forensic pathologist examined Reinert's body and

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1. Our recitation of the facts is taken from the re ported opinions of the Pennsylvania Supreme Court, the Pennsylvania Superi or Court and the
United States District Court for the Middle Distric t 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 th e back of the body . . . were consistent with the imprint of a chain. The cause of death was determined to be asphyxiatio n from an overdose of morphine, which was consistent with having been caused by criminal agency." Commonwealth v. Sm ith, 568 A.2d 577, 583 (Pa. 1989). The pathologist opine d that Reinert's death probably occurred during the mornin g 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. Grov e and Beth Ann heard Reinert and her children drive away in
Reinert's car. Beth Ann noticed that Karen was wear ing 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, th e local and state police conducted an extensive search in a n 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. Bot h children knew where their father and paternal grand mother 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 a fter June 22, 1979.

In addition to the search by local and state police , the Federal Bureau of Investigation opened a "missing p ersons 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 Engli sh teacher at Upper Merion High School), and on Smith. Police were eventually able to build a case against Bradfi eld, and he was charged with the murders of Reinert and her two

4children. In 1983, a jury convicted him of those mu rders,

and he was thereafter sentenced to three consecutiv e 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 R einert
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 introduc ed
evidence that Bradfield had been involved in a roma ntic relationship with Reinert from 1973 until the time of her death. Reinert had made Bradfield the primary benef iciary under her will, the sole beneficiary of her $730,00 0 in life insurance, and the guardian of her children in the event of
her death. She did all this because she believed Br adfield's promise that he would marry her. However, unbeknown st to Reinert, Bradfield had a lover named Susan Myers

. Bradfield told his friends and Myers that he was no t interested in Reinert even though Reinert was enamo red 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. Smi th's relationship with Reinert appeared to be strictly professional, but his relationship with Bradfield w as 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 p roceeds, and the testamentary assets that would go to Bradfi eld upon Reinert's death. The Commonwealth believed tha t
Bradfield and Smith abducted Reinert and her two ch ildren pursuant to that conspiracy, and that Smith then ki lled them somewhere in Pennsylvania. Smith v. Holtz , 30 F. Supp.2d at 473.

According to the Commonwealth, the illicit relation ship between Smith and Bradfield began shortly after Smi th's arrest on charges of theft. Smith had been charged with

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

theft by deception, receiving stolen property, possession of a firearm without a license and possession of marijuana. Attorney Gen eral's Br. at 8.

5theft from a Sears in St. David's Mall in Montgomer y

County, Pennsylvania, in August of 1977, and Bradfi eld
had been Smith's alibi witness at Smith's theft tri al. Commonwealth v. Smith, 568 A.2d at 604. The
Commonwealth theorized that Bradfield's alibi testi mony had been perjured, and that Smith's motives for kil ling Reinert included preventing her from disclosing tha t 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 someti me after the theft trial. Although Bradfield's testimony had established Smith's alibi, the Commonwealth introdu ced testimony during Smith's murder trial that establis hed that, contrary to Bradfield's alibi testimony, Smit h 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 relat ionship
between Bradfield and Smith.

The Commonwealth also introduced physical evidence that linked Smith to the Reinert murders. A green p in with a white "P", similar to the one that Beth Ann Brook saw Karen Reinert wearing on June 22, 1979, was recover ed
from under the front seat of Smith's car. A hair si milar to Susan Reinert's was found inside Smith's home, and testimony was offered to establish that fibers foun d on Reinert's body were similar to fibers from a carpet in the basement of Smith's home. In addition, Smith's form er military reserve unit was named 79 USARCOM, and a c omb imprinted with "79 USARCOM" was found in Reinert's car under her body. The prosecution also introduced a b ag 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 (t he one

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3. It is not clear why Smith would be that concerne d with Bradfield's perjury being disclosed. Inasmuch as the jury convi cted Smith despite Bradfield's alibi testimony, the jury clearly rejec ted that testimony, and
Smith's alibi defense.

6with fibers similar to fibers found on Reinert's bo dy), and

clean the interior of his car (where Karen Reinert' s pin was later found). Id.

The Commonwealth also presented the testimony of tw o inmates who had been incarcerated with Smith. One
inmate testified that Smith asked him to kill state police detectives investigating the Reinert murders. The o ther testified that Smith had confessed his complicity i n the Reinert murders to him, and that Smith had admitted to killing Reinert both for money and because he was a fraid she would reveal that Bradfield had offered perjure d alibi testimony. Id. at 605.

Bradfield was not called as a witness during Smith' s murder trial. Nonetheless, the Commonwealth was all owed to present the testimony of several people who were either
Bradfield's close friends or lovers. The first of t hese witnesses was Vincent Valaitis, another English tea cher at Upper Merion High School. Valaitis testified that B radfield told him in the fall of 1978 that he (Bradfield) ha d
volunteered to serve as an alibi witness at Smith's theft
trial. Valaitis also testified about several conver sations he
had with Bradfield in which Bradfield made statemen ts incriminating Smith and suggesting that Smith was a Mafia
hitman. Id. at 606. Valaitis said that Bradfield ha d urged him to join Bradfield, Susan Myers, and another tea cher, Chris Pappas, on a trip to the seashore resort of C ape 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 t hat 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 a nd
killed Reinert after he learned of Reinert's death. Id.

Other witnesses, including Susan Myers, also testif ied about conversations they had with Bradfield in whic h
Bradfield described Smith's murderous intentions. S till other witnesses were allowed to testify about other out-ofcourt statements Bradfield had made, including stat ements that Smith was mentally unstable, that Smith intend ed to kill several persons including Reinert, and that Sm ith

7wanted to kill anyone remotely connected with the R einert

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 M ay, New Jersey, where Bradfield, Myers and Pappas were when the

murders occurred.

Smith's instant civil rights suit arises from the t estimony of Corporal John Balshy, a Pennsylvania State Troop er who testified for the Commonwealth. Corporal Balshy was one of the investigators assigned to the Reinert investiga tion, and he had been present during Reinert's autopsy. He te stified that before the autopsy began, he examined Reinert' s body for physical evidence, and found the red fibers tha t 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 "lif ters" 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 contai ned one grain of this "sparkle" material, and that the mate rial was
lifted from Reinert's left foot and left heel.5 Bal shy 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 47 3. Balshy

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4. The lifter is a flat piece of rubber with adhesi ve on one side. When used, a clear piece of cellophane is removed to exp ose the adhesive surface. The lifters are so named because they usua lly 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 cle ar. During Smith's murder trial Balshy "testified on cross-examination that he had used the . . . lifters to remove granular particles which lo oked 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[partic les] were found on the
lifters used between the toes of Susan Reinert." Sm ith v. Holtz, 30 F.Supp 2d at 478.

6. This testimony was given on cross-examination. D uring the trial of Smith's S 1983 claims, William C. Costopoulos, Smit h's criminal defense counsel, testified that he had known beforehand tha t Balshy would

8gave the lifters to State Trooper Ronald F. Coyler, who was

collecting evidence during the investigation. Id. T he existence of sand on Ms. Reinert's feet supported S mith's theory that Reinert was killed at the seashore. How ever, 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 th e trial. 30 F. Supp.2d at 473. However, the Pennsylvania Suprem e Court concluded otherwise. That Court concluded tha t Guida knew of them during the trial, and that he re alized 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 re tain the
sand from between the victim's toes were dis covered by the Commonwealth during appellant's trial bu t were not disclosed to appellant despite the prose cutor's awareness of their importance. This is estab lished by a
mid-trial memorandum from the assistant atto rney general who prosecuted appellant to his supe rior, the executive deputy attorney general stating: " It is obvious from [defense counsel's] tactics thus far th at he will attempt to establish that Mrs. Reinert was k illed at the shore in Cape May, New Jersey by William Bra dfield, Chris Pappas, and Susan Myers. The sand, the refore, is extremely material to the defense case."

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testify about finding something that could have bee n 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 res ult of Balshy's work for Costopoulos' firm that Costopoulos learned abou t 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 fa ilure to demand the lifters precludes Smith's S 1983 claim.

9Commonwealth v. Smith, 615 A.2d 321, 323 (Pa. 1992)

(emphasis added). However, regardless of when Guida first learned about the lifters, it is clear that Guida h oned in on Balshy's testimony about lifters and attacked Balsh y'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 plan ted 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 concoc t his testimony.7 Id.

After the Commonwealth rested its case, State Troop er Victor Dove was assigned the duty of gathering up evidence. 30 F.Supp.2d at 473. On April 24, 1986, w hile gathering the evidence, he found the lifters in an evidence locker at the barracks of the state police. 615 A.2 d at 323. According to the District Court, Dove waited one we ek, until May 1, 1986, the day after Smith's trial ended, bef ore he told John Holtz -- the chief State Police investiga tor assigned to the case -- of the discovery. 30 F. Sup p.2d at 473. Holtz immediately contacted Guida, who told Ho ltz to bring him the lifters the next day. Holtz did so, b ut Guida
still did not disclose their existence to Smith's c ounsel. Rather, the lifters were turned over to the State P olice Bureau of Professional Responsibility which, at Gui da's recommendation, was conducting an investigation int o Balshy's possible perjury. Id. That investigation w as being conducted by Paul Yatron, Executive Director of the Attorney General's Office, and by Special Agent Joh n Purcell, also of the Attorney General's Office. How ever, Yatron also failed to disclose the existence of the lifters to
Smith's counsel.

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7. Guida also recommended to the Deputy Executive A ttorney General that Balshy be investigated for possible perjury ch arges. 615 A.2d at 323. However, investigations conducted after the tr ial by the state police and the Office of the Attorney General concluded th at there was no evidence of perjury or falsification of evidence by Balshy. Id. at 324.

10Smith 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 tria l based on after discovered evidence. He alleged that the pros ecution allowed Raymond Martray (one of the inmates who tes tified for the Commonwealth) to testify without disclosing that Martray had open criminal charges, and expected len iency in return for testifying against Smith.

Specifically, [Smith] learned that the Commo nwealth's chief witness [Martray], who denied the exis tence of any bargain in exchange for his testimony ag ainst [Smith], was in fact awaiting sentencing for unrelated
crimes and did in fact receive favorable tre atment by the Commonwealth at his sentencing. [Smith] was thereby precluded from impeaching Mr. Martra y's veracity by exposing his motivation to testi fy falsely against appellant in order to minimize his o wn punishment.

615 A.2d at 323. After an evidentiary hearing, the trial court concluded that the prosecution's misconduct d id not
warrant a new trial and it denied Smith's motion. I d. Thereafter, Smith was sentenced in accordance with the jury's earlier verdicts.

Smith's death sentences were subject to automatic r eview by the Pennsylvania Supreme Court;8 and on appeal, Smith raised nineteen claims of error that he argued requ ired a new trial. These included challenges to the suffici ency of the evidence, the admission of numerous hearsay statements, and the Commonwealth's failure to discl ose 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 ano ther Assistant Attorney General, Robert Graci, had been assigned to represent the Commonwealth during the a ppeal process. In July of 1988, Graci first learned that the lifters existed. He immediately recognized their implicatio n and

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

11importance, and concluded that the lifters had to b e

disclosed to Smith's counsel. Executive Director Ya tron did not agree that the lifters had to be disclosed, but he did not attempt to dissuade Graci from doing so. Accordingl y, on July 12, 1988 -- more than two years after Smith's
convictions for the Reinert murders -- the Commonwe alth officially informed Smith's counsel of the existenc e 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 S mith's sentences be vacated based upon prosecutorial misco nduct. Smith also argued that the constitutional guarantee against double jeopardy prevented his retrial. When the mot ion was filed, the Pennsylvania Supreme Court had not yet d ecided the merits of Smith's automatic direct appeal. Inas much as
the record did not contain the circumstances surrou nding
the concealment of the lifters or the Commonwealth' s alleged deal with Martray, the Supreme Court remand ed the matter to the trial court for an evidentiary he aring on both issues. On remand, the trial court denied Smit h 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 Pennsylv ania Supreme Court. 591 A.2d at 731.

On December 22, 1989, the Pennsylvania Supreme Cour t reversed Smith's convictions and granted him a new trial on grounds unrelated to the lifters or Martray's te stimony. 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 605-6 09. Inasmuch as that error warranted a new trial, the C ourt 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 su bsequent trial, and the jury will be given the opportunity t o assess its import within the totality of the evidence presente d." Id. at
610 n.8.

However, Smith was never retried. On remand, Smith once again filed a motion arguing that the guarante e

12against double jeopardy prohibited retrial. The tri al court

denied that motion, and the Superior Court affirmed

. Commonwealth v. Smith, 519 A.2d 730 (Pa. Super. 199 1). However, the Pennsylvania Supreme Court reversed de spite
its earlier statement that the lifters would be ava ilable at any subsequent trial. The Court held that prosecuto rial
misconduct barred Smith's retrial under the double jeopardy clause of the Pennsylvania Constitution, a nd the Court ordered Smith's discharge. Commonwealth v. Sm ith, 615 A.2d 321 (Pa. 1992). In doing so the Court stat ed:

It is a gross understatement to conclude, as stated by the trial court and Superior Court that "nei ther the Attorney General's Office nor the Pennsylvan ia State Police can take any great pride in the manne r in which this case was handled during the trial and o n appeal."
Deliberate failure to disclose material excu lpatory physical evidence during a capital trial, in tentional suppression of the evidence while arguing in favor of the death sentence on direct appeal, and the investigation of Corporal Balshy's role in t he production of the evidence rather than its o wn role in the suppression of evidence constitute prose cutorial misconduct such as violates all principles o f 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, 199 2.

II. DISTRICT COURT PROCEEDINGS

On September 15, 1993, Smith filed the instantS 198 3 claim against State Troopers John Holtz, Ronald Coy ler and Victor Dove; and Paul Yatron, John Purcell and Will iam Lander of the Office of the Pennsylvania Attorney G eneral.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 crim inal trial,

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9. Lander was the Assistant Director of the Bureau of Criminal Investigation of the Attorney General's Office.

13and his direct appeal.10 After extensive pretrial m otions not

relevant to this appeal, the suit proceeded to tria l. 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 def endants, (Holtz, Dove and Yatron), were also submitted to th e jury in the form of special interrogatories.

The jury found that the lifters were not material a nd exculpatory evidence, and returned answers to all s pecial interrogatories in favor of the defendants. Thereaf ter, the District Court directed the entry of judgment in fa vor 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 ma terial and exculpatory under Brady. Second, he argues that the District Court erred in not deferring to the Pennsy lvania Supreme Court's holding that the lifters were excul patory under Brady. He also argues that the District Court erred in allowing the jury to determine whether the lifte rs were material and exculpatory evidence; though this is m erely a restatement of his second argument. Third, he argue s that even if that issue was properly submitted to the ju ry, the District Court erred in not informing the jury of t he Pennsylvania Supreme Court's rulings on the Brady i ssue. 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 r ights, but it does provide a remedy for violation of right s created by the Constitution. Baker v. McCollan, 443 U. S. 1 37, 144

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10. The civil rights claims did not include any cau se of action based upon the perjured testimony of Martray, and Smith v oluntarily dismissed his claims against Lander and Coyler prior to trial . He voluntarily dismissed his claim against Purcell during the tria l.

14n.3 (1979). Thus, Smith can not prevail on his S 19 83 claim

unless he can establish the denial of a constitutio nal right. See Parratt v. Taylor, 451 U. S. 527 (1981). The constitutional deprivations that he alleges rest sq uarely upon the disclosure requirements of Brady. If suppr ession
of the lifters does not amount to a constitutional violation under Brady, Smith can not establish a cause of act ion under S 1983. Accordingly, we begin our analysis wi th 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 favorabl e to an accused upon request violates due process where the evidence is material either to guilt or to punishme nt, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. The Court subsequentl y held that the prosecution's duty to disclose favorable e vidence is not dependent upon a request from the accused. Unit ed States v. Agurs, 427 U. S. 97, 107 (1976).11 Eviden ce is favorable to the accused under Brady "if it would t end to exculpate him or reduce the penalty. . . ." Id. at 87-88. The duty of disclosure is not limited to evidence the p rosecutor is aware of. Rather, it includes "evidence known on ly to police investigators and not to the prosecutor." Ky les v. Whitley, 514 U. S. 419, 438 (1995). Thus, under Bra dy, "the individual prosecutor has a duty to learn of a ny favorable evidence known to the others acting on th e government's behalf in the case, including the poli ce." Id. at
437.

Even though this duty of disclosure is tightly teth ered to constitutional guarantees of due process, "the Cons titution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful t o 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 e videntiary suppression undermines confidence in the outcome of the trial." Id. at 434. Thus, "[t]he question is not wh ether the

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11. The affirmative duty to disclose reaches impeac hment evidence as well as exculpatory evidence. United States v. Bagl ey, 473 U. S. 667, 676 (1985).

15defendant would more likely than not have received a

different verdict with the [concealed] evidence, bu t 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 a greed. The court stated, "Smith's argument is obviated by our conclusion that the jury properly found that the li fters were not Brady material." 30 F. Supp. 2d at 479-80. The court concluded that the lifters were not subject to Brad y disclosure because they were not material, and the court reasoned that they weren't material because conceal ment of
them did not diminish confidence in Smith's murder convictions. The District Court stated, "[e]vidence is material if its suppression undermines confidence i n the outcome of the trial." 30 F.Supp. 2d at 473 (citing Bagley, 473 U.S. 667, 678 (1985)). However, the District Co urt's analysis improperly conflates two separate and inde pendent components of Brady into a single inquiry. The ques tion 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 evid entiary suppression constitutes a Brady violation.

Following oral argument before us in this case, the Supreme Court clarified this distinction between Br ady material, and a Brady violation. In Strickler v. Gr eene, ___ U. S. ___, 119 S. Ct. 1936 (1999), the Court wrote:

[T]he term "Brady violation" is sometimes us ed to refer to any breach of the broad obligation to dis close exculpatory evidence -- that is, to any supp ression of so-called "Brady material" -- although, stri ctly speaking, there is never a real "Brady viola tion" unless
the nondisclosure was so serious that there is a reasonable probability that the suppressed e vidence would have produced a different verdict. The re are three components of a true Brady violation: The
evidence at issue must be favorable to the a ccused, either because it is exculpatory, or because it is impeaching; that evidence must have been sup pressed

16by the State, either willfully or inadverten tly; 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 a t the
seashore -- where Bradfield was on the weekend of h er death. As noted above, the prosecutor clearly thoug ht such evidence exculpatory, and stated as much in the memorandum he wrote mid-trial. The prosecutor belie ved
that when viewed in context with Smith's trial tact ics, "[i]t is obvious . . . that . . . [t]he sand . . . is ext remely material to the defense case." 615 A.2d at 323. The Pennsylv ania 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 mat erial exculpatory physical evidence during a capital tria l.").

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 j ury's
determination that the lifters did not constitute B rady material). However, we nevertheless conclude that t he District Court's ultimate holding that Smith failed to establish a Brady violation was correct. 13

Smith repeatedly claims that the lifters were mater ial and, therefore, that their concealment violated his due process right to a fair trial.14 However, Smith's a rgument

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12. The District Court here obviously did not have the benefit of the holding in Strickler during the course of this tria l.
13. Inasmuch as we hold that Smith failed to establ ish a due process violation, we need not now determine if the Distric t Court erred in allowing the jury to determine if the lifters were" material and exculpatory."

14. Although the affirmative duty to disclose is pl aced upon the prosecutor, we will nonetheless assume for the purp oses of this appeal that investigating police officers also have an aff irmative duty to
disclose exculpatory evidence to an accused if only by infor ming 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 19 83 claim alleging a due process violation under Brady can, therefore, b e 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)

.

17confuses "Brady material" with the Brady materialit y

standard required to establish a due process violat ion. Evidence "is material only if there is a reasonable probability that, had the evidence been disclosed t o the defense, the result of the proceeding would have be en different. A `reasonable probability' is a probabil ity
sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U. S. at 678.

The lifters containing two grains of quartz crystal s that
could have been beach sand were favorable to Smith. They were exculpatory to the extent that they corroborat ed his contention that Bradfield killed Reinert at the Cap e May shore. Thus, the Commonwealth had an affirmative du ty to disclose them to Smith, and the Pennsylvania Suprem e Court so held. We share that Court's condemnation o f the prosecutorial misconduct that occurred here. The reprehensible and unethical conduct of some of thos e involved in that prosecution is not, however, relev ant to our inquiry in determining if Smith has made out his ca use of action under S 1983. Despite the prosecutorial misc onduct, Smith must establish the prejudice required for the due process violation that is the sine qua non of his c laim for
relief. He has not done so.

Balshy testified at the civil trial as he had at Sm ith'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 tha t 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 materi al was quartz and that it was "ubiquitous" on the earth's surface.

The District Court described the testimony as follo ws:

The quartz was examined by two forensic geol ogists. One was Christopher Fiedler of the FBI labor atory in Washington, D.C. He concluded that the quart z was "common sand," probably originating from opa l 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 mate rial he

18found "ubiquitous," and opined that he would find at

least two crystals on the body or in the clo thing of any person in the courtroom at the time he testi fied.

30 F. Supp. 2d at 478. In a supplemental footnote, the
court noted: "a search of internet sources" discove red one reference that concluded: " `Quartz is the most abu ndant 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 in tegrity of Smith's murder convictions as follows: "It appea rs then that having these crystals on one's feet is as indi cative of a trip to the moon as a trip to the beach." Id . Alth ough the court was clearly engaging in hyperbole, we neverth eless share its conclusion that the post-conviction discl osure of the lifters, and the particles on them, falls woefu lly short of undermining confidence in Smith's murder conviction s.

Smith introduced the report of an expert he had ret ained for the hearings ordered by the Pennsylvania Suprem e Court. That expert opined that the quartz found on
Reinert's feet was consistent with beach sand. Howe ver, that testimony is not inconsistent with Fielder's t estimony. The quartz crystals could well have been beach sand

. However, even if we completely credit Smith's exper t's testimony, and completely ignore Fielder's statemen t 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 fo und on
Reinert's feet were consistent with beach sand. 16

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15. The court's quotation was taken from a site ent itled, "DesertUSA Magazine." See http://www.desertusa.com/mag98/mar/i ndex.html. The
reference is consistent with information contained in the online version of the Encyclopedia Britannica. See http://www.brit annica.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. T hus, the quartz crystals are not unlike the proverbial "two edged sword" tha t 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 i s consistent only with innocence. Here, the evidence did support the defense theory, and
should have been disclosed.

19As 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 inquir y we must make under Brady, that evidence is worth repea ting. The prosecution introduced the green pin with the w hite "P" that Beth Ann Brook saw Karen Reinert wearing when Karen was last seen, which the jury clearly believe d was Karen's, and which was recovered under the front se at 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 basemen t of Smith's home. A comb found under Reinert's body in her car contained the name of Smith's military unit, an d 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 a lso 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 g uilty verdicts. Accordingly, there was no due process vio lation for purposes of Smith's S 1983 claim. A Brady violatio n 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 v erdict." Kyles, at 435. The two grains of quartz can not pos sibly offset the evidence of Smith's guilt that was prese nted to the jury that convicted him of murdering Susan Rein ert
and her two children. Smith has not come close to demonstrating "a reasonable probability that the[cr iminal] jury would have returned a different verdict if the
information had been disclosed. . . ." Buehl v. Vau ghn, 166 F.3d 163, 181 (3d Cir. 1999). Accordingly, he has n ot established that withholding Brady material resulte d in a Brady violation, and we can therefore dispose of Sm ith'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

20were material and exculpatory is meritless. His ass ertion

that the District Court erred in submitting that is sue to the jury is therefore also meritless.17 In fact, that a rgument
elevates form over substance because the District C ourt expressly found that "had the question been left to the court, we would have agreed with the jury's conclus ion." 30 F. Supp.2d at 479. Therefore the District Court cle arly
stated that it would have decided that the lifters were immaterial as a matter of law. We disagree with tha t
conclusion insofar as the court believed the lifter s were not what is generically referred to as Brady material. However,
we conclude the lifters were immaterial in that the y would not have changed the outcome of Smith's criminal tr ial and their suppression was not, therefore, a Brady viol ation.

Smith's argument that the District Court erred in n ot deferring to the Pennsylvania Supreme Court's decis ion on the Brady issue or, in the alternative, that it sho uld have allowed the jury to learn of that decision is also meritless. Smith claims that the Pennsylvania Supreme Court wa s "the only court which conducted a full review of th e 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 B r. at 18. His argument refers to the Pennsylvania Supreme Court's holding that prosecutorial misconduct barre d 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 fo cused upon whether the Commonwealth's conduct during Smit h'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 Cor poral Balshy, constituted the kind of egregious prosecuto rial overreaching that precluded Smith's retrial under t he

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

21double jeopardy clause of the Pennsylvania Constitu tion.

The Court answered that inquiry in the affirmative, but it never inquired into whether the Commonwealth's cond uct undermined confidence in the murder convictions, an d it

never held that the Commonwealth's conduct amounted to a Brady violation.

Smith also argues that the doctrine of offensive co llateral estoppel barred relitigation of the materiality of the lifters because their materiality and exculpatory nature ha d already been established by the Pennsylvania Suprem e Court. However, Smith could not prevail on this arg ument even if the Pennsylvania Supreme Court had decided that issue as Smith says. As we have stated, the Pennsyl vania Supreme Court did not address the due process compo nent of a Brady violation. Therefore, the doctrine does not apply.18

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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 Dov e waited one week before he told anyone about the lifters, he did eve ntually turn them over to Holtz who immediately informed Guida. It was Gui da, the prosecutor,
who made the decision not to disclose the lifters t o Smith's counsel. At the time he made that decision Guida represented th e Commonwealth's interests, not the interests of Holtz, Dove or Yatr on. 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. 4 09 (1976); see also Buckley v. Fitzsimmons, 509 U. S. 259 (1993) ( pros ecutor has absolute immunity in S 1983 action for the initiation and pu rsuit 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 ca n 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 on e individual for the unethical misconduct that it found. Instead, it cast blame upon "the Commonwealth" in general, and "the prosecutor" in p articular. Smith's civil action is against the defendants in their ind ividual capacities, but they are not in privity with the government in a pr ior criminal prosecution when sued in their individual capacitie s. See Morgan v. Gertz, 166 F.3d 1307, 1309 (10th Cir. 1999); see al so 18 CHARLES A.
WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERA L PRACTICE AND

PROCEDURE S 4458, at 508 (1981) ("[A] judgment agai nst a government does not bind its officials in subsequent litigatio n that asserts a personal

22Finally, 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 ent itled 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 rulin g on a motion for a new trial for abuse of discretion unle ss the court's denial is based on the application of a leg al precept, in which case the standard of review is plenary." R otondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir. 1992)."[T]h e district court ought to grant a new trial on the ba sis 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, 1 290 (3d Cir. 1993). For the reasons we have previously disc ussed, 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 lifter s 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 Commonwealt h's criminal case against him. Smith argues that the on ly relevant inquiry at his S 1983 trial was whether th e defendants intentionally suppressed evidence. Howev er, as we have already explained, this misstates the relev ant inquiry.

Essentially, . . ., the question we must res olve is: when viewed as a whole and in light of the substa nce of the prosecution's case, did the government's fai lure to provide . . . Brady . . . evidence to the de fense . . . lead to an untrustworthy guilty verdict . . .?

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liability against the officials."). Therefore, the District Court did not abuse its discretion in refusing to apply the doctr ine of offensive collateral estoppel. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322,
331 (1979). (The application of the doctrine of collate ral estoppel is within

the "broad discretion" of the trial court.)

23U.S. v. Pelullo, 105 F.3d 117, 123 (3d Cir. 1997)(e mphasis

added). Here, the answer is a resounding "no." Ther e is nothing untrustworthy about Smith's conviction for murder. Therefore, even if the District Court erred in allowing additional evidence of guilt to be introdu ced 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 lia bility and damages phases. Smith apparently actually asked the court to "trifurcate" the trial into three phases to sepa rately determine the "due process violation, injury, and d amages." 30 F. Supp. 2d at 480. We review the court's refusa l to
"bifurcate" the trial for an abuse of discretion. B arr 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 abu se of discretion. Moreover, inasmuch as he did not establ ish a Brady violation, we fail to see how he was prejudic ed 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 Distri ct Court.
Our confidence in Smith's convictions for the murde r of
Susan Reinert and her two children is not the least bit diminished by consideration of the suppressed lifte rs and quartz particles, and Smith has therefore not estab lished that he is entitled to compensation for the unethic al conduct of some of those involved in the prosecutio n.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

24