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.[Copyrighted Material Omitted]

Gerald J. Williams, Esq. (Argued) Williams & Cuker One Penn Center at Suburban Station 1617 JFK Boulevard, Suite 800 Philadelphia, PA 19103, and Leslie M. Fields, Esq. Costopoulos Foster & Fields 831 Market Street P. O. Box 222 Lemonye, PA 17043, 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, for Appellees

Before: Sloviter, Nygaard and McKEE, Circuit Judges

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).

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 "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 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 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 with fibers similar to fibers found on Reinert's body), and clean the interior of his car (where Karen Reinert's pin was later found). Id.

The Commonwealth also presented the testimony of two inmates who had been incarcerated with Smith. One inmate testified that Smith asked him to kill state police detectives investigating the Reinert murders. The other testified that Smith had confessed his complicity in the Reinert murders to him, and that Smith had admitted to killing Reinert both for money and because he was afraid she would reveal that Bradfield had offered perjured alibi testimony. Id. at 605.

Bradfield was not called as a witness during Smith's murder trial. Nonetheless, the Commonwealth was allowed to present the testimony of several people who were either Bradfield's close friends or lovers. The first of these witnesses was Vincent Valaitis, another English teacher at Upper Merion High School. Valaitis testified that Bradfield told him in the fall of 1978 that he (Bradfield) had volunteered to serve as an alibi witness at Smith's theft trial. Valaitis also testified about several conversations he had with Bradfield in which Bradfield made statements incriminating Smith and suggesting that Smith was a Mafia hitman. Id. at 606. Valaitis said that Bradfield had urged him to join Bradfield, Susan Myers, and another teacher, Chris Pappas, on a trip to the seashore resort of Cape May, New Jersey, on the weekend that Reinert was killed. Valaitis claimed that Bradfield told the group that Smith was going to kill Reinert during that weekend and that their presence with Bradfield in Cape May would give him an alibi. Id. Chris Pappas was allowed to testify that Bradfield said that Smith had gone through with his threats and killed Reinert after he learned of Reinert's death. Id.

Other witnesses, including Susan Myers, also testified about conversations they had with Bradfield in which Bradfield described Smith's murderous intentions. Still other witnesses were allowed to testify about other out-of- court statements Bradfield had made, including statements that Smith was mentally unstable, that Smith intended to kill several persons including Reinert, and that Smith 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 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."

Commonwealth 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 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.

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 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 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.