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June 27, 1994

JAY C. SMITH, Plaintiff,
JOHN J. HOLTZ, et al., Defendants

The opinion of the court was delivered by: JAMES F. MCCLURE, JR.


 Plaintiff Jay C. Smith filed this section 1983 action *fn1" alleging the violation of his civil rights by defendants in connection with his murder conviction. In April, 1986, plaintiff was convicted of murdering Philadelphia school teacher Susan Reinert and her two children, and was sentenced to death. *fn2"

 Plaintiff remained on death row until September 18, 1992 when his discharge was ordered by the Pennsylvania Supreme Court. *fn3" The state Supreme Court held that, due to the prosecutorial misconduct which led to plaintiff's conviction, the law required that Smith be discharged, because a retrial would violate his right against double jeopardy under the Pennsylvania Constitution.

 Plaintiff brings this action against the state investigators responsible for reviewing and preserving the evidence against him. He alleges that defendants knowingly and deliberately concealed from plaintiff and his attorney, William Costopoulos, Esq., exculpatory evidence which would have bolstered Smith's theory of the case.

 Plaintiff names as defendants: John J. Holtz and Ronald F. Colyer, both of the Bureau of Technical Services of the Pennsylvania State Police; Victor Dove, John J. Purcell and William J. Lander of the Central Regional Office of the Bureau of Criminal Investigation of the Office of the Pennsylvania Attorney General; and Paul Yatron, Executive Director of the Attorney General's office in Harrisburg, Pennsylvania. (Plaintiff's complaint, PP 10-16).

 It was Smith's contention at the trial that Reinert and her children were murdered at the New Jersey shore by William Bradfield and or his associates who then conspired to "frame" Smith for the murders. Bradfield had previously been convicted of the murder of Reinert and her children.

 At trial, Smith's counsel cross-examined the prosecution's witness on the existence of physical evidence found during the autopsy of Reinert's body, which evidence supported the defense theory that the murders had taken place at the shore. During cross-examination, prosecution witness John C. Balshy, a former state policeman who had been present during the autopsy, testified that he observed a grainy substance between Reinert's toes, which substance appeared to be sand. Balshy testified that he had preserved this evidence by pressing it onto rubber "lifters." (Plaintiff's complaint, PP 20-21). The "lifters" were not produced at trial, and their actual existence was never disclosed by the prosecution during, or at any time prior to, the trial. Smith states that his counsel learned of their existence through independent means in 1988. (Plaintiff's complaint, P 31).

 Plaintiff alleges a series of acts by the various defendants intended to conceal the existence of the lifters from plaintiff and his counsel in violation of his right to exculpatory evidence established by Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1962), and in violation of the Rules of Professional Conduct, Rule 3.8. (Plaintiff's complaint, P 38). Plaintiff alleges that the defendants and the prosecution knew of the significance of this evidence to his defense but willfully concealed it with the effect of denying him a fair trial. (Plaintiff's complaint, PP 23-29 and 34-35).

 Plaintiff alleges that defendants acted out of a desire to: 1) "avoid public embarrassment of the state police and the office of the attorney general because of the conduct of their investigation;" 2) "avoid confirmation of plaintiff's allegations of prosecutorial misconduct in his post-conviction petitions; and to 'cover up' a persistent, consistent pattern of misconduct and incompetence throughout the investigation of the Reinert murders;" and 3) on the part of defendant Holtz, to receive compensation for his story on the investigation. (Plaintiff's complaint, P 36).

 Plaintiff asserts a cause of action under section 1983 based on alleged violations of his Fifth, Sixth and Fourteenth Amendment rights. He alleges that he has been deprived of the right to: a) freedom from the deprivation of life, liberty or property without due process of law; b) a fair trial in a criminal prosecution, and the right to be free of malicious prosecution; and c) the right to equal protection of the laws. (Plaintiff's complaint, P 40). As redress for these alleged violations, plaintiff seeks compensatory and punitive damages and attorney's fees pursuant to section 1988.

 Defendants moved for partial summary judgment *fn4" on plaintiff's due process and equal protection claims on the ground that there are no material facts in dispute on those claims and that defendants are entitled to judgment on them as a matter of law.

 Defendants' brief in support of their motion addressed a different issue entirely: their contention that all plaintiff's claims (except that for malicious prosecution) are barred by the two-year statute of limitations applicable to such claims, since plaintiff cannot dispute that he knew of the lifters' existence more than two years prior to filing this action. That is the issue which plaintiff refuted in his opposing brief and will be the issue we address here. We interpret defendants' shift in focus as an abandonment of the original argument stated in their motion.

 For the reasons which follow, we find that summary judgment in defendants' favor is appropriate on all claims asserted and will enter an order to that effect.


 Summary judgment standard

 Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)

. . . The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' ...

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