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April 29, 1986


The opinion of the court was delivered by: THOMPSON


 Harry Messerlian and Henry Wolkowski, members of the New Jersey State Police, move before this court for an order overturning the verdict of a jury which sat in judgment over a three-month trial. Messerlian stands convicted of violating the civil rights of Joseph Topolosky by striking him with a heavy, weapon-like flashlight -- blows which resulted in Topolosky's death -- as well as conspiring to obscure this beating from the eyes of federal authorities and lying to a federal grand jury. Wolkowski was convicted of conspiring with Messerlian "and others" to obstruct the federal investigation.

 This jury was urged by the prosecution and defense counsel to adopt conflicting versions of the case. By the prosecution, they were urged to bring to justice men who allegedly abused the power and authority of their offices. By the defense, they were urged to vindicate men who, they argued, were properly performing the most dangerous and least rewarded job society asks of its members. The jurors heard testimony from civilians describing a brutal assault on a shackled, intoxicated prisoner. They heard police officers describe an orderly and proper arrest of a drunk driver who was placing his children -- and others -- at risk. They heard extensive and dense medical testimony in which distinguished and experienced doctors referred to the same evidence and reached contrary conclusions.

 The jury heard considerable character evidence. Witnesses discussed the character of the victim, Joseph Topolosky. The character of the fact witnesses was made a significant issue on a number of occasions. The jurors were presented with an array of witnesses testifying to the good character of the defendants: family members, police officers, State Troopers, the Superintendent of the New Jersey State Police, agents of the F.B.I. (the federal law enforcement agency charged with investigating the death) and an incumbent County Prosecutor for the State of New Jersey. By turns these proceedings appeared to be a trial of Joseph Topolosky for having been a troubled, self-destructive and angry man; of the civilian eyewitnesses for their allegedly wrongful accusation that police officers had broken the law; of the New Jersey State Police for allegedly turning inward to protect its own; and of the United States Department of Justice for coming into this state to prosecute police officers who had not been brought to trial by the State of New Jersey.

 After sitting through three months of trial the jurors took the case, deliberated for over 40 hours, and returned with their verdicts. They had the difficult task of assessing the credibility of the witnesses, deciding where the truth lay and drawing the legitimate inferences from the evidence. At the completion of their deliberations, they rendered unanimous verdicts.

 A new issue arose following the return of the verdict, involving the emergence of the testimony of Dr. Marvin Aronson, Medical Examiner for the City of Philadelphia. The nub of Dr. Aronson's testimony is that the Office of the United States Attorney for the District of New Jersey concealed from the defendants evidence which could have aided them in their defense. He asserted, in a hearing before the court, that in 1984 he delivered to an attorney for the government an opinion that Joseph Topolosky's death was caused by a motor vehicle accident and not by a beating. We heard Dr. Aronson describe his version of his professional contacts with the U.S. Attorney's Office. We must find that Dr. Aronson came into court, sat in the witness stand, took an oath, and, for reasons unknown, lied. We find that no evidence of an exculpatory nature was concealed from the defendants.

 We also find that Dr. Aronson's testimony is not "new evidence" giving rise to a basis for a new trial. His opinion testimony -- for he offered no new facts -- adds nothing of substance to that previously before the jury. His opinions are tied to the well-developed factual record of this case in only the most attenuated fashion; he did little more than connect selected portions of the evidence to an academic theory, while rejecting that factual evidence which he found inconsistent with his opinions.

 I. Testimony of Doctor Aronson

 Following the return of the jury's verdict, but prior to the return date of the post-trial motions, we received a letter from Gregory Linsin, prosecuting attorney for the United States Department of Justice, regarding his contact with Richard Sprague, Esquire, of Philadelphia, an attorney for Dr. Marvin Aronson. By this letter, Mr. Linsin notified the court and defense counsel of Dr. Aronson's stated belief that the Office of the United States Attorney for the District of New Jersey had improperly concealed information from defense counsel in connection with this prosecution. Mr. Linsin indicated in his letter that Richard Sprague had communicated to him that "Dr. Aronson was of the view that the opinion he rendered orally to a member of the U.S. Attorney's Office was arguably exculpatory and Mr. Sprague inquired if Dr. Aronson's name had been provided to the defendants."

 Mr. Linsin went on to state that Dr. Aronson, a forensic pathologist, had in fact been consulted by the U.S. Attorney's Office in 1984 in connection with its investigation into Joseph Topolosky's death; his name was not provided, however, because he "had never stated that he possessed any opinions that were exculpatory or arguably exculpatory in nature."

 On February 26, 1986, counsel for defendant Messerlian conducted an oral deposition of Dr. Aronson. On the strength of the sworn statements taken at that time, defendants Messerlian and Wolkowski moved for a judgment of acquittal, or in the alternative for a new trial, or for a hearing to determine whether there had been a violation of the rule of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). They argued that the statements of Dr. Aronson reveal the failure of the prosecution to turn over exculpatory information in violation of Brady, or that the opinions of Dr. Aronson constitute new evidence of a magnitude sufficient to warrant a new trial pursuant to FED. R. CRIM. P. 33. The United States responded with the affidavits of Assistant United States Attorney Anne Singer and former Assistant United States Attorney Robert Fettweis. These affidavits appear to contradict Dr. Aronson's assertion that he offered an exculpatory opinion to Ms. Singer. The United States argued that Dr. Aronson's statement in this regard was incredible, or in the alternative that any information provided was not material to the issues involved in the trial. It therefore argued that defendants' motion should be denied.

 On March 6, 1986, we determined that the deposition testimony of Dr. Aronson and the affidavits of Ms. Singer and Mr. Fettweis raised genuine issues of material fact on the Brady issue, and we scheduled a hearing. See United States v. Dansker, 565 F.2d 1262, 1264 (3d Cir. 1977), cert. denied, 434 U.S. 1052, 54 L. Ed. 2d 805, 98 S. Ct. 905 (1978); Government of the Virgin Islands v. Martinez, 780 F.2d 302, 306-08 (3d Cir. 1985). On March 14, 1986, Dr. Aronson and Ms. Singer testified at some length. *fn1"

 A. Brady Violation

 In Brady, the United States Supreme Court analyzed the duty of a prosecutor to disclose exculpatory information to a defendant. The Court determined that the Due Process Clause of the Fourteenth Amendment guarantees that a guilty conviction be based on a defendant's guilt, and not on gamesmanship or deception practiced by the prosecution. The Court noted that it had long been recognized that a prosecutor who "deprives a defendant of liberty through a deliberate deception of the court and jury by the presentation of testimony known to be perjured," 373 U.S. at 86, quoting Mooney v. Holohan, 294 U.S. 103, 112, 79 L. Ed. 791, 55 S. Ct. 340 (1935), or who "allows [perjury] to go uncorrected when it appears," 373 U.S. at 87, quoting Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959), violates the defendant's rights to due process. The Court extended this rule in Brady to

hold 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 punishment, irrespective of the good faith or bad faith of the prosecution.

 373 U.S. at 87. The prosecutor's duty to disclose was subsequently extended to situations in which either a general Brady request is made or no request is made. "Elementary fairness requires" that material exculpatory information in the possession of the prosecution be disclosed regardless of a failure of the defendant specifically to request it. United States v. Agurs, 427 U.S. 97, 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976).

 Defendants argue that the evidence allegedly withheld is Brady material because it tends to demonstrate that Joseph Topolosky's death was caused not by blows, but by accidental means; they also argue, however, that the alleged failure to disclose goes beyond Brady in that it improperly limited the defendants' ability to confront adverse witnesses -- specifically, the medical experts proffered by the United States. (Defendants' Joint Brief, dated March 3, 1986, p. 4.) This apparent bifurcation of defendants' argument is unnecessary, however. The analysis of an allegation by a defendant that he has been denied the right to confront a hostile witness, see Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974), where the basis of the alleged denial is the prosecutor's non-disclosure of impeachment evidence, has been subsumed into the Brady analysis. In United States v. Bagley, 473 U.S. 667, 53 U.S.L.W. 5084, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985), the Supreme Court stated that:

Impeachment evidence . . . as well as exculpatory evidence[] falls within the Brady rule. See Giglio v. United States, 405 U.S. 150, 154 [31 L. Ed. 2d 104, 92 S. Ct. 763] (1972). Such evidence is "evidence favorable to an accused," Brady, 373 U.S. at 87, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.
* * * *
The Court of Appeals treated impeachment evidence as constitutionally different from exculpatory evidence. According to that court, failure to disclose impeachment evidence is "even more egregious" than failure to disclose exculpatory evidence "because it threatens the defendant's right to confront adverse witnesses." 719 F.2d at 1464.
* * * *
This Court has rejected any such distinction between impeachment evidence and exculpatory evidence.

 53 U.S.L.W. at 5086.

 Bagley instructs us that the allegation of a failure to disclose information helpful to the defendant, whether that information is exculpatory evidence or impeachment evidence, must be examined by reference to the same Brady standards. *fn2"

 We address the record, then, to determine whether the United States failed to disclose material which, "in the context of the entire record . . . creates a reasonable doubt that did not otherwise exist" as to the guilt of Messerlian and Wolkowski. Agurs, 427 U.S. at 112. The inquiry follows two steps: Initially, we must determine that there was a failure to disclose information known to the United States; if so, we must determine whether that withheld information was material to the issues before the court. The Third Circuit has described the Supreme Court criteria for a finding of materiality as follows:

"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." [ United States v. Bagley, U.S.] at , 105 S. Ct. at 3385 (opinion of Blackmun, J.), see also id. (opinion of White, J., concurring in part and concurring in judgment). Justice Blackmun's opinion further defined "a 'reasonable probability' as 'a probability sufficient to undermine the outcome.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984)).
Although the Court in Agurs had distinguished the situations in which defendants had made no request for disclosure, had made a general request, or had made a specific request, the Court held in Bagley that the announced standard for materiality was "sufficiently flexible" to cover each of these situations. Bagley, U.S. at , 105 S. Ct. at 3385.

 United States v. Pflaumer, 774 F.2d 1224, 1226 (3d Cir. 1985). See also, Government of the Virgin Islands v. Martinez, supra, 780 F.2d at 306 (discussing Bagley); United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984) (discussing impeachment evidence).

 Much has been written about this "materiality" requirement; the battleground on which most Brady challenges are fought is that of the definition of materiality and the application of that definition to the facts of a case. *fn3" In this case, both criteria of the Brady claim -- non-disclosure and materiality -- are disputed. Before we may address the materiality issue, then, we must consider whether, in fact, the United States improperly withheld information to which it had access. The Brady obligation arises from the prosecutors' dual role as advocate and "servant of the law." Agurs, 427 U.S. at 110-111. As the Agurs Court stated,

the fact that [exculpatory] evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered from some neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that the newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence was in the State's possession as when it was found in a neutral source, there would be no special significance to the prosecutor's obligation to serve the cause of justice.

 427 U.S. at 111.

 In his sworn statement, Dr. Aronson stated that Ms. Singer called him on or about March 6, 1984, to ask him to "review . . . material [regarding the death of Joseph Topolosky] and form an opinion." (p. 6, deposition of Dr. Aronson of February 26, 1986). After he had reviewed the material, *fn4" he again, within one or two weeks, contacted her to discuss the case. At deposition, he stated that he informed Ms. Singer at the time of their second telephone conversation that he believed that the death "could be accounted for" by a fracture of the second cervical vertebra, producing a hemorrhage at the base of the brain. (Id., p. 8). He also remembered stating that he could rule out neither the possibility that the death was caused by a blow from a flashlight nor the possibility that the blow was caused by traffic accident preceding the arrest. (Id.) The transcript contains the following questions and answers at page 8:

Q. What was your final conclusion with regard to the allegation of the beating of the victim?
A. My final conclusion was that I did not believe that the victim in this case was beaten to death.
Q. Did you tell her [Singer] that on the phone?
A. Yes.

 Dr. Aronson's statement of February 26 also contains references to the effects of the particular hemorrhage he described; he stated that he told Ms. Singer that the hemorrhage could cause abnormal conduct, and that the abnormal conduct observed on the night of the victim's death "could be related to an injury sustained in the automobile accident." (Id. p. 9). Although the testimony contained in this statement is somewhat tentative in places, it is clear that Dr. Aronson intended by his deposition testimony to convey his feeling that he had communicated a tentative opinion to Ms. Singer which was exculpatory in nature, and that he was not again contacted by any person connected with the prosecution, except for the payment of his bill, until he initiated such contact after the jury had returned a verdict.

 Ms. Singer's affidavit of February 26, 1986, is in sharp conflict with this testimony. Paragraphs 7 and 8 of that affidavit which discuss Ms. Singer's recollections of her second (and last) conversation with Dr. Aronson, read as follows:

7. Dr. Aronson stated that, in his opinion, the medical evidence indicated that Topolosky had been struck by another person; he stated that he believed the force utilized was moderate and not severe; and he further outlined his opinions concerning the cause and manner of death which were similar to those previously rendered by Drs. Rudolph Platt, Robert Goode and Charles Hirsch.
8. Dr. Aronson never stated to me that there was no evidence to support the conclusion that Topolosky had been struck by another person; he never stated to me that he disagreed with the conclusions of Drs. Platt, Goode and Hirsch that the manner of Topolosky's death was a homicide; and he also never stated to me that he believed that Topolosky's fatal injuries were sustained in the motor vehicle accident.

 The affidavit of Robert Fettweis reveals no personal knowledge of the substance of the telephone conversations between Dr. Aronson and Ms. Singer.

 We were faced, prior to the hearing, with a sharp conflict between Dr. Aronson and Ms. Singer on the threshold question of whether in fact the United States had been, prior to trial, in possession of arguably exculpatory opinion testimony from Dr. Aronson. The testimony adduced at the hearing of March 14 only served to deepen the conflict, making it absolutely clear that either Dr. Aronson or Ms. Singer, but not both, were testifying truthfully. *fn5"

 At the hearing, Dr. Aronson testified that he told Ms. Singer that the cause of death, in his opinion, was a "Dimitri lesion," *fn6" an injury to the vertebral artery at its passage through the first cervical vertebra (the "atlas"), which results in remote bleeding at the base of the brain. He further testified that the identification of the fatal injury as a Dimitri lesion could help explain the "abnormal activity" of the victim -- a reference to the so-called "manic" behavior of Topolosky while he was in the rear seat of the troop car. (Transcript of March 14 hearing, p. 27, [hereinafter "HT"]). He stated that he communicated as his "primary opinion" the belief that the hemorrhage resulted from motor vehicle accident, and not from the beating. His (apparently secondary) opinion was that if the injury was not caused by the accident, "there was not a great deal of force used and it didn't constitute a beating under those circumstances." (HT28). On direct examination, the following exchange took place:

Q. Doctor, let me ask you what your opinion was and is with regard to the manner of death of Mr. Topolosky?
A. In my opinion the manner of death is accident.
Q. Did you convey that to Anne Singer either in specific terms or by the nature of your conversation with her?
A. I may not have used the specific term but I know I indicated to her my opinion was the injuries sustained were much more likely to have occurred as a result of the automobile accident than as a result of an injury by anyone else. This would make [sic] it in the classification of an accident.

 (HT44). On cross-examination, Dr. Aronson reaffirmed that he had communicated to Ms. Singer his opinion that the motor vehicle accident caused the death (HT67), that if death was in fact caused by a blow, it was a blow of only moderate force (HT70), and that the nature of the hypothesized injury could explain the cause of Topolosky's observed abnormal behavior. (Id.)

 On cross-examination he was questioned about a page of hand written notes which he had identified as a transposition of notes recorded contemporaneously with his review of the records and his second telephone conversation with Ms. Singer, and which had been entered into evidence bearing the number DWM-5. *fn7" Dr. Aronson agreed that he had recorded nothing in these notes to reflect his transmittal to Ms. Singer ...

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