A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

The UNITED STATES COURT OF APPEALS for the THIRD CIRCUIT has decided the civil appeal of NICOLE SCHNEYDER v. GINA SMITH, Appellant, # 10-2367, 2011 WL 3211504 (7/29/11). This was an appeal from the United States District Court for the Eastern District of Pennsylvania, No. 2-06-cv-04986, before District Judge Jan E. Dubois, 709 F.Supp.2d 368. The Panel was composed of Judges McKEE, SMITH, and STEARNS. Daniel Silverman, Esq. represented the Appellee.

The central inquiry before the Panel was whether a reasonable prosecutor should have known that detaining a material witness for 48 days after the underlying trial had been continued may have been contrary to the wishes of the authorizing court (Philadelphia Common Pleas Judge Rayford Means), and that this additional detention violated the witness’ constitutional rights.

After a continuance, the trial at which the Appellee was being held in custody so that she would have to testify was continued from February 2, 2005 to March 25, 2005. No one told Judge Means, so the Appellee remained in jail.

It is not a prosecutor’s prerogative to decide how long to keep a material witness detained. Declining to reveal the change in the status of the trial date was an abdication of ADA Gina Smith’s responsibility to provide the court with information sufficient for it to decide an issue within its sole competence.

The Court, in an Opinion by Circuit Judge Smith, held that under the Fourth Amendment, a prosecutor who is responsible for such detention has to inform the judge who ordered the witness’s incarceration of any substantial change in the underlying circumstances. Also, the Court concluded that the prosecutor in this case had fair warning of the constitutional right she was accused of violating, and that she was therefore not shielded from liability by the doctrine of qualified immunity or absolute prosecutorial immunity.

The Panel therefore affirmed the District Court’s order denying summary judgment to the Appellant.


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