Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-16-1995
In Re: Leon Moser
Precedential or Non-Precedential:
Docket 95-9006
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Recommended Citation
"In Re: Leon Moser" (1995). 1995 Decisions. Paper 225.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/225
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 95-9006
___________
In Re: Leon Moser
___________
August 16, 1995
Before: MANSMANN, COWEN and NYGAARD, Circuit Judges.
(Opinion filed August 16, 1995)
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OPINION AND ORDER OF THE COURT
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MANSMANN, Circuit Judge.
By order entered August 14, 1995, the District Court
granted a stay of execution of death sentence, directed an
independent psychiatric evaluation of Mr. Leon Moser, and
appointed CJA counsel for the purpose of reporting to the Court
with respect to Mr. Moser's present competency. The State
appealed, and by per curiam opinion entered August 15, 1995, we
affirmed the order of the District Court at C.A.No. 95-9003. Upon
consideration of the State's motion to vacate the stay of
execution, the Supreme Court of the United States granted the
State's motion and vacated the stay.
The Pennsylvania Post-Conviction Defender Organization
(PPCDO) filed renewed motions for relief in the District Court on
August 16, 1995 which were denied by order dated August 16, 1995
at 1:55 a.m. The PPCDO filed an appeal to us, requesting a
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certificate of probable cause and a stay of execution. By per
curiam opinion entered August 16, 1995, we granted the
certificate of probable cause, denied the request for a stay on
the record as it then existed and remanded the matter to the
district court for an immediate hearing on all outstanding merits
issues including inter alia: the standing of the Reverend
Holland to act as Mr. Moser's next friend and a possible
amendment to include Mr. Moser's brother as a next friend if an
appropriate petition should be filed; the competency of Mr. Moser
which may require that the district court order the State to
produce Mr. Moser in the court's presence and that any mental
health records of Mr. Moser relevant to the issue of his
competency be produced for the district court's review; and the
issue of deliberate delay. We also indicated our view that the
district court possessed the authority to grant a temporary stay,
if one should be required, on the basis of the newly developed
record.
The district court heard arguments from counsel
commencing at 10:45 a.m. on August 16, 1995, regarding the
petition of Mr. Moser's brother, Theodore Moser of Theresa,
Wisconsin to intervene as a "next friend" on his brother's behalf
in addition to Reverend Holland.1 The district court also
1
On this issue, the PPCDO presented the affidavit of
Paul Messing, court appointed counsel for Mr. Moser regarding
Theodore Moser's request that Mr. Messing represent his concerns
of his brother's competence. The state responded only with
unsubstantiated assertions by counsel raised during argument that
Theodore Moser has shown no interest in his brother during the
nearly 10 years of incarceration. However, the Messing Affidavit
indicates that the Moser family could not secure proper
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considered arguments on the issue of whether Mr. Moser engaged in
deliberate delay so as to flout the judicial processes pursuant
to McFarland v. Scott, 114 S. Ct. 2568, 2573 (1994). On August
16, 1995 at 2:20 p.m., the district court issued an order
permitting the PPCDO to amend its pleading to include Theodore
Moser as a next friend and requiring the State to produce Mr.
Moser and his mental health records forthwith to the district
court at which time an immediate hearing would convene to
determine Mr. Moser's competency.
The State immediately appealed the district court's
August 16, 1995 2:20 p.m. order simultaneously to the Supreme
Court of the United States and to us. We dismissed the appeal
for lack of jurisdiction given the interlocutory nature of the
order which did not invoke our jurisdiction under either 28
U.S.C. § 1292(a)(1) or 28 U.S.C. § 1651(a).
When it became apparent that neither Mr. Moser nor his
mental health records would be produced prior to the execution
scheduled for 10:00 p.m. tonight,2 the district court entered a
temporary stay of Mr. Moser's execution currently scheduled for
10:00 p.m. on August 16, 1995 until August 17, 1995 at 10:00 p.m.
hospitalization, psychiatric care and mental health assistance
for Leon because of their lack of resources. Messing Affidavit
¶ 4.
2
Mr. Moser was presently enroute to the State Correction
Institution at Rockview causing doubt as to whether he could be
produced on August 16, 1995. Mr. Horowitz, the State's
representative in charge of Mr. Moser's mental health records,
indicated that he required a minimum of two weeks to produce the
records.
3
This appeal is markedly different from the appeal at
No. 95-9003 on which the Supreme Court vacated the stay of
execution by order dated August 15, 1995. In the matter now
before us, the district court was presented with Theodore Moser's
petition to act as next friend for his brother, death row inmate
Leon Moser in addition to Reverend Holland. The district court
did not err in finding that Theodore Moser clearly is dedicated
to the best interests of Leon Moser and has a significant
relationship with him. Whitmore v. Arkansas, 495 U.S. 149, 163-
64 (1990). We also hold that the district court's action in
briefly staying the execution for roughly 24 hours was a sound
exercise of discretion given the state's inability to produce Mr.
Moser for examination by the district court or the mental health
records in a prompt fashion. Additionally, the district court
properly exercised federal judicial power. Demosthenes v. Baal,
495 U.S. 731, 737 (1990).
We state sincerely that we recognize the Supreme
Court's proper review authority and respect the Court's previous
order vacating our order affirming the stay yesterday. Given the
changed circumstances and severe consequences, we are constrained
to state our view that the extremely brief delay here does not
prejudice the State but severely prejudices Mr. Moser.
We thus affirm the order of the district court.
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NYGAARD, Circuit Judge, dissenting.
In 1985 Leon Moser appeared before a Judge of the Court
of Common Pleas in the Commonwealth of Pennsylvania and entered
an intelligent, knowing, and voluntary guilty plea to three
charges of first degree murder. He was sentenced to death by a
three-judge panel of the same court. The Supreme Court of
Pennsylvania affirmed the judgment. Throughout the proceedings,
Leon Moser maintained that he wanted to die. From all
indications he still does.
Moreover, since being found capable to enter a plea,
there is no evidence that his situation or desire to die has
changed. All of the allegations contained in petitioners'
submissions are only the same allegations indicating that Leon
Moser is in the same frame of mind as he was ten years ago. The
experts who testified by affidavit as to Moser's incompetence
have not seen him for ten years. Moreover, their assessment of
Leon Moser was rejected by the state trier of fact. The minister
and brother who claim to represent Moser's personal interests as
"next friend" have not visited with him in prison during the past
ten years. And finally, the attorneys who claim to represent his
legal interests have never seen him.
I do not believe that petitioners have made the
requisite threshold showing that Moser is incompetent to make his
own decisions. In light of that failure, the federal courts are
powerless to make a decision for him. If Moser wants to die by
the hands of the Commonwealth of Pennsylvania, we must let him.
5
Hours ago the Commonwealth petitioned the U.S. Supreme
Court, which thereupon vacated an earlier stay of execution. The
Court's Order contained no explanation; but, in its petition the
Commonwealth, incorporating all the records of the lower federal
courts, represented to the Court that:
1. Petitioner's application was filed 37
hours before Moser's scheduled execution;
2. The Commonwealth had witnesses available
to testify in district court about Moser's
current state of mind;
3. The district court's stay was granted
after argument;
4. Petitioners lacked standing to file a
motion on behalf of Moser;
5. Moser has consistently and unequivocally
expressed his desire to die; and
6. The district court had based its decision
on affidavits of a psychiatrist and a
psychologist, (neither of whom has seen Moser
in ten years, and both of whom testified at
the state hearing ten years ago at which
Moser was found capable of entering a knowing
and voluntary guilty plea); the fact that
Moser had been hospitalized once for
depression nine years ago; and, the fact that
he takes a routine anti-depressant,
Imipramine.
Aside from the appearance of Leon Moser's brother as
next friend, the district court in entering its stay order today
had essentially the same material before it as it had yesterday,
and has once again granted a stay. No new evidence has been
submitted on the threshold inquiry of Moser's incompetence.
Hence, I believe that the stay entered today contravenes the
mandate of last night's Supreme Court order. I would reverse the
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second stay of execution entered by the district court and allow
Moser to have his wish.
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