Heidnik v. Horn

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

4-18-1997

Heidnik v. Horn
Precedential or Non-Precedential:

Docket 97-9000

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

NO. 97-9000
_____________

In re: Gary Heidnik

MAXINE DAVIDSON WHITE,

APPELLANT

v.

MARTIN HORN, COMMISSIONER,
PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
GREGORY WHITE, SUPERINTENDENT OF THE STATE
CORRECTIONAL INSTITUTION AT PITTSBURGH AND;
JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT OF THE
STATE CORRECTIONAL INSTITUTION AT ROCKVIEW AND;
COMMONWEALTH OF PENNSYLVANIA

(E.D. PA Civ. No. 97-cv-02561)
_____________________

Argued April 17, 1997
Before: BECKER, STAPLETON and COWEN,
CIRCUIT JUDGES.

(Filed April 18, 1997)

Billy H. Nolas, Esq. (Argued)
Robert Brett Dunham, Esq.
Center For Legal Education, Advocacy &
Defense Assistance
437 Chestnut Street, Suite 501
Philadelphia, Pennsylvania 19106

Kathy Swedlow, Esq.
David Wycoff, Esq.
Defender Association of Philadelphia
Federal Court Division
437 Chestnut Street
Philadelphia, PA 19106

Counsel for Appellant

Ronald Eisenberg, Esq. (Argued)

1
 Catherine Marshall, Esq.
Donna K. Zucker, Esq.
Office of the District Attorney
1421 Arch Street
Philadelphia, PA 19102

Counsel for Appellees

___________________________

OPINION OF THE COURT
____________________________

PER CURIAM.

This is an appeal from an order of the district court

denying the motion of Maxine Davidson White and Betty Heidnik

requesting a stay of the execution of Gary Heidnik, appointment

of federal habeas corpus counsel on his behalf, and next friend

standing.1 The motion was filed in the district court just over

two days ago (April 15, 1997) and the order appealed from, which

followed marathon hearings lasting until midnight, was entered

the next day at 6:00 p.m. We conducted extensive oral argument

yesterday afternoon. This hectic pace, which is a continuum of a

similarly paced state court proceeding that commenced on April

11, 1997 and was concluded in the trial court on April 15, 1997

(the matter is presently pending in the Pennsylvania Supreme

Court), is a function of the fact that the Governor of
1
The motion was originally filed in the name of Gary
Heidnik, but, appended to the moving papers was the affidavit of
Maxine Davidson White, Heidnik’s daughter, who sought appointment
therein as next friend. After a careful review of the record,
and pursuant to our authority under Fed. R. App. P. 43, we have
substituted her as a party. Betty Heidnik has also claimed next
friend status, but because her relationship to Heidnik remains
unclear (she appears to be his ex-wife), it would not appear at
present that she qualifies.

2
Pennsylvania has issued a warrant for Heidnik’s execution in the

Pennsylvania death chamber at the State Correctional Institution

at Rockview, which expires on April 19, 1997. For the reasons

that follow, we vacate and remand with directions.

I. FACTS AND PROCEDURAL HISTORY

These proceedings have their origin in a series of heinous

crimes committed by Heidnik over a six month period in 1986-87.

According to the record of his convictions, Heidnik kidnapped and

tortured six women, murdering two of the victims by various forms

of physical abuse and starvation. In 1988, a jury convicted

Heidnik of first degree murder and returned two sentences of

death. Heidnik personally petitioned the state courts to conduct

no appellate review and to expedite his execution. The state

supreme court, however, engaged in statutorily mandated review of

limited issues of state law and affirmed the judgment of

sentence. See Commonwealth v. Heidnik, 587 A.2d 687 (Pa. 1987).

Heidnik made no further effort to challenge his sentence,

but his execution was delayed by the decision of the former

Governor not to issue warrants of execution. The current

Governor issued the presently outstanding warrant on March 20,

1997. On April 11, 1997, attorneys seeking to represent Heidnik

filed a petition in the Philadelphia Court of Common Pleas

asserting that Heidnik was incompetent to be executed. See Ford

v. Wainright, 477 U.S. 399 (1986). The trial judge convened a

hearing on Monday, April 14. When called to the stand, Heidnik

reaffirmed his previous position that he did not want to appeal

his sentence. Counsel elicited from him his belief in various

3
conspiracy theories, centering on his assertion that he was

innocent of the murders and had been framed by the victims and

corrupt police officers.

Heidnik’s delusional beliefs are illustrated by excerpts of

his testimony before the state trial court. Heidnik believes

that the kidnapped victims carried out the two killings of which

he was convicted:
I think they killed Ms. Lindsay -- it’s possible that they killed
her because she was a lesbian. And I didn’t know that, and
you know, up until that time.

***

The reason I mentioned this was because they killed her the next
day, they killed her the next day, which suggests that they
either killed her because she was a lesbian or this gave the
excuse they were looking for.

***

Rivera was the brains behind it. But Ms. Thomas I’m pretty sure
did the actual killing.

***

And do you understand I’m guilty of everything but murder? I
didn’t murder those two women. Do you understand that?

He also believes that the FBI can establish his innocence:

[The FBI is needed so] I could prove I had not murdered these two
women ...

In fact, he has constantly sought to contact the FBI in this

regard for many years. Additionally, because of his claimed

innocence, Heidnik believes that the outrage caused by his

execution will result in the end of capital punishment:
I say real or phony, they can execute me, because I am innocent
and I can prove it. That is the end of capital punishment in
this state. When you execute an innocent man, knowingly
execute an innocent man, you know there will be no more
capital punishment in this state and possibly anywhere else

4
 in this country. And you know I didn’t kill them two women.
Go ahead and execute me. That’s going to be the last time
you ever execute anybody in this country. That’s the end of
capital punishment.

***

Yes, I want you to execute an innocent man so there will be no
more capital punishment ....

***

I want to be executed because I want to be the last man in this
country ever executes [sic], that’s the end of capital
punishment ... You don’t do that shit, not in America. And
you’re not going to do it anymore because I’m ending capital
punishment.

Petitioning counsel maintained that Heidnik’s protestations

of innocence demonstrated that he must be delusional and that his

willingness to be executed was a product of mental illness. The

court thereupon arranged for a psychiatric examination by a member

of the court’s mental health unit, Dr. John O’Brien, a forensic

psychiatrist. The examination, which lasted some 90 minutes, took

place in the presence of the stay petition attorneys and counsel

for the Commonwealth. Dr. O’Brien also reviewed court records,

materials prepared by the Commonwealth, and affidavits prepared by

the stay petition attorneys on the question of Heidnik’s

competence. The hearing then reconvened for Dr. O’Brien’s

testimony, which was to the effect that Heidnik understands that

he is to be executed, and why, and that he is able to make his own

decisions about his fate.

The judge credited O’Brien’s testimony, and denied Heidnik’s

request for a stay. An appeal to the Pennsylvania Supreme Court

is pending. That court has stayed Heidnik’s execution, though it

5
has indicated that it will act upon the matter by noon on April

18, 1997.

Dr. O’Brien was also the Commonwealth’s key (and only)

witness at the proceedings in the district court. The district

court proceedings, however, addressed not the Ford v. Wainwright

issue presently before the state supreme court, which inquires

whether a defendant is capable of comprehending the reasons for

the penalty and its implications, but rather the issue framed by

Whitmore v. Arkansas, 495 U.S. 149 (1990), which asks whether the

putative next friend has provided an adequate explanation why the

real party in interest cannot appear on her own behalf to

prosecute the action.2 The petitioners adduced the testimony of

three psychiatrists, each of whom had examined Heidnik during his

incarceration in the Pennsylvania prison system, Dr. Lawson

Frederick Bernstein, Jr., Dr. Stewart Wellman, and Dr. Clancy

McKenzie.

After consideration of the aforementioned testimony, the

district court filed a memorandum and order in which it denied all

requests for relief. The court concluded that Ms. White had not

met her burden of proof with regard to Heidnik’s incompetence. It

accordingly held that she did not have standing before the court

and denied her next friend status. We address the evidence

adduced before the district court and its findings in the next

section.
2
There is no dispute that Ms. White meets the second
qualification of Whitmore that the next friend must be truly
dedicated to the best interests of the person on whose behalf he
or she seeks to litigate.

6
 The court noted that stay petition attorneys also had

presented an application under McFarland v. Scott, 114 S. Ct. 2568

(1994), for appointment of habeas counsel, but in view of its

denial of next friend status, the court did not reach the

McFarland issue. Taking cognizance of the principle of habeas

corpus jurisprudence requiring the exhaustion of state remedies,

but referencing the stipulation of the parties that the court

could consider jurisdictional issues at any time, the court deemed

there to be a waiver of any exhaustion requirement with respect to

the issues before it.3 The court continued the temporary stay of

execution until such time as this Court ruled on any appeal.

II. THE DISTRICT COURT RECORD AND FINDINGS

The testimony of the three witnesses for petitioners was

similar and consistent. All three had seen Heidnik professionally

on a number of occasions while he was incarcerated at the State

Correctional Institution at Pittsburgh, and Dr. Bernstein had

treated Heidnik. They agreed that Heidnik is a paranoid

schizophrenic with a well-developed paranoid delusional system.

In Bernstein’s view, Heidnik has a
series of fixed false beliefs which are patently absurd and
inconsistent with reality, which are all-encompassing
in nature and which color every aspect of his cognitive
functioning.

Bernstein concluded that it was inconceivable that Heidnik could

“rationally understand the nature of the proceedings.” (emphasis

3
The district court also pointed out that the current habeas
statute, 28 U.S.C. § 2254(b)(2), provides that an application for
a writ may be denied on the merits even in the absence of
exhaustion. Accord Granberry v. Greer, 107 S. Ct. 1671 (1987).

7
added). This was because, in Bernstein’s view, Heidnik’s

perception of reality was so completely flawed that he could not

interact effectively with counsel.4 He further observed that

there was no point of contact between Heidnik and the rational

world.

Dr. Wellman, the chief psychologist of the State Correctional

Institution at Pittsburgh, testified that Heidnik’s delusions are

a function of his paranoid schizophrenia, and that the illness and

its underlying delusional content renders him incompetent. Dr.

McKenzie, a psychiatrist who evaluated Heidnik at the time of the

original trial proceedings, testified that Heidnik has been a

paranoid schizophrenic since 1963, that he is unable rationally to

appreciate the nature of the proceedings, and that he interprets

everything according to his fixed delusional beliefs.5

All three psychiatrists appearing for petitioner agreed that

the existence of delusions and a diagnosis of paranoid

schizophrenia do not preclude rational conduct and competence.

However, all three opined that such was not the case with Heidnik.

For example, Dr. Wellman explained that, although in the

4
Bernstein described Heidnik’s perceptions of reality as
being that

this entire event is a far reaching conspiracy in which he
is the victim of the fact that the [victims] killed
themselves and are now perpetrating a fraud against
him, such that he will be executed for a crime that he
did not commit.
5
Dr. McKenzie further testified that the sicker Heidnik
becomes the more he wants to commit suicide. Dr. McKenzie viewed
Heidnik’s express desire to be executed as consistent with the
desire for suicide.

8
abstract a person can be schizophrenic and competent, it is the

content of a particular delusion that determines whether a

delusion affects competency. In Dr. Wellman’s view, the nature of

Heidnik’s delusions renders him incompetent, “because he is seeing

people as something other than what they are and is likely to

interact with them based on an agenda dictated by his delusional

belief.” Drs. Bernstein and Mackenzie essentially agreed.

Dr. O’Brien, the sole witness for the Commonwealth, met with

Heidnik on only one occasion -- the examination arranged by the

state trial court. Dr. O’Brien essentially testified that Heidnik

was not a paranoid schizophrenic, that he was not delusional, that

he was not mentally ill (at least at the time of his examination),

and that he was not incompetent. The central theme of Dr.

O’Brien’s testimony was that what the petitioner viewed as

Heidnik’s delusions -- primarily his belief that subsequent to his

execution there would be a widespread recognition of his innocence

and a consequent outcry against capital punishment and a process

undertaken to abolish it -- was not a delusion but rather “an

attempt on his part to recast what would otherwise be a rather

tragic end to an individual into something of social value.” He

continued
He maintains a belief in his innocence in the murders. He
admitted to being guilty of all of the other associated
crimes and believed that he had reasonable and
scientific data to support his belief that he was
innocent. And, as I indicated in my testimony
yesterday, I see many criminal defendants a week and at
least half of the post-trial defendants I see assert
their innocence when I see them. I am not a fact
finder, I’m an opinion renderer, and I cannot second-
guess what the court has determined, the guilt or
innocence to be, but it’s not at all uncommon for an
individual who has been found guilty to represent to me

9
 that they are in fact innocent. I don’t regard that as
delusional and I don’t regard it as delusional in Mr.
Heidnik’s situation either.

The district court’s opinion turns heavily on [two passages

from] Dr. O’Brien’s testimony. They are as follows:
He recurrently demonstrated an awareness of his current
circumstances and based upon the
representations he made to me and also the
transcript of his testimony in the hearing
yesterday, it is my opinion that he is
clearly knowingly waiving his rights to
appeal, in the sense that he knows that
appeals are possible at this point in time
and he is knowing that information and that
he is facing death without the appeal, and he
is knowingly terminating or declining to
pursue further appeals. I don’t think there
is any dispute that he is intelligent in the
sense that he has a great deal of innate
intelligence. And in my opinion it’s
voluntary because I have not seen anything in
the record or heard from Mr. Heidnik anything
that would indicate that he is under duress
of any sort, from external forces or internal
forces, to give up his appeals.

Only that the vast majority of schizophrenics are law-
abiding citizens who function from day to day
and have clear, cognitive functioning. And
even if Mr. Heidnik does have paranoid
schizophrenia, and I was seeing him during a
moment in time when his symptoms were
relatively quiescent, it doesn’t negate in
any way my opinion that cognitively he’s
intact, and he’s aware of his current
situation and what he’s facing, and is able
to make a decision regarding waiver of his
further appeals.

Although the Commonwealth’s position rests heavily upon Dr.

O’Brien’s testimony, the district court clearly rejected the

central core of that testimony, for it found that Heidnik suffers

from paranoid schizophrenia. Although the district court did not

say so in terms, it is also clear from its discussion that the

district court found Heidnik to be delusional. Indeed there is no

10
evidence in the record, with the exception of Dr. O’Brien’s

discredited testimony, that he was anything other than delusional.

The linchpin of the district court’s opinion, then, has to be its

crediting of Dr. O’Brien’s testimony that even if Heidnik were

paranoid schizophrenic, he is still able to make a decision

regarding waiver of his further appeals. It must be noted that

Dr. O’Brien focused on Heidnik’s ability to recognize and process

the factual circumstances attendant to that decision, but did not

address whether the ultimate decision was itself rational.

Accordingly, the district court made no findings about the

rationality of Heidnik’s choices.

III. DISCUSSION

The appeal before us is primarily that of a putative next

friend seeking to establish that the death row inmate was unable

to proceed on his own behalf. Whitmore places the burden of proof

on the putative next friend to establish by clear evidence the

inability of the death row inmate to appear on his own behalf to

prosecute the action. Brewer v. Lewis, 989 F.2d 1021, 1026 (9th

Cir. 1993). That prerequisite is not satisfied when an

evidentiary hearing demonstrates that “the defendant has given a

knowing, intelligent, and voluntary waiver of his right to

proceed, and his access to court is otherwise unimpeded.”

Whitmore, 495 U.S. at 165. Our review of the district court’s

finding that petitioner did not meet this burden is for clear

error. See In re: Zettlemoyer, 53 F.3d 24 (3d Cir. 1995).

To fully understand the Whitmore standard, we must examine

two earlier Supreme Court cases. In Rees v. Payton, 384 U.S. 312

11
(1966), the Court stated in the context of a party’s ability to

waive his right to further appeals that:
The court must determine whether [the petitioner] has
the capacity to appreciate his position and
make a rational choice with respect to
continuing or abandoning further litigation
or on the other hand whether he is suffering
from a mental disease, disorder, or defect
which may substantially affect his capacity
in the premises.

(emphasis added). In terms highly relevant here, the Whitmore

standard is further illuminated by the Court’s opinion in Dusky v.

United States, 362 U.S. 402 (1960) (per curiam), in which the

Court considered the standard for determining competency to stand

trial. There the Court stated that the “test [for competency]

must be whether he has sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding --

and whether he has a rational as well as factual understanding of

the proceedings against him.” Id. at 402 (emphasis added).6

The district court’s conclusion that the petitioner had not

clearly established that Heidnik lacked the capacity to make a

knowing, intelligent, and voluntary waiver with respect to

continuing or abandoning habeas corpus proceedings turns upon its

crediting of O’Brien’s testimony that Heidnik “is cognitively

intact, aware of his current situation and what he is facing, and

is able to make a decision regarding waiver of his further
6
Although Whitmore was decided after Dusky and Rees, we do
not read Whitmore’s reference to knowing, intelligent, and
voluntary waiver to be divorced from the fundamental concept that
underlies any notion of competency -- that of rationality. See
Lafferty v. Cook, 949 F.2d 1546 (10th Cir. 1991). Lafferty is in
accord with our distinction between factual and rational
understanding.

12
appeals.” But, given the district court’s finding that Heidnik is

a delusional paranoid schizophrenic, that testimony is, as a

matter of law, insufficient to support a finding of competence as

understood in light of Rees and Dusky. While there is no dispute

as to Heidnik’s considerable intelligence and expressive powers, a

factor that obviously influenced O’Brien, and it may be that the

evidence would support a finding that Heidnik could make some or

other decision regarding waiver of further appeals, there is no

evidence, and no finding, that Heidnik could make a rational

decision in that regard.

This is not a mere matter of semantics or of a witness or

judge leaving out a key term because of the pressure of last

minute proceedings. Rather there is a fundamental flaw in the

record as developed as is demonstrated by O’Brien’s proffer of

what the Commonwealth suggested at argument was a rational

explanation of Heidnik’s conduct -- the social value

rationalization explanation we described in setting forth

O’Brien’s testimony at p.9 supra. That is because, as we have

also explained, the district court rejected that testimony when it

found that Heidnik was a delusional paranoid schizophrenic; a

finding that is supported in the record and is not clearly

erroneous.

The Commonwealth and the district court do have a fall-back

position: Dr. O’Brien’s alternative testimony that Heidnik is

competent even if he is delusional. However, O’Brien offered no

explanation as to the content of the delusion that would enable a

determination whether the delusion affected Heidnik’s competency,

13
see supra p. 9, so as to explain why his conduct was rational.

The Commonwealth seeks to fend this by pointing out that O’Brien

testified that Heidnik had acted knowingly, intelligently, and

voluntarily, thus satisfying Whitmore. But this testimony is not

linked to any explanation of Heidnik’s conduct and does not

address the critical distinction between factual and rational

decision making.

In the final analysis the record reflects a situation in

which a paranoid schizophrenic suffering from broad-based

delusional perceptions has made a decision to die immediately

rather than pursue available judicial remedies that conceivably

might spare his life. The only explanation he has advanced for

having chosen immediate death is that after his death the public

will become convinced that he was an innocent victim of a

conspiracy and that the realization that he has been executed

though innocent will end capital punishment once and for all.

Petitioners’ three experts unanimously concluded that Heidnik’s

death decision is based on his delusional perception of reality--

and has no rational basis. Dr. O’Brien has simply failed to

explain how Heidnik’s choice has a rational basis and is not based

on his delusional perception.

In short, the record does not support a rational explanation

as to why, even if Heidnik has rationalized to himself that he was

innocent, he could, despite his delusions, make a rational

decision to die. A psychiatric expert might have supplied this,

but O’Brien did not. In the absence of any effective counter, the

petitioner has met her Whitmore burden, and the order of the

14
district court must be vacated.7

IV. CONCLUSION

In view of the exigent procedural posture of the matter,

created by the outstanding death warrant, we must be precise as to

the terms of our judgment. We will order as follows:

1. To the extent that a certificate of appealability is

necessary, it is granted on the sole issue presented by this

appeal.

2. The order of the district court of April 16, 1997 is

hereby vacated and the case remanded to the district court with

directions forthwith to designate Maxine Davidson White as

Heidnik’s next friend, and to appoint counsel for her.

3. The district court is directed forthwith to enter an
7
We note that in his concurring opinion in Ford v.
Wainwright, 477 U.S. 399, 426 (1986), Justice Powell stated that
once a defendant is found competent to stand trial, as Heidnik
was, the state is entitled to presume that the defendant remains
sane when the sentence is carried out. See also Demosthenes v.
Baal, 495 U.S. 731, 735 (1990)(state court finding that defendant
had given a knowing, intelligent, and voluntary waiver of his
right to review was entitled to a presumption of correctness
under then 28 U.S.C §2254(d), now § 2254(e)). We are aware that
the state court recently rejected a Ford claim that petitioner is
not competent to be executed. In that proceeding, however,
petitioner was not permitted to call a psychologist, Dr. Levitt,
on the basis that he had not made a sufficient proffer even
though counsel pointed out that Dr. Levitt had been present
during Dr. O'Brien's examination. Commonwealth v. Heidnik,
4/14/97 Tr. p. 134-141. Another of petitioner's proposed
witnesses, Dr. Bernstein, who was available by telephone, was not
called for reasons that are not entirely clear. At all events,
the findings by the state court are currently under review by the
Pennsylvania Supreme Court. Under these circumstances, the
presumption would not appear to be operative. Moreover, as our
discussion of the evidence presented in the district court
demonstrates, the petitioner has rebutted this presumption here
by clear and convincing evidence as required by 28 U.S.C. §
2254(e)(1).

15
order continuing its stay of execution, pending action upon the

McFarland petition which has been filed with the district court.

While we are aware of no factors that might give rise to an

exception to the normal presumption in favor of appointing counsel

and granting a stay under McFarland, the record on this point is

not developed and the Commonwealth may wish to be heard.

_________________________

16