                                                                                                                           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Precedential or Non-Precedential: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)
                           ___________

                  OPINION AND ORDER OF THE COURT
                            __________




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


                                 1
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

                                  2
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.




                                4
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


                               6
second stay of execution entered by the district court and allow

Moser to have his wish.




                               7
