Killer of His Ex-Wife and 2 Daughters Is Executed
The New York Times
August 17, 1995, Thursday
Pennsylvania tonight executed a one-time seminary
student who killed his ex-wife and two daughters outside a church on
Palm Sunday 10 years ago. The man, Leon Moser, 52, was killed by
lethal injection less than an hour after the United States Supreme
Court, on a 5-to-4 vote, lifted a stay
that a Federal appeals court had issued to give lawyers time for a
competency hearing on Thursday morning.
was declared dead 11 minutes after poison
began dripping into his body.
The former Army
lieutenant pleaded guilty to killing his
former wife, Linda, 35, and daughters Donna,
14, and Joanne, 10, outside the St. James
Episcopal Church in the Philadelphia suburb
of Lower Providence Township.
After entering his plea,
he said: "I request the death penalty and
that it be carried out as soon as possible."
He never changed his position even as the
church's former minister, the Rev. Melford
Holland and Mr. Moser's brother, Theodore,
issued appeals on his behalf.
Lawyers for Mr. Moser,
who underwent psychiatric treatment while in
prison, said they never had the opportunity
to argue about his mental state.
The prosecutor, Mary
MacNeil Killinger, argued that the lawyers
had no business representing Mr. Moser
because he wanted to die.
An 11th-hour request for
a competency hearing was filed by the
Pennsylvania Post-Conviction Defender
Organization. A Federal judge's ruling
denying the hearing was overturned by an
appeals court, and the Supreme Court at
first declined 5-to-4 on Wednesday to
intervene. Three hours later, the High Court
lifted the stay.
Mr. Moser was only the
second person executed in Pennsylvania in 33
years. Keith Zettlemoyer, who also wanted to
die, was put to death on May 2.
It was the 35th execution
in the United States this year and the 293d
since the Supreme Court reinstated the death
penalty in 1976.
Leon Moser in Pennsylvania was also executed by
lethal injection. Moser, a
former mental patient, wanted to die but it was
not clear that he was mentally competent
to make that decision. A federal judge had ordered a competency
hearing and stayed the execution. That
stay was appealed by the state and was lifted by a
higher court. But the order for the competency
hearing remained. Nevertheless, the
state pushed ahead with the execution before the scheduled hearing.
As the execution approached, the federal
judge called the state's attorney to see if there was a cellular
phone at the prison. He was told there was none.
He was not told, however, that there was
a standard phone in the execution chamber. The judge had wanted to
determine Moser's competency before the
execution occurred. By the time he was able to get
through to the chamber, the lethal chemicals
were already flowing into Moser and it
was too late.
Leon Jerome Moser
Pennsylvania. As Leon Moser lay strapped down to
receive his lethal injection, a federal judge who had earlier tried
to delay the execution to establish the prisoner’s competency to
waive his appeals, attempted to contact the prisoner by phone. The
judge’s clerk was told that the prisoner did not have a mobile phone,
but was not told that there was a phone in the death chamber. The
lethal injection proceeded. A few minutes later, the clerk rang back
to ask if the prisoner was alive or dead, “because if he is alive,
the judge may want to talk to him”.
The clerk was informed that the
lethal injection had begun.
Leon Jerome Moser
A large cheese pizza, cheese slices, cold cuts, pasta salad, iced
cup cakes and a 2-liter bottle of Coca-Cola.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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
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 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
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.
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.
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.
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
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 second stay of execution entered by
the district court and allow Moser to have his wish.
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 hospitalization,
psychiatric care and mental health assistance for Leon because of
their lack of resources. Messing Affidavit ¶ 4.
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
69 F.3d 694
In re Leon MOSER (II).
United States Court of Appeals,
Argued Aug. 16, 1995.
Decided Aug. 16, 1995.
Appeal from United States District
Court, Eastern District of Pennsylvania; Thomas N. O'Neill, Jr.,
Before MANSMANN, COWEN and NYGAARD,
ORDER OF THE COURT
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, 69 F.3d 690. 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, --- U.S. ----, 116 S.Ct. 28, 132 L.Ed.2d 910.
The Pennsylvania Post-Conviction Defender Organization 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.
Presented to us are a request for
certificate of probable cause and for a stay of execution.
Upon consideration of the written
submissions of the parties and the record of the District Court, and
this Court having adopted expedited procedures in order to consider
the merits of an appeal along with the motion for stay, Barefoot v.
Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394-95, 77 L.Ed.2d 1090
(1983); 3rd Cir. L.A.R. 111.6 (1993), it is hereby ordered by this
Court that the request for certificate of probable cause is granted
and the request for a stay on this record is denied.
We hereby remand 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.
If the district court should
determine that a temporary stay is warranted based on this newly
developed record, we are of the view that the district court has the
authority to grant a stay of the execution scheduled for 10:00 p.m.