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Leon Jerome MOSER

 
 
 
 
 

 

 

 

   
 
 
Classification: Murderer
Characteristics: Parricide
Number of victims: 3
Date of murders: 1985
Date of birth: 1943
Victims profile: His former wife, Linda, 35, and daughters Donna, 14, and Joanne, 10
Method of murder: Shooting
Location: Philadelphia County, Pennsylvania, USA
Status: Executed by lethal injection in Pennsylvania on August 15, 1995
 
 
 
 
 
 

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.

Mr. Moser 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 Final Meal

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

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 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 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.

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 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 second stay of execution entered by the district court and allow Moser to have his wish.

*****

Footnote: 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 hospitalization, psychiatric care and mental health assistance for Leon because of their lack of resources. Messing Affidavit ¶ 4.

Footnote: 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.

 
 

69 F.3d 694

In re Leon MOSER (II).

No. 95-9004.

United States Court of Appeals,
Third Circuit.

Argued Aug. 16, 1995.
Decided Aug. 16, 1995.

Appeal from United States District Court, Eastern District of Pennsylvania; Thomas N. O'Neill, Jr., District Judge.

Before MANSMANN, COWEN and NYGAARD, Circuit Judges.

ORDER OF THE COURT

PER CURIAM.

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. this evening.1

1

Judge Nygaard expresses no view on the propriety of any further stays