U.S.A. v. Hammer

• Decision Date: 05 January 2001
• Docket Number: No. 98-9011,98-9011
• Citation: 239 F.3d 302
• Parties: (3rd Cir. 2001) UNITED STATES OF AMERICA v. DAVID PAUL HAMMER, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 302

239 F.3d 302 (3rd Cir. 2001)

UNITED STATES OF AMERICA v. DAVID PAUL HAMMER, Appellant

No. 98-9011

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

January 5, 2001

On Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Crim. No. 96-00239).

Before: BECKER, Chief Judge, and SLOVITER, MANSMANN, SCIRICA, NYGAARD, ALITO, ROTH, MCKEE, RENDELL, BARRY, AMBRO, FUENTES, STAPLETON, and GREENBERG, Circuit Judges.

Prior report: 226 F.3d 229

SUR PETITION FOR REHEARING

The petition for rehearing filed by appellant David Paul Hammer in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the court in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court en banc, the petition for rehearing is denied. Judge Stapleton's and Judge Greenberg's votes are limited to denying rehearing before the original panel. Judge Nygaard would grant rehearing by the court en banc and is filing an opinion sur denial of the petition.

NYGAARD, Circuit Judge, Sur denial of petition for en banc rehearing.

I would grant Hammer's petition for en banc rehearing. In my view, this case presents profoundly difficult and important questions demanding the consideration of the full Court, and I fear that we have squandered this opportunity to plumb the depths of our death penalty jurisprudence. There are, at minimum, six issues that the panel opinion fails to resolve convincingly.

First, the center of the panel's primary premise no longer holds. The panel placed great importance on its conclusion that "Hammer has without equivocation asked us to dismiss his appeal and has indicated that he will not change his mind with respect to his request." The panel's reliance on Hammer's statements is highly dubious at best, and, at worst, simply preposterous. Hammer's various requests in this case are far from "without equivocation," and indicate to me a mind torn by confusion. He initially presented an insanity defense, but later abandoned that defense and pleaded guilty to murder. Seven days after the jury's capital verdict, Hammer announced that he would proceed pro se and waive all appeals because he wished to die. Three months later he filed an appeal. He then moved to withdraw the motion to forego the appeal. After this motion was granted, he again filed a pro se motion to withdraw the appeal. Several months later, he moved to withdraw the motion to withdraw the appeal. That motion was also granted. But then, in another reversal, he again moved to withdraw his appeal. Thereafter, he moved to withdraw his motion to withdraw his appeal. Hammer then filed a letter with the court seeking to dismiss his appeal, and he appeared before a panel of this Court via video and articulated his desire to waive all appeals and be promptly executed. After this video conference, stand-by counsel moved (with Hammer's consent) to withdraw the motion to withdraw the appeal. With the panel now skeptical of Hammer's certitude, it required him to state directly his request to withdraw the motion to withdraw.

One week later Hammer stated that he had consented to the motion to withdraw the motion to withdraw the appeal, but he changed his mind over that week and restated his preference for prompt execution. At this point, the panel granted his motion to withdraw the appeal in its August 31, 2000 opinion. The panel failed to reference the full extent of Hammer's irresolution, noting only that Hammer had "vacillated" but always "reverted to his original intent to waive an appeal and have the sentence of death carried out." The panel found this "original intent," stated seven days after the issuance of his sentence, to somehow indicate Hammer's true desire. In an attempt to hold Hammer to a final position upon which it could base its decision, the panel opinion stated:

Near the end of his statement [via video conference] he once again demonstrated that he accepted responsibility for his acts by saying that the only way he could make amends was to accept the punishment. The panel, of course, was mindful that Hammer had vacillated with respect to the prosecution of that appeal and thus at the end of Hammer's statement we asked him:

Are you saying to us that if we dismiss this appeal you're not going to come back to us and ask us to hear your appeal later?

Hammer responded: Yes, sir.

Moreover, between his argument on July 18, and the August 31 panel opinion, Hammer again changed his mind twice; first by requesting that his appeal go forward, and then by withdrawing that same request. Finally, as the panel should have anticipated based on this record, Hammer has now filed a petition for executive clemency and a motion to recall our mandate and reinstate his appeal. Thus, the bedrock beneath the panel's decision to allow Hammer to be executed without any direct review of the merits of that sentence has crumbled.

This set of facts dramatically demonstrates that we must have a meaningful standard by which to determine the propriety and sincerity of a motion to waive or withdraw appeals in capital cases. The panel's opinion is predicated on the supposition that Hammer preferred immediate execution at the time of oral argument. If oral argument had been conducted a few weeks earlier or later, then the panel would have found Hammer elsewhere in the flux of his indecision. Hammer has changed his position on the record more than one dozen times, yet we are holding him to his "original intent" and statements he made to the panel. With a life hanging in the balances of justice, I cannot agree. We have no reason to grant special credence to Hammer's statements at that moment or any particular moment on this record. We are compelled by common sense and logic to look at the whole record. The panel is either basing its decision unreasonably upon Hammer's statement that he would not again change his mind or willing to ignore his importunations when he does. The panel quite unreasonably based its decision upon Hammer's statement that he would not again change his mind, and because of that poor judgment it now insists that Hammer must die with that statement and without the appellate review he now requests. The panel's position is arbitrary and just plain wrong.

If we allow capital defendants to waive their right to appeal, then we must develop a standard that will better assure that the request for waiver is sound, certain, and appropriate. Because traditionally we have expected capital defendants to exhaust their appeals, Hammer presents novel concerns. Hammer will not be the last capital defendant who will state in the emotional aftershock of being sentenced to die that he would prefer a prompt and certain death to an extended appellate process, yet we have not taken any steps to frame our review of these motions. Some capital defendants who waive the right to appeal may be genuinely guilty, and be the beneficiaries of fair trials. However, statistically we know that others will be wrongfully convicted and subjected to unwarranted sentences. Some in the latter category may prefer a prompt death to a life, or even an extended, term in prison. Currently we have no procedural safeguards in place to protect against such scenarios, and our opinion presents no reason to forbid immediate executions if a desire to die is expressed, even equivocally, by the defendant.

The Court did undertake a competency determination, following which psychiatrists found that "Hammer was fully competent," and that his decision to forego an appeal and to be executed immediately "was a competent and well-reasoned decision." Standing alone, however, such a competency determination is wholly inadequate to conclude that Hammer possessed the conviction that must accompany such an unretractable decision to forego review and be put to death. At a minimum, we should require a capital defendant to express a consistent desire to waive his or her appeal over a meaningful period of time. Ideally, I would require that we conduct a full review whenever a capital defendant appeals - irrespective of motions to withdraw the appeal.

Justice Marshall believed that such a decision requires many months of consideration:

I cannot agree with the views expressed by the Chief Justice [Burger] that Gilmore has competently, knowingly, and intelligently decided to let himself be killed. Less than five months have passed since the commission of the crime; just over two months have elapsed since sentence was imposed. That is hardly enough time for mature consideration of the question, nor does Gilmore's erratic behavior from his suicide attempt to his state habeas petition evidence such deliberation.

Gilmore v. Utah, 429 U.S. 1012, 1019, 97 S. Ct. 436, 440, 50 L. Ed. 2d 632 (1976) (Marshall, J., dissenting). In scenarios where the capital defendant has expressed uncertainty about his or her waiver, as we have here, we should, at minimum, review an attempt to waive appellate review with extreme disfavor. Here, however, the panel holds Hammer to the "original intent" he...