IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

:

v. : No. 4:CR-96-239

:

DAVID PAUL HAMMER : (Judge Muir)

 ORDER

 June 10, 2005 

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On November 4, 1998, this court sentenced David Paul

Hammer to die by lethal injection for the first degree murder of

Andrew Marti. The relevant history of this case since the

imposition of the sentence of death is set forth in prior opinions

and orders and we will not repeat that history other than as needed

to address certain procedural matters.

On January 27, 2005, we issued an order which granted in

part and denied in part Hammer’s motion for leave to file a

supplemental and third amended § 2255 motion (hereinafter referred

to as “the third amended motion”). On May 11, 2005, we issued an

order dismissing Ground 15 of the third amended motion. On June 1,

2005, we issued an order which, inter alia, dismissed ¶ 5 of Ground

3, at page 39, Ground 18 and Ground 22 of the third amended motion.

The case is on the July, 2005, trial list for a hearing on Hammer’s

third amended motion and the claims to be addressed at that hearing

are set forth in Grounds 1 through 14 (with the exception of ¶ 5 of

Ground 3, at page 39), 16 and 19 of the third amended motion. 

A pre-hearing conference was held on June 10, 2005,

attended by Assistant Federal Public Defenders Saunders, Wiseman,

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McHugh and Moreno, and Assistant United States Attorneys Martin and

Carlson at which time certain procedural matters relating to the

hearing were addressed. 

Counsel for Hammer estimated that the hearing with

respect to Hammer’s case-in-chief would take 45 days and the

Government estimated that its case would take between 12 and 20

days. Counsel stated that with the exception of a few minor

matters which they indicated would be resolved shortly, discovery

has been completed (including the submission to opposing counsel of

expert reports), witness lists have been exchanged, exhibit lists

were being prepared and would be exchanged, counsel had commenced

preparation of findings of fact, counsel would be attempting to

enter into some stipulations regarding the submission of evidence

(e.g., no need for testimony from custodians of records), and

Hammer would possibly present evidence by way of a video

deposition. 

In our order of June 1, 2005, counsel were directed to

file proposed findings of fact and conclusions of law on or before

the close of the hearing. At the pretrial conference counsel

agreed to attempt to submit the proposed findings of fact and

conclusions of law at the start of the hearing. The court did note

that those findings could be supplemented by findings with respect

to matters which arose during the hearing which could not

reasonably have been anticipated. 

Paragraph 8 of our order of June 1, 2005, stated as

follows:

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The portions of all exhibits which are to be considered

by the court shall be read aloud in open court so that 

the court may grasp the important language. Only

portions so read will be considered by the court.

At the pre-hearing conference, that paragraph was modified to

permit counsel to request that the undersigned in open court read

silently portions of exhibits.

At the pre-hearing conference, the court also issued

orders relating to the date for commencement of the hearing, the

days of the week on which the hearing would occur and the length of

opening statements. The purpose of this order, inter alia, is to

reduce those oral orders to writing.

Also, on June 8, 2005, Hammer filed an ex parte petition

for the issuance of writs of habeas corpus ad testificandum

relating to three inmate witnesses. Based on that ex parte

submission we issued the writs. Subsequently, we became concerned

that counsel had not justified submitting the petition on an ex

parte basis. 21 U.S.C. § 848(q)(9) states in relevant part “[n]o ex

parte proceeding, communication, or request may be considered . .

. unless a proper showing is made concerning the need for

confidentiality.” We will require counsel to justify the ex parte

communication. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The hearing on Hammer’s third amended § 2255 motion

shall commence at 10:00 a.m. on July 14, 2005. The hearing may be

delayed if a criminal trial which may commence on July 6, 2005, has

not concluded by July 14, 2005. 

2. Commencing on July 18, 2005, the hearing will occur

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4 days per week (Mondays through Thursdays).

3. Hammer and the Government shall each have 60 minutes

for opening statements.

4. The portions of all exhibits which are to be

considered by the court shall be read aloud in open court or read

silently and red-lined by the undersigned in open court so that the

court may grasp the important language. Only portions of exhibits

so read will be considered by the court.

5. Counsel shall fully comply with the remaining

provisions of our order of June 1, 2005, which have not been

modified by this order (i.e., paragraphs 6 and 7 relating to

marking exhibits and use at the hearing of portions of the trial

transcript).

6. Counsel shall (1) resolve the minor matters referred

to at the pre-hearing conference relating to discovery and (2)

exchange exhibit lists by July 1, 2005. 

7. Counsel shall attempt to prepare and submit annotated

proposed findings of fact and conclusions of law to the court by

July 14, 2005. 

8. Counsel for Hammer shall give Deputy Clerk Kuhns at

least 24 hours notice if video depositions are to be presented at

the hearing.

9. Within 5 working days counsel for Hammer shall

justify filing on an ex parte basis the petition for writs of

habeas corpus ad testificandum. In the alternative, counsel if

they have not already done so may reveal to the Government the

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names of the three inmate witnesses. If counsel elect to reveal

the names of the inmate witness, counsel shall notify the court in

writing that they have done so.

10. Counsel for Hammer and the Government shall give the

United States Marshal at least 41 hours notice of the date inmate

witnesses will be called to testify.

 s/Malcolm Muir 

MUIR, U.S. District Judge

MM:gs

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