A second, extensive mental evaluation of killer Joseph Duncan by federal Bureau of Prisons evaluator Dr. Cynthia Low has been filed under seal in federal court in Boise. U.S. District Judge Edward Lodge today ordered the filing of the sealed report, and granted only a small portion of a motion from defense attorneys to redact certain items in the report because they related to confidential matters between the attorneys and their client, that the attorneys revealed to the federal evaluator. Redacting them would block them out so that prosecutors wouldn’t get to see them.
“To conclude the material is privileged would be fundamentally unfair to the government, who is now faced with countering information considered by BOP (Bureau of Prisons) during the competency evaluation that it has never seen,” Lodge wrote in an order issued today. “The defense cannot provide the materials to BOP and then deny them from the government.” He cited case law showing that the privilege of keeping such material secret is forfeited if they are disclosed as part of “an attempt to gain a strategic advantage in litigation.” Duncan’s defense attorneys have taken a new tack in recent weeks, contending that the convicted murderer is mentally incompetent and therefore can’t go forward with court proceedings. The judge had ordered mental evaluations to confirm that he is, in fact, competent, as a precaution before allowing Duncan to exercise his right to act as his own attorney in his case. The two evaluations both are sealed and the judge has not yet ruled on the competency question.