Eye On Boise

Who would do what in Duncan hearings

U.S. District Judge Edward Lodge has issued his full written opinion granting Joseph Duncan’s request to act as his own attorney in his death penalty proceedings, which the judge granted orally in court on Monday. The 12-page opinion includes a couple of new details; among them: Though they’ve been appointed as “standby counsel,” Duncan’s three court-appointed attorneys will no longer be allowed to sit with him at the table in the courtroom, and instead will sit behind him along the room’s side wall. And he won’t be able to confer routinely with them while the proceedings are going. “Discussions between Mr. Duncan and standby counsel should take place at recesses and evenings unless otherwise permitted by the Court,” Judge Lodge wrote. He cited several U.S. Supreme Court cases defining the role of standby counsel as guidance.

The judge also ordered the attorneys on both sides to file briefs by Friday at noon addressing whether Duncan can have the standby attorneys finish the jury selection process for him, now that he’s representing himself. The admitted multiple murderer earlier had said he wanted them to do that, but then his attorneys advised him there could be legal problems with that. In a 1984 decision, the U.S. Supreme Court held, “The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.”

Duncan told the judge on Monday that his first preference would be to just leave the questioning of prospective jurors up to the judge, and that his second would be for the standby counsel to handle it. Duncan has noted the highly technical nature of legal issues brought up thus far during questioning of prospective jurors. “If it came down to me doing voir dire,” he said, his voice breaking into an amazed chuckle, “I’m not a lawyer and there’s just nothing I can do.”

Jury selection in the case is scheduled to resume next Wednesday.




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