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Eye On Boise

Posts tagged: death penalty

9th Circuit rejects argument that Pizzuto’s IQ is too low for execution

Here's a news item from the Associated Press: BOISE, Idaho (AP) — The 9th U.S. Circuit Court of Appeals has rejected Idaho death row inmate Gerald Pizzuto Jr.'s claim that he is too mentally disabled to be executed. In the Monday ruling, a three-judge panel said the Idaho Supreme Court correctly applied federal case law when it found that Pizzuto was eligible for execution. Pizzuto had appealed his sentence, saying that his IQ was below 70, making it illegal for the state to execute him. But state attorneys have maintained Pizzuto's IQ is actually higher, and that there's no evidence he meets the criteria for Idaho's law banning capital punishment for mentally disabled criminals. Pizzuto was sentenced to die in 1986 for killing 58-year-old Berta Herndon and her 37-year-old nephew Del Dean Herndon as they were prospecting near McCall.

No new death sentence to be sought for Lacey Sivak

Prosecutors now say they won't seek a death sentence for Lacey Mark Sivak, who was one of the longest occupants of Idaho's Death Row after being sentenced to death in 1981 for the murder of Dixie Wilson; his sentence was reversed on appeal in 2011, and he's up for re-sentencing this fall. The Associated Press reports that Ada County prosecutors have decided to ask for a fixed life term in prison, after consulting with relatives of the victim, then-30-year-old Dixie Wilson.

“They've waited 30 years for this to end, and now they have the prospect of having to wait another 20 years, because you know how long it takes to get an execution in the 9th Circuit,” Ada County Deputy Prosecutor Roger Bourne told the AP. “They didn't want to wait. They decided they needed closure. So, we are asking the judge for a fixed life sentence.” Click below for a full report from AP reporter Rebecca Boone; Idaho currently has 12 people on Death Row, 11 men and one woman.

Idaho Supreme Court pondering case that could limit death penalty appeals

The Idaho Supreme Court is deciding just how much of each death penalty case they must consider under Idaho's mandatory review law, and the ruling could dramatically change the landscape of capital punishment in Idaho, reports AP reporter Rebecca Boone. The issue came up in an eastern Idaho murder case; click below for Boone's full report.

Duncan competency hearing set for Jan. 8

A court hearing on whether condemned murderer Joseph Duncan was mentally competent when he waived his right to appeal his death sentence has been set for Jan. 8, 2013. “There will be no extension … of the Jan. 8 date,” U.S. District Judge Edward Lodge said this morning as he set the hearing. Lodge appointed Michael Burt, a death penalty expert from San Francisco with expertise in mental health issues, as Duncan's attorney for the hearing.

The judge had hoped to set the hearing earlier, first looking at July and then October, but Burt isn't available until December. Lodge said he set the January timing “to avoid any holiday issues with potential witnesses.”

In 2008, a federal jury sentenced Duncan to death for the 2005 kidnap, torture and murder of a 9-year-old North Idaho boy; he also received nine life sentences for a murderous attack on the child's family that left three other people dead. After Duncan declined to appeal his death sentence and represented himself in court at his Idaho sentencing trial in 2008, his standby attorneys filed an appeal for him against his will. Duncan now says he's changed his mind and wants to appeal the sentence; he pleaded guilty to all the charges.

However, in court filings, federal prosecutors noted, “Whether the defendant now wishes to appeal, and whether he was incompetent at the time he waived his right to appeal, are separate issues. Only the second issue is before the Court.” You can read my full story here at

Duncan changes mind, says he now wants to appeal his death sentence

Notorious multiple murderer Joseph Duncan was back in a Boise courtroom this morning, as lawyers and a federal judge wrangled over setting a date for a new hearing into whether Duncan was mentally competent when he waived appeals of his triple death sentence for torturing and murdering a 9-year-old North Idaho boy. Duncan, brought to Boise from federal Death Row in Terre Haute, Ind., his hair close-cropped and graying and wearing a baggy white T-shirt, left all the talking to his attorneys on Friday morning. But in December of 2010, he submitted a hand-written, two-page letter to the court saying he now wants to appeal after all.

Duncan in the past has strongly opposed contentions that he wasn't mentally competent to make that decision in 2008. He underwent two lengthy mental evaluations before U.S. District Judge Edward Lodge ruled him competent and allowed him to dismiss his lawyers in that sentencing trial and represent himself; he already had  pleaded guilty to all charges. The lawyers filed an appeal to the 9th Circuit U.S. Court of Appeals against Duncan's wishes, arguing he was mentally incompetent.

“I have been very stubborn about not appealing my death sentence,” the condemned killer wrote. “My belief is that if I appeal, then I am acknowledging the system's authority to commit murder.” But he wrote that more recently, his younger brother had died, making Duncan his mother's only surviving son. “It would be utterly cruel, and indeed, inhuman, for me not to consider my mother's love when deciding what to do in regard to my own life,” Duncan wrote. “So I hereby inform you, and any others concerned, that I withdraw my waiver of appeal, and consent fully to all efforts and advice given by my attorneys to appeal.” You can read my full story here at

9th Circuit overturns Sivak’s death sentence

Here's a news item from the Associated Press:  BOISE, Idaho (AP) — The 9th U.S. Circuit Court of Appeals has reversed the death sentence of an Idaho man convicted of brutally slaying a former coworker because the state allowed a jailhouse informant to lie on the witness stand. Lacey Mark Sivak was sentenced to death for the 1981 murder of Dixie Wilson at the Baird Oil gas station in Garden City. In a ruling handed down Wednesday, the appellate court said that while Sivak's murder conviction was appropriate, the outcome of his sentencing hearing might have been different if prosecutors hadn't knowingly presented the testimony of an inmate who lied on the stand. Still, the appellate court said state attorneys may decide to hold a new sentencing hearing if they still want to seek the death penalty for Sivak's crimes.

Expert: Secrecy contributed to 9th Circuit ruling

When Joseph Duncan received three death sentences and nine life terms in federal court in Idaho for his murderous 2005 attack on the Groene family in North Idaho, U.S. District Judge Edward Lodge ordered two extensive mental evaluations that delayed Duncan's death penalty sentencing trial for months. But he never held a hearing on the issue in open court; as a result, all of Duncan's mental evaluations remained secret.

James Cohen, a law professor at Fordham University and an expert on the death penalty and mental competency, said, “There's no reason for the judge in Idaho to keep all this stuff secret - there's just no reason at all.” Said Cohen, “The only justification would be to protect the privacy of the defendant.” But, he said, “He lost that when he was indicted for this particular crime.”

Secrecy was extensive in the sentencing trial, with numerous documents sealed from public view, leading to several legal challenges by the media. Much of the secrecy came because the case involved a surviving child victim, but it also covered all issues of Duncan's mental competency. Cohen said there are “at least two benefits” to a public competency hearing. The first, he said, is that psychologists, psychiatrists or other experts “might be able to learn something from his mental illness that could head off others. And two, it's very important that our system work right - and we don't punish people that are mentally ill to that extreme.” You can read my full story here at

Olson: Duncan’s death sentence still in place for now

U.S. Attorney for Idaho Wendy Olson is making the emphatic point that the 9th Circuit Court of Appeals ruling today does NOT overturn Joseph Duncan's death sentence; instead, it reverses U.S. District Judge Lodge's order waiving Duncan's right to appeal, ordering Lodge to hold a retrospective competency hearing before deciding on that issue. Though it's a development that could potentially lead to a rerun of Duncan's entire sentencing trial in Idaho, for now, Duncan's death sentence remains in effect - and he remains on Death Row at the federal penitentiary in Terre Haute, Ind.

What the 9th Circuit has done is order Duncan back into court in Idaho for the competency hearing. It's not clear yet how soon that would occur; either side has the option of appealing the 9th Circuit's ruling. Olson said her office has 14 days to decide on that. “We're not going to discuss how we're going to proceed forward,” she said.
“Our position throughout the proceedings was that Duncan was competent. That's the position we asserted.”

Judge Lodge ordered a full competency evaluation of Duncan; it delayed the sentencing trial for months. But he didn't order a hearing on the matter in court. “There was no actual hearing in court where witnesses were called and cross-examination was conducted,” Olson said. “The Court of Appeals is saying, as a procedural matter, the district court should have done that.”

Olson: Every court has found Duncan competent

U.S. Attorney for Idaho Wendy Olson said in a statement, “Since his arrest in July 2005, Joseph Edward Duncan, III, has been found competent by every court or jury to have considered the issue. He has three times pleaded guilty to murder charges or offenses resulting in death, each time with the assistance of counsel. At the time of his guilty pleas in October 2006 in Kootenai County, Idaho, December 2007 in federal district court in Boise and March 2011 in Riverside County, California, none of Duncan’s counsel asserted in court that Duncan was incompetent to enter a guilty plea. After Duncan was sentenced to death in U.S. District Court in Idaho, he was transferred to Riverside County, California, to face state charges in connection with the 1997 murder of a 10-year-old boy. Both a jury and the presiding judge found that Duncan was competent to proceed in that case. Throughout the federal court proceedings in the District of Idaho, the United States Attorney’s Office took the position that Duncan was competent.”

“The United States Attorney’s Office will participate in the retrospective competency hearing, as directed by the distinguished judges who serve on the Ninth Circuit Court of Appeals. No hearing date has yet been set.” You can read her full statement here.

9th Circuit ruling could lead to rerun of whole Duncan sentencing trial

Here's a link to the 9th Circuit ruling out today on Joseph Duncan, which orders U.S. District Judge Edward Lodge to hold a competency hearing to determine if Duncan was competent to waive his right to appeal his death sentence. If the answer is yes, then the sentence will go forward. If not, the federal court in Idaho would have to “proceed to determine whether Defendant competently waived his right to counsel before the penalty phase hearing.” If it then finds that he wasn't competent to do that, it would have to “vacate Defendant’s sentence and convene a new penalty phase hearing with Defendant properly represented.” That would mean a rerun of Duncan's entire sentencing trial in federal court in Boise for his deadly attack on the Groene family of North Idaho.

9th Circuit suspends Joseph Duncan’s death sentence

Here's a news item from the Associated Press:  BOISE, Idaho (AP) — The 9th U.S. Circuit Court of Appeals has thrown out the death penalty of Joseph Edward Duncan III, saying he should have been given a competency hearing before he was allowed to waive his appeal. The appellate court handed down the ruling Monday, ordering U.S. District Court Judge Edward Lodge to hold a retrospective competency hearing for Duncan. Duncan was sentenced to die in 2008 for kidnapping, torturing and murdering a 9-year-old Coeur d'Alene boy in 2005. Prosecutors said Duncan snatched Dylan Groene and his 8-year-old sister from their northern Idaho home after killing their older brother, mother and mother's fiance. Duncan kept the children at a remote Montana campsite for weeks before killing Dylan and returning with Dylan's sister to Coeur d'Alene, where he was arrested.

Death penalty off the table in Shackelford resentencing

The death penalty is now off the table in the resentencing of convicted murderer Dale Shackelford, the Moscow-Pullman Daily News reports. The Idaho Supreme Court has upheld all convictions and sentences against Shackelford for the 1999 killing of his ex-wife and her boyfriend except for the death penalty, which was imposed in addition to a fixed life term in prison without the possibility of parole; the Ring vs. Arizona decision from the U.S. Supreme Court requires juries, rather than judges, to find aggravating factors warranting a death penalty.

Latah County Prosecutor Bill Thompson said seeking the death sentence would mean requesting a new 10-week trial and jury selection in an attempt to reconvict Shackelford on the two murder counts. “We simply couldn't justify that,” he told the Daily News; he'll now seek consecutive life sentences for each count of first-degree murder. Shackelford is in the state's maximum-security prison; click below for a full report.

Delays stall Duncan appeal

Thirteen months after multiple murderer Joseph Duncan was handed three death sentences by an Idaho federal court jury, his appeal in the 9th Circuit Court of Appeals remains stalled at its earliest stage: The appellate court has yet to rule on whether it can even consider the appeal. Duncan said he didn’t want to file an appeal, but his standby attorneys filed it for him anyway. The high court has ordered the attorneys to present arguments on two points: Whether the appeal can even be considered, when Duncan didn’t want it filed; and whether he was mentally competent to waive his right to appeal. But the defense attorneys have sought and received two lengthy delays to submit those arguments; the second was granted just last week. You can read my full story here from Sunday’s Spokesman-Review.

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About this blog

Betsy Z. Russell covers Idaho news from The Spokesman-Review's bureau in Boise.

Named best state-based political blog in Idaho for 2013 by The Fix

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