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Duncan cites his ‘ideology’

BOISE – Convicted killer Joseph Duncan said Friday that his “ideology” is behind his request to act as his own attorney in his death penalty sentencing hearings for kidnapping, molesting and killing a 9-year-old boy.

“I don’t have an issue with counsel personally,” Duncan told U.S. District Judge Edward Lodge. “I think they are, like you’ve said many times, good counsel. It’s ideology. I don’t believe that they can ethically represent my ideology.”

Duncan didn’t say what his ideology is.

He has pleaded guilty to killing three people at the Groene family home east of Coeur d’Alene, kidnapping and repeatedly molesting the family’s two youngest children and then killing one of them, 9-year-old Dylan Groene. Duncan faces a possible death penalty.

In a blog Duncan wrote for five months before committing the crimes, he alternately railed against society’s treatment of sex offenders and wrote about “demons” tormenting him.

“Despite my actions, I’m not a bad person, I just have a disease contracted from society, and it hurts a lot,” he wrote less than a week before his attack on the Groene family.

Lodge warned Duncan of the pitfalls of acting as his own attorney in a capital case. The judge pointed out the complex questioning of prospective jurors by Duncan’s attorneys thus far.

“At least in my judgment, it would be ill-advised to proceed without counsel,” Lodge told Duncan. “There are many hazards and disadvantages to self-representation.”

Lodge said Duncan appears competent to exercise his constitutional right to act as his own attorney but that he wants a mental evaluation to confirm it. That might require sending Duncan to the federal Bureau of Prisons in Seattle for a 30- to 45-day evaluation, the judge said, which would delay the sentencing hearing.

Duncan, wearing yellow prison scrubs, long hair and an unkempt mustache and beard, appeared taken aback. He said he didn’t intend to delay the proceedings.

“That wasn’t my understanding or my intention when I initiated this request,” Duncan told the judge. “I would ask the court if there’s anything I can do, any waiver.” The judge asked, “Separate and apart from just agreeing to go forward with your counsel?”

Duncan responded, “To me, that’s not really an option.”

Lodge asked Duncan if he’d agree to have his attorneys continue to represent him through jury selection so “we wouldn’t have to hold up these 350 people” in the pool of potential jurors.

“As a matter of fact, I was going to request that,” Duncan said. “That sounds like a good idea to have them finish doing the jury selection. You’re very right about that being very technical – I’ve noticed that.”

Federal prosecutors aren’t objecting to Duncan’s request to serve as his own attorney. Deputy U.S. Attorney Wendy Olson told the court that when Duncan pleaded guilty Dec. 7, 2007, to all 10 counts in the federal indictment against him, he made a statement “that was clearly rational, based on fact. … I think the court is right that there is no indication whatsoever that there is any competency problem with this particular defendant.”

The danger, she warned, would come if Duncan’s request were improperly denied. That could be deemed “structural error” that would require automatic reversal of the decision on his sentence.

“We would end up right back where we are,” Olson told the court.

The judge asked attorneys on both sides to submit briefs by 9 a.m. Monday on three legal issues:

“Whether Duncan’s request was “timely made”;

“Whether a locally performed mental evaluation of Duncan, rather than a trip to the Bureau of Prisons in Seattle, would raise an appeal issue;

“And whether the competency standard required for Duncan’s self-representation is the same standard required to stand trial.

This issue was decided in a 1993 U.S. Supreme Court case but is being challenged in another case.

In the 1993 case, Godinez v. Moran, the court upheld Nevada murderer Richard A. Moran’s right to represent himself in a capital case, and held that the same standard for competency applies both for standing trial and for exercising the Sixth Amendment right to act as one’s own attorney. Moran was executed three years later.

In the pending case, Indiana v. Edwards, the government argued that there should be a different competency standard for acting as one’s own attorney. Someone who is incoherent or delusional, the government said, could be competent enough to stand trial but inadequately conduct his own defense. The high court heard arguments in the case March 26 and hasn’t issued a decision.

Lodge said he’ll rule on Duncan’s case at 1 p.m. Monday.

Rodney Uphoff, a law professor at the University of Missouri and an expert on the death penalty, said, “If he makes a knowing waiver of his right to counsel, then basically the judge has to allow him to represent himself.” That waiver must be made “knowingly, voluntarily and intelligently.”

Duncan is clearly making his request knowingly and voluntarily, Uphoff said. But, he said, “who in their right mind would say that’s an intelligent decision? … Judy Clarke (Duncan’s lead attorney) is one of the best death penalty lawyers in the country. So why would somebody give up a really good lawyer, and really good lawyers, and go charging ahead unless that person’s got some significant mental problems?”

However, Uphoff said, “competency is such a low standard. … That’s the current standard. My guess is, if he insists on going ahead, that he will probably be allowed to go ahead.”

Robert Bloom, a law professor at Boston College and an expert on constitutional rights and criminal procedures, agreed. “Unless there’s something else going on, I think he can do it,” he said.

However, Bloom noted that Duncan could lose that right if he was disruptive in court.

Uphoff, one of the court-appointed attorneys who successfully defended Oklahoma City bombing accomplice Terry Nichols against the death penalty, said it’s difficult to say why Duncan wants to act as his own attorney.

He could be pursuing a chance to cross-examine his surviving victim, Shasta Groene, if she testifies against him, or to keep prosecutors from calling her as a witness. He might not want his attorneys to reveal details of his abusive childhood, which they’ve said they plan to present as “mitigation” factors against the death penalty. He might want attention, or he might think he could do a better job of defending himself. He might want to die.

“There are all sorts of different reasons why defendants want to represent themselves,” Uphoff said. “He sounds like a very dangerous, scary kind of person. And it’s difficult to then go back and impose rational thinking on him. … So we can speculate, but our speculation is based on what a rational person would do in this situation.”