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Duncan incompetent, lawyers say

If court agrees, he’d evade death penalty, go to mental facility

BOISE – Convicted killer Joseph Duncan’s lawyers have filed a motion to declare him mentally incompetent – which would not only keep him from acting as his own lawyer, but also would halt his federal death penalty proceedings and send him to a secure mental facility until he’s found competent to return to court.

News of the motion, which was filed under seal, surfaced during a hearing Thursday.

Deputy U.S. Attorney Wendy Olson noted that the court already ruled Duncan was competent and merely ordered expert mental evaluations to confirm that.

Defense attorney Tom Monaghan countered, “We now have contesting viewpoints on that matter between the parties.”

U.S. District Judge Edward Lodge said he’s taken under advisement a request for a competency hearing, at which the experts who evaluated Duncan could be cross-examined. “The court intends to rule on that,” he said.

Duncan already has pleaded guilty to all charges in a 10-count federal indictment for kidnapping and molesting two North Idaho children and killing one of them in 2005. He also pleaded guilty in state court to killing the children’s 13-year-old brother and mother and mother’s fiancé in a brutal attack at the family’s home so he could kidnap the younger children.

A pool of more than 300 prospective jurors has been called to decide if Duncan should get the death penalty for killing 9-year-old Dylan Groene or get life in prison without possibility of parole.

The sentencing proceedings were poised to begin this spring, when Duncan declared that he wanted to shed his lawyers and instead represent himself because of unspecified “ideological” differences. At that point, the judge ordered a mental competency evaluation.

Duncan underwent an exam by Dr. Robert Engle, a Boise clinical psychologist. Then the court ordered a more extensive evaluation by federal prison authorities in Seattle. That second report has been received by the judge, but attorneys on both sides hadn’t seen it Thursday.

If Duncan were ruled incompetent, the proceedings would be halted, but his guilty plea would stand.

Duncan’s demeanor in the courtroom Thursday was markedly different from his conduct in earlier court appearances, in which he visited easily with his attorneys and answered questions from the judge. Now wearing a full beard and with his long hair pulled into a tight knot at the nape of his neck, he appeared lethargic and unresponsive, often closing his eyes and resting his chin on his hands. When the judge said, “Good morning, Mr. Duncan,” he didn’t respond.

His attorneys argued in court Thursday that some portions of the Seattle competency evaluation should be redacted, because they might include reports on conversations Duncan had with his attorneys and other privileged material. The judge said he’ll show the report to the defense lawyers and give them two days to point out any privileged material in it.

Prosecutors also argued for access to other information on Duncan’s mental state that defense attorneys have indicated they may cite in court, including a neuropsychological exam and scan results. Defense attorneys said they don’t want the information used against Duncan in the sentencing hearing – or to prosecute him for a child murder in Riverside, Calif., in which he’s the prime suspect.

Olson told the court the U.S. attorneys don’t intend to use the competency information for anything beyond determining Duncan’s competency in the current proceeding.

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