Duncan cleared to represent himself

BOISE – Joseph Duncan won his bid Monday to act as his own attorney in his sentencing hearings, sidelining his expert legal team in what U.S. District Judge Edward Lodge called an “unwise” move.

Asked by the judge if he had any reservations, Duncan said, “I’m not a perfect person, and I make mistakes sometimes. … My only reservation is that I’m a human being.”

The judge ordered jury selection in the death penalty sentencing proceedings to resume next Wednesday.

Duncan faces a possible death penalty for killing 9-year-old Dylan Groene, after kidnapping and molesting him and his 8-year-old sister Shasta in 2005. The 45-year-old from Tacoma, who has spent half his life in prison for crimes including child rape, has pleaded guilty to all counts. He’s also pleaded guilty in state court to killing the children’s 13-year-old brother, mother and mother’s fiancé.

Under questioning from the judge Monday, Duncan said he stands by his guilty pleas.

Earlier, Duncan told the court that he had no problem with his attorneys but felt they couldn’t “ethically represent my ideology.” Lodge warned him Monday that whatever that “ideology” is, it can’t be presented in court unless it constitutes relevant evidence.

He also warned him that there are limits on opening and closing statements, which Duncan, acting as his own attorney, will make for himself. The opening statement must provide a “road map” to the evidence that will be presented, the judge said, and the closing statement can’t go beyond the testimony and evidence that’s been presented.

“I don’t want to try to pretend to be a lawyer,” Duncan told the court. “I just want to try to represent what I believe. … I’m not trying to cause any problems.”

The judge quizzed Duncan before granting his request, asking if he’d taken any medication in the last 24 hours – Duncan answered no – and about his level of education. “I’m just shy of a bachelor’s in computer science,” Duncan responded.

Lodge noted that a defendant representing himself is bound by “very technical rules” regarding evidence and criminal procedure, and those rules won’t be relaxed for him nor will the judge advise him on how to proceed. “You understand that if you represent yourself, you’re on your own?” Lodge asked. “Yes,” Duncan responded.

“In my opinion a trained lawyer could defend you far better than you can defend yourself,” the judge told Duncan, adding, “It’s unwise. … The court obviously urges you not to represent yourself.” Nevertheless, he ruled, “the court feels that you do have a 6th Amendment right to elect to represent yourself. I’ve found that you are competent to make that decision.”

“It’s obvious that you’re intelligent and that you’re making this decision voluntarily and of your own free will. The court’s bound to acknowledge your right.”

Duncan earlier said he’d like his court-appointed legal team to continue to represent him through jury selection proceedings, but on Monday, after huddling with his lawyers, he told the judge, “Apparently there’s some concern about the legality of allowing the counsel to continue with voir dire on my behalf. Earlier it was suggested to me that you yourself (could) … determine who the jury is. That would be my preference.”

Jury selection in the case started in April, when the largest pool of prospective jurors ever called in federal court in Idaho – 325 southern Idaho residents – was summoned. In the first two days of individual questioning – before three months of delays for mental evaluations of the defendant – 26 prospective jurors were qualified from nearly 60 considered.

Lodge said he’ll call those 26 back to court next Wednesday to see if anything’s changed that would prevent them from serving. Jury selection will continue from that point, with questioning of the next group of 30 prospective jurors.

To get a jury qualified to consider the death penalty in federal court, the questioning must result in a group of 59 qualified jurors. Then, the defense and the prosecutors can exercise peremptory challenges to bring that group down to the 12 jurors and three alternates who will decide whether Duncan should die for his crimes or receive life in prison without the possibility of parole.

Lodge appointed Duncan’s existing legal team to serve as standby counsel, available to consult with Duncan if he wants, and warned that he could revoke Duncan’s right to self-representation if it creates “unusual circumstances” that conflict with his right to a fair trial.