Duncan psych exam could swing case

BOISE – The latest development in the Joseph Duncan sentencing raises a major question: What happens to the case against the confessed killer if psychological evaluations find he’s mentally incompetent?

Duncan is set to undergo a second mental evaluation, ordered by U.S. District Judge Edward Lodge this week. The review was ordered because of Duncan’s request to act as his own attorney; the legal standard for determining whether he’s capable of representing himself in court is the same as if his fitness to stand trial were being evaluated.

“The law is that if you are incompetent, the proceedings are suspended,” said Rodney Uphoff, a law professor at the University of Missouri and an expert on death penalty cases. However, he said, “I would say that it’s highly, highly unlikely that the guilty plea would be undone.”

Duncan pleaded guilty to all counts in a 10-count federal indictment to kidnapping and molesting two North Idaho children, then killing one; young Shasta Groene survived the seven-week ordeal. Duncan now is awaiting sentencing in federal court. Because three of the 10 counts carry the death penalty, he’d get either a death sentence or life in prison without the possibility of release.

But if the defendant isn’t competent to stand trial, he couldn’t go through with the sentencing hearings.

“The judge has opened up a can of worms, is what it looks like,” said David Leroy, a Boise lawyer and former Idaho attorney general. “Under these circumstances with the heinous circumstances, the death penalty is involved – I wouldn’t second-guess the judge. It was probably the right decision.”

Lodge said in court he thought Duncan was clearly competent to decide to exercise his constitutional right to act as his own attorney. But with the death penalty at stake, he said he thought it “prudent” to have that competency confirmed by an expert.

The judge first suggested sending Duncan to the federal Bureau of Prisons in Seattle for a mental evaluation that would include a 30- to 45-day observation. Prosecutors argued against that, saying an evaluation by a local specialist would be sufficient. The court appointed Boise clinical psychologist Dr. Robert Engle to do the review.

The review was filed with the court, under seal, last Thursday. But instead of ruling on Duncan’s bid to act as his own attorney, the judge this week ordered a second mental evaluation and delayed the proceedings.

On Wednesday, the court issued an order advising the more than 300 prospective jurors in the case that they’re free to go on vacation and should check in for further instructions after 5 p.m. June 23. The court also extended the term of service for the prospective jurors, which originally was scheduled to expire at the end of May.

“The court apologizes for what may be a lengthy delay in this case,” Lodge wrote in the order. “Your patience is much appreciated.”

Said Leroy, “Engle’s a reasonably thorough guy. … If he’d needed more time, he’d have asked for it. I doubt that he missed something … but one of the tests he administered may have detected something that ought to be probed in an in-custody setting.”

Duncan had to be competent to submit his guilty plea, which the court accepted. But both Leroy and Uphoff noted that competency can change.

“If it’s just that he’s been now locked up so long that he’s become loony, that has nothing to do with his condition at an earlier time,” Leroy said.

Uphoff said, “I represented a number of clients who went in and out of competency. So competency is not a fixed state, and simply because you are found competent at one point doesn’t mean that you cannot be found incompetent later on.”

Typically, when a defendant is ruled incompetent in this type of case, “the person will be kept in a mental health unit of a maximum security prison,” Uphoff said. The legal proceedings would stop, he said, “but that stopping may be for a year, maybe six months.”

As soon as doctors reported that the defendant was again competent, “the proceedings would just pick up anew right where they left off.”

Competency cases, Uphoff said, “raise very tricky ethical and strategic questions.”

“It’s not black and white,” he said, and sometimes two doctors will disagree. “There are lots of people who have a mental illness who it may be very difficult superficially to tell whether or not they have a mental illness, unless you spend time with them and they start talking about the radio waves that are coming into their head,” he said. “I had some schizophrenic clients who looked and acted at times as if they were perfectly lucid, and at other times they were bananas, talking gibberish.”

Duncan’s been cooperative and articulate in court, and no issues of competence were raised before now either in the federal case or the earlier state case, in which he pleaded guilty to murdering the children’s 13-year-old brother, mother, and her fiancé so he could kidnap the two youngsters.

Duncan need only be found competent to waive his right to counsel – the law doesn’t require that any showing be made that he can adequately defend himself without lawyers.

Quoting a key 1993 U.S. Supreme Court case, Lodge wrote in a court order, “The Supreme Court has held, ‘While it is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts, a criminal defendant’s ability to represent himself has no bearing upon his competence to choose self-representation.’ “