BOISE – Federal prosecutors are trying to toss out the appeal filed by standby attorneys for Joseph Duncan, saying he never wanted to appeal his death sentence and the attorneys acted without his permission.
“The decision to appeal is solely that of the defendant and cannot be made for him by counsel,” U.S. Attorney Tom Moss argued in a motion filed Wednesday.
The three court-appointed standby attorneys represented Duncan in his federal case, but after pleading guilty to all charges, Duncan acted as his own lawyer. The attorneys were asked by the court to stay on as standby counsel. Their role, the court said, is to assist Duncan only at his request.
Duncan submitted a letter to Judge Edward Lodge, dated Saturday, saying, “This is to inform the court that if any appeal is initiated on my behalf it is done contrary to my wishes.”
Prosecutors said two FBI agents have met with Duncan five times since his death sentence was handed down Aug. 27; he told them repeatedly he didn’t want to appeal.
“To the contrary, the defendant informed Special Agent Mike Gneckow on November 13, 2008 that he does not intend to appeal, that his stand-by counsel had tried to pressure him into signing permission to appeal and that he believed that his stand-by counsel would try to file an appeal without his permission,” Moss wrote in court documents.
In a recorded meeting with Gneckow at the Ada County Jail on Nov. 13, Duncan and the agent were talking when an envelope was slid under the door to Duncan’s cell, according to an affidavit from Gneckow.
It was addressed to “Judge Lodge,” but it had been returned because of an incorrect address.
According to Gneckow’s affidavit, Duncan said he had written to the judge, “telling him that my attorneys were planning to appeal without my permission.”
Duncan wrote a second letter to the judge Saturday that was posted on the court docket Wednesday.
The standby attorneys are
Boise federal defender Tom Monaghan, Seattle death penalty specialist Mark Larranaga and nationally known death penalty defense expert Judy Clarke.
Two of the three attorneys declined to comment Wednesday, and the third couldn’t be reached.
In the jail cell conversation, Duncan told Gneckow, “I don’t want to die.” But he also said, “I have no desire to engage the system.”
Duncan told Gneckow that members of his legal team had visited him and “just drilled me for about two hours trying to get me to sign these papers.”
“I told them, ‘If you want to file an appeal, if you can find some way to file an appeal without my permission, then I’m not going to try to stop you. Go right ahead,’ ” he told Gneckow.
“And that’s when they said, ‘OK, we think we can do that.’ ”
Duncan also told Gneckow: “I wanted to make sure that it’s clear and it’s understood both by them and by the system, you know, that I have no desire to engage the system.”
Duncan received three federal death sentences for the 2005 kidnapping, sexual exploitation and murder of 9-year-old Dylan Groene, and three life sentences for kidnapping and molesting the boy and his 8-year-old sister, who survived.
Duncan also received six life sentences on state charges for kidnapping and murdering the children’s mother, 13-year-old brother and mother’s fiancé.
He’s been charged and faces a possible additional death sentence for the 1997 abduction and killing of 10-year-old Anthony Martinez in Riverside County, Calif.
Kootenai County Prosecutor Bill Douglas said he was surprised by the appeal.
“Basically, we saw all the signals down in Boise of someone who basically was leaving his fate to others, and was not offering any resistance that way,” Douglas said.