September 27, 2009 in Idaho

Appeal delays mount for Duncan sentence

Lawyers filed case against his wishes
By The Spokesman-Review
 
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Thirteen months after Joseph Duncan was handed three death sentences for his abduction and murder of a North Idaho child, his appeal languishes in its earliest stages at the 9th Circuit U.S. Court of Appeals.

Duncan said in federal court that he didn’t want to appeal his triple death sentence. But his standby attorneys did so anyway, contending the multiple murderer is mentally incompetent to waive his right to appeal.

“The chances of him prevailing on any sort of appeal are extremely small, extremely small,” said James Cohen, a law professor at Fordham University and an expert on the death penalty and mental competency. “For a guy like Duncan, the conduct in which he engaged was so horrendous, nobody wants to cut him a break.”

But Cohen said it’s not unusual in death penalty cases for lawyers to file an appeal over the client’s objections – even though the law says it’s the client’s decision.

Duncan’s new standby attorneys – the three who represented him in Idaho withdrew, and three new ones were appointed for the appeal – declined to comment.

Cohen said attorneys normally are obligated to follow their clients’ wishes. “That’s why this type of thing that occurs in some of these death penalty cases is so interesting, because it’s a clear example of the lawyer ignoring the normal role and inserting himself against the client’s wishes,” he said. “Now, the lawyer in this case justifies it by saying, ‘I don’t care what the judge found, I know my client is crazy and I’m not going to escort him to the chair.’ ”

Courts generally are sympathetic to that in death penalty cases, Cohen said, because of the “deeply held notion in our legal system that you ought to have a right to review.”

After two court-ordered mental evaluations that delayed Duncan’s sentencing in federal court last year by months, U.S. District Judge Edward Lodge ruled him mentally competent. And just this month in Indio, Calif., where Duncan faces charges of another child murder, a jury reached the same conclusion after weeks of expert testimony. A California judge backed that ruling and agreed to let Duncan act as his own attorney in that case.

Nevertheless, the Court of Appeals still is waiting for Duncan’s standby attorneys to submit arguments on two key points: Whether the appeal can even be considered, when Duncan didn’t want it filed; and whether he was mentally competent to waive his right to appeal.

The defense attorneys have sought and received two lengthy extensions to submit those arguments, the last one granted last week.

Tom Moss, U.S. attorney for Idaho, objected to the second extension, arguing in court documents, “Further delay runs counter to the Federal Death Penalty Act, which mandates that appeals receive priority consideration.”

In seeking the extension, the defense attorneys noted that one of the three was seriously ill, another was organizing two major conferences and they had other cases. The court granted the extension without comment.

“We would like it to move along faster, but these things happen and we just have to abide by whatever the court rules,” Moss said.

Cohen said delays are common in death penalty appeals, with some stretching out for decades.

“That’s one of the big complaints of the advocates of the death penalty – no wonder it doesn’t work, because you don’t exercise it in a timely fashion. It’s hard to think of it as a deterrent if you don’t do it until 15 years after the conduct or 23 years after the conduct.”

David Leroy, a defense attorney and former Idaho attorney general, said, “There’s nothing normal about the Duncan case, and this appellate confusion certainly continues that trend. … This thing seems to be stalled at a uniquely early stage.”

Duncan murdered three members of a North Idaho family in 2005 in order to kidnap and molest the family’s two youngest children; only one, an 8-year-old girl, survived. His three death sentences are for the kidnapping, torture and murder of 9-year-old Dylan Groene; the crimes also brought him nine life terms in prison.

Assistant U.S. Attorney Wendy Olson, one of the lead prosecutors in Duncan’s federal case, said she doesn’t expect the appeals court to grant any more extensions, and Cohen said the appeal is unlikely to go on for years, though the high court could order another competency hearing.

One problem the appellate court will face, he noted, is the extensive secrecy in the federal sentencing trial in Boise. Many of the documents were sealed from public view, including Duncan’s mental evaluations.

“That’s a reason that the court is going to be not inclined just to wave this appeal off – there’s so much stuff in this case that was secret,” Cohen said.

But even if another competency hearing is held, Cohen said, Duncan is likely to again be found competent, and then the appeal would end. “And then an execution date would be set.”

Even if the California case still is in appeals, the federal death sentence could be carried out, Cohen said.


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