9th Circuit orders Duncan back into court in Idaho

BOISE – The 9th Circuit U.S. Court of Appeals has ordered convicted child-killer Joseph Duncan back into court in Idaho, saying a federal judge should have ordered a competency hearing before allowing Duncan to waive his appeal of his death sentence.

The high court ordered U.S. District Judge Edward Lodge to hold a “retrospective” competency hearing, exploring whether Duncan was competent in November 2008 when he told Lodge he didn’t want to appeal his triple death sentence for the kidnapping, torture and murder of a North Idaho boy. If he’s found competent after the hearing, the death sentence would go forward.

If not, the federal court in Idaho would have to hold another hearing to determine whether Duncan was competent when he waived his right to an attorney and insisted on representing himself in the Idaho case. If the court then finds Duncan wasn’t competent to do that, it would have to “vacate defendant’s sentence and convene a new penalty phase hearing with defendant properly represented.” That could mean a rerun of Duncan’s entire sentencing trial in federal court in Boise for his deadly 2005 attack on the Groene family at Wolf Lodge, near Coeur d’Alene.

U.S. Attorney for Idaho Wendy Olson noted that every court has found Duncan competent. The latest was in a California child-murder case in which a jury and judge determined Duncan was competent in 2009 after weeks of expert testimony.

“Our position throughout the proceedings was that Duncan was competent,” Olson said Monday. “That’s the position we asserted. … But there was no actual hearing in court where witnesses were called and cross-examination was conducted. The Court of Appeals is saying as a procedural matter the district court should have done that.”

Lodge had ordered two extensive mental evaluations that delayed Duncan’s death penalty sentencing trial for months. But the judge never held a hearing on the issue in open court. As a result, all of Duncan’s mental evaluations remained secret.

James Cohen, a law professor at Fordham University and an expert on the death penalty and mental competency, said, “There’s no reason for the judge in Idaho to keep all this stuff secret – there’s just no reason at all.”

Said Cohen, “The only justification would be to protect the privacy of the defendant.” But, he said, “He lost that when he was indicted for this particular crime.”

Secrecy was extensive in the sentencing trial, with numerous documents sealed from public view, leading to several legal challenges by the media. Much of the secrecy came because the case involved a surviving child victim, but it also covered all issues of Duncan’s mental competency.

Duncan murdered three members of the Groene household in May 2005 in order to kidnap and molest the family’s two youngest children. His three death sentences are for the kidnapping, torture and murder of 9-year-old Dylan Groene, whose younger sister, 8-year-old Shasta, survived. The crimes also brought Duncan nine life terms in prison.

The California case, the murder of 10-year-old Anthony Martinez, brought him his 10th and 11th life terms.

Cohen said, “The information available to the trial judge, including but not limited to the evaluations, was more than sufficient to require him to hold a (competency) hearing.”

The law professor said there are “at least two benefits” to a public competency hearing. The first, he said, is that psychologists, psychiatrists or other experts “might be able to learn something from his mental illness that could head off others.”

“And two, it’s very important that our system work right – and we don’t punish people that are mentally ill to that extreme,” Cohen said.

The murders and children’s disappearance launched the biggest investigative effort in Kootenai County’s history, at one point involving more than 100 FBI personnel and more than 80 investigators from several other agencies. Duncan was arrested after being spotted with Shasta Groene at a Coeur d’Alene restaurant seven weeks after his murderous crime spree began.

Duncan, 42 at the time, was a federal fugitive and a Tacoma native who had spent much of his adult life in Washington state prisons for sex crimes against children. He was on the run from a child molestation charge in Minnesota when he drove past the Groene home on Interstate 90 east of Coeur d’Alene and saw the two youngsters playing outside.

In court, Duncan said he was on the prowl for child victims and had considered several others before spotting the Groene children.

No date has yet been set for the mental competency hearing in Idaho.

Duncan remains on Death Row at the federal penitentiary in Terre Haute, Ind.

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