Duncan sentence faces test

Court orders hearing to determine competency when he waived appeal

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

The appeals 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 finds Duncan wasn’t competent, 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 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. “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 ordered two extensive mental evaluations that delayed Duncan’s death penalty sentencing trial for months, but 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 in New York 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.

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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