Duncan alters course on sentence appeal

Citing concern for his mother, murderer wrote to ask judge for defense attorneys

BOISE – Notorious murderer Joseph Duncan has changed his mind about waiving his right to appeal, saying he owes it to his mother to try getting off death row for the torture slaying of a North Idaho youngster in 2005.

“It would be utterly cruel, and indeed, inhuman, for me not to consider my mother’s love when deciding what to do in regard to my own life,” Duncan advised U.S. District Judge Edward Lodge. “So I hereby inform you, and any others concerned, that I withdraw my waiver of appeal and consent fully to all efforts and advice given by my attorneys to appeal.

“I love my mother, and if I could only regret one thing, it would be how I have hurt her. I am the biggest fool that I know.”

Duncan, who earlier insisted on defending himself during legal proceedings but now wants a public defender, was back in a Boise courtroom on Friday to set a date for a new hearing determining whether he was mentally competent when he waived appeals of his death sentence.

Duncan, brought to Boise from federal death row in Terre Haute, Ind., his hair close-cropped and graying and wearing a baggy white T-shirt, left all the talking to his attorneys on Friday morning.

But in December 2010, he submitted a handwritten, two-page letter to the court saying he now wants to appeal after all. The letter was made public Friday.

Duncan in the past has strongly opposed contentions that he wasn’t mentally competent to make that decision in 2008. He underwent two lengthy mental evaluations before Lodge ruled him competent and allowed him to dismiss his lawyers in that sentencing trial and represent himself; he already had pleaded guilty to all charges. The lawyers filed an appeal to the 9th Circuit U.S. Court of Appeals against Duncan’s wishes, arguing he was mentally incompetent.

“I have been very stubborn about not appealing my death sentence,” Duncan wrote. “My belief is that if I appeal, then I am acknowledging the system’s authority to commit murder.”

But he wrote that more recently his younger brother had died, making Duncan his mother’s only surviving son. In 2008, a federal jury sentenced Duncan to death for the kidnapping, torture and murder of 9-year-old Dylan Groene. He also received nine life sentences for a murderous rampage in 2005, in which he killed three members of Dylan’s family in order to kidnap and molest the family’s two youngest children; only Dylan’s then-8-year-old sister, Shasta, survived.

Since then, Duncan also has been convicted of a previous kidnapping and murder involving a 10-year-old California boy, drawing two more life sentences; in that case, after weeks of expert testimony, the court also ruled him mentally competent.

In the Idaho case, however, the judge had never held a competency hearing in open court, meaning all the information on Duncan’s mental competency remained secret. The 9th Circuit ruled that without such a hearing there was “reasonable doubt” about Duncan’s competency, and ordered Lodge to hold a “retrospective” competency hearing on Duncan’s mental state in 2008.

If, after the hearing, Lodge rules that Duncan was competent when he waived his right to appeal, the death sentence stands. But if not, Lodge would then have to hold another hearing to determine if Duncan was mentally competent when he waived his right to an attorney in his 2008 sentencing trial and instead represented himself. That could force a replay of the whole sentencing trial.

In his closing statement in that trial in 2008, Duncan told the jury, “You people really don’t have any clue yet of the true heinousness of what I’ve done.” Duncan said that while on the run from a child-molesting charge in Minnesota in 2005, he’d plotted terrible crimes targeting random children, from invading day-care centers to kidnappings at campgrounds. “I was not searching for a child but rather I was on a rampage,” he said. “My intention was to kidnap and rape and kill until I was killed, preferring death easily over capture.”

He traveled across eight states looking for child victims before attacking the Groene family in their home along Interstate 90 at Wolf Lodge Bay, just east of Coeur d’Alene.

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