Fed prosecutor to 9th Circuit: Duncan made it clear he didn’t want to appeal death penalty

Convicted multiple murderer Joseph Duncan made it very clear he didn’t want to appeal his triple death sentence, U.S. Attorney for Idaho Wendy Olson told the 9th Circuit Court of Appeals today. “I think the record is very clear that in November of 2008, this defendant did not wish to appeal,” Olson argued to a three-judge panel chaired by Judge Susan Graber. And she noted that following an extensive competency hearing that the 9th Circuit ordered U.S. District Judge Edward Lodge to hold in 2013, Duncan was ruled mentally competent to make that decision. “Competent defendants can waive their right to appeal, even in a capital case,” Olson said. Attorneys for Duncan are challenging the competency finding, and arguing that they should be able to proceed with an appeal they filed for the man who killed three members of the Groene family at their North Idaho home in 2005 before kidnapping the family’s two youngest children, one of whom he later also killed. Only the youngest daughter, then 8, survived. Graber read from a letter Duncan submitted to the court on Nov. 15, 2008: “This is to inform the court that if any appeal is initiated on my behalf, it is done contrary to my wishes.” But defense attorney Joseph Schlesinger told the court Duncan wrote a letter two years later saying he did want to appeal, and all his statements about the issue were “very peculiar,” including “long colloquies where Mr. Duncan is saying, ‘I want the system to do what it wants to do.’ … We don’t have someone who wants to die, which makes this different from practically every waiver case this court has had in a death case.” Duncan submitted a letter to the court in 2010 saying he’d changed his mind about appealing, based on his mother’s wishes; his defense attorneys have pressed his case since then. Duncan, now 52, is on federal death row at a maximum-security prison in Terre Haute, Ind.; he didn’t appear at Tuesday’s arguments in San Francisco. Schlesinger argued that Lodge erred in how he interpreted the legal standards for mental competency; Olson disagreed. The three 9th Circuit judges, who in addition to Graber included Judge Raymond Fisher and Judge Milan D. Smith, made it very clear that if a defendant is competent, he or she can’t take back the decision to drop appeals years later, after time limits have expired. Graber offered Schlesinger a hypothetical: “A person comes in and says, ‘The lawyer may think I want to appeal, but the lawyer is absolutely flat wrong, I do not.’ … That person cannot change their mind two years later, right?” Schlesinger responded, “In hypothetical, I would agree with that. … I think we have some factors that are very, very different.” Schlesinger said he thought Judge Lodge’s competency ruling “didn’t explore at all why he was seeking to waive, if that in fact is what he was doing.” But Graber said, “This has to do with whether or not he was competent, and not what his reasons are … because people can have all kinds of reasons that don’t matter.” Duncan admitted the killings, and received nine life sentences in addition to being sentenced to death three times over for the kidnapping, torture and murder of 9-year-old Dylan Groene. The judges took the case under advisement, and will issue a written ruling later.