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Ninth Circuit Court considers Duncan’s competency in death penalty appeal

Convicted 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 U.S. Circuit Court of Appeals on Monday.

Olson noted that Duncan was ruled mentally competent to make that decision after an extensive hearing that the 9th Circuit ordered U.S. District Judge Edward Lodge to hold in 2013.

“Competent defendants can waive their right to appeal, even in a capital case,” Olson argued to a three-judge panel chaired by Judge Susan Graber.

Attorneys for Duncan are challenging the competency finding, and arguing that they should be able to proceed with an appeal they filed on his behalf.

Duncan 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 wanted to appeal. “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,” he said.

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. Now 52, he’s on federal death row at a maximum-security prison in Terre Haute, Indiana; 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 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.

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 issue is about his competency, not his reasons.

“People can have all kinds of reasons that don’t matter,” he said.

Duncan admitted the killings, and received nine life sentences in addition to receiving three death sentences 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.


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