Duncan’s new role seen as liability

BOISE – When Joseph Duncan takes over as his own attorney in his upcoming death penalty sentencing hearings, it’ll change the nature of the proceedings, experts say – and make the confessed multiple murderer much more likely to get the death penalty.

“The problem with defendants representing themselves is it puts the spotlight on the defendant, and that’s not always the best defense strategy,” said University of Idaho law professor Richard Seamon.

Ruth Lanouette, a Lawrence University professor who’s studied cases where defendants represent themselves in court, said jurors will see a big difference. “My guess is it’s going to make their skin crawl with this guy, because they know he’s guilty.”

Duncan has admitted guilt to horrific crimes – beating three family members to death with a hammer in order to kidnap the family’s two youngest children, kidnapping and molesting the two youngsters for nearly two months, and killing one of them, a 9-year-old boy. He now faces a possible death penalty for the murder of 9-year-old Dylan Groene.

One onlooker who attended an early court hearing in the case to get a glimpse of Duncan said he came because he said he wanted to “see evil.”

Since then, Duncan has presented an increasingly odd appearance in court. He’s allowed his hair to grow long and flowing, grown a full, unkempt beard, and insisted on appearing in court in garishly bright jail garb rather than in civilian clothes, as his attorneys preferred. His pale skin, bony frame and dark, penetrating eyes complete the contrast between Duncan and the soberly dressed attorneys, deputy marshals and court personnel around him.

Normally, a defendant is silent much of the time in court. But now, Duncan’s voice will be heard – he’ll directly address the jury in opening and closing statements, he’ll cross-examine witnesses, he’ll interact with the judge.

“The voice makes a difference,” said Fordham University law professor James Cohen. “In this case  …  it’s hard to see how his voice is going to make a difference in a positive way, in terms of his life.”

Duncan’s insistence on representing himself also means he could cross-examine the government’s star witness against him – his only surviving victim, Shasta Groene, who was 8 years old when she was rescued from Duncan and is now 11.

If the killer questions the young girl, Cohen said, “The jury won’t even leave the box – they’ll just turn to one another and say, ‘Death!’ ”

Said Seamon: “I think the very prospect is enough to make most people shudder. I think it’s just another aspect of the whole thing that is not going to help Duncan’s case.  …  You almost wonder whether it is a situation where he wants to condemn himself.”

In December, attorneys on both sides in the case reached an agreement to spare the young girl from testifying, and instead rely on a videotaped statement she gave to law enforcement after her rescue from Duncan in 2005 as her testimony. But that agreement subsequently fell apart.

Seamon said without agreement from both sides, the taped statement is considered hearsay and couldn’t be admitted without an opportunity for cross-examination. “There’s the right to confront the witnesses against you, and that right, particularly in more recent years, has been very robustly interpreted by the Supreme Court,” he said. “It’s a very important right to be able to be physically face-to-face with your accuser. And for that very reason, it’s hard to imagine how the judge is going to be able to avoid having that happen.”

He added, “Maybe all the judge can do in that circumstance is try to keep the defendant on as short a leash as possible.”

The U.S. Supreme Court has held the right to represent oneself in court to be a “very fundamental” right under the Sixth Amendment, Cohen said, “because the court has interpreted the Sixth Amendment to be concerned with the autonomy of the individual.  …  The problem is that autonomy runs smack up against mental illness, and that’s one of the reasons it’s been so tense over the years.”

Duncan’s sentencing was delayed for three months after he asked to represent himself, as two court-ordered mental evaluations were completed to confirm that he was mentally competent to waive his right to an attorney.

Duncan told the court he thought highly of his court-appointed legal defense team, which includes two prominent death penalty defense experts. But, he said, “I don’t believe that they can ethically represent my ideology.”

Duncan hasn’t explained what that “ideology” is, but his attorneys, in an April court filing, noted “his decision to decline to put on any mitigating evidence.” Jurors at a federal death penalty sentencing hearing weigh the heinousness of the crime against mitigating evidence, such as a defendant’s abusive childhood and psychological problems. Duncan’s attorneys have been preparing a mitigation case for presentation at his sentencing.

Cohen said, “This guy is not going to present any sort of mitigation, and what is there to counter-balance the heinousness of the crime? Not much.”

Said Cohen: “It’s not about guilt, it’s about mitigation. The death penalty lawyers are doing mitigation from the very beginning, that’s what they do. If he doesn’t present mitigation, it seems hard to figure out why the jury should say ‘Life.’ ”

Duncan’s jury will have only two choices: death, or life in prison without the possibility of release.

Cohen said it’s possible that if no mitigation case is presented at the sentencing hearings that could become the basis for a later appeal. However, it’s also possible that Duncan could waive appeals if he chooses to accept death as the punishment for his crimes.

Seamon said Duncan’s decision to represent himself will make things more difficult for the judge and prosecutors. “I think the prosecutors are going to be tearing their hair out,” he said, “because they have to not only be careful of the case that they’re making against the defendant, but I think that they have to be aware of all of the potential missteps that the defense is making.”

In a capital case, any impingement on the right to a fair trial could set up possible appeals. “The judge has to walk a very tight line,” Seamon said.