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Child-killer Joseph Duncan still fighting death sentence

Joseph Duncan is shown in court in 2011, when he was sentenced to two life terms for the 1997 abduction and murder of a California boy. In 2008, Duncan was sentenced to death three times over for his 2005 crimes against a North Idaho family. He’s now on federal death row, but appeals of his death sentence continue. (Terry Pierson / AP/Press-Enterprise)
Joseph Duncan is shown in court in 2011, when he was sentenced to two life terms for the 1997 abduction and murder of a California boy. In 2008, Duncan was sentenced to death three times over for his 2005 crimes against a North Idaho family. He’s now on federal death row, but appeals of his death sentence continue. (Terry Pierson / AP/Press-Enterprise)

Although child-killer Joseph Duncan waived his right to appeal his triple death sentence for the 2005 kidnapping, torture and murder of a 9-year-old North Idaho boy, Duncan, through a team of attorneys, is now pressing a series of continued challenges.

That’s in part because more than two years after Duncan waived his appeals, he changed his mind. Courts said it was too late for his direct appeal, but he’s now in the midst of the next stage, his habeas filings, in which his attorneys can challenge aspects of his conviction and sentencing on constitutional grounds. These challenges start in the U.S. District Court but can be then appealed again to the 9th Circuit U.S. Court of Appeals and the U.S. Supreme Court.

Duncan’s case already has been to the U.S. Supreme Court twice; the high court refused to review it each time.

Last week, federal prosecutors in Idaho filed their legal arguments responding to Duncan’s 231-page “motion for collateral relief,” which his attorneys filed last winter.

“None of Duncan’s contentions have merit,” prosecutors wrote in their conclusion, after going through, in detail, Duncan’s arguments on various legal and procedural grounds.

Duncan’s attorneys are raising arguments ranging from questioning the constitutionality of the death penalty to suggestions that Spokane attorney Roger Peven’s early withdrawal from Duncan’s case due to unrelated personal problems sabotaged Duncan’s case – even though the confessed murderer and child rapist pleaded guilty to all the charges, including multiple murder charges.

“Duncan attempts to lay the blame for every asserted error at the feet of Roger Peven,” federal prosecutors wrote. “After Peven revealed personal and substance abuse issues that had affected his ability to represent Duncan, the court permitted him to withdraw as lead counsel. But Duncan never wanted for attorneys, and enjoyed the services of the nation’s most celebrated capital-defense lawyer, Judy Clarke, as an advisor to his team of lawyers and eventually, in Peven’s stead, as lead counsel.”

Duncan’s appellate attorneys, led by Assistant Federal Defender Lindsay Bennett in Sacramento, are offering an array of other grounds as well for overturning his death sentence.

They’re suggesting a possible “miscarriage of justice” because Duncan’s history of being abused as a child wasn’t detailed to jurors. Duncan himself refused to allow that evidence to be presented, saying he didn’t want his past experiences presented as an “excuse for his behavior” and that childhood abuse he suffered was “irrelevant.”

He acted as his own lawyer during his federal sentencing trial and refused to present any of that evidence. But much of it came out anyway, when the 9th Circuit U.S. Court of Appeals ordered U.S. District Judge Edward Lodge to hold a “retroactive competency hearing” to determine, in open court, whether Duncan was mentally competent. He had lawyers at that six-week 2013 hearing, and after Lodge again found him competent, they appealed unsuccessfully both to the 9th Circuit and the U.S. Supreme Court.

Duncan’s lawyers also are suggesting Duncan wasn’t mentally competent to plead guilty in 2007, though at the time he was represented by a team of attorneys and consulted with them on the decision. They’re alleging he had ineffective assistance of counsel in that decision, violating his constitutional rights.

Federal prosecutors counter that the lawyers didn’t seem to question Duncan’s competency until he fired them and took over his case himself.

Duncan’s lawyers say his legal team was pressed for time to prepare for his trial because Peven’s departure, and his lack of early preparation work, had left them far behind schedule, and U.S. District Judge Edward Lodge wouldn’t grant their requests for more delays in the case.

When they advised Duncan to plead guilty to the crimes and move on to the sentencing phase of the trial – something he’d been indicating all along he wanted to do – “this was triage, pure and simple,” Clarke wrote in court documents, “motivated exclusively by our need for more time to prepare.”

There are other claims Duncan is raising, including that a 2015 Supreme Court case changed the interpretation of one of the three charges under which he received the death penalty; and that video evidence shown in court of Duncan torturing his young victim, Dylan Groene, was prejudicial and shouldn’t have been shown.

Prosecutors responded that the graphic videos showed exactly what jurors needed to see “in order to decide if a defendant should receive the greatest punishment,” including the presence of aggravating factors such as committing the offense in a “heinous, cruel or depraved manner” and with a “vulnerable victim.” “Such evidence can be expected to be horrific,” the U.S. attorney’s office wrote. “They showed precisely what Duncan did.”

Now that the government has responded, Duncan’s lawyers have until Jan. 30 to file a reply. Then, Lodge could hold a hearing, or rule on the arguments as submitted. After his decision, further appeals could follow.

It’s part of a lengthy series of steps, guaranteed by the U.S. Constitution, that must occur before a criminal defendant can be executed. Just three federal executions have been carried out since the federal death penalty was reinstated in 1988; the last one was in 2003.

“It is a long, long road,” said Assistant U.S. Attorney Syrena Hargrove, who worked on the latest filing for the Idaho U.S. attorney’s office.

In addition to the three death sentences for the kidnapping, torture and murder of Dylan, Duncan received nine life sentences for his 2005 attack on Dylan’s family at their Wolf Lodge Bay home. Duncan killed Dylan’s mother, older brother and mother’s fiance before kidnapping the family’s two youngest children. Only Dylan’s then-8-year-old sister, Shasta, survived the ordeal.

Duncan remains on federal death row in Terre Haute, Indiana. Aged 42 at the time of the crimes, he is now 54.

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