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Decision could affect Duncan case

By Betsy Z. Russell
Staff writer
July 24, 2008

BOISE – A June U.S. Supreme Court decision limiting the right of mentally ill defendants to represent themselves in court could affect the case of Joseph Duncan, the notorious killer and child molester who’s admitted to killing four members of a North Idaho family.

Though he has prominent capital defense lawyers assigned to represent him, Duncan told U.S. District Judge Edward Lodge in April that he instead wanted to act as his own lawyer, because, he said, “I don’t believe that they can ethically represent my ideology.”

Lodge then ordered two mental evaluations to confirm that Duncan was competent to waive his constitutional right to a lawyer. As the judge now prepares to rule on that issue, defense attorneys this week filed a motion asking the judge to say what standard he’ll use, in light of the latest Supreme Court decision.

Before the high court reached its decision, the judge made it clear that case law dictated that if Duncan’s competent to undergo court proceedings at all, he’s competent to act as his own attorney. But the new decision, Indiana v. Edwards, opened the door to a different approach.

Justice Stephen Breyer wrote that “common sense” dictates that a mentally ill defendant might not be able to represent himself in court proceedings, though he could function just fine with the assistance of attorneys. “Insofar as a defendant’s lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution’s criminal law objectives, providing a fair trial,” Breyer wrote for the court’s majority.

“The court said, ‘Let the trial judge decide,’” said Robert Bloom, a law professor at Boston College and an expert on constitutional rights and criminal procedures. “They gave a lot of discretion to the trial judge.”

Justice Antonin Scalia dissented, joined by Justice Clarence Thomas. Scalia called the majority’s decision “extraordinarily vague,” and wrote, “Trial judges will have every incentive to make their lives easier … by appointing knowledgeable and literate counsel.”

University of Idaho law professor Richard Seamon said, “There is no doubt about that – judges, and prosecutors for that matter, I think, almost universally hate it when a defendant wants to represent him or herself.”

However, both Seamon and Bloom said a judge in a death penalty case will be extraordinarily careful to make sure every legal issue is scrupulously addressed. “He doesn’t want to be overturned,” Bloom said.

Federal prosecutors filed court documents Wednesday disputing the need for the judge to outline any new competency standard in the Duncan case, saying they believe Judge Lodge will “well consider” the new court decision and other precedents in making his decision.

They also wrote, “The only evidence of the defendant’s alleged incompetency is that supplied by defense counsel, and only after the defendant requested to represent himself.”

Prosecutors have taken no position on whether Duncan should represent himself or not, saying that’s up to him, and to the court to determine whether he can do so.

The debate over a defendant’s right to act as his or her own attorney has been raging for decades, with several key Supreme Court rulings addressing it.

Said Seamon, “There’s that constitutional right and you have to respect it. As a practical matter, it can make things extraordinarily difficult. … It does bring a circus atmosphere to the whole thing.”

The high court ruling gives Judge Lodge more options, Seamon said. “It seems to open up room between the two standards that I think most people didn’t know or think existed before,” he said. “I suppose that if he wanted to, he could make some new law. And the Supreme Court seems to be inviting judges to do just that.”

Lodge could do that by ruling that Duncan isn’t competent to represent himself, but remains competent to go through the sentencing proceedings with the help of his attorneys.

However, Lodge earlier wrote in a court order that his review of the facts in Indiana v. Edwards, which was pending at the time, showed enough differences from Duncan’s case that it wouldn’t apply.

“I think that most judges try to play things conservatively,” Seamon said. “They have a strong incentive to do things right and not get reversed.”

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