Judge orders mental evaluation for Duncan

Confessed child killer Joseph Edward Duncan III is a step closer to being able to act as his own lawyer in death penalty proceedings.

U.S. District Judge Edward Lodge ruled Monday that a Boise-area psychologist will be asked to determine whether Duncan is mentally competent. Lodge said he'll make a decision after reviewing the psychologist's report, but he indicated that he's inclined to grant Duncan's request.

Duncan pleaded guilty in December to 10 federal charges in the 2005 kidnapping of two children, Dylan and Shasta Groene of Coeur d'Alene, and the killing of 9-year-old Dylan at a Montana campsite. Three of those crimes can carry the death penalty.

Duncan earlier pleaded guilty in state court to murdering three other members of the children's family but the penalty for those crimes is not at issue here.

He asked the judge last week to allow him to represent himself during the upcoming penalty hearing, saying he liked his attorneys but knew they couldn't ethically represent his "ideology." Duncan didn't elaborate on just what his ideology is.

"It is undisputed that Mr. Duncan has a constitutional right to represent himself," Lodge wrote in his order. "Based on this court's experience on the bench of 46 years ... it appears there is no good faith doubt the defendant is competent to determine if he wants to waive his right to counsel."

Still, Lodge said, "it would be prudent to have the defendant's competence confirmed by a medical professional before the court rules on the motion for self-representation."

Local psychologist Dr. Robert Engle will do the evaluation and deliver the results to the court and attorneys, Lodge said. The evaluation will be sealed from public view, the judge said. Engle is expected to determine whether Duncan is suffering from a mental disease or defect that has left him unable to understand the nature and consequences of the sentencing hearing or unable to assist in his own defense.

"After receipt of the report and if the defendant is determined to be competent to waive his right to counsel, the court will again address the pitfalls and disadvantages of self representation with the defendant," Lodge said. If Duncan again says he wants to be his own attorney, then Lodge will make a formal ruling.

Duncan's defense lawyers said a mental evaluation should include observation over a length of time, and a quick, local evaluation could miss important facts.

"Because the defense has not yet completed its mental health investigation, it is not yet in a position to raise a question concerning Mr. Duncan's competency," the defense team wrote in a brief filed Monday. "Indeed, the defense investigation raises questions that the court may deem require substantial exploration before allowing Mr. Duncan to jettison his attorneys in this capital case."

Duncan saw Shasta and Dylan Groene playing outside their home on a warm spring day, stalked the family for some time, then entered the home and bound and killed the children's mother Brenda Groene, her son Slade Groene, and her fiance Mark McKenzie.

For the next several weeks, Duncan sexually abused and tortured the two children, in some cases videotaping the acts. He eventually shot Dylan with a sawed-off shotgun, leaving the boy's body at a campsite in the Lolo National Forest in Montana. Duncan took Shasta back to Coeur d'Alene, where they stopped to eat at a Denny's restaurant on July 2, 2005. A waitress recognized Shasta and called police.

Duncan pleaded guilty to the three Coeur d'Alene murders in Idaho state court. If federal prosecutors fail to win a death sentence for their charges, Duncan will be returned to Kootenai County to face a possible death penalty there.

Duncan and his attorneys apparently disagree over whether any mitigating evidence should be presented to the penalty jury. In the defense brief, his attorneys said that given Duncan's wish to represent himself, the potential jurors should be questioned to see if they have strong feelings about defendants who don't put on any mitigating evidence. The jurors should also be questioned to see how they feel about people who represent themselves and the possibility that Duncan would be allowed to cross-examine any witnesses, including Shasta Groene if she testifies.

Duncan's request is "a very awkward thing for a judge to deal with," said Stephanos Bibas, a professor of law at the University of Pennsylvania Law School and a former federal prosecutor.

Capital defense attorneys generally feel their job is to save their client's life at all costs, Bibas said. But not all defendants feel that way.

"If you read the tea leaves, it may be that he doesn't want to die but he also doesn't want to make certain arguments that may be demeaning to him," Bibas said.

Duncan's sentencing hearing was supposed to begin sometime around May 1; some questioning of potential jurors began last week.