Duncan pleas unlikely to be undone if he's ruled incompetent

Even if confessed child killer Joseph Duncan is found mentally incompetent to represent himself at his federal sentencing hearing, his previous guilty pleas will likely stand, legal experts say.

"The law is that if you are incompetent, the proceedings are suspended," Rodney Uphoff, a law professor at the University of Missouri and an expert on death penalty cases, told The Spokesman-Review. "I would say that it's highly, highly unlikely that the guilty plea would be undone."

Duncan, a convicted pedophile originally from Tacoma, Wash., pleaded guilty in December to 10 federal charges in the May 2005 kidnapping of then 8-year-old Shasta and 9-year-old Dylan Groene from their Coeur d'Alene home and Dylan's death. Three of those crimes can carry the death penalty.

He earlier pleaded guilty in state court to murdering 13-year-old Slade Groene, his mother Brenda Groene and her fiance Mark McKenzie at the Groene home before driving away with the two children.

Jury selection for the sentencing hearing on the federal charges was put on hold April 22 after Duncan asked U.S. District Judge Edward Lodge to allow him to represent himself because he believed his attorneys couldn't ethically represent "his ideology."

At the time, Lodge indicated that he believed Duncan was probably competent to make the decision, but said because capital punishment was at stake a mental evaluation would be prudent.

A local psychiatrist completed his evaluation of Duncan earlier this month, but Lodge apparently decided that a second evaluation was necessary. Most of the recent filings in the case have been kept under seal by Lodge, and the attorneys are under a gag order. Lodge did not indicate why he believed the additional mental evaluation was needed, or how long it was expected to take.

"The judge has opened up a can of worms, is what it looks like," said David Leroy, a Boise lawyer and former Idaho attorney general. "Under these circumstances with the heinous circumstances, the death penalty is involved - I wouldn't second-guess the judge. It was probably the right decision."

In order for Duncan to submit his federal guilty pleas and have them accepted by the court, he had to be competent at the time.

Both Leroy and Uphoff said that if Lodge rules Duncan is mentally incompetent to represent himself now, that doesn't mean he was mentally incompetent when he made the guilty plea.

"If it's just that he's been now locked up so long that he's become loony, that has nothing to do with his condition at an earlier time," Leroy said.

Uphoff agreed.

"I represented a number of clients who went in and out of competency," he said. "So competency is not a fixed state, and simply because you are found competent at one point doesn't mean that you cannot be found incompetent later on."

It is unclear when Lodge will make a ruling on Duncan's competency. Meanwhile, jury selection for the hearing has been delayed, and Lodge issued an order telling the more than 300 prospective jurors in the case that they're free to go on vacation but should check back for instructions on June 23.

"The court apologizes for what may be a lengthy delay in this case," Lodge wrote in the order. "Your patience is much appreciated."