Duncan's defense team wants him found incompetent

The defense team for convicted child-killer Joseph Edward Duncan III wants him found incompetent, the attorneys revealed during a court hearing Thursday.

Duncan, who faces the death penalty on three of 10 federal charges stemming from the 2005 abduction of two northern Idaho siblings and the murder of one of them, asked U.S. District Judge Edward Lodge earlier this year to allow him to represent himself during the trial's penalty hearing. Lodge ordered Duncan to be evaluated for his competency, and indicated he would grant Duncan's request if he's found to be competent.

Since then, many of the court proceedings and documents filed in the case have been sealed, and everyone involved in the case has been placed under a gag order by the judge. But in an open status conference Thursday, Lodge said he'd received Duncan's psychological evaluations and would make them available to attorneys on both sides in the next few days.

Duncan, a convicted pedophile from Tacoma, Wash., pleaded guilty in December to the federal charges related to the kidnapping of Shasta Groene, then 8, and her brother Dylan, 9. The children were snatched from their Coeur d'Alene home in May 2005 after Duncan fatally bludgeoned the children's mother, Brenda Groene, their 13-year-old brother Slade, and the mother's fiance, Mark McKenzie.

Both children were sexually abused before Duncan shot and killed Dylan at a campsite in western Montana. Shasta was rescued on July 2, 2005, when a waitress spotted Duncan and the girl in a Coeur d'Alene restaurant.

It will be up to Duncan's penalty phase jurors to decide whether he gets the death penalty or life in prison without parole.

Duncan earlier pleaded guilty in state court to murdering McKenzie and Slade and Brenda Groene before driving away with the two children. Sentencing on those state counts is not at issue here.

Federal prosecutors contend Duncan is competent and should be allowed to represent himself during the sentencing hearing. Duncan's attorneys say he's not competent, and hope to continue representing him in the case.

So far, Duncan has been evaluated by at least two psychologists - Dr. Robert Engle in Boise and a woman referred to only as Dr. Row in court. As part of the evaluations, Duncan underwent brain scans and a neuropsychological evaluation, Deputy U.S. Attorney Wendy Olson said Thursday.

Defense lawyer Thomas Monaghan said he didn't want some of the statements Duncan made to guards or medical professionals to be used against him in this case or any future proceedings - including an upcoming death penalty trial in Riverside, Calif., where Duncan is accused in the 1997 slaying of 10-year-old Anthony Martinez.

Duncan should be protected under the 5th Amendment, which holds that someone can't be forced to incriminate himself, because he wasn't given adequate warning that his words would be used against him, Monaghan said. Engle only told Duncan that their exchange would not be confidential, Monaghan said, but didn't mention that it could be used in the death penalty proceeding.

"If Dr. Engle had been a police officer interrogating Mr. Duncan, no court would allow it," Moneghan said.

Olson countered that the warning was sufficient, and said Lodge did not have the authority to order a California court to disregard any information.

The defense team also wants permission to strike from the report any statements Duncan made that would qualify as attorney-client privilege. Lodge said he would decide such requests on an individual basis.

Prosecutors contend the defense team is withholding some test and experiment results done by the medical professionals, and asked Lodge to order the evidence to be turned over for examination.

Lodge said he would consider the requests and make his rulings in writing. He did not say when attorneys could expect a decision.

He also said he hadn't yet decided if he would hold a competency hearing - where the medical experts could be cross-examined - or would rule based on the medical reports.

If Duncan is found incompetent, the court will have to determine if he is so impaired that he cannot assist his attorneys in the sentencing case - effectively delaying the sentencing until he is found to be competent again - or if he is simply too impaired to represent himself but still functions well enough to be sentenced.

A U.S. Supreme Court ruling handed down last month could make the matter clearer. In a case out of Indiana, the high court found that mentally ill criminal defendants can be judged competent to stand trial, yet incapable as acting as their own lawyer.