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Competency to Waive Appeal

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AP reports:

The 9th U.S. Circuit Court of Appeals has thrown out the death penalty of Joseph Edward Duncan III, saying he should have been given a competency hearing before he was allowed to waive his appeal.

The appellate court handed down the ruling Monday, ordering U.S. District Court Judge Edward Lodge to hold a retrospective competency hearing for Duncan.

Duncan was sentenced to die in 2008 for kidnapping, torturing and murdering a 9-year-old Coeur d'Alene boy in 2005. Prosecutors said Duncan snatched Dylan Groene and his 8-year-old sister from their northern Idaho home after killing their older brother, mother and mother's fiance. Duncan kept the children at a remote Montana campsite for weeks before killing Dylan and returning with Dylan's sister to Coeur d'Alene, where he was arrested.

"Thrown out" is not correct.  USCA9 did not reverse the sentence.  They sent the case back for a new competency hearing.  Opinion is here.  The trial judge had already held extensive competency proceedings when Duncan wanted to represent himself, so the notion that this has to be done all over again when he wants to waive appeal is a bit odd.

Should the prosecution seek further review of this decision or just go ahead with the hearing so the trial judge can find Duncan competent again?

Update:  Rebecca Boone of AP has a corrected story here.

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I presume you saw the unanimous en banc decision in Harrington---even Reinhardt and Paez signed off on it--although the fact that it was per curiam gives them a little cover. I bet they choked on that one.

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