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The Ninth Circuit Hears an Appeal the Appellant Doesn’t Want to Bring, Then Reverses for a Competency Hearing

United States v. Duncan is a hard case that presents a hard issue of federal criminal appellate procedure — if the appellant doesn’t want to appeal, can the court hear the appeal? As it happens, in a very narrow set of cases, yes.

I won’t go into what happened to get Mr. Duncan indicted, except to say that if we’re going to have a death penalty, this is probably the kind of conduct that we’re going to want it to apply to (seriously, skip the statement of facts in the opinion — you’ll sleep better).

At trial, Mr. Duncan fired his lawyers and said he wanted to represent himself. He’s got a right to do that, if he can do it knowing what he’s doing. The district court asked two experts to work for the court to see if Mr. Duncan can represent himself. They were in conflict, and the district court decided that he was competent and let him represent himself.

In a death penalty case, the jury first decides guilt or innocence, then decides, in a separate phase of trial, whether the sentence should be death. In the penalty phase, sophisticated counsel investigates heavily and digs deep to present a compelling case of why this person’s life shouldn’t be ended.

Here, Mr. Duncan merely took the stand, made no statements, and after the government declined to ask him any questions, sat down.

When a person represents himself, the trial court will often appoint standby counsel. The court in Mr. Duncan’s case did that. After the jury sentenced Mr. Duncan to die, his standby counsel filed a notice of appeal.

Mr. Duncan wrote the court saying that he didn’t want to appeal. The district court struck the appeal.

The Ninth Circuit being what it is, decided that it would decide whether it had jurisdiction to hear the appeal.

The appeals court first had to decide if it could hear the appeal. Mr. Duncan clearly didn’t want it heard (the government didn’t either). The only people involved in the case who wanted the appeal to be heard were Mr. Duncan’s already fired standby lawyers.

The Ninth Circuit held that

“in the unusual circumstance in which the petitioner and his appointed attorney are actively contesting the petitioner’s competence as between themselves, the lawyer, as a participant for the petitioner in the proceedings, is entitled to appeal the court’s decision of mental competence, which would otherwise remain unreviewed in a death penalty case. Indeed, we recognized that in some cases a lawyer bears an ethical obligation, acting in the best interest of his client, to contest his client’s competency to dismiss his action.”

Death is different, and, when it comes to competency in a death case, the Ninth Circuit wants to hear the appeal.

The Ninth Circuit then reviewed the competency evidence and found that the district court should have held a hearing in order to evaluate whether Mr. Duncan was competent.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.