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Tuesday, May 7, 2013

Convicted murderer’s lawyer argues incompetency in court Monday

NASHUA – Benjamin Duling’s amnesia around the stabbing death of his common law wife in 2008 was so prevalent that he was unable to properly defend himself resulting in an unfair trial, his lawyer argued Monday.

Mike Hulser was taking the unusual step of arguing competency after Duling was convicted of second-degree murder. Hulser told Hillsborough County Superior Court Judge Diane Nicolosi the results of the trial proved that Duling should have been ruled incompetent before the trial ever happened. ...

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NASHUA – Benjamin Duling’s amnesia around the stabbing death of his common law wife in 2008 was so prevalent that he was unable to properly defend himself resulting in an unfair trial, his lawyer argued Monday.

Mike Hulser was taking the unusual step of arguing competency after Duling was convicted of second-degree murder. Hulser told Hillsborough County Superior Court Judge Diane Nicolosi the results of the trial proved that Duling should have been ruled incompetent before the trial ever happened.

“I was never able to get any facts surrounding the altercation,” Hulser said, saying Duling’s amnesia “deeply hampered” his defense.

Duling, 40, was convicted earlier this year of stabbing Shelly McGrade in the couple’s Wilton home in 2008 while the couple’s two children were in the home. Duling’s older son, who was 5 at the time, testified during the January trial.

Duling’s public defenders raised competency issues before the trial, which delayed it several years, before Nicolosi ruled Duling’s amnesia was only partial and didn’t make him incompetent.

Duling later hired his own attorney, Hulser.

Not having a recollection of the events before, during and after the stabbing hamstrung Duling’s ability to effectively present other theories – beyond speculation – of what happened, Hulser said.

“That makes him incompetent. Not stupid. Not unable to comprehend. But incompetent in the truest sense of the word,” he said following Monday’s hearing. “He can’t tell me and I can’t defend him strongly.”

Senior Assistant Attorney General Jeff Strelzin said Monday the fact that Duling twice initiated plea bargaining talks and presented three different defenses proves that he remembered enough of the facts, and was able to infer others through evidence, to adequately defend himself.

“If he truly had the memory problems he says he does, he wouldn’t have been able to have those discussions with his attorneys.”

Strelzin said after the hearing the state believes Duling’s memory is intact and it was simply “not in his interest to admit he had a memory.”

Hulser said the plea agreements were meant to keep Duling’s options open in the hope that his memory would come back to him and he could plead guilty, to a reduced charge. As it stands, it would mean lying in court to admit to second-degree murder based on what Duling remembers, Hulser said.

The defenses offered at the trial, including
self-defense and provocation manslaughter, were attempts to defend himself but could not be backed up by Duling’s recollections or expert testimony because of the amnesia, Hulser said.

On Monday, Duling appeared in court wearing a green prison jumpsuit and white sneakers. He sat silent at the defense table with his head bowed and hands clasped in front of him, much as he did through most of his trial. The jury deliberated roughly seven hours before returning a guilty verdict, rejecting the defense argument that Duling had acted in self-defense or that he acted in extreme emotional duress when he stabbed her twice in the kitchen of their home after an argument.

Shelly McGrade, 36, worked as a data administrator in Lowell with Duling. Their two children, ages 5 and 2 at the time, were home when McGrade was killed. The boy, now 10, was called by the defense to testify at the trial. Duling’s case has been unusual and prolonged in several ways since he was arrested in 2008, mostly because of the competency issues his attorneys have raised.

Arguing incompetency is extremely unusual following a trial and this case was Strelzin’s first post-trial competency hearing.

“We litigate competency issues all the time, but it’s very unusual to have competency come up post-trial.”

Hulser said how the trial played out, with his arguments not backed by Duling’s recollections or expert testimony, showed that the trial was unfair.

“Now that we’ve gone to trial it has borne those predictions that we had made that he was incompetent,” he said. “We couldn’t fight hard enough.”

Duling faces up to life in prison when he is sentenced in Hillsborough County Superior Court.

McGrade’s family has been frustrated by how long the trial has taken, Strelzin said, and eager to give witness impact statements at a sentencing hearing.

“This case has taken an unusually long time because of the competency issue,” he said. “It’s been very hard on them, but they’re hopeful to finally get their day in court, and I mean a chance at the defendant’s sentencing to have their say.”