Wilton: Lawyer says convicted killer was incompetent
WILTON — After being found guilty of second-degree murder for the stabbing death of his common law wife, a Wilton man’s lawyer has asked the court to vacate the verdict on the grounds that he was not competent to stand trial.
Benjamin Duling 40, of Wilton was found guilty in January of the 2008 murder of Shelly McGrade, his common-law wife and mother of his two children.
Duling was scheduled to appear at a sentencing hearing in mid-April, but sentencing was delayed by the motion submitted by Duling’s attorney, Michael Hulser, asking that Duling be declared incompetent.
Duling was already examined for competency once, during a pre-trial competency hearing in 2011. Shortly following the murder, Duling was found incompetent by State Medical Examiner Dr. James Adams. In 2011, following a competency hearing, Judge Diane Nicolosi found him fit to stand trial, despite Duling’s claims of memory loss surrounding the murder.
In an interview Wednesday, Hulser said Duling’s inability to remember the time surrounding the murder, which has been diagnosed as traumatic dissociative amnesia, made it difficult to put forward a defense.
“With that memory loss, we lose very critical facts, and the ability to argue them,” Hulser said. “What was said, was there a witness and where were they standing? Without that critical stuff, we say the trial wasn’t fair.”
Hulser added that considering the line of questioning by Nicolosi during Monday’s hearing, he does not feel she will reverse her earlier ruling and have Duling declared incompetent.
“I think it would take a major earth shift for her to overturn her previous ruling,” he said. If Duling is declared competent, the court will move forward with the sentencing process. Hulser said that the next step will be an appeal process to the N.H. Supreme Court. Duling will be pursuing an appeal, if he is found competent, Hulser said.
According to court officials contacted Wednesday afternoon, Nicolosi was reviewing the case file in order to make a determination on Duling’s competency. As of Wednesday afternoon, a ruling had not been made. Neither a competency nor a sentencing hearing has been scheduled yet.