May 06. 2013 7:30PM

Wilton killer claims he was incompetent to stand trial

Union Leader Correspondent

NASHUA - A Wilton man convicted of stabbing his common-law wife to death five years ago asked the court on Monday to vacate the verdict and find he was incompetent to stand trial.

Benjamin Duling was found guilty of second-degree murder in January for stabbing Shelly McGrade, 36, to death in their Wilton home in April 2008. The couple had two children together. During the trial, Duling claimed he acted in self-defense after McGrade confronted him about having an affair with a co-worker.

On Monday, Duling sat quietly in Hillsborough County Superior Court in Nashua, looking down as attorney Michael Hulser argued that partial amnesia affecting the moments surrounding the stabbing "deeply hampered" Duling's ability to raise a defense.

"We couldn't fight hard enough. That's what this argument is about," Hulser said after the hearing.

Duling's inability to remember key details surrounding the incident made it impossible for Hulser to present some evidence to the jury or explain forensic evidence to experts and makes Duling incompetent, Hulser said.

A pre-trial competency hearing was a close case, Hulser said.

In that case, the court determined that while Duling's claims that he suffered amnesia for a portion of the murder were genuine, he was competent to stand trial.

Assistant Attorney General Jeff Strelzin pointed out that the conclusion in 2011 competency case was never contested. Instead, public defenders approached the state with a proposed plea bargain within a month of the competency hearing, Strelzin said. A lawyer hired by Duling to replace the public defenders also attempted to negotiate a plea deal, Strelzin said. The state rejected all proposals because they did not include enough prison time.

The attorneys had discussed the case with Duling and been authorized to make the plea offers, proving his ability to weigh the facts, offer a guilty plea and defend himself, Strelzin said.

Even with partial memory loss, Duling cold have filled in the gaps with discovery evidence made available to him, Strelzin said.

The burden was entirely on the state to prove the crime was committed and disprove Duling's claim of self-defense, Strelzin said.

"We bore our burden every step of the way and that never changed," Strelzin said.

Although not required to, Duling was able to present a case and had enough evidence to effectively argue three defenses - self-defense, provocation manslaughter and a mens rea (guilty mind) defense at trial, Strelzin said.

"The defendant had no burden at this trial yet he put on three very credible defenses," Strelzin said.

Cases all over the country have shown that memory loss is not determinant of incompetency, Strelzin said.

The issue of competency is not new to Strelzin, but this case is unique.

"We deal with competency issues all the time," Strelzin said after the hearing. "This is the first time I've dealt with this issue post trial."

The drawn-out proceedings have been difficult for the victim's family, and they're anxious to be heard at Duling's sentencing, Strelzin said. Sentencing was scheduled for mid-April but was postponed by the motion to be declared incompetent. Duling is facing a possible maximum sentence of life in prison.

Judge Diane Nicolosi said she will take the arguments under consideration and issue an order.