Archive for August 2008
It’s time for me to take a week off; I’ll return to work on Sept. 8th. I plan to do some windsurfing and mountain biking, spend time with family, clean my house and get some rest. I still hope to speak with jurors, perhaps after they’ve had some time to recover, to fill in the final puzzle piece of the very unusual court case that’s just concluded. I’ll continue to follow developments in the case after I return, but I’ll also be shifting gears and turning back to what now seem much more tame subjects: Idaho politics and the fall election campaigns.
There are many aspects of this case that continue to nag. Did Duncan commit other crimes that have not yet come to light? Are there clues in the evidence that was presented in court that would lead to those? What about all the evidence that was sealed, including the extensive evaluations that ruled Duncan mentally competent? James Cohen, Fordham University law professor, told me this morning, “I think we have missed an opportunity to get a glimpse into who this guy is or was, and that may have some lessons for the criminal justice system.”
As I drove my son and his friend to the fair last weekend, the Doors song “Riders on the Storm” came on the radio, and the line about the killer on the road seemed chillingly apropos. Perhaps the most haunting aspect of this case is that Duncan’s crimes lashed out against innocent children he didn’t even know, strangers just living their lives in peace until his murderous rampage, without warning, randomly struck them and their families. It could have been any of us.
Joseph Duncan’s 10th grade biology teacher in Tacoma, Wash. has been writing to him, providing him with a religious article and telling him that he feels “very sorry for not only his victims but him as well.” “I told him that a lady who I thought was working for one of his attorneys had contacted me a year ago and told me that he was going to be on trial for the crimes and the prosecution would be asking for the death penalty,” the teacher, who asked that his name not be published, said in an email. “I told her that I didn’t remember him well, but his face jumped right out the minute she showed me his picture. I told her that I remember him as being rather shy, very quiet but very polite.”
The teacher, who taught in public school then but now works for a Christian school organization, said, “Of course I feel more sorry for his victims and their families than Joseph, but I don’t think a young man like Joseph can turn into the kind of person he became without a lot of help along the way – someone sure failed him, that’s for sure.” Asked if he had any sense, back when the 15- or 16-year-old Duncan was in his class, that something already had gone wrong for him – within a year he’d be arrested for his first violent sex crime and sentenced to 20 years – the teacher said, “The one troubling thing that I can remember was that he didn’t seem to have a friend in the world. Other than that, no. I thought he was just very shy.”
S-R reporter Rich Roesler found few of Joseph Duncan’s relatives willing to comment yesterday as a federal jury in Idaho sentenced him to death, but a woman in Tacoma who was involved with Duncan’s father – the two share a son – and first met Duncan as a troubled teen said the jury made the right call. Here is Roesler’s report:
“One of my sons asked `what if it was me that had done that?’ and I said `Honey, if you had done that, I would be the one to push the trigger,” said Pat Rybiski, 61. “I don’t care how abused or mistreated, there’s no excuse for what that man’s done.”
“The Lord is the one that gets vengeance, the eye for the eye, not we people,” she said. “He guided the jury to that decision.”
Rybiski dated Duncan’s father for three years around 1980. Their son, now 27, is Duncan’s half-brother.
She said that an investigator for Duncan’s lawyers had repeatedly asked her to testify on his behalf during the sentencing. Rybiski refused. She monitored the trial from afar and was revolted by what she learned about the case.
“I was really kind of sick to my stomach thinking that the man had been in my house, close to all three of my children,” she said.
Duncan, then 17, was already in serious trouble when Rybiski met him for the first time. He was committed to a state mental hospital for an evaluation pending his trial for molesting a younger Pierce County boy at gunpoint.
“At the time, I thought `He’s a game-player, he tells you what you want to hear. And smart,’” she said.
Later, she said, Duncan visited the family, trying to get to know his half-brother. And as the two boys were talking in the living room, Rybiski said, Duncan said something that startled her.
“He said `People are going to tell you I am a very black soul, and you need to believe that,’” she said. “I remember that very clearly.”
She said she last spoke with Duncan shortly before he went to North Dakota.
Rybiski said she feels sorry for Duncan’s family. His brother Bruce died of a sudden heart problem two years ago. His mother lives in Tacoma, where she declined comment Wednesday. His father lived in Las Vegas recently, but has apparently moved.
“It would be hard for a mom and a dad to know that your kid was a demented…I don’t know the word. Psychopath,” she said.
Joseph Duncan still must appear again before Judge Lodge in Boise for sentencing on the other seven charges to which he’s pleaded guilty. Today, he was sentenced to death for each of the three capital crimes. For the other offenses, for kidnapping and molesting Dylan and Shasta, the judge set Duncan’s sentencing for Oct. 15 at 9:30 a.m.
S-R reporter Meghann Cuniff saw the emotional scene in the elevator lobby of the federal courthouse, where tearful jurors shook the hand of Steven Groene, father of the victim, while he thanked the jurors. “You made the right decision – don’t ever think you didn’t,” Groene told the jurors. “My family thanks you from the bottom of our hearts.” He told them he was sorry they had to watch the graphic video of his son’s abuse. “I sure hope the government is offering you guys some counseling,” the father said. “I refused it for a long time, and when I eventually did it, it helped a lot.” Most of the jurors were in tears, Cuniff reported, as they, one after another, shook Groene’s hand, telling him over and over again how sorry they were for what happened to his son.
U.S. Attorney Tom Moss, speaking outside the federal courthouse in Boise, said, “The jury speaks the mind of the community. I think by this verdict today they have given voice to the victims and the people who were injured by the circumstances in this case.”
Moss said prosecutors had to show the graphic abuse video to jurors to prove “that the crime that was committed was especially heinous, cruel and depraved. This was the best evidence we had of that,” adding, “that evidence was critical.”
Darlene Torres, Dylan and Shasta’s grandmother, was the first relative to come out of the courthouse. She said, “I am so glad this is over. Justice has been served. It’s been a long three years.” She said when she looked at Duncan in the courtroom, “I see nothing but an evil, empty cold-hearted shell, that’s all I see.”
She said nothing can be done to Duncan that will relieve her emptiness, “but at least I know he’s not out there hurting anyone else.” She added, “His judgment day is coming yet – he will pay for what he’s done,” referring to when Duncan faces his maker.
The jury has reached a verdict, after three hours of deliberation, and the court will go back in session at 2:15 Boise time to hear it.
The jury pool – 12 jurors and three alternates – dropped down from 15 to 14 yesterday, as one alternate juror, an elderly gentleman, was gone. Judge Edward Lodge said today that that alternate juror was “excused by the court for good cause.” He wasn’t there today, either. The court hasn’t commented on whether jurors will be offered counseling after what they’ve seen and heard in this case.
As they listened to closing arguments today, some jurors clearly were affected. One alternate nodded her head vigorously as Whelan made various points. Another female juror struggled to keep her composure, holding a tissue, sometimes covering her mouth, and wiping at her eyes at the end. Some looked angry at times. All looked somber.
During the prosecution’s closing statement, Assistant U.S. Attorney Traci Whelan illustrated some of her points by playing snippets of audio of Shasta Groene’s statements to police just after her rescue from Duncan in 2005. In one, Shasta, just outside the Denny’s restaurant where she was rescued, tearfully told a Coeur d’Alene police officer that her brother was dead, and described his murder. “You saw all that?” the officer said. Shasta, crying, said, “And then we burnt his body,” and she broke into sobs.
Whelan also played the clip in which Shasta talked about how Joseph Duncan called her 9-year-old brother a coward. “He wanted to show Jet that he wasn’t a coward, and he really wasn’t, he was very, very brave,” the little girl’s voice declared. Whelan echoed that. “He was a very, very brave boy,” Whelan told the court.
U.S. District Judge Edward Lodge has just finished reading a half-hour’s worth of instructions to the jurors; closing arguments are up next. “You are called upon to make a reasoned, moral judgment,” the judge told the jurors. “Use your experience, judgment and sense of justice.” As the instructions were read, Joseph Duncan looked down at the table, his chin resting on clasped hands, eyes closed.
With heartfelt testimony from the father of murdered Dylan Groene, prosecutors wrapped up their case Tuesday in the federal death penalty sentencing trial for admitted killer Joseph Duncan, and U.S. District Judge Edward Lodge set closing arguments for 9 a.m. today, Boise time, after which the case will go to the jury to decide whether Duncan should die for his crimes against the 9-year-old Coeur d’Alene boy. Asked what he learned from his youngest son, Steve Groene said it was a lesson he unfortunately didn’t learn until after Dylan died: “Every minute with your children – you can’t take any of that time for granted, because you can wake up the next day, they may not be there.” Here’s a link to my full story in today’s Spokesman-Review.
As prosecutors presented information about the three past child murders in court on Monday and Tuesday, there was no graphic evidence provided about torture or abuse, beyond the fatal blows to the head. No shocking photos or videos were shown to the jurors. But at that point, they weren’t necessary. A King County medical examiner’s mention that gray duct tape was found with the remains of the two girls in Washington, and Duncan’s statement to FBI agents that he “did my thing” with his young victim in southern California when he kept him alive for a day in the desert were more than enough information, for everyone in the courtroom, to make the picture clear.
The testimony has come to a close in Joseph Duncan’s federal death penalty sentencing trial without the sole surviving victim, now-11-year-old Shasta Groene, having to take the stand and see her attacker again. The prosecution and defense had reached an agreement regarding Shasta’s testimony in the first phase, in which it was admitted through videotaped and audiotaped statements that the child gave to authorities shortly after her rescue from Duncan in 2005. But there still remained the possibility that she could testify in the victim-impact phase; according to court documents, that was her right as a victim.
However, Judge Lodge stopped federal prosecutors from questioning Steve Groene about the memorial that he and Shasta left for Dylan at the scene of Dylan’s murder, testimony that was to include a photo of the site where Duncan burned Dylan’s body, transformed into a memorial with matchbox cars and other items in memory of Dylan. The prosecution also had at the ready photos of a memorial stone engraved with a poem, which has been placed at the campsite where Dylan died. But Lodge asked them not to present them.
The issue first surfaced when prosecutors were questioning Nancy Ison, Shasta’s teacher at Fernan Elementary, and they were about to go into how the little girl had changed after the crimes. The judge sent the jury from the courtroom and cautioned the attorneys, “We are getting into an area that I consider very dangerous. … Since S.G. was also a victim of this … crime, I don’t know whether you’re going to be able to lay a foundation. … I think it’s a very dangerous area, because D.G. obviously is the victim.” Testimony, he said, could get into “something other than the loss of D.G.”
The judge is being very careful, in this capital case, to avoid anything not strictly permitted for this type of hearing – to ensure that the ultimate outcome of the case can withstand legal challenge. It seems like the judge’s concerns about the teacher’s testimony would have applied equally to victim-impact testimony by the child herself – it could give the jury a picture of the trauma the crimes caused to Shasta, not just the trauma she experienced because of Dylan’s death. Later, after a break and before Steve Groene’s testimony, with the jury still out of the room, Assistant U.S. Attorney Traci Whelan made her case to the judge for presenting the memorial photos. “That’s the only memorial he has of his son, and that is up at the very place where his son was killed,” Whelan told the court. But the judge said the purpose of victim impact testimony is to show the uniqueness of each victim, especially to his family. With the photos, he said, “I think the primary purpose is emotional rather than reasoned. … I don’t want you to go into it.”
Among the odd, stray items raised in today’s evidence: Duncan’s girlfriend in Seattle apparently had a husband and two young daughters. In a monthly report from May of 1996 from Duncan’s parole officer, Sandy Silver, presented in court today, a note at the bottom says, “Please call Dee Ellis and her husband and arrange a meeting regarding ‘visitation’ with her and her family, 2 girls age 12 & 6.” At the side, the parole officer had noted, “12 and 6 females.”
Another oddity: Duncan seemed to be suggesting that he didn’t move into the home of roommate Joseph Ruan until mid-August, when a parole report first notes that he moved. That may explain his odd questioning of Ruan and Cindy Snyder in which he suggested the events they described, and the comments they recalled him making about the two missing girls in Seattle, might not have happened because he didn’t live in the home at the time. However, his parole officer, Sandy Silver, under questioning by Duncan, told him, “I don’t know when you moved,” and reminded Duncan that he had lied to her about other matters. “Mr. Duncan, I don’t think you were particularly accurate about marijuana use, swimming pool incidents” and other things that eventually resulted in his parole being revoked, she said.
Another: Duncan has been incarcerated since his July 2005 arrest, so it’s not surprising that he looks pale. He’s looked worse and worse the last couple of days, however, his hair shaggy and unkempt. Sometimes in court he’s appeared very cold the last few days, and has burrowed his ghostly-pale right hand and wrist into the left sleeve of his garish yellow-gold jail-issue sweatshirt, hugging his then-linked arms to himself as if he were in a straitjacket.
When various witnesses have been asked to identify Duncan in the courtroom by stating where he is and what he’s wearing, some have struggled to describe Duncan’s outfit of jail-issue sweatshirt and scrubs. Ruan came the closest today. Here’s his description: “He’s wearing a mustard top with long dishwater brown hair and a beard.”
Steve Groene resisted when Assistant U.S. Attorney Traci Whelan referred to his murdered son by initials as “D.G.” “I would like to state, I’m not comfortable diminishing my two boys’ names down to initials,” he told the court. The court proceedings have used only initials to refer to the minor victims, as part of a procedure designed to comply with a federal law regarding child victims. “Sir, I’m so sorry, you really can’t,” Assistant U.S. Attorney Traci Whelan told Groene.
The father recalled Dylan’s birth, back in 1995. “Dylan was born with that smirk on his face that everybody came to love,” Groene said. He noted that the video the jury had just seen of a school program in which Dylan and his classmates were singing and doing hand gestures ended with a view of a grinning Dylan. “I think when you stopped that video, he had that same smirk on his face. That’s what everybody came to love.”
Groene said Dylan was “very close in age to his sister, so he was kind of like her guardian angel.” The 9-year-old protected his little sister from her older siblings in sibling conflicts, he said. “I’d seen many a time where Dylan stepped in between Slade and Shasta when they were having their little problems, and stood up for his sister,” Groene told the court.
The little boy loved to ride on the back of his dad’s Harley, Groene said, especially loved to dress up in his dad’s old leather gear, including goggles and gloves. “He would run around like that before we took a ride,” the father recalled. “He was very soft-hearted …. Just a very soft-hearted, kind kid.” Groene said Dylan and Slade, his 13-year-old son who also was murdered by Joseph Duncan, “had a lot of life left in front of ‘em, and they should’ve been allowed to have that.” Asked what he learned from his youngest son, Groene said it was a lesson he unfortunately didn’t learn until after Dylan died. “Every minute with your children – you can’t take any of that time for granted, because you can wake up the next day, they may not be there.”
With heartfelt testimony from Steve Groene, father of the murdered child, the prosecution has wrapped up its victim-impact testimony. “At this point, the United States rests,” U.S. Attorney Tom Moss told the court. Judge Edward Lodge then asked Duncan to call his first witness, but Duncan responded, “I have no witnesses, your honor.” He declined to present any mitigation case. “Does the defense rest?” the judge asked Duncan. “Yes,” Duncan responded. The judge then dismissed the jury for today; they’ll be back in court tomorrow morning at 9 a.m. for closing arguments, and then the case will go to them to decide whether Duncan should die for his crimes against Dylan.
Nine-year-old Dylan Groene loved to play with Matchbox cars, teased his classmates by keeping a bottle of cheap cologne in his desk that he occasionally put on, and was “having a good year” in the third grade when he disappeared, his 3rd grade teacher at Fernan Elementary, Tim Marks, told the court. “His best subjects were math and P.E. – he loved P.E.,” the teacher said. “Reading was a more difficult subject for him … but he was progressing with his reading, he was improving.”
The victim-impact testimony has started in Joseph Duncan’s sentencing trial. Little Dylan’s aunt, Brandy Hoagland, her voice breaking, said, “He was really affectionate, he was just a little teddy bear. … It’s been pretty traumatic. It’s just a huge hole in our heart and an emptiness in our life.” Dylan’s maternal grandmother, Darlene Torres, told of how Dylan and Shasta were inseparable playmates. “They played together a lot, I mean, whenever you seen one, you usually seen the other,” she said, clutching a tissue. Jurors also heard from Dylan’s 3rd-grade teacher, and were watching a video of a class musical when there was a technical problem with the video clip and the court moved to a 15-minute recess. Duncan has been watching the testimony, but mostly looking down. Jurors watched the screen, some nodded as Dylan and his classmates sang, and some darted looks at Duncan then back at the screen. Jurors also took notes on clipboards as the relatives spoke of their loss.
Joseph Duncan’s former girlfriend in Seattle, Sadequa “Dee” Ellis, testified only briefly today. She said she met Duncan at work at Time-Life Libraries between 1995 and 1996. Asked the nature of their relationship, she said simply, “girlfriend.” Duncan sat gazing at her over clasped hands, but didn’t choose to ask her any questions on cross-examination. Ellis confirmed that she owned a 1987 Chrysler New Yorker at the time, and that Duncan at one point took it and left town with it. “That was my car,” she said, adding that she had the vehicle until about 2000.
Ellis never appeared to look at Duncan in the courtroom. Jurors sat looking back and forth from the defendant to the witness.
During former Duncan roommate Joe Ruan’s testimony, Ruan said he knew Ellis. “She was introduced to me as Duncan’s girlfriend,” he told the court. Ruan said, “I know Mr. Duncan as ‘Jet,’ it stood for Joseph Edward the Third.”
Ruan testified that on April 1, 1997, he received a call from Ellis. “She told me that her car was gone and Jet had taken off, and I said, ‘Is this some kind of April Fools joke?’” he recounted. A visit to Duncan’s room showed he had taken clothing, but left his computer and “knickknacks,” Ruan said. Then, he said, Duncan called him on April 6. That was two days after 10-year-old Anthony Martinez’s abduction and murder in southern California. “He asked me why Dee wasn’t answering the phone,” Ruan said. “I said, ‘Well, you took off with her car, she’s mad at you.’” Ruan said he asked Duncan where he was, anyway, and Duncan responded, “I’m in L.A. … I’m going to Disneyland.”
Cindy Snyder, a friend of Duncan’s former roommate Joe Ruan in Seattle, was called to testify. She said she often came by Ruan’s to visit, and she and Ruan were so concerned about the missing girls in their neighborhood that they handed out fliers and Ruan helped search the neighborhood extensively. “Two little girls, they seemed to vanish into thin air,” Snyder told the court. Fliers about the missing girls were “everywhere you went.”
She described visiting for a barbecue after Ruan had spent the day searching people’s sheds, ditches and under porches, and Ruan describing everywhere he’d looked to Duncan as he returned to the home. Snyder said Duncan stood with his back to Ruan, and didn’t seem to notice her there on the couch. “He took a few steps forward and stopped,” she said. “He was smirking while Mr. Ruan was describing everyplace that he’d looked. … He said, ‘Oh, well, I’m sure that was a complete waste of time.’”
Snyder said she responded, “What the hell is the matter with you?” And Duncan told her, “Oh, well, what I meant was I’m sure they’re halfway to California by now.”
Then it got stranger: Duncan, at his turn to cross-examine Snyder, asked her, “Is there something you could say to remind me of who you are … how I know you?” Snyder said, “I went over to visit dozens of times. … I’m the one that drove a big yellow tow truck, kinda hard to miss.” Duncan then said, “So if I didn’t live there those things couldn’t have happened.” To that, Snyder responded, “But you did live there and it did happen.”
Joseph Duncan’s former girlfriend, roommate and parole officer from Seattle testified this morning, leading to some odd exchanges. Joseph Ruan, an auto mechanic and former tow truck driver who rented his back bedroom out to Duncan in 1996, recalled Duncan making disparaging comments about the two missing girls in Seattle, Carmen Cubias and Sammiejo White, as reports about them came on TV. Imitating Duncan’s voice, Ruan recounted Duncan’s comments, including, “They’re dressed like gang-bangers” and theorizing that the children were off with some guy. “What are you worried about them for?” Ruan quoted Duncan as saying. Hearing the impression of himself, Duncan smiled and smothered a laugh, leaning over the defense table. When it was his turn to cross-examine Ruan, Duncan said, “How ya doin’, Joe?” Then he quizzed Ruan about saying that Duncan moved into his back bedroom on April 1, 1996. “You said the comments I made were made while we were watching TV, while I was living with you. … so if I wasn’t living with you, I couldn’t have made those comments, correct?” Ruan agreed.
Court started 35 minutes late this morning, and the defendant, who’s usually the first one in court, wasn’t there. The only explanation was that it was “security related.” Numerous deputy marshals are required to move Duncan; it’s possible some could have been delayed by closed streets this morning after last night’s southeast Boise fire, but no explanation has been offered. When Duncan finally was brought in, he was walking quickly and looking somewhat flustered, his long hair wild about his face.
Former Bothell, Wash. police detective Dennis Nizzi told the court this morning that he was troubled by finding the skeletal remains of Carmen Cubias, 9, and Sammiejo White, 11, in Bothell when the girls had disappeared from Seattle, and he never was able to draw a connection between the two locations before he retired from the force in 1999. The area where the bones were found was “a very wet, weeping, soggy area” where an old, abandoned house had been demolished but an old barn still stood. Construction equipment turned up the bones. Nizzi testified that he was given a bag of bones to take to the medical examiner’s office to see if they were human or animal, and was surprised and shocked to discover they were human and were the bones of two young people. The site was immediately cordoned off and searched, and the rest of the girls’ remains, plus some clothing, were found.
Joseph Duncan, who’s been sitting in court with his chin on his clasped hands, sometimes closing his eyes but sometimes watching as photos of the Bothell site were displayed on a monitor in front of him, asked one question on cross-examination: “Was Joseph Edward Duncan ever a suspect … prior to July of 2005?” he asked the detective. Nizzi responded, “I’ve learned that the name Joseph Edward Duncan was on the bottom of a list of sex offenders that we obtained … but we didn’t get that far down the list.” Nizzi said Duncan never was the target of any investigation while he was on the force.
Among the pieces of evidence introduced in court on Monday were an immigration document showing Joseph Duncan visited Mexico two days after 10-year-old Anthony Martinez’s murder in southern California; photos of duct tape found near Anthony’s body that bore Duncan’s fingerprint; and a leather-bound journal Duncan left at his Fargo, N.D. apartment in which he made references to the murder and penned a poem entitled “An Ode to the Killer.” Later, in a letter written to a woman from jail in 2006, Duncan said he wrote the poem the day after Anthony was murdered.
In a journal entry in the leather-bound journal dated three days after Anthony’s abduction, Duncan wrote, “I want to be dead. Now that I have fulfilled my greatest fantasy, I have no reason left to live, except to flesh it out … I have no feelings for my victim, and I never will, but I do have feelings … I love life even more after my fight – with a true monster, after being a first hand witness to what others are inraged (sic) by merely imagining.” In another entry, he wrote, “I just realized! The pain is gone! The PAIN IS GONE! Now there is only FEAR!!!! I like the fear better.”
The sentencing trial will continue today with more evidence of the earlier crimes, followed by evidence about the impact Dylan’s murder had on Shasta and other members of his family. Here’s a link to my full story in today’s Spokesman-Review on Monday’s developments.
As morning dawns over the fire site, the news comes that a body was discovered in one of the destroyed homes. Boise Fire Chief Dennis Doan confirmed the sad news to KTVB-TV about 2:30 this morning. In the end at least nine homes were destroyed, even more were damaged, and both firefighters and police officers were treated for smoke inhalation and minor injuries. Dozens of families fled their homes as the flames raged through a southeast Boise neighborhood late yesterday.
Ralph Nader has qualified for the Idaho presidential ballot, after his supporters turned in nearly 7,000 certified signatures on Monday to the Idaho secretary of state. Four years ago, running as a write-in, Nader got less than 1 percent of the Idaho vote. Click below for the full story from AP reporter John Miller.
At least half a dozen Boise homes are burning tonight, under a bloody-red sunset that followed a super-strong windstorm late this afternoon. The burning homes are in the Sweetwater area in southeast Boise; some residents there said they heard a bang, then a field went up, then fire raced up the rim and houses started burning like they were full of gas.
They’re visible from all over town; these shots, one of the fires and the other of the sunset the opposite direction, were taken from the North Boise foothills. Though the area is accustomed to grass fires burning on the dry hills at the edge of town and sometimes destroying an outlying home, it’s rare for a fire to rip through a neighborhood in the city like this. Thus far, no injuries have been reported, but burning houses are visible fully engulfed and collapsing. Some areas have been evacuated.
The fingerprint expert followed much more dramatic testimony from three previous witnesses. Ernesto Medina, Anthony’s father, told of the day his son was abducted. “A terrible thing happened that day,” he told the court. He heard children screaming from outside his apartment, “A man’s got Tony!” The father ran outside and saw his youngest son limping toward his apartment, one shoe off and one shoe on, saying the same thing. He ran inside and called 911, grabbed his keys and began to drive around the neighborhood, searching for his son. He heard his 6-year-old son’s statement to police; the boy’s 10-year-old brother had tried to keep the kidnapper from grabbing his younger brother. “He said Tony had either stepped in the way or got in the way somehow, and he said the man grabbed Tony,” Medina told the court. A detective and a forensic expert testified next about the scene where the child’s body was discovered in the desert.
FBI Special Agent Mike Sotka testified in court today that Joseph Duncan, in a conversation with authorities at the Kootenai County Jail on July 19, 2005, told him he killed Carmen Cubias and Sammiejo White as his “first revenge.” “He told me that these two girls were his first revenge, and that it occurred in 1996,” Sotka told the court, “his revenge for going to jail the first time. … I think his actual quote was ‘sheer unadulterated revenge.’ ” Sotka said Duncan told him of taking the girls to a wooded area, and taking a crowbar out of his car. When 9-year-old Carmen asked what it was for, he told her he liked to hit trees with it, and he then hit several trees with the crowbar. Then he hit 11-year-old Sammiejo in the head, and Carmen saw what was happening. “When he went to hit her, he said all he remembered was her yelling ‘no,’” Sotka told the court.
Sotka said Duncan told him his abduction and murder of Anthony Martinez a year later was “revenge against society again for sending him back to jail for a probation violation.” Duncan complained that by going back to jail for a month, “he lost a good job.” Sotka said Duncan told him he had learned a lesson from his crime against the two girls. “He didn’t want to hear them talk. That girl’s voice saying ‘no’ affected him.” So when he kidnapped Martinez, Duncan taped over his mouth with duct tape, Sotka said, and kept the tape in place while he kept the child alive for a day in the desert before hitting him in the head with a rock and leaving him. The child was still breathing when Duncan abandoned him, wounded and naked in the desert, Sotka told the court.
Mark Medina was just six years old when Joseph Duncan, a tall, thin Caucasian man in a white car, pulled up into the alley behind a neighbor’s house where he was playing with his 10-year-old brother, Anthony Martinez, and three other friends. Medina is now 17, and a U.S. Army soldier who’s just completed basic training; he appeared in court in his full dark-green dress uniform. Asked if he remembers something that happened on a particular day when he was just 6, Medina told the court, “I recall because it’s something I could never forget.”
Medina said he, his brother Anthony and three friends were playing in the back yard, which was chain-link fenced, when Duncan’s car pulled into the alley. “He approached the fence and called us forward,” Medina told the court. “We came and he showed us a picture of a cat. … He offered us each a dollar if we helped him look for his cat.” The boy who lived at the house then went back inside with his little sister, but the other three boys agreed to hunt for the cat. After hunting a while in the alley, the kids went back to Duncan, who was standing in front of his car, and told him they couldn’t find the cat. “He gave us each a dollar,” Medina told the court. “The next thing I remember is seeing a knife being drawn. … The next thing I remember is he had my brother … the knife to his head. … He was being taken away and put in the car. That was the last time I ever saw him.”
U.S. District Judge Edward Lodge has ruled that evidence of previous, unadjudicated child murders can be presented to show Joseph Duncan’s future dangerousness. It doesn’t just show he’s a danger to children, the judge said. “The evidence … in this case is highly relevant in that it corroborates the government’s argument that it shows a pattern of violence throughout Mr. Duncan’s adult life,” Lodge said. Duncan’s “choice of weapons” has included anything at hand with which he could administer “blunt force,” the judge said, and that could occur in a prison setting. He noted that Duncan said he was on a rampage against society. “Mr. Duncan’s own words show that he calculates and plans for his opportunities to get even,” the judge said.
Duncan objected, saying one of the judge’s statements was “inaccurate.” “I’ve never said that I am on a vendetta,” Duncan declared. “I was, but I’m no longer – I just wanted that clarified.” Judge Lodge said, “Objection is noted,” and the jury was brought back in.
Today marks the start of the second phase of Joseph Duncan’s death penalty sentencing trial, the “selection” phase. It’s so called because while the jury decided in the first phase whether he qualified for the death penalty (they said yes), in this phase they decide which sentence to “select” for him. They have only two choices: Death, or life in prison without the possibility of release. In this phase, prosecutors will present evidence about additional, non-statutory aggravating factors, on top of the statutory aggravating factors they proved in the first phase. According to their notice of intent to seek the death penalty, those include victim impact and future dangerousness of the defendant. This is also when the defendant can offer mitigating factors if he chooses to. The second phase is expected to take less time than the first, and could even just be a matter of a couple of days. This is the phase in which Shasta could testify if she chooses to; she has that right as a victim, and is not being compelled to testify. If she does, it’ll be in a closed courtroom; a transcript of her testimony would be provided afterward.
Once this all ends, Duncan still faces other possible death penalty proceedings elsewhere, including Riverside County, Calif., which has charged him with the murder of 10-year-old Anthony Martinez in 1997. Here’s a link to Meghann Cuniff’s Sunday piece in The Spokesman-Review about the other trials Duncan could face next.
Steve Groene, father of the victim, sat stoically in the courtroom, as he has through much of the case, as the verdicts were read finding Joseph Duncan eligible for the death penalty for the murder of 9-year-old Dylan. Groene, his black sunglasses tucked into the front of his light-blue denim workshirt, sat with narrowed eyes, blinking frequently. Afterward, outside the courtroom, Groene told U.S. Attorney Tom Moss, “I feel much better now.” His comment, in the monotone of his electronic larynx, came as Moss patted him on the shoulder.
Joseph Duncan is eligible for the death penalty, a jury of eight men and four women found just now after just under two hours of deliberation.
Now, the case will move into its second phase, in which prosecutors will offer evidence of victim impact and future dangerousness, and Duncan will have an opportunity to offer any mitigating evidence for jurors to balance against the heinousness of the crime, as they consider whether his sentence should be death or life in prison without the possibility of release.
Duncan said he wasn’t telling the jury about the effect little Shasta had on him – prompting him to change his mind about killing her – because he thought he’d been redeemed. “This is not for my own salvation, but it’s for the hope of yours and all of us together,” he said as he completed his closing statement.
At that, federal prosecutor Wendy Olson offered her rebuttal. The jury should find him eligible for the death penalty, she said. “Nothing that Mr. Duncan has said or argued to you changes the fact that the evidence has proven each of these eligibility factors beyond a reasonable doubt.”
Joseph Duncan began his closing argument by addressing the jury directly, saying, “You people really don’t have any clue yet on the true heinousness of what I’ve done. … I’ll try to fill you in on some of the details.” When he went on the run from a pending child-molesting charge in April of 2005, Duncan said, “I was not searching for a child but rather I was on a rampage. … My intention was to kidnap and rape and kill until I was killed, preferring death … over capture.”
He said he was prepared to elude capture, and to evade everything from dogs to neighborhood watch groups to Amber alerts. “I approached all these things as obstacles,” he said. Duncan said he planned for any number of different types of crimes. “Basically I was on a rampage. … Yes, revenge was certainly putting it lightly.”
“I should actually thank the government for helping me get my eye for an eye, by showing you the evidence that you have seen, by showing you the videos,” Joseph Duncan told the jury, “… helping me to take away your heart and your innocence. … The evidence they presented, that’s what it has done, that’s what it has done, that’s what they have accomplished, and I should thank them, but I won’t,” he said. “Despite the heinousness of all my crimes, and the sickness, the insanity, the evidence shows clearly that completely contrary to all my life experience, something happened, and that’s the reason I’m here. Not because I was caught, not because the system worked, but because an 8-year-old little girl refused to judge me, and allowed me to see the truth.”
In his closing statement, Joseph Duncan told the jury, “Everyone tends to lie to children. It’s not something that should be considered to weigh upon my own honesty. … I have been honest, I have been forthright.”
Assistant U.S. Attorney Wendy Olson is a little over an hour into her closing argument for the first phase of Joseph Duncan’s death penalty sentencing trial, and is weaving a narrative that ties together the various, disparate pieces of evidence presented to the jury during eight days of testimony and arguments. Photos flashed on the screen as she spoke, and by this point, they’re familiar to the jurors – the remote campsite, the abandoned cabin, the two children. The crime’s only survivor, then-8-year-old Shasta Groene, gave detailed statements to investigators that were corroborated by physical evidence in the case, Olson told the jury. “S.G. did not exaggerate – she was amazingly and heroically accurate.”
At various points in her arguments thus far, Olson has held up items of evidence submitted in the case, including the murder weapon, a sawed-off shotgun; an array of maps of various states and remote areas found in Duncan’s stolen red Jeep, a “Fat Max” hammer of the type that Duncan used to kill three members of the Groene family and to threaten little Shasta and her 9-year-old brother, Dylan. “We know from the outset that his plan was to kidnap, sexually exploit and kill a child,” Olson told the court. “D.G. knew and was terrified of what the defendant planned to do.”
Here’s a link to my full story at spokesmanreview.com on Thursday’s developments in the Joseph Duncan sentencing trial, and here’s my sidebar on what happens next in the case. It was a difficult and distressing day in court, but one that, on balance, makes sense in the context of this horrific crime, for which the government is seeking the death penalty. In our system, the death penalty is not handed down lightly. We’re seeing what happens when it’s in play; the stakes are as high as they get in any court proceeding. Here’s a link to my radio interview with Rebecca Mack, conducted 15 minutes after I left the courtroom after the showing of the graphic videos that Duncan made at an abandoned mountain cabin.
“The purpose of this eligibility phase is to determine whether the defendant is eligible for the death sentence, not whether a death sentence is imposed,” Judge Edward Lodge cautioned the jurors. The jurors must agree unanimously, beyond a reasonable doubt, on three items in order to find Joseph Duncan eligible for the death penalty:
1 – That the defendant was at least 18 years old at the time of the crime (he was 42);
2 – The existence of at least one threshold intent factor, showing that he committed the crimes intentionally; and
3 – The existence of at least one statutory aggravating factor. Multiple aggravating factors have been cited in the case, including vulnerability of the victim and committing the crimes in an especially heinous, cruel or depraved manner.
Those three items must be determined for each of the three capital counts to which Duncan has pleaded guilty – kidnapping resulting in death; sexual exploitation resulting in death; and using a firearm in relation to a crime of violence resulting in death.
Closing arguments will be given in the morning, and at some point after that, the jury will begin deliberating. If they find Duncan eligible for the death penalty, the second phase of the sentencing trial will begin, in which jurors will decide whether to impose the death penalty. In that phase, prosecutors will present evidence on victim impact and future dangerousness of the defendant, and the defense can, but doesn’t have to, offer mitigating evidence to weigh against the heinousness of the crime.
Federal prosecutors just rested their case for the first phase of the death penalty sentencing trial, and the judge asked the defendant, Joseph Duncan, if he’d like to call his first witness. “I intend to testify, but I do not have a witness,” Duncan responded. The judge said. “We’ll take a short recess then, and proceed with the defense case.”
Before the jury came back in the room for the showing of the graphic videos, Joseph Duncan told the court he wanted to express strong objections to its showing. “I would just like to state for the record … that I strongly object,” he said. “Basically this video will be turning the jurors into my victims, so I will be tried not by a jury of peers, but of victims.” Judge Edward Lodge responded, “Objection noted, denied.”
A beam from an old cabin in the Lolo National Forest, with a wire loop hanging from the beam, was wheeled into the courtroom this morning and displayed to jurors, along with another large case containing pieces of floorboard from the cabin. The floorboards, from right under the wire loop, were stained with semen, DNA testing showed. “The wire comes down straight and then has a curve to it,” testified FBI Special Agent Steve Liss. “That suggested to me someone may have hung in that wire.” He added that the weight on the wire was “significant enough to cause an indentation in the log.” At that, Joseph Duncan, who mostly has sat with his eyes closed and chin resting on clasped hands as if praying, looked straight across at the jurors, scratched at the side of his beard, and raised his eyebrows slightly, then looked back down at the table.
Jurors have been looking wary, looking back and forth between the witness and prosecutors as they questioned them, some pausing to take notes on clipboards, some cupping hands in front of their mouths.
Judge Edward Lodge announced that next up will be the showing of the graphic video. “In order to protect the impartiality of the jury, you are instructed to control your emotion.” If not, the judge said, “Please leave the courtroom.”
Two weeks ago, Idaho Sen. Larry Craig said he wouldn’t be attending this year’s national Republican Convention in Minneapolis-St. Paul, which is set for Sept. 1-4, prompting lots of chortling in the blogosphere about how the senator won’t be “returning to the scene of the crime,” referring to his 2007 arrest in a sex sting at a Minneapolis-St. Paul Airport men’s restroom. Today, however, media advisories went out about logistical arrangements for the upcoming oral arguments in Craig’s appeal of a lower court’s refusal to allow him to withdraw his guilty plea to a reduced charge of disorderly conduct stemming from that arrest. The date and place for the appeal arguments in Larry Edwin Craig vs. State of Minnesota? Sept. 10 in St. Paul. So Craig may well be returning there – but it’d be six days after the GOP convention closes.
Idaho Gov. Butch Otter today released a review of Idaho State Tax Commission practices, prompted by a whistleblower’s allegations that the commission was signing illegal secret deals to excuse large, multistate corporations from paying millions in Idaho taxes. Otter’s review, conducted by accountant P. LaVern Gentry, concluded that the commission wasn’t acting illegally, but that its standards for when such settlements are appropriate is “ambiguous and undefined, contributing to a perception that it was acting arbitrarily and without justification,” the governor’s office said a news release. Otter directed the Tax Commission to clarify its process for handling disputes over out-of-state corporate tax collections, and to provide information to legislators to allow them to evaluate the process.
“These next steps reflect the shared commitment of the Legislature and my administration to building trust in our tax system and the public servants who administer it,” Otter said. “That requires ensuring taxes are apportioned and collected justly and consistently for everyone. Mr. Gentry is a highly respected accounting professional who found – as the Attorney General did before him – that the Tax Commission is not violating the law or rules. Both deserve our thanks, as do the commissioners whose skill, experience and judgment on complex tax cases provides an essential bridge between bureaucracy and common sense. However, I also welcome and want to assist the Legislature in asserting its oversight authority. It’s my hope that providing this additional information will help legislators determine whether the Commission’s practices are consistent not only with the letter but with the spirit of the law.” Here’s a link to the Gentry report; click below to read an opinion piece from Senate Tax Chairman Brent Hill, R-Rexburg, about the whole thing titled “False Alarm.”
A Department of Defense expert on identifying skeletal remains just testified that the bone and tooth fragments recovered after 9-year-old Dylan’s body was burned were just tiny, whitened fragments. The 1,752 bone and tooth fragments weighed only a total of 423.6 grams, Dr. William Rodriguez testified.
Joseph Duncan has formally and vehemently objected to his first piece of prosecution evidence – and it’s the most grisly evidence presented in the case so far, a fair-sized piece of his victim’s skull, with 9-year-old Dylan’s lush, strawberry blond hair. “Objection overruled,” U.S. District Judge Edward Lodge responded, and the evidence was admitted. Jurors had just seen a photo of the piece of the child’s remains, described by FBI Special Agent Mike Sotka as a skullcap. It appeared to be at least three or four inches in diameter; Sotka testified that he found it in heavy foliage about 15 feet from where Duncan’s Jeep was parked at the campsite when he shot Dylan point-blank in the head with a 12-gauge shotgun. FBI agents cleared the brush and photographed the item where it was found. When U.S. Attorney Tom Moss moved on from the photo to the physical exhibit itself, a few jurors looked apprehensive, but they all watched quietly. Sotka held it up encased in plastic, now in two pieces, with the hair separated from the skull fragment in a separate package.
Moss read a stipulation in which prosecutors and Duncan agreed that the FBI lab tested the evidence and it was identified as Dylan’s through DNA; Duncan agreed to that, and declined to cross-examine Sotka at the end of his testimony. Duncan sat looking down as the jury was shown the remains; Dylan’s father, Steve, was in the audience.
An FBI firearms expert who extensively tested the murder weapon testified this morning that Joseph Duncan’s Browning 12-gauge shotgun could not fire accidentally, such as from being dropped, and that multiple tests showed that 5 pounds of pressure was required on the trigger to get the gun to fire. That suggests that Duncan’s first shot, which hit 9-year-old Dylan Groene in the stomach, was no accident, though that was what he led the boy’s sister to believe.
As a child’s voice told of horrors suffered by herself and her 9-year-old brother, jurors listened intently, some clasping their hands over their mouths, other leaning forward or occasionally jotting a note on a clipboard. The victims’ father, Steve Groene, sat in the audience, where he clutched a tissue and left at the end of the day with reddened eyes. Duncan himself sat looking down, sometimes writing a note on a legal pad, but often closing his eyes.
Then-8-year-old Shasta told of a killer who plotted carefully, but then kept changing his mind. He selected the campsite because it was heavily treed, she said. “He was trying to find a camp with a lot of trees so no one would hear us scream or anything.” At one point, Duncan threw a large knife off into the woods, after telling the children that he wouldn’t hurt them any more, and that the knife was one he had bought “to scare children,” Shasta said. She said he did the same with an ax. “He said he was going to kill me and Dylan with the ax … but he was too afraid to, so he threw it in the woods.” Shasta said Duncan swung the ax near her head before that. “I thought that he was going to kill me,” she told officers. “But I knew that he couldn’t do it, because he tried to do it like 50 times before. … He tried to kill us with a whole bunch of other weapons.” After throwing away the ax, Duncan then bought another ax on one of his trips to town so he could chop fire wood, the child said.
At one point, Duncan, who had told Shasta that he himself was a coward, taunted Dylan for being afraid of the dark, Shasta recounted. “He also told Dylan that Dylan was a coward, which Dylan wasn’t – Dylan was a very brave boy,” she said. Shasta told the officers, “Every time that Jet said he was going to kill me or Dylan, Dylan would start crying and screaming, but I would only cry.”
When Duncan took Dylan from the campsite where he was holding the children captive to a nearby old cabin, Shasta said, “There was a hammer in the cabin, that he was going to hit Dylan in the head with it, but instead he wanted to choke Dylan and kill him that way … He told me that.”
When Capt. Dan Mattos asked Shasta why Duncan wanted to kill her, she said, “So he wouldn’t get caught – but I knew that he would get caught anyways.”
The sleepy child, speaking with difficulty, told Capt. Dan Mattos about Duncan’s molesting of her and her brother, and said he also forced them to do things he videotaped. She said she saw the movie of Duncan torturing Dylan at an old cabin near their remote campsite. “If you guys probably got hold of it, you guys would probably be crying really hard – it was just a terrible movie,” the youngster told the police officer.
While the videotaped interview played in the courtroom, jurors watched intently, some cupping their hands over their mouths. Duncan looked down, and for much of it, closed his eyes and rested his chin on his clasped hands, appearing to be praying.
It seems like Joseph Duncan is trying to suggest that there’s an alternative explanation for the 36 “way points” he marked on his GPS as he traveled around on a multistate trip, during which he purchased items, considered victims, and then committed his crimes. Prosecutors say many of the points are homes that show obvious signs that children live there, and some are day care centers, school bus stops, etc. Yesterday, Duncan asked how far a home with a swingset and play equipment was from the waypoint he marked on the nearby highway; it was a quarter-mile away. Today, he questioned FBI Special Agent Mike Gneckow about why Gneckow didn’t ask Duncan what the way points were all about. “During your investigation of those way points, did you ever make any effort to contact the defendant, myself, to find out what they were about?” Duncan demanded of Gneckow. (Gneckow explained he couldn’t do that.)
The way points were created by simply pressing a button on the GPS at that location, according to earlier expert testimony. Journal entries Duncan left on his laptop computer during his trip back up the government’s theory, detailing how he traveled around searching for “flowers,” a word he apparently used to refer to potential child victims (“Saw pretty flower, tried to pick it, but it got away.” “Drove to Missoula looking for flowers.”) If there’s another explanation for the way points, it seems like Duncan, who is representing himself, could simply say it, while he’s cross-examining a witness like Gneckow, and ask Gneckow whether he agreed. He hasn’t.
Bryan Olson, a forest service worker from South Dakota, testified this morning that he encountered Duncan near the campsite the admitted murderer had set up near Stryker, Mont. in May of 2005, while Olson was spraying for weeds at a nearby gravel pit. “He was walking across the gravel pit from the west side with an armload of bamboo poles under his arm,” Olson told the court; the poles were used at a nearby Forest Service tree nursery. Duncan approached Olson. “We had backpack spray units … (and) a spray truck,” Olson said. “He approached us probably two or three feet away. … He looked a little bit scruffy, like he’d been out camping for quite a bit of time. I woulda guessed he was in his 40s. … He asked us what we were doing in the area, and why we were working on a Saturday.” Olson said, “It was actually Monday, and we were treating noxious weeds in the area.” Duncan accepted the answer and left.
Joseph Duncan was all set to commit his crimes in northwestern Montana, with different children as his victims, before he changed his mind, drove to Idaho and targeted the Groene family. The convicted child-rapist went so far as to set up a remote campsite in Flathead National Forest near Stryker, Mont., with children’s toys and a tall tripod for a video camera, according to evidence presented in court Monday in Duncan’s death penalty sentencing trial. He cased numerous homes with small children about 100 miles to the south, even contacting children at one isolated home.
That story emerged as 13 witnesses testified Monday in Duncan’s sentencing trial, which is speeding along as Duncan, who is representing himself, continues to raise no objection to evidence against him and to ask only an occasional, odd question of the witnesses on cross-examination. FBI Special Agent Steve Liss, of Kalispell, Mont., said he spoke with the occupants of one home near Arlee, Mont., that had been marked as a “way point” on Duncan’s Global Positioning System. They said one or more of their children “had contact in May 2005 with an individual in a red Jeep Grand Cherokee,” Liss said under questioning by Assistant U.S. Attorney Wendy Olson. That’s the stolen vehicle Duncan drove to North Idaho.
Barbara Hampton, of Lovell, Wyo., whose home also was marked on Duncan’s GPS, testified that at that time, her 7-year-old granddaughter and 3-year-old grandson were spending their days at her home, where playground equipment filled the front yard and toys were scattered about. The picture that’s emerging is one of a hate-filled, anguished predator who prowled the region for just the right child victims, with elaborate plans for their torture and murder, and then, after fits and starts, carried out all but the final step in his plan in a blood-soaked crime spree. You can read my full story here in today’s Spokesman-Review; testimony resumes this morning at 9 Mountain time.
Jurors are being taken on a photographic tour of the “way points” Joseph Duncan marked on his GPS in 2005, including a hillside 25 to 30 miles north of Casper, Wyo., where Duncan left an odd inscription on a rock: “Deep in my dunjun (sic), I welcome you here 366231.”
FBI Special Agent Mike Gneckow, who is back on the stand, said that number written on the rock is the Washington Department of Correction inmate number for Duncan when he was incarcerated for more than a decade in that state.
Joseph Duncan submitted a letter to the court first thing this morning asking that he be able to “establish a standing ‘non-objection’ with the court on all evidence submitted, and on all witnesses dismissed.” He also wanted the court to assume that he’s agreed with all stipulations, unless he states otherwise. “I am making this request in accordance to my option of remaining silent during these proceedings,” Duncan wrote.
Judge Edward Lodge told him, “I have your letter, Mr. Duncan, but you are going to have to go ahead and state ‘no objection’ and ‘so stipulated.’ Even though you feel you know exactly what the government” will present, the judge said, something unexpected could come in. “You do have to agree on the record, ‘no objection’ or ‘so stipulated.’”
So Duncan has said those phrases when it was his turn to do so, and he’s stipulated, or formally agreed in writing, to quite a bit – including acknowledging that he stole the gun used in the crime from a turkey shack in Missouri, modified it and that it’s the same sawed-off shotgun found in his vehicle after his arrest. Duncan’s not raised objections to anything thus far today, nor has he asked any questions of any of the seven witnesses called so far. He’s stayed awake, however, and appeared to perk up and listen alertly when John Vavrus, former chief software architect and chief engineer for Magellan, detailed how he “used some commands that are not generally known to extract a memory footprint” from Duncan’s GPS unit. Duncan, of course, is a computer aficionado.
He’s dressed in his usual outfit of garish gold sweatshirt and yellow jail-issue scrubs, his long hair flowing wildly about his shoulders. When witnesses who knew him as a clean-cut college student in Fargo were asked to identify him by where he was in the courtroom today and what he has on, they struggled to describe the bearded defendant’s apparel – a “yellow jumpsuit” and “yellow top” were their best approximations.
Enterprise rental car employee Jonathan Hager told the court today that when Joseph Duncan came to his counter in Minneapolis in 2005 to rent a Jeep Cherokee, he didn’t have a reservation and said he wanted the vehicle to take up north to do some scuba diving in the Duluth area, “which at the time I felt was a little odd.” It was April in Minnesota. “The lakes are frozen over still that time of year,” Hager said.
Dr. Richard Wacksman, the third witness called today, said he first met Joseph Duncan at a coffee shop in San Francisco in 1997, and then kept in touch with him weekly by phone or email. When Duncan moved to Fargo to attend college, Wacksman, a physician who lived in Fargo then, helped get him a car and helped him out financially with tuition and getting an apartment. Wacksman, 55, told the court, “There’s probably a half a dozen people that I’ve helped try to either get in college or finish their high school diploma or G.E.D.” After Wacksman moved away from Fargo in 2002, he stayed in touch with Duncan, who sometimes visited him.
Wacksman said he loaned Duncan $6,500 in March of 2005 for a lawyer after Duncan was charged with child molesting in Minnesota. Duncan cashed the check and disappeared, he said, angering Wacksman. He didn’t hear from him again until he got a call from Duncan on July 1, 2005, a day before Duncan’s arrest in Coeur d’Alene, when Duncan said, “There’s something I haven’t told you.” Wacksman said he yelled at the younger man for absconding on the Minnesota charge, and Duncan then said, “I need to go, I’m running out of time,” and the conversation ended.
Here’s an odd detail: Among the items admitted into evidence in court on Friday was a note card, found in the center console of Joseph Duncan’s stolen red Jeep, with several phone numbers and names written on it in Duncan’s handwriting. They included numbers for “Mom,” “my cell,” “Joe,” and – here’s the odd one – “Mr. Groene,” with, written above that, “Steve.” Duncan claimed he was returning his lone surviving victim, then-8-year-old Shasta Groene, to her father when he was arrested with her at a Coeur d’Alene Denny’s restaurant in 2005, seven weeks after he had kidnapped her. Had Duncan actually been in touch with Steve Groene, Shasta’s father? Possibly enough times to begin calling him by his first name? There’s been no answer to that question thus far; the father, who lost his voice to throat cancer and can speak only in the metallic monotone of an electronic voice-box, has sat wordlessly in court each day, watching the story unfold, and testified only briefly when he was called as the second witness in the sentencing trial on Thursday.
After nearly thirty years in the news business (yes, I really did
start writing for my hometown newspaper at the age of just 16), I like
to think of myself as calm and fairly tough in the face of news of all
types. I covered a rather gruesome murder trial during my first
full-time job out of college at a small daily newspaper, and never
flinched. But I was young and brash, that case didn’t involve young
children, and I wasn’t yet a mother of two.
On Friday night, after three days of intense immersion in the blood-drenched reality of the Joseph Duncan case, I came home from the courthouse only to find blood smeared all over my bathroom floor. I couldn’t help it; I screamed. It turned out the cat had killed a mouse in there; my husband kindly cleaned up the mess while I freaked. Then, last night, I awoke at 2:30 a.m. to a strange noise on the back patio, followed by the sound of our back patio door softly sliding open, then back shut. I froze. Lying petrified in bed, my first, half-asleep, panicked thought was that someone had come for our kids.
Of course, that wasn’t the case. My teenage daughter, who was leaving for college in the morning, was still up, and had gone out back to spray-paint a shelf she’s taking for her dorm room. The strange noise was her shaking the spray-paint can.
But it is impossible not to be shaken by the horrific details of the Duncan case. It reaches the core of something every parent holds deep inside: The desire to protect and raise our children to live their own, happy lives. As a parent, I know that when I first looked into the beautiful face of my newborn child, everything changed. Life’s priorities rearranged, and this amazing, miraculous little person who had come into the world took an indelible place in my heart. That feeling only strengthened when my son was born three years later.
Today, my oldest left home, driving off with her dad for the big trip to college. After the hugs, photos and goodbyes, I stood waving, and the cat (now forgiven) rubbed affectionately against my leg. My daughter’s indelible mark is still there in my heart; I know it always will be.
Sitting in court last week, another reporter who’s pregnant described the strange sensation of feeling her baby kick while hearing about the horrific end of another child’s life. This case gets to everyone. And it’s not just parents – the crimes involved in this case violate something central we all feel as human beings, that must be wired into our very nature to enable us to survive as a human race: The sense that innocent children are not to be harmed. That’s part of the reason why it’s so important to cover this case, even when the tale is a terrible one. The proceedings we’re seeing now in court are how we as a society deal with cases like this; it’s how justice is done in our system. Readers are free to look away; some may not want to read about such things. But I’m not. If we in the press don’t report what happens, no one will know if justice has been done, and that’s something for which we all have a deep and basic need.
Today’s proceedings in Joseph Duncan’s sentencing trial included testimony from seven witnesses, starting with ISP Detective Sgt. Fred Swanson, who also testified yesterday. Swanson introduced numerous exhibits of items that were taken from Duncan’s vehicle after his arrest, including the murder weapon, a Browning 12-gauge sawed-off shotgun. He was followed by two computer forensic experts, Stacy Evans and Loren Mercer, who testified about digital evidence that was introduced, including photos and videos, three of which were played for the jury, their content mostly consisting of relatively innocent scenes of the children and their abductor at a Montana campsite.
Many in the courtroom were on edge when Evans identified three videos of Duncan and 9-year-old Dylan retrieved from a microdrive, despite having been erased. Assistant U.S. Attorney Wendy Olson asked Evans if the videos included “three in particular, involving the young boy?” He answered, “Yes … They were all contiguous, one right after the other.” That’s how the prosecution’s opening statements described three video clips of “sadistic child sexual abuse” of Dylan by Duncan that will be shown as evidence in the sentencing trial. So far, the prosecutors haven’t given any indication as to when – among the 90 witnesses it’ll be calling over several weeks – that video will be shown. People in the courtroom braced themselves; the jurors looked on edge. But then the questioning moved on to other matters; the gruesome video wasn’t shown yet.
The uncertainty has added to the stress for the numerous reporters covering the case, including myself. Several said today that after hearing how Duncan decided he’d “abort” his crimes if the Groene family’s back door was locked – but it wasn’t – they went home and locked their back doors. Repeated requests for a witness list, which customarily is available in court proceedings, have gone unanswered so far. The stress has to be immeasurably worse for the jurors, as they try to take it all in and make sense of the huge array of evidence, while holding their tongues – they can’t talk about the case to anyone, not even each other, until their deliberations start.
Also today, four district loss prevention managers from Kmart, Best Buy, Walmart and Walgreens stores where Duncan bought items used in the crimes were called to testify, and to identify both purchase receipts and the items, which were recovered from Duncan’s red Jeep (a stolen rental car). The testimony and receipts showed that Duncan planned far in advance for his crimes, purchasing many of the items a month or more in advance. You can read my full story here in The Spokesman-Review, and read Duncan’s chilling, heartfelt letter to his mother here; it was introduced as evidence today.
Videotapes of Shasta and Dylan Groene clowning around at a Montana campsite with their abductor were played for the jury this afternoon, including one in which Duncan slices up a big watermelon and he and the children eat slices. After Duncan walks over to the back of the red Jeep with a large knife, the two children join him. “Dylan, you’re kinda making me laugh,” Shasta says to her 9-year-old brother. “You were like, ‘No, please, don’t,’ and now you’re all smiling and stuff.” A shirtless Dylan then eats four slices of watermelon. At one point during the video, the little girl makes a reference to Duncan’s sexual abuse.
In a second video, Duncan focuses the camera on a burning log in the campfire that appears to have markings on it, and says, “We’ll record our wishes being burned. My wishes for forgiveness. Your wishes for – what?” “Going home!” Dylan calls out. After some banter from both kids, Shasta says, “I want a purse and makeup and I want to go home and I want one thousand million dollars.”
Duncan responds, “Lots of luck, people. At least my wish was something I might get.”
As the videos were shown, jurors watched, some turning occasionally to look at Duncan, but he averted his eyes from them and the large screen they were watching. A smaller computer monitor played the video at the defense table. Duncan looked down, and sometimes glared darkly over at the audience, which included the children’s father, Steve Groene, as well as numerous reporters. Duncan isn’t seen hurting the children in these videos, and at one point, mock-shouts at the camera, claiming the children have kidnapped him.
Joseph Duncan, his long hair pulled back into a knot at the nape of his neck, disputed nothing in court so far today, and agreed in a stipulation with prosecutors that blood found both on the 12-gauge shotgun and on duct tape removed from the gun was Dylan’s, as verified by DNA tests conducted by the FBI’s lab. The admitted killer sat with his eyes closed for much of this morning’s proceedings, and at one point sounded to be snoring when it was his turn to once again say, ‘No objection’ to another piece of the prosecution’s proposed evidence.
The gun that Joseph Duncan used to shoot 9-year-old Dylan Groene to death was admitted into evidence in court this morning - with blood found on the gun and on duct tape removed from the gun both testing positive for Dylan’s blood - as were numerous other items retrieved from the red Jeep that Duncan was driving when he was arrested. Among them was a letter, found folded up in a pocket of a coat, that Duncan wrote to his mother. “I have once again become a medium of violence in the world, and once again wish I wasn’t alive,” he wrote, describing a “huge reservoir of hatred – evil – that drives me to hurt people, even those I love.” The two-page letter, which Duncan acknowledged was in his handwriting, said in part, “I am driven by my hatred for our society – the system – but at the same time tortured by my own compassion. … God has shown me the face of evil … evil is real only because we make it real. … Evil can live in a person and in a society as well. … I have been inflicted by an evil ‘demon’ that is nurtured by our so-called criminal justice system… I am still fighting my demons and asking God to guide me as he can.”
The items seized from Joseph Duncan’s red 2005 Jeep Grand Cherokee Laredo are being introduced into evidence now, one by one, including Duncan’s green “Tommy Jeans” jacket with bloodstains that when tested showed Dylan’s DNA; a laptop computer (with a sticker on it proclaiming “I’m on a mission from God”); a GPS unit; and much more. Yesterday, in his opening statement, U.S. Attorney Tom Moss said the jacket has blood from both Dylan and Shasta on it. It was found on the passenger seat of the Jeep.
Detective Fred Swanson has been called back to the stand to identify the various items of evidence, following the day’s seventh witness, Officer Shane Avriett, who told of Shasta’s rescue in the middle of the night at a Coeur d’Alene Denny’s and his conversation with the little girl right afterwards, in his patrol car, while other officers handcuffed and arrested Duncan.
Court is now adjourned until tomorrow morning at 9.
The frightened, tearful voice of an 8-year-old girl filled a Boise courtroom today, as audio of little Shasta Groene’s conversation with a Coeur d’Alene Police officer just after she was rescued from Joseph Duncan was played for jurors.
“Where’s your brother at?” Officer Shane Avriett asked the dirt-covered, thinly dressed little girl. “In heaven,” she responded, breaking into tears. When the officer asked again if she knew where here little brother was, Shasta said, “There may be some evidence down in the Lolo Forest, because that’s where we were.”
The officer told the little girl, “We’ve got a lot of people looking for you, you know,” and she responded, “I know.”
The conversation, taped on Avriett’s police cruiser dash-cam while the two sat inside, took place in the parking lot of a Denny’s restaurant in Coeur d’Alene where Duncan was caught with the child on July 2, 2005.
“How’d you end up here tonight? Were you hungry?” the officer asked the little girl. “He was going to take me home,” she responded. “What made him change his mind?” Avriett asked.
“He was going to change his mind because he said that I taught him how to love,” the little girl responded, her voice breaking into a sob.
Later on the tape, Avriett asks Shasta, “What’s his name?” “Jet Duncan,” she responds.
Joseph Duncan just asked his first question on cross-examination, but it was an odd one. The jury had just viewed surveillance video from a Conoco station and convenience store in Kellogg, Idaho where Duncan and Shasta stopped about five hours before she was spotted with him at the Denny’s restaurant in Coeur d’Alene. In the video, a police car cruises past on the street while Duncan is filling up. Duncan asked FBI Special Agent Mike Gneckow, who was on the stand, to look back at the final frame of the video, but the courtroom player had trouble stopping at the final frame. “I saw it even now,” Duncan said. “In that last frame, there’s another police car that comes around the corner – do you have any knowledge of that?” Duncan asked Gneckow. Gneckow looked confused; no second police car was readily visible on the screen. “I just wondered if you were aware of that,” Duncan said to Gneckow. “I was not aware of that, no,” Gneckow responded.
Former Kootenai County Sheriff’s Deputy Dale Moyer, the first officer on the bloody scene after the three murders at the Groene family home, went around the yard after finding the bodies, looking for the two missing children and calling their names to no avail. The case got to him, he said. He’d been with the department for more than 10 years, but after dealing with this crime, he quit. “This case had brought me to a point in my career where I just hung it up, I’d seen enough,” Moyer told the court. “I went into the civilian world for four months, kind of got my head together.” He eventually returned to law enforcement, and now is a Spokane County sheriff’s deputy. “I realized my true job is law enforcement … to protect the innocent and the weak, that’s my job,” he said.
Idaho State Police Detective Sgt. Fred Swanson, the third witness today, told of processing evidence at the crime scene at the Groene family home, and identified zip ties and duct tape, some with blood on them, that were on the three bodies. He held them up for jurors to see, encased in long plastic bags.
The second witness was Steve Groene, the children’s father. Speaking through an electronic larynx, Groene identified photographs of Dylan and Shasta, and their handwriting in four letters that were submitted into evidence, three of which were addressed to him. Groene told the court he never received the letters. They were recovered from Duncan’s vehicle when he was arrested.
The letters, scrawled in children’s handwriting, included one that began in large letters, “DEAR SHASTA, I started to cry (illegible) when I saw other people. So God told Jet to let me go home to Dad. I will tell Dad that you are OK.” Dylan wrote that letter to Shasta sometime before Duncan murdered him. Duncan went by a nickname, Jet, short for his full name of Joseph Edward Duncan III.
The second letter began, “Dear Dad, I miss you very much.” The third began, “Dear Dad, this is Dylan. We are still alive. We are OK. We know what happened to Mom.” The third began, “Dear Dad, I have some very good news and it is we are coming home soon!”
Federal prosecutors will call 90 witnesses over the coming weeks to show why Joseph Duncan should die for his 2005 crimes. Those witnesses, however, won’t include Duncan’s only surviving victim, 11-year-old Shasta Groene. Instead, Duncan and prosecutors filed an agreement with the court late Wednesday waiving Duncan’s right to cross-examine the girl and allowing two videotaped and four audiotaped interviews she gave to law enforcement officers after her rescue to serve as her testimony. For two of those interviews, Shasta, who was 8 when Duncan kidnapped and molested her after killing three members of her family, returned with police to the Montana campsite where Duncan held her and her brother Dylan for weeks and shot Dylan to death in front of her. You can read my full story here at spokesmanreview.com. Click here for the full transcript of Wednesday’s court proceedings, and here for Duncan’s opening statement.
Thursday opens with the calling of the first of the witnesses in the case, who prosecutors said in court on Wednesday will include the Kootenai County sheriff’s deputy who first discovered the carnage at the Groene family home in May of 2005.
A stipulation just filed on the court docket between Joseph Duncan and federal prosecutors clears Shasta Groene from having to testify against Duncan, and Duncan waives his right to have her testify or to cross-examine her. Instead, he’s agreeing to allow introduction, without objection, of numerous video and audio taped interviews of Shasta by law enforcement officers, in which she detailed her accounts of his crimes. You can read the full court document here.
Among the revelations in the prosecution’s opening statement: Duncan told the two children he’d kidnapped all about the terrible things he’d done, including how he’d killed their older brother, mother and mother’s fiancé. Court documents earlier revealed that Duncan told Shasta that he’d killed other children, too. And Moss said after Duncan made a videotape of himself sadistically sexually abusing Dylan at an old cabin near the campsite where he held the two children captive, the first thing he did after he returned to the campsite was show the videos to Shasta. “She was able to describe them to the police before they had been pulled off the computer,” Moss said. A female juror gasped audibly after hearing that. Moss said when police interviewed Duncan, “He explained why he told the kids bad things about himself. He says, ‘You have to understand, Shasta,’ excused me, S.G. ‘was dead. She was a dead girl and I knew it. … I told these children because that’s how convinced I was that … they were history.’”
Admitted killer Joseph Duncan just gave a very short opening statement – just a minute or two – in which he said, “I debated whether or not to do an opening statement, simply because I don’t want to get into an argument with the government about what happened.” But, he said, the horrific tale of his crimes detailed by U.S. Attorney Tom Moss was “fair and accurate – up to the point of what occurred at the campground, which is really the only part that I haven’t been interviewed by the police about.” Duncan said, “I will testify, and I will try to answer any questions about what happened at the campground in order to clarify things.” But he denied nothing, and offered no defense, no reason why the jurors shouldn’t deem him eligible for the death penalty.
Prosecutors said they’ll be calling 90 witnesses to present their case, which includes details about how Duncan planned out every step of his crimes, weighed the consequences, and decided to commit them.
Jurors frowned, pursed their lips, some reddened visibly and one gasped audibly as U.S. Attorney Tom Moss detailed the horrific tale of Joseph Duncan’s crimes, intricately planned out in every detail in advance, culminating in the sexual torture and murder of a 9-year-old boy and an attempt to burn beyond recognition every piece of his body. An FBI agent, crawling through bushes near the Montana campsite where the murder occurred, later found a piece of the child’s head – thrown there apparently when Duncan shot him point-blank with a sawed-off shotgun. It was the only piece of Dylan Groene’s remains large enough, and not charred away, to be successfully tested for DNA. “He’s a little boy whose last days on earth were filled with experiences that no child should ever have to endure,” Moss told the jury. “He deserves the justice that only you can provide.”
Judge Edward Lodge then asked Duncan if he planned to give an opening statement. “Can I think about it during the recess?” Duncan responded. Lodge then called a 15-minute recess, and jurors filed out of the courtroom in stunned silence.
It’s still an open question as to whether Joseph Duncan will deliver an opening statement in his sentencing trial today, but so far, Duncan has been taking an active role in his own defense. When the two sides exercised peremptory challenges to winnow down the pool of 61 prospective jurors, the judge advised Duncan that since the jurors weren’t in the room, he could have his standby lawyers sit at the table with him if he wanted, for convenience. Duncan declined, and handled all the peremptory challenges himself, confidently and quickly reading off the names of the jurors he chose to challenge. Former leader attorney Judy Clarke went over papers with him before the start of the proceedings, but he never conferred with her as he went through the process.
Among the jurors Duncan challenged was one who had written in his jury questionnaire that he though Duncan should be hung from a tree. Among those struck by prosecutors was one who said she didn’t think anyone had a right to put anyone else to death, and another who wrote in his questionnaire that the type of books he likes to read in his spare time was “porn.”
Duncan, once again, is dressed in garish jail-issue scrubs topped by a bright-gold sweatshirt with a stretched-out neck and “Ada County Jail” emblazoned on the back. His hair is long, loose and messy. As the judge read lengthy instructions to the jurors, he sat with his chin on his hand, sometimes closing his eyes.
The process of exercising peremptory challenges and getting the jury down to 12 jurors plus three alternates went more quickly than Judge Lodge anticipated this morning, but he announced that he’d like to wait until 1:30 for the opening statements to start. He excused the jury until then, debated a few legal issues with the attorneys, and then recessed the court.
The 9th Circuit U.S. Court of Appeals has rejected an appeal from The Spokesman-Review of a federal judge’s decision to close the courtroom for key testimony in Joseph Duncan’s federal sentencing trial. A three-judge panel of the court wrote that it could not reverse U.S. District Judge Edward Lodge’s order unless the district court “clearly erred” in ordering the courtroom closure, and they ruled, “It did not.” The ruling did not elaborate. Lodge had ordered the courtroom closed for any testimony by Shasta Groene, the 11-year-old surviving victim of Duncan’s crimes.
Lodge had held that the 1st Amendment interests of the public were outweighed by the “compelling interests in protecting the minor victim from further harm and embarrassment.” James Cohen, a law professor at Fordham University, said he was surprised the appeals court applied the strict “clear error” standard of review to a 1st Amendment case. “It sounds as if the 9th Circuit is giving the 1st Amendment short shrift,” he said.
Shasta may not have to testify after all. Tuesday, on the eve of opening statements in Joseph Duncan’s death penalty sentencing trial in federal court, lawyers on both sides hinted in court that a deal is in the works. No details are available yet, but a federal prosecutor and a member of Duncan’s standby defense team both referred in court to an agreement reached with Duncan about Shasta’s testimony. The comments came as the lawyers and U.S. District Judge Edward Lodge discussed various issues still to be resolved, including arguments over the admissibility of statements made to a police officer.
“We have been discussing with Mr. Duncan a stipulation, which would negate the need for that motion, and the parties have signed that,” Assistant U.S. Attorney Traci Whelan told Lodge. Her comment came after Duncan’s standby attorney, Judy Clarke, told the judge a defense motion seeking to block admission of the statements “may be mooted out by stipulation regarding S.G.’s testimony,” and then referred again to “the stipulation that Mr. Duncan and the government have entered regarding S.G.’s testimony.” The little girl, who was 8 years old at the time of Duncan’s crimes and is now 11, has been identified in court so far only by her initials.
In December, Duncan’s attorneys and federal prosecutors reached a deal to spare Shasta from testifying and instead use a videotaped statement she gave to law enforcement officers after her rescue from Duncan in 2005, but the deal subsequently fell apart. Court documents unsealed last week showed that the child doesn’t want to testify or see Duncan. “I don’t want to be in the same room as him,” she was quoted as saying. “I hate him and don’t want to see his face. He killed my family and he shouldn’t be here.” You can read my full story here at spokesmanreview.com.
In the final round of individual questioning of jurors today, one additional juror was approved from the five called in. In addition, two jurors previously approved back in April were brought back in, queried, and OK’d to serve. As of yesterday, when 18 jurors were approved, the total number approved had hit 62 – but four of those previously approved jurors from April have since been excused. That brings the cumulative number down to 58 before today’s actions, and up to 61 now. So tomorrow morning, 61 prospective jurors will be called into the courtroom at 9:30 a.m., and both sides will exercise peremptory challenges to get the group down to the 12 jurors and three alternates who will decide whether Joseph Duncan will die for his crimes, or get life in prison without the possibility of release.
Here’s how high the stakes are in the jury selection that’s now under way in the Joseph Duncan case: If just one juror objects in any of three different votes, Duncan would be spared the death penalty. That’s what happened in the case of Zacarias Moussaoui, the so-called “20th hijacker” from the Sept. 11, 2001 terrorist attacks. He’s serving a life sentence without possibility of release at the federal Supermax prison in Colorado, after a single juror opposed the death penalty on the final vote in his federal terrorism trial.
Federal juries have reached the life-or-death decision point in 182 cases since 1988, according to the Federal Death Penalty Resource Counsel Project. Those juries chose life twice as often as death – 121 life sentences, compared to 61 death sentences. Just three executions have taken place since 1988 under the federal death penalty.
“The idea is if there’s any doubt about imposition of the death penalty, the procedures should be designed to prevent its imposition,” said Richard Seamon, associate dean and professor of law at the University of Idaho. “Because of these stacked-up unanimity requirements, it really does just take one person to block the death sentence.” Because of that, Seamon said, the jury selection process is “critical, it’s absolutely critical.” You can read my full story here at spokesmanreview.com.
Joseph Duncan has asked his first question of a juror, after he objected to approving a juror this afternoon who’d said she feared she’d “play it over in my mind forever” after having to watch graphic video of child abuse as part of the evidence in the case. Prosecutors didn’t object to the juror, after she said she thought she could still be fair after viewing the video. “I don’t feel the court should ignore her concern about not being able to get the images out of her mind,” Duncan told the court. “Most of the jurors have not expressed that. I think the ones that do, it needs to be taken into consideration.”
U.S. District Judge Edward Lodge immediately ordered the juror brought back into the courtroom, and then asked Duncan if he had some questions for her. “I’d hoped to avoid asking any questions because I didn’t want to put you on the spot,” Duncan told the woman. “Have you had problems in the past with things like that, not being able to get things out of your mind?” She answered “No,” but said she didn’t want those images in her mind. “So that’s just a feeling that’s coming from inexperience, rather than experience?” Duncan asked, and the woman said yes. At that point, Lodge asked her if seeing the images – described as “sadistic child sexual abuse” being perpetrated by Duncan on the 9-year-old boy he later murdered – would impair her ability to be “fair and impartial in this case,” and the juror said it wouldn’t. After the juror was again led out of the courtroom, Duncan said, “I’ll still object,” but added that he understood his objection likely would be overruled. It was.
Jury selection is back on this morning in the Joseph Duncan capital sentencing trial, and so far, four more jurors have been approved, bringing the total approved in the case so far to 44. Two have been excused, one because he said he’d already decided anyone who committed crimes like Duncan’s should get the death penalty, and the other because he’s a full-time student at BSU about to start classes later this month. Another four prospective jurors were excused by stipulation of all sides, based on how they answered their 47-page jury questionnaire, which includes questions about everything from their bumper stickers to their views on the death penalty. There are still 19 more prospective jurors awaiting questioning today.
At 2:40 p.m. Boise time (as opposed to the time stamps on this blog, which are in Pacific time and so show one hour earlier), jury selection wrapped up for today. Since the lunch break, four more jurors have been approved, and five have been excused. That brings the total number approved so far up to 40.
Among those excused were one the judge dismissed on his own motion, even though neither party objected to her as a juror. That juror had wavered back and forth during questioning as to whether or not her mind was already made up in the case. “In general, I don’t believe in the death penalty, but he did such horrific, violent things to these children that I don’t think he deserves to live,” the young woman said. She also had told the court that, as a stay-at-home mom with no day care, she’d have to have her four-year-old daughter go to work with her dad or grandma if she served as a juror. But she said she’d serve as a juror if she had to.
After the prospective juror was led out of the room, U.S. District Judge Edward Lodge said, “I have reservations about this particular juror. … One of my responsibilities, of course, is to make sure the decision is based on reason rather than emotion.” On her questionnaire, the juror had indicated she didn’t feel she could keep an open mind, the judge noted. “I just feel there’s an underlying bias there that does not make this person a suitable juror. On the court’s own motion, I’m going to discharge the juror.” Defendant Joseph Duncan asked no questions of any of the prospective jurors today, but sat alone at the defense table, his standby attorneys lined up along the courtroom’s side wall behind him, where they sat silently, sometimes going through papers.
Of the other four prospective jurors excused this afternoon, two indicated they’d already decided Duncan should be executed, and the other two had schedule conflicts, including starting college fulltime later this month and hosting a family wedding in two weeks. Among the jurors “passed for cause,” or approved today to serve on the jury if they’re not tossed off by peremptory challenges later, were one who wrote in his questionnaire that the type of books he reads in his spare time is “porn,” and one whose husband is serving time in prison for aggravated assault.
After six prospective jurors in a row were excused this morning, three finally were approved for the Joseph Duncan case. Another nine jurors remain to be questioned this afternoon. Of those excused today, two said they’d already decided Duncan should die, and two said they couldn’t impose a death penalty on anyone. Juror questioning resumes at 1 p.m.
Fordham University law professor James Cohen says Joseph Duncan isn’t helping his chances in court – where he faces a possible death penalty – by his courtroom tactics today, in which he took over juror questioning from his standby attorneys, then refused to ask any questions. “The defendant is saying, ‘I’m not going to ask any questions,’ sort of, ‘do with me what you will,’” Cohen said. “That, in the context of this case, is very unlikely to result in a good outcome, if you define as a good outcome keeping this guy alive.” Cohen added, “It’s very odd, it continues to get sort of odder by the moment. Duncan seems hell-bent on making himself the poster child for the death penalty in terms of this phase. He’s already done that by his conduct and by his guilty plea.”
The final prospective juror who was questioned today requested to be excused from the Joseph Duncan case, because he has non-refundable tickets to Hawaii for a vacation planned 10 months in advance for Aug. 13-27. Both sides and the judge agreed, and Judge Lodge drew laughter from all the attorneys when he told the juror, “Sir, I wish I was going with you.”
Interestingly, despite concerns that have been raised about how news coverage of the case could affect the jury pool, most prospective jurors have said they’ve seen little coverage and none that would affect their ability to serve as impartial jurors. Yesterday, when 24 jurors who’d been approved back in April were questioned, not a single one said they’d seen or heard news coverage that would change anything for them. Today, most of the prospective jurors had heard in cursory fashion that Duncan would represent himself, but all said they’d heard little else and had avoided news reports about the case. Said one, “I’ve been very guarded at anything I’ve been exposed to. I’ve either gotten it turned off, or I turn my back and do ‘la-la-la’ until it’s done.”
Eight jurors survived questioning this morning and were cleared to sit on the case, while two were excused for cause. Duncan never asked any prospective jurors any questions or objected to any of them, but the judge stepped in and asked additional questions of most of the jurors after federal prosecutors finished their questioning. The two prospective jurors who were excused included one who said he wouldn’t be able to consider any mitigating evidence after viewing a graphic videotape of Duncan abusing a young victim, and one who said he could be fair but wrote in his jury questionnaire, “He should die,” “He deserves nothing” and “In my mind, he dies.” The judge extensively questioned that juror about those answers, prompting the man to acknowledge, “Maybe I don’t have an open mind.”
Duncan sat alone at the defense table, looking bored and mostly looking down. Once, he looked at the clock. His standby attorneys, no longer participating, sat tight-lipped along the side wall of the courtroom behind him. Among the approved jurors was one who wrote in his questionnaire, “I don’t believe in the death penalty, I don’t believe that one person can take the life of another.” He assured the court, however, that he would follow instructions and consider all options. Said Judge Lodge, “I felt that even though he did express some serious reservations, he has assured both sides that he could keep an open mind and ultimately decide the case based on the evidence and the instructions given by the court.” Both sides still will have an opportunity later to exercise peremptory challenges, dismissing some of the prospective jurors without specific cause. Jury selection resumes this afternoon.
Just as jury selection was about to begin in the Joseph Duncan case this morning, Duncan delivered a hand-written note to the judge asking to do the defense questioning of jurors himself, rather than have his standby attorneys handle that. U.S. District Judge Edward Lodge denied the request, saying it was a last-minute request he’d not had any chance to review, and adding, “I think your standby counsel is very capable.”
The judge told the admitted killer, who’s in court in a garish gold jail-issue sweatshirt with a stretched-out neck over faded jail scrubs, that he would be given an opportunity to ask any questions of prospective jurors he wanted, in addition to his lawyers’ questions. “If this just doesn’t work out after a few jurors, we may have to reconsider,” the judge said.
Two prospective jurors then went through questioning. The two, both women, were approved after extensive questioning from both sides – though one had suffered abuse by her stepfather as a child, and the stepfather had gone to prison for 12 years. Through extensive questioning, she made it clear that she would consider in the evidence in the case and follow the court’s instructions, and hadn’t made up her mind in advance.
Then, Lodge asked Duncan to think about what he’d seen with the first two jurors, and how they were questioned by his standby lawyers. “Is it still your request to try to do this voir dire on your own?” he asked. “Yes,” Duncan responded. But when the judge asked Duncan if he understood the disadvantages of that, Duncan said, “Not … completely.” He said, “If I chose to, I probably could at least make an idiot of myself trying to … but obviously, … I’m not a lawyer. … If I do voir dire, I probably will not ask questions, simply because it’s me.”
Duncan said it’d be like if he were asked to paint a painting – he’d leave the brush on the palette, he said, because has no skill as a painter.
The judge said if the defense doesn’t ask questions, it won’t be able to draw out issues, as the lawyers did with the first two jurors, to determine whether the juror can be fair and impartial. “This is not one of those types of cases where you just take chances,” Lodge said. “We’re talking about a death penalty or life in prison without the possibility of release.” He then called a recess, and told Duncan he’ll ask him again after the recess if he still wants to conduct juror questioning himself. “If that’s your position, we’re going to proceed pro se,” the judge said.
The Twin Falls Times-News is reporting today that the Magic Valley regional supervisor for Idaho Fish & Game, who had held the position for eight years, was demoted after he wrote a letter to the editor critical of a proposed large wind farm’s impacts on wildlife. “(Supervisor David) Parrish’s comments prompted a high-ranking legislator to contact Gov. C.L. ‘Butch’ Otter and express concern that Parrish had violated the governor’s office’s media policy,” the Times-News reported, in an article by reporters Jared Hopkins and David Cooper. “Fish and Game announced the demotion Monday to state employees - but did not do so publicly. Deputy Director Virgil Moore confirmed the change Wednesday, and said Parrish’s letter to the Times-News about the 185-turbine China Mountain wind farm contributed to his demotion.” Click here to read the full story.
Idaho 1st District Congressman Bill Sali is on his way back from Iraq, his office reported today, and had been there since Sunday. It was the freshman GOP congressman’s first trip to Iraq and second to the region. He’s headed next to Germany to visit military medical facilities before returning to Washington, D.C. on Thursday. In this photo, Sali and other members of Congress meet with General David Petraeus in Iraq on Tuesday. Sali’s spokesman, Wayne Hoffman, said, “He wanted to see first-hand the efforts on the ground. He also wanted to visit with our troops, see if they’re getting everything they need, and to examine the type of medical care they’re receiving.” Sali joined five other members of Congress and a Veterans Administration official on the trip.
The court has just halted today’s jury selection proceedings until tomorrow, after Joseph Duncan’s standby attorneys tried to withdraw from the case and the judge refused to allow them to. Before the clash between the attorneys and the judge, the court had called in 24 of the 26 previously approved jurors, and questioned them about whether they can still serve. Four said no and were excused – two because they said they’ve now made up their minds and would give Duncan the death penalty, without having yet heard any evidence. One has a baby due in a few days. The fourth was a woman who said she couldn’t be an impartial juror if Duncan, acting as his own attorney, were allowed to question his sole surviving victim, 11-year-old Shasta Groene. “If he’s able to come face to face with the little girl … I think that’s ethically wrong. It’s not right, it’s not fair,” she said. “It’s like abusing her again. I feel extremely strongly about that. I think it’s wrong.”
You can read my full story here at spokesmanreview.com.
Jury selection resumes this morning in the Joseph Duncan death penalty sentencing trial in federal court in Boise, after a three-month delay in which two court-ordered mental evaluations confirmed Duncan’s competency. That prompted U.S. District Judge Edward Lodge to give the admitted killer the go-ahead to act as his own attorney. Here are links to my articles from today’s Spokesman-Review on the developments in the case yesterday: Mainbar here, and sidebar on unsealed documents here.
Documents newly unsealed in the Joseph Duncan case can be read in full here: Stipulation (Docket No. 63); Defense response to motion (159); U.S. joint motion for protective order (171); and here are links to the three orders the judge issued today in the case: Order to unseal; Closure order; and closure conditions order.
U.S. District Judge Edward Lodge has ordered four sealed documents in the Joseph Duncan case unsealed, in response to motions from The Spokesman-Review and 15 other media outlets in Idaho and eastern Washington.
“Much of the record has been sealed from the public without notice and specific findings as to the basis for the documents being sealed,” the judge wrote in an order issued this afternoon. “The parties are ordered to comply with the applicable local rules and make the requisite showing before making filings under seal.”
Lodge ordered the unsealing of a stipulation that the two sides in the Duncan case reached in secret last year regarding testimony by Duncan’s sole surviving victim, Shasta Groene; along with three motions or responses regarding protective orders in the case that pertain to her or to Duncan. He declined to unseal three other documents: A court-ordered mental evaluation of Duncan that concluded he was mentally competent to undergo sentencing and act as his own attorney; an affidavit from Steven Groene, Shasta’s father, responding to the media’s motions for open court proceedings and documents; and letters that Duncan sent to friends about his various court proceedings that federal prosecutors had cited as evidence of his understanding of the proceedings, referred to as Exhibit D to Docket 400.
“The media’s request for access to Exhibit D is made so that the public can be informed and to ensure that a watchful eye is kept on the operations and workings of the Court and the criminal justice system,” the judge wrote in his order. “The Court does not question the validity nor importance of this purpose.” However, he found, “At this stage in the proceedings the unsealing of Exhibit D is premature,” because it “relates to potential testimony and/or evidence that may be presented in this matter.”
Further rulings from the judge still are expected today on the media’s motion to keep the courtroom open when key evidence is presented in the sentencing trial, including testimony and videotape evidence. Jury selection in the case resumes on Wednesday. Duncan faces a possible death penalty for kidnapping and molesting 9-year-old Dylan Groene and then-8-year-old Shasta in 2005 and killing Dylan, after murdering three other family members. He’s pleaded guilty; a jury must decide if he gets the death penalty or life without parole.
Here’s a surprising development: The Idaho Election Campaign Fund, for which Idahoans have checked boxes on their state tax returns since 1975 if they want to donate a dollar to a political party of their choice or to a general political campaign fund, this year is giving more money to the Democrats than the Republicans. The checks, which will be handed over to the parties in a ceremony tomorrow, total $35,540 for the Democrats and $30,891 for the Republicans. The Libertarian Party will collect $2,854 and the Constitution Party $2,144.
The way the checkoff works, taxpayers check a box to donate the $1 (spouses filing joint returns can make separate choices for their dollars), and the donation doesn’t increase their tax or decrease their refund. Not everyone donates; this year’s two-year distribution of $71,429 from the checkoff is way down from the 1982 record distribution of $154,600.
But of those who donated this time, clearly the majority favored the Democrats, who hold only a small minority of elective offices in Idaho. More than 30,000 taxpayers – 30,668 to be exact – designated their dollars to the Idaho Democratic Party. Another 25,438 designated theirs to the Idaho Republican Party. Another 10,373 Idaho taxpayers sent their dollars to the general campaign fund. By law, 90 percent of that general fund is divided among the parties in proportion to their votes received for governor in the last gubernatorial election, though no party can get more than 50 percent of that pot. The remaining 10 percent, plus any not distributed because of the 50 percent cutoff, then gets divided equally among all parties with qualified candidates for elective state office in the next general election.
That meant the Republicans, because of their 52.7 percent showing in the 2006 gubernatorial race, got $5,453 from the general campaign fund, while the Democrats got $4,852. But the Dems were still ahead in the totals. It was the first time since 1994 that the Democrats have collected more than the Republicans from the checkoff fund. Interestingly, the Democrats routinely collected more than the Republicans in the early years of the fund, but that turned around in 1982. The Democrats regained a slight edge in the late ‘80s and early ‘90s, but the Republicans took the lead from 1996 on, and in 2000 hit their widest margin when they collected $58,691 to the Democrats’ $43,068.
I spoke with experts from around the country about what changes now that admitted killer Joseph Duncan will be representing himself in court, acting as his own attorney in his federal death penalty sentencing trial. The consensus: He’ll be more likely to get the death penalty. The defendant’s new role also will change the tenor of the proceedings, and turn the spotlight much more brightly on the defendant.
Normally, a defendant is silent much of the time in court. But now, Duncan’s voice will be heard – he’ll directly address the jury in opening and closing statements, he’ll cross-examine witnesses, he’ll interact with the judge. “The voice makes a difference,” said Fordham University law professor James Cohen. “In this case … it’s hard to see how his voice is going to make a difference in a positive way, in terms of his life.”
Duncan’s insistence on representing himself also means he could cross-examine the government’s star witness against him – his only surviving victim, Shasta Groene, who was 8 years old when she was rescued from Duncan and is now 11. If the killer questions the young girl, Cohen said, “The jury won’t even leave the box – they’ll just turn to one another and say, ‘Death!’ ”
Rich Seamon, a law professor at the University of Idaho, said, “I think the very prospect is enough to make most people shudder. I think it’s just another aspect of the whole thing that is not going to help Duncan’s case. … You almost wonder whether it is a situation where he wants to condemn himself.” You can read my full story here in Sunday’s Spokesman-Review, and click below to read about other notable cases of self-representation and their results.
A legislative audit has identified serious management problems in the office of state Superintendent of Public Instruction Tom Luna, problems that Luna didn’t dispute and says now have been corrected. They ranged from improper accounting to sensitive personal information in teacher certification files being stored in unsecured boxes under employees’ desks. “They’ve taken care of that – they consider it closed, as do we,” said legislative audit division manager Don Berg.
The audit found that $766,012 in salaries and wages for the special education division of the Department of Education were charged to a federal grant without providing any documentation on what work was done and for which programs. The lack of detailed reporting “could result in federal penalties and sanctions,” the audit warned. Luna’s office worked with the auditors to develop the appropriate reporting. “The department implemented policies and procedures to address the issue and has scheduled quarterly reviews of federal time reporting,” according to the agency’s response to the audit.
The audit also found that nearly $4.9 million in interest wasn’t credited to the public education stabilization fund from February to December of 2007. A January 2008 adjustment corrected that, “but we are concerned that the department’s financial monitoring procedures are incomplete or not properly followed,” the audit stated. The department responded that it’ll correct the problem, and may seek clarifying legislation.
Finally, the audit identified problems with the handling of sensitive teacher certification information. The department said it’s changed its system for handling the documents and educated employees on “proper handling of sensitive documents,” and said, “The department considers this issue to be resolved.”
Luna’s spokeswoman, Melissa McGrath, said, “Superintendent Luna is constantly working to improve the operations at the State Department of Education to ensure we are providing the best service possible to the customers of education. A recent legislative audit pointed out some areas in which the State Department of Education needed to improve. We took those audit findings seriously and are happy we were able to address each area immediately.”