If 1st District Judge Fred Gibler finds the 9-year-old is capable of taking the stand, Shasta Groene will be in the same room as Joseph Duncan when she testifies against her alleged abductor in October.
Prosecutors originally wanted Shasta to be allowed to testify against Duncan at his Oct. 16 triple-murder trial without having to be in the courtroom with him. Closed-circuit TV was one option they considered.
Kootenai County Prosecutor Bill Douglas on Wednesday said the state intends to call Shasta as a live witness. But he’s asking Gibler to let her testify with her back to Duncan and accompanied by someone she’s close to.
Also on Wednesday, Gibler denied a request by Duncan’s lawyers to bring in jurors from another Idaho county. The judge acknowledged there was a lot of publicity on the case but said he believes Duncan can get a fair trial with Kootenai County jurors.
The judge also denied a request from Public Defender John Adams that Gibler declare Idaho’s repeal of the insanity defense unconstitutional. And he shot down a motion by Adams that could have eliminated the death penalty as punishment if Duncan is found guilty.
Pretrial motions in the high-profile case concluded Wednesday with discussion over the request for special consideration for Shasta’s testimony. Gibler plans to meet with Shasta in his chambers just days before the trial begins to make his final decision on whether the girl will take the stand.
Douglas has said many times he believes Shasta is capable of testifying. But Adams said Wednesday those prior statements by Douglas seem at odds with the prosecutor’s request for special treatment for the girl.
“We have no willingness or intent to traumatize Shasta,” Adams said. But he said he’s opposed to allowing her to testify with her back turned to Duncan, “with a teddy bear, and a cop standing next to her.”
Douglas said Kootenai County sheriff’s Deputy Charlie Ellis could accompany Shasta as she testifies but said Ellis wouldn’t be there in her role as an officer. He said the deputy has become close to Shasta and her family.
In other developments:
“Adams submitted hundreds of newspaper articles and transcripts of TV coverage for his argument that an outside jury should be brought in to hear the case.
The judge disagreed. “The mere fact there is publicity does not require change of venue,” he said. “The local reporting I’ve observed, in my opinion, has not been overly prejudicial.”
Gibler said media reports he had seen were, for the most part, factual and non-inflammatory.
But Adams argued that coverage had been “extremely prejudicial.” Not only are there “Kill Duncan” stickers on car bumpers, he said, but pictures of the stickers appeared in front-page photographs of local papers. He noted that nearly 200 letters to the editor were published as well.
“Duncan has been prejudged and sentenced to death,” Adams said. He expressed concern that some potential jurors may lie about their ability to be fair so they can be on the jury and later appear on “Dateline” or get a book deal.
Douglas countered that “there’s not a person in Idaho who’s not heard about this case, probably not a person on the planet who hasn’t heard about the case.”
He said many Idahoans have probably already formed an opinion in the case.
The test, though, is whether those people can put that aside and follow the judge’s instructions to be fair and impartial, Douglas said.
Families of Duncan’s alleged homicide victims were happy with Gibler’s ruling to keep the jury local.
“I’m standing on stilts,” said Lee McKenzie Wood, mother of homicide victim Mark McKenzie. She had been concerned the trial might be moved.
Though Duncan’s attorneys weren’t asking that, Steve Groene said that he thought all along there would be a change of venue.
In the least, Groene said, he thought Gibler would order jurors to be brought in from outside the county.
“There is nowhere you can pull a jury that hasn’t heard of this case,” said Groene, father of Shasta and homicide victims Dylan and Slade Groene. “This happened here, let’s keep it here.”
“In asking the judge to reverse the state’s repeal of the insanity defense, Adams said, “It’s a matter of due process.” The judge said the issue had already been decided by the Idaho Supreme Court.
During a brief recess Wednesday morning, Groene said he didn’t see how the insanity defense could apply to Duncan.
“In Joseph Duncan’s own words, this guy is not crazy,” Groene said. “He’s a genius. What he did was very calculated, took a lot of thinking.”
“On the death penalty motion, Adams maintained prosecutors didn’t allege the “aggravating factors” that warranted death, violating Duncan’s constitutional rights.
State law doesn’t require that information to be included in criminal information filed by the state, only as part of the intent to seek the death penalty, Douglas said.
Gibler ruled against the motion from Adams.
“Arguments continued Wednesday morning on a motion by Adams to suppress statements Duncan made after he was taken into custody.
Adams disputed whether Duncan was appropriately Mirandized, or informed of his legal rights, and said he was questioned even after invoking his rights to remain silent and have an attorney present.
“He might as well (have) been saying ‘rutabaga’ when he was saying ‘attorney,’ invoking his rights,” Adams said. “Over and over again he invoked. They had a real bad villain in their opinion. Constitution be damned.”
Chief Deputy Prosecutor Rick Baughman said Duncan made the statements spontaneously and, in some instances, continued talking about the case even after he was warned not to.
“We have an individual here, Duncan, who wants to get this off his chest,” Baughman said.
Baughman said Duncan also made unsolicited and incriminating statements to a social worker and jail chaplain.
Adams said those statements were privileged and should have been held in confidence.
Gibler allowed Adams and Baughman until Sept. 6 to provide additional case law supporting their arguments. The judge said he would then issue a written ruling on the motion.