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The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Duncan case gets gag order


Kootenai County Prosecuting Attorney Bill Douglas, left, waits for a pretrial hearing to begin Thursday in the courtroom.  Chief Public Defender John Adams sits at right. 
 (Kathy Plonka / The Spokesman-Review)
Taryn Brodwater Staff writer

Joseph Duncan’s attorney and the Kootenai County prosecutor want to pick the accused killer’s jury out of view of the public and news media.

Duncan’s lawyer, Public Defender John Adams, made the motion Thursday to close voir dire, the legal term for attorney questioning of potential jurors. Prosecutor Bill Douglas agreed with Adams’ request. Jury selection is set to begin Monday in a Coeur d’Alene courtroom.

First District Judge Fred Gibler, who issued a gag order Thursday in the highly publicized triple-murder case, scheduled a hearing on the voir dire motion for this afternoon.

Duncan is charged with the May 2005 slayings of Brenda Matthews Groene, her 13-year-old son, Slade, and her fiancé, Mark McKenzie. He allegedly committed the crimes so he could kidnap the youngest Groene children for sex.

Adams argued public access to voir dire “will prevent Duncan from receiving a fair trial and will taint the jury selection process.”

He cited case law that said jurors would lack the candor necessary to ensure a fair trial if the press were present. In a 1983 case decided by the Kentucky Supreme Court, the defendant argued that the news media should be excluded from jury selection so jurors would not hear or learn of the answers of other prospective jurors about their knowledge of the case and their views regarding the death penalty.

Kootenai County has assembled a jury pool of nearly 800 residents who will be summoned to the courtroom in small groups starting next week. Prospective jurors will be interviewed one at a time and asked about their background, life experiences and opinions to determine whether they can weigh the evidence fairly and objectively.

Gibler intended to keep the public and media out of the actual courtroom for the jury-selection process, which could last several weeks. However, he was going to allow the public to watch voir dire on closed-circuit television in a makeshift overflow room next to the courtroom.

Attorneys for The Spokesman-Review sent a letter to Gibler a week ago expressing concerns about the possibility voir dire would be closed to the public.

In the letter, attorney Joel Hazel cited a 1984 U.S. Supreme Court ruling. In that case “the court stated that while closed proceedings are not absolutely precluded they ‘must be rare’ and only for cause shown that outweighed the value of openness,” Hazel wrote.

The newspaper asked that all proceedings in the case be held in open court.

“There is a therapeutic value derived from the public being able to fully understand the functioning of the criminal justice system,” the letter said, “and open courtroom proceedings fosters such understanding and therapeutic value.”

The newspaper filed a motion Thursday afternoon asking Gibler to permit access to voir dire, arguing that Adams hadn’t shown that Duncan’s right to a fair trial “will be prejudiced” if voir dire is open.

During Thursday’s hearing, Gibler imposed a gag order on attorneys and others involved in the triple-murder trial. Gibler said he is concerned about recent statements that those involved in the case have made to the news media. The judge described his gag order as “quite broad.”

“We’re trying to preserve anyone’s right to a fair trial,” he said. “I’m asking for some cooperation here. I’m not particularly pleased with what’s happened.”

Gibler said he wants no public comment on the case by attorneys, parties involved in the case or those directly or indirectly under control of those involved in the case. He said his order applies to the U.S. Department of Justice and the federal public defender’s office as well.

Gibler singled out Federal Public Defender Roger Peven, who spoke with reporters Wednesday after his office released details of a plea offer Duncan made to Douglas, who rejected the offer.

“Are you willing to abide by that order?” Gibler asked Peven, who was sitting in the front row of the courtroom Thursday.

Peven stood and responded, “I don’t believe the court has the authority to order me to do anything.”

“I don’t have the authority to order you to do anything?” the judge replied. “I think my order does apply to you and I intend to enforce that order.”

Adams, Duncan’s public defender for the murder trial, asked Gibler, “Why don’t you also put a gag order on (Kootenai County Sheriff) Rocky Watson, judge?”

Gibler said the order applies to anyone directly or indirectly under control of the state, meaning employees of the Sheriff’s Office.

Watson, whose department investigated the triple slaying, was quoted Thursday in The Spokesman-Review saying he wants Duncan to be tried rather than have the prosecutor’s office accept a plea deal that would keep Duncan in prison the rest of his life.

“I don’t think it’s a case that should be pled out,” Watson said. “You can’t put a price on justice, and he needs to die.”

After Thursday’s hearing, Watson said he wouldn’t comment on the judge’s order.

“I’ve been gagged,” Watson said. “It’s for the better.”

Douglas looked uncomfortable as he emerged from Thursday’s hearing to reporters’ questions. Asked if he was the one who requested the gag order, Douglas said, “It was on the table.”

When pressed, he answered, “Not specifically, no.”

Asked if he had any concerns, as an elected official, not being able to answer the public’s questions, Douglas told reporters as he walked away, “I can’t comment. Sorry I can’t talk.”

Gibler said a gag order was requested last week because of media reports. He didn’t specify who asked for it.

In his plea offer Duncan said he would admit to the three murders he has been charged with as well as other crimes, including kidnapping the youngest Groene children and killing 9-year-old Dylan Groene, for which he has yet to be charged in federal court.

Duncan asked Douglas not to seek the death penalty and agree to a life sentence. The letter said Duncan would make the deal even though he’d still face a possible death sentence in the pending federal case.

Sources said Douglas rejected the deal two days after the offer was made. He has refused to comment on why.