Guilty plea without deal is unusual, attorneys say

Joseph Duncan’s decision to plead guilty to capital crimes without an agreement to avoid a death sentence is unusual but not unprecedented, said attorneys familiar with death penalty cases.

“It is more common for people to plead guilty after death is taken off the table,” said Jacqueline McMurtrie, a professor at the University of Washington Law School.

Duncan’s defense attorneys are among the best in the country for capital cases, McMurtrie and others said. They may be focusing on saving his life rather than contesting his guilt, she added.

Judy Clarke, one of Duncan’s federal defenders, helped Unabomber Ted Kaczynski and Eric Rudolph, the 1996 Olympics bomber, avoid execution.

Defense attorneys and prosecutors involved in the case are barred from discussing the case under a gag order from U.S. District Judge Edward Lodge. Attorneys interviewed for this story said they could only speak hypothetically about the case and Duncan’s guilty plea Monday.

At the hearing, Duncan said his plea was “an affirmation of the responsibility” he’d shown since his arrest: “I will continue to accept that responsibility to the death, if necessary.”

Katie Ross, of the Death Penalty Assistance Center in Seattle, said the driving factor with many defendants who plead guilty to murder is remorse.

“He doesn’t want himself or the victim to go through an ordeal at trial,” Ross said. “Theoretically, there might be some hope to limit the issues at the penalty phase.”

The plea might mean that Duncan’s surviving victim, Shasta Groene, now 10, would be spared from testifying – but there’s no guarantee, Ross said.

Both the prosecution and the defense have latitude in presenting evidence they think is relevant for the jury to arrive at the proper sentence.

Federal death penalty cases are rare, and trying to determine what’s going on in the Duncan case from the outside might be particularly difficult, said Mary Pat Treuthart, a law professor at Gonzaga University Law School.

“It’s a complicated case because of the state and federal aspects to it,” Treuthart said.

Duncan has already been convicted in Idaho’s state courts, but he has not yet been sentenced for any of the crimes that carry the death penalty.

So even if he is sentenced to life in prison on the federal charges, he could return to Kootenai County for sentencing on the state charges and receive the death penalty there.