Arrow-right Camera


Duncan puts death penalty on trial

Tue., Nov. 13, 2007

BOISE – As Joseph Duncan awaits a federal trial that could bring a death sentence, the notorious North Idaho murderer’s case is becoming the focus of arguments about whether the federal death penalty is even constitutional.

Duncan’s attorneys have filed legal arguments saying the federal death penalty is imposed so rarely – it’s resulted in only three executions in the past 40 years – that it’s clearly arbitrary and unfair. Most crimes just as horrendous as those that draw the death penalty result in lesser sentences, for no apparent reason, the lawyers argue.

Duncan has admitted to killing three members of the Groene family in a bloody attack in 2005 at their home near Coeur d’Alene, before he allegedly kidnapped two young children from the family for sex and killed one, a 9-year-old boy.

The idea of Duncan’s case becoming a test case for the death penalty is an unsettling one, said University of Idaho law professor Elizabeth Brandt. “It’s very hard to make these kinds of arguments … in the face of such a heinous crime as Duncan’s,” Brandt said.

But, she said, “As a society, if we’re going to be making arguments regarding the death penalty, those arguments ought to fly in Duncan’s case just as they might in some other.”

Duncan is scheduled to go to trial in January on a 10-count federal indictment. As the trial approaches, federal prosecutors have complained in court that one of Duncan’s attorneys, capital punishment specialist Mark Larranaga, is on a “crusade” against the death penalty rather than specifically seeking to represent Duncan.

At a court hearing last month, federal prosecutor Wendy Olson said, “The court of law … is not the place for an anti-death penalty crusade.”

Larranaga is the former director of the Washington Death Penalty Assistance Center, and he has studied, lectured and written extensively about capital punishment. He has taught a course on capital punishment at Seattle University School of Law, and in 2005 Larranaga was named “Washington Abolitionist of the Year” by the Washington Coalition to Abolish the Death Penalty.

Jack van Valkenburgh, head of the Idaho American Civil Liberties Union, said raising the death penalty arguments in Duncan’s case is “totally appropriate.”

“Every case is the right case,” he said, adding, “There are many more people who qualify for the death penalty than who receive the death penalty. And I think you’re apt to get the death penalty based more upon the quality of your attorney than based upon your guilt or the kind of murder that was committed.”

Former Idaho Attorney General David Leroy said he would expect U.S. District Judge Edward Lodge to deny Larranaga’s motion to declare the federal death penalty unconstitutional. But Leroy said of the legal arguments, “I think this is a very good piece of intellectual work. … It does a very good job of tying in cases and trends and arguments about the evolution of moral and legal thinking in this country.”

Even if rejected at this point, the arguments could surface later in the case, at sentencing or on appeal.

Among the arguments in the legal brief is that courts have recognized “evolving standards of decency” in deciding what constitutes cruel and unusual punishment under the U.S. Constitution’s 8th Amendment. Thus, the U.S. Supreme Court in 2002 reversed its 1989 holding that it was constitutional to execute the mentally retarded. In 2005, the high court overturned another 1989 ruling regarding executing juveniles.

Asked if the Duncan case could become a test case for the death penalty, Brandt said, “Five years ago I would have said absolutely not.” But in the past five years, she said, the U.S. Supreme Court has shown a new willingness to re-examine the death penalty. “For so many years … there was just no movement on the death penalty at all,” she said. “Now all of a sudden there’s just been some cracks in that approach.”

She noted the 2002 ruling that required juries, rather than judges, to impose the death penalty, and currently pending cases regarding execution methods and standards for defense counsel. Several states have all death penalty cases on hold pending the outcome.

“The argument here is not that Duncan is innocent,” Brandt said. “If that was the argument here, I would say it’s a terrible test case and he’s going to lose. The argument isn’t that Duncan is innocent, just that he should not be put to death for it. I would think that the case could conceivably become a test case for that issue.”

The lawyers on both sides of the case are prohibited by a court-imposed gag order from discussing it. Leroy, Brandt and van Valkenburgh, who reviewed the legal brief at The Spokesman-Review’s request, said Judge Lodge most likely would deny the motion because Duncan hasn’t yet gone to trial and the judge is bound by court precedents, but that it could come back up later in the case – especially if Duncan is sentenced to death.

The brief notes that public opinion in America has turned against the death penalty; that many countries, including Canada, now reject it; and that studies have shown no deterrent effect on murder rates in states that have capital punishment. It also cites the growing number of death-row inmates who’ve been exonerated based on new evidence of innocence.

Brandt said, “These arguments being raised in this case are indicative that our really hard consensus about the death penalty is starting to crack a little bit. … I think the last five to seven years have really seen a resurgence of public policy debate about whether we should be using the death penalty at all in this country.”

In his legal brief, Larranaga wrote, “One cannot review the chronicles of murder eligible for the federal death penalty without coming to the realization that all of the cases are by their own terms horrible, and all involved the infliction of agony on victims and survivors, and yet, for indiscernible reasons, some defendants were sentenced to death, while (the) overwhelming majority were not. … In the demonstrated absence of fairness and consistency, the federal death penalty must be set aside.”

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