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Duncan juror phase begins

Sun., April 13, 2008

BOISE – Three hundred fifty people will gather in Boise’s convention center on Monday to start an extraordinary process: deciding whether Joseph Duncan should die for what he did to two North Idaho children.

Available legal records suggest no one’s received the death penalty in federal court for a crime committed in Idaho since the 1920s. But Duncan’s case is rare in its heinousness and shock value. The convicted killer and child molester attacked a North Idaho family at their home in 2005, killed three family members in order to kidnap two young children, molested both youngsters and held them captive for weeks. Only one child, then-8-year-old Shasta Groene, survived.

Duncan already has pleaded guilty to all charges in a 10-count federal indictment for kidnapping and molesting Shasta and her 9-year-old brother Dylan, and torturing and killing Dylan, whose abuse Duncan videotaped. Three of the 10 charges carry the possibility of the death penalty. All that remains for the jury to determine is whether Duncan should die for those crimes or get life in prison without parole. Attorneys on both sides will spend the next two to four weeks questioning the 350 potential jurors to come up with a jury of 12 and three alternates.

Feelings run high about the case, one of North Idaho’s most horrifying crimes ever. While some cars in North Idaho sport “Kill Duncan” bumper stickers, the case also brings to a fine point the debate about capital punishment, which Duncan’s lawyers unsuccesssfully have argued should be ruled unconstitutional.

“I think the death penalty is arbitrary and capricious, like being struck by lightning,” said Jack Van Valkenburgh, head of the American Civil Liberties Union of Idaho. “Only 2 percent of murders are punished with the death penalty, even in death penalty states.

“I think capital punishment is a failed government program and an ugly stain on our criminal justice system.”

But former Idaho Attorney General David Leroy said, “If there ever was a death penalty case, … this must be that case.”

The federal death penalty has been carried out only three times in the past 40 years, according to the Death Penalty Information Center. Those executed were Oklahoma City bomber Timothy McVeigh in 2001, and two Texas murderers in 2001 and 2003. There are 54 inmates on federal death row.

Thirty-seven states, including Idaho and Washington, have the death penalty for state crimes. Overall, there have been 1,099 executions under state death penalty laws since 1976, including one in Idaho, four in Washington, and 405 in Texas.

Duncan’s case is somewhat unique in that if he doesn’t get the federal death penalty, he’ll return to Kootenai County to face a possible death sentence on state murder charges. In 2006, he pleaded guilty in Kootenai County District Court to first-degree murder, for killing the Groene children’s 13-year-old brother, Slade; their mother, Brenda; and her fiancé, Mark McKenzie, in a bloody attack at the family’s Wolf Lodge Bay home.

Duncan left that scene with the two children, prompting a multistate manhunt that ended seven weeks later when he was spotted with young Shasta at a Coeur d’Alene Denny’s restaurant. By that time, Dylan was dead.

Duncan also is a suspect in three other child murders, in California and Washington, and could face a death sentence for those as well.

Leroy said, “You probably will rarely find, if ever in the next few decades, a stronger test, a more accurate test, of what the societal norm is in America with regard to the death penalty.”

Duncan has stood up in court and admitted the crimes. “I will continue to accept that responsibility to the death, if necessary,” he told the federal court in December. But the 44-year-old has fought the death penalty.

In early December, his lawyers and federal prosecutors told the court they’d agree to allow the only surviving victim of the crime, Shasta Groene, to avoid testifying at Duncan’s sentencing hearing by instead admitting her testimony by means of a videotaped statement she gave to law enforcement officers in July 2005, shortly after she was rescued from Duncan. “The parties have now arrived at an agreement which makes the child victim’s testimony unnecessary,” U.S. District Judge Edward Lodge wrote in an order issued then, setting Duncan’s sentencing hearings to start this week.

But no order finalizing that agreement ever was filed with the court, and the court indicated Friday that it’s still an open question as to whether the girl will have to testify.

Lawyers are prevented from talking about the case by a sweeping gag order issued by the judge.

The jury selection process is expected to take several weeks. The potential jurors will fill out questionnaires on Monday, and attorneys on both sides will review the questionnaires on Tuesday. On Wednesday, they’ll start questioning the potential jurors, one by one, until a jury has been selected.

Then the hearings will proceed in two parts. First, the jury will have to rule on whether Duncan is eligible for the death penalty. That requires them to determine that his mental state included the intent to commit the crime, and that at least one statutory aggravating factor was present. Prosecutors have charged an array of aggravating factors, including murder occurring during the commission of another crime; committing the offense in a “heinous, cruel or depraved manner;” and vulnerability of the victim.

If Duncan is found eligible for the death penalty, the jury then must decide whether to impose it in the “selection” phase of the sentencing hearing. There, mitigating factors, such as Duncan’s childhood abuse, and non-statutory aggravating factors, including the effect of the crime on the victim and her family and Duncan’s future dangerousness, may be taken into account.

In an earlier court filing, defense lawyers wrote, “Mr. Duncan’s life history is permeated with abuse, neglect, torture, rape and betrayal, all lending to a horrific life of trauma that in fairness must be weighed by the sentencing jury – not as an excuse for the conduct, but in its consideration of whether to sentence Mr. Duncan to life in prison without possibility of release, or death.”

Duncan, a Tacoma native, spent most of his adult life in prison for sex crimes against children. He was on the run from a child molestation charge in Minnesota when he drove past the Groene home on Interstate 90 east of Coeur d’Alene in May 2005 and spotted the two children playing outside.

The sentencing proceedings are expected to take roughly two months.

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