April 16, 2008 in City

S-R, others file brief to keep trial open

By The Spokesman-Review
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The public should be able to “observe all matters” considered by a U.S. District Court jury that will decide if confessed killer Joseph Duncan should face the federal death penalty, 16 media and open-government organizations argued in a legal brief filed Tuesday.

The organizations, including The Spokesman-Review and three Spokane television stations, urged U.S. District Court Judge Edward Lodge to keep his Boise courtroom open if kidnap victim Shasta Groene is called to testify or if the jury is shown a graphic videotape Duncan made as he tortured and killed her brother.

Public access is important so citizens “can fully comprehend how this unique judicial process works and how the various participants – judge, jury, counsel, witnesses and the defendant – perform their duties and conduct themselves concerning imposition of capital punishment,” states a legal brief filed by attorneys Duane Swinton and Joel Hazel, who represent The Spokesman-Review.

Jury selection, which began Monday in Boise, is expected to take several weeks. The judge said he will decide on the courtroom-closure issues at an unspecified future date without hearing oral arguments.

The judge had asked the media, through court-designated media liaison Betsy Russell, whether he could exclude the public from viewing a videotape Duncan made if the court allows it to be shown to the jury, and if the courtroom also could be closed if Shasta Groene or other potential witnesses testify. Russell is a Boise-based reporter with The Spokesman-Review and president of the Idaho Press Club.

“Everyone really cares whether Joseph Duncan gets the death penalty or not,” Russell said Tuesday. “It’s our job to inform the public how the jury reaches that decision, and that’s extremely important. It’s a job we can’t do if the courtroom is closed.”

Duncan’s videotape and Shasta Groene’s testimony – either live or through a videotape – are expected to be used by the prosecution to demonstrate aggravating circumstances warranting the death penalty.

Before the court can close any proceeding, a judge must determine there is a “compelling reason for closure” outweighing the public’s right of access under the First Amendment, Swinton and Hazel argue in their brief.

Further, the brief states, the court must rule there would be a “substantial probability a compelling interest would be harmed” if closure didn’t occur, and there are no alternatives to closure that would adequately protect the compelling interest.

“Public access to the proceedings in this matter relating to potential imposition of the death sentence must be provided because this required test for closure cannot be satisfied,” the brief said.

Initially, defense attorneys and prosecutors had agreed to use videotaped testimony of Shasta Groene to keep her from having to face the man who kidnapped and sexually abused her and killed her brother. But that legal agreement apparently has fallen apart.

The media outlets are not seeking to film or broadcast the girl’s testimony or the videotape Duncan made while holding the two children at a remote cabin on the Idaho-Montana border.

The identities of the two Groene children have been in the public domain since May 2005 when their kidnapping and the related murders of their mother and two others generated national media attention for several weeks and regional media coverage for much longer. Shasta Groene appeared on the syndicated Geraldo Rivera show and her father appeared with Oprah Winfrey, discussing the impact of the crimes on the family.

“As a result, closing the courtroom will not protect the privacy of (Shasta Groene) concerning the fact that she was assaulted by the defendant and observed the killing of (Dylan Groene) by the defendant,” the brief said. “These facts and the general nature of the defendant’s treatment of (both children) have already been publicly disclosed and have been widely disseminated not only in Northern Idaho and Eastern Washington but throughout the country.”

“We understand the sensitive and painful issues surrounding this case,” said Senior Editor Carla Savalli of The Spokesman-Review. “It is not our intention to further harm the victims of Joseph Duncan, but we cannot lose sight of the fact that he is facing the death penalty. The public must be able to weigh the evidence in this case along with the jury in order to decide whether justice has been served.”

The Spokesman-Review, she said, “is focused on the principle of an open and transparent judicial process because that is what ultimately benefits us all.”

Others joining in petitioning the court are the Associated Press; the Idaho Statesman; the Idaho Press Club; the Idaho Newspaper Foundation; Idahoans for Openness in Government; Idaho Allied Dailies; Idaho State Broadcasters; Boise State Radio; KHQ-TV; KREM-TV; KXLY-TV; KTVB-TV; KTRV-TV; KBCI-TV and KIVI-TV.

Swinton said he was unaware of any recent case in the Inland Northwest in which so many media organizations joined together on an issue of public access to court proceedings.

“This unified effort underscores how important it is that the public be able to understand how the criminal justice system works, particularly where the case involves the extremely rare situation where a jury is to consider imposition of the death penalty under federal law,” Swinton said.

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