BOISE – Joseph Duncan wants to act as his own attorney in his death penalty hearings, his lawyers told the court Wednesday.
“He has requested that we recognize his desire to exercise his constitutional right to represent himself,” attorney Mark Larranaga told the court, expressing concern about continuing with jury selection until the issue is resolved.
U.S. District Judge Edward Lodge said he’ll wait until Friday morning to consider the request. “We’ve got jurors waiting,” he said.
Duncan, who could face the death penalty on three different counts for kidnapping and molesting two North Idaho children and murdering one, has pleaded guilty to all counts. A jury is being selected in federal court to decide whether he’ll get a death sentence or life in prison without possibility of parole.
If Duncan is allowed to represent himself, he could end up cross-examining his only surviving victim, Shasta Groene.
Meanwhile, jury selection moved slowly Wednesday, and it appeared that finding suitable prospects to serve in the penalty phase could be challenging as several expressed shock and outrage over the crimes to which Duncan has admitted.
On Wednesday, 28 prospective jurors were considered. Six were dismissed based on their answers on questionnaires. Twenty-two were brought into court for individual questioning; of those, seven were dismissed. Six more were challenged by attorneys on either side, but the judge overruled the challenges.
As the group of 22 – 11 men and 11 women – entered the court, everyone in the courtroom stood, including Duncan, who looked straight ahead but glanced toward the jurors.
The judge described the jury’s role to the group, and the prospective jurors were taken out of the room and called back in one by one. Each was brought to a seat in the center of the jury box, directly facing Duncan, but most looked at the judge, as did Duncan, who sat in the courtroom between two of his attorneys, dressed in yellow, prison-issue scrubs.
The first prospective juror to be questioned told the court, “I just feel that anybody that does that kind of thing shouldn’t have a choice, and they should be put to death just like what they’ve done.” Under questioning from the judge, she said, “My feeling of it is that he should get the death penalty.” The juror was challenged by the defense, and the judge granted the challenge and excused her from service.
Of the seven prospective jurors eventually dismissed, all but one were challenged by the defense. One called the case a “slam-dunk death penalty” on his jury questionnaire, while another described Duncan as a “monster.” Another said he has a 9-year-old son – the same age as Duncan’s victim Dylan Groene. Asked by the judge if he thought he could be fair in this case, the young father appeared to struggle with his answer, then said, “No.”
Even among prospective jurors who weren’t challenged for cause, horror over the nature of Duncan’s crimes was clear. One said he wondered “how messed up someone would have to be to do that” and that sometimes “I think death is too easy. Sometimes I think it’s too easy a way out.” Another said that as a taxpayer he doesn’t like the idea of supporting a criminal for life in prison. A third said if she is shown a graphic video of Duncan abusing the boy he murdered, she might close her eyes.
U.S. Attorney Tom Moss told her, “The material that will be presented to you is ugly, it’s graphic … but it’s our job to present it to you.”
One juror whose challenge the judge overruled told the court that she, too, has a 9-year-old son. Defense attorney Judy Clarke told her, “We’re going to ask you to watch (a video of) very graphic, sadistic sexual abuse with a 9-year-old child.”
The woman said she thought she likely would be emotional. “It will be difficult for me to sit through, absolutely,” she said. But under questioning from the judge, she said, “I do feel I can be fair.”
Another prospective juror told the court she’s haunted by the case when she cuddles her 4-year-old grandchild. “I haven’t slept for two nights when I found out this was the case I was on,” she said.
Questioning of prospective jurors in the 325-member pool is scheduled to continue each weekday until 59 have been selected. At that point, each side will be able to exercise peremptory challenges to shrink the group to 12 jurors and three alternates.
Whether Duncan can represent himself remains undecided.
Former Idaho Attorney General David Leroy said such requests occasionally are granted. “I’m doing a petition for a pardon from the governor for a guy who managed to get himself a 30-year sentence by being his own lawyer in a complex financial case,” he said.
Defendants do have such a right, Leroy said, and the judge “could theoretically let him do that.” But a judge would have to make extensive findings that the defendant was competent and intelligent enough to handle the case. Duncan now has a team of attorneys, including two nationally recognized death penalty experts.
In 1993, the U.S. Supreme Court upheld the right of a defendant in a death penalty trial in Nevada to represent himself. The defendant, Richard Allen Moran, was executed in 1996.
Leroy noted that such a move could raise the possibility of future appeals based on ineffective assistance of counsel. “Every nuance is a Supreme Court argument in this case,” Leroy said. “It is known that judges don’t want to do that, they would rather not do that, generally speaking.”