BOISE – More than two dozen prospective jurors were waiting to be questioned, Joseph Duncan was in court, and attorneys and the judge were assembled. But Tuesday’s jury selection proceedings were delayed after the defense objected to proceeding without a ruling on whether Duncan will serve as his own attorney in his death penalty hearings – and the government concurred.
Pending is a mental evaluation to verify Duncan’s competency.
“We believe that it would be an infringement on Mr. Duncan’s right to continue pro se (representing himself) if we were to continue questioning of jurors,” defense attorney Mark Larranaga told the court. “We wouldn’t know what type of questions to ask.”
Duncan faces a possible death penalty for the 2005 kidnapping of two North Idaho children, Shasta and Dylan Groene, repeatedly molesting them, and killing 9-year-old Dylan. He has pleaded guilty to murdering three other members of their family at their Wolf Lodge Bay home. In the federal case involving the children he’s pleaded guilty to all charges and awaits sentencing.
The judge ruled Monday that Duncan can represent himself if a mental evaluation confirms he is competent.
Deputy U.S. Attorney Wendy Olson told the court Tuesday, “In our view there is not an issue of competency. … That is not to comment on whether that’s good (or) wise (for Duncan to represent himself) – it is his Sixth Amendment right. As we understand … the court is being careful.”
But, she said, “the United States is concerned, your honor, that going forward with voir dire without some express written waiver from the defendant … could pose an issue on appeal.” She cited several cases where such issues have been raised. Voir dire is the questioning of individual prospective jurors, which started last week.
“It will be the safest course, your honor … to hold off for a day or two on voir dire,” Olson told the judge. “Frankly, defense counsel have said they are not certain what questions to ask.”
If Duncan is to represent himself in the hearings but his attorneys are to question prospective jurors, Olson said, “then I would assume they would be seeking to ask a different set of questions.”
If Duncan acts as his own attorney and Shasta Groene testifies against him, that would put the girl in a position of being cross-examined by the man who molested her and killed her brother as she watched.
Duncan has cited unspecified ideological differences with his attorneys in seeking to take over his defense. In a court filing Monday, defense attorneys indicated he doesn’t want to present “mitigating” evidence, such as proof of a chaotic and abusive childhood, for jurors to weigh against arguments for the death penalty.
Yet Duncan has appeared to get along well with his three-member legal team, greeting them when they appear in court and visiting during breaks in the proceedings. The only visible evidence of his rift with them is his prison garb – defense attorneys confirmed to the court that they wanted Duncan to appear in civilian clothing, but he refused.
U.S. District Judge Edward Lodge said he had hoped not to delay the proceedings. “The court just wants to make sure its judgment (on Duncan’s competency) is confirmed by an expert in the field,” he said. “I’m taken aback a little bit by this request and by the government’s concurrence.
“If the government’s uneasy about this matter, I think probably the safest course of action is to delay this proceeding for a short period of time.”
The judge said he hopes a Boise clinical psychologist will “proceed as quickly as possible and yet professionally” with the evaluation of Duncan.
In the first two days of individual questioning of jurors last week, 26 prospective jurors were qualified from the nearly 60 considered. The rest were challenged by one side or the other, and the judge upheld those challenges. Numerous others were challenged, but the challenges were overruled. “We’ll go back and talk about the first 26 jurors if there’s a problem there,” the judge said. “If we have to go back, we will.”
A pool of 325 potential jurors awaits questioning, to form a group of 59. Then lawyers on both sides will be able to exercise peremptory challenges to bring that group down to the 12 jurors and three alternates who will decide if Duncan should die for his crimes, or receive life in prison without the possibility of parole.