August 6, 2008 in City

Shasta’s testimony would close courtroom

Privacy concerns outweigh public interest, judge rules
Betsy Z. Russell Staff writer
 
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Judge orders documents unsealed

BOISE – U.S. District Judge Edward Lodge has ordered four documents in the Joseph Duncan case unsealed, in response to motions from The Spokesman-Review and 15 other media outlets in Idaho and Eastern Washington.

“Much of the record has been sealed from the public without notice and specific findings as to the basis for the documents being sealed,” the judge wrote in an order issued Tuesday.

Lodge ordered the unsealing of a stipulation the two sides reached in secret last year regarding testimony by Duncan’s sole surviving victim, Shasta Groene, along with three motions or responses regarding protective orders in the case that pertains to her or to Duncan.

He declined to unseal three other documents: A court-ordered psychological evaluation of Duncan that concluded he was mentally competent to undergo sentencing and act as his own attorney; an affidavit from Steven Groene, Shasta’s father, responding to the media’s motions for open court proceedings and documents; and letters that Duncan sent to friends that prosecutors cited as evidence he understands the proceedings, referred to as Exhibit D in another filing.

“At this stage in the proceedings the unsealing of Exhibit D is premature,” Lodge wrote, because it “relates to potential testimony and/or evidence that may be presented in this matter.”

Unsealed documents are posted at spokesmanreview.com.

Also online

Read the judge’s orders on the media’s request for an open court.

BOISE – A federal judge has ordered the courtroom closed if confessed killer Joseph Duncan’s surviving victim takes the stand in his death penalty sentencing trial, even though the 11-year-old girl likely would testify from another room by closed-circuit television.

“The Court finds the compelling interests in protecting the minor victim from further harm and embarrassment significantly outweighs the First Amendment interests of the public,” U.S. District Judge Edward Lodge wrote in an order issued Tuesday.

It was one of three orders the judge issued Tuesday, before jury selection resumes today in Duncan’s sentencing trial. Duncan kidnapped and molested Dylan and Shasta Groene in 2005 from their North Idaho home and killed Dylan after murdering three other members of their family.

Two were in response to motions from The Spokesman-Review and 15 other media outlets to keep the proceedings open and to unseal some court documents; the judge agreed to unseal some documents and to keep the courtroom open when video evidence is shown to jurors.

The closure of a courtroom during testimony is unusual. The news organizations “will file an emergency appeal with the 9th Circuit Court,” said Carla Savalli, assistant managing editor of The Spokesman-Review.

Savalli noted that the proceedings will determine whether Duncan gets the death penalty for a heinous crime to which he has admitted guilt.

“Society would demand to know why, either way – if he’s spared the death penalty, they’ll want to know what happened in the courtroom to cause that verdict,” she said. “If he is sentenced to die, I’m guessing they’ll want to know the same thing. Our only ability to answer that question is if we are there to hear and see what the jury hears and sees.”

The media’s motions argued that the First Amendment and federal law require open court proceedings and require courts to choose the least restrictive alternative to protect child victims as they testify. Federal law specifically permits a child victim to testify by closed-circuit TV so they’re not in the same room as their attacker or the public.

The law offers courtroom closure as an alternative but notes that any closure must be “narrowly tailored to serve the government’s specific compelling interest.”

“It seems to me there’s no reason to close the courtroom if the child is testifying via two-way TV transmission, because the child won’t be able to see the jury, won’t be able to see the audience,” said James Cohen, a law professor at Fordham University in New York City.

Court documents unsealed by the judge’s order Tuesday show federal prosecutors already were seeking to have the victim, Shasta Groene, testify via two-way TV. The judge, however, said in his order that he initially was inclined to close the courtroom but not allow the two-way TV testimony. But now that Duncan is acting as his own attorney and could cross-examine witnesses, the judge said he’s considering the TV option. For now, he wrote, it’s “under advisement.”

Cohen said the constitutional right to confront one’s accuser has been strongly supported by the U.S. Supreme Court. Yet the prospect of a young victim facing questioning from her attacker is shocking. “You can fairly ask the question … can the law possibly permit this?” Cohen said. “And the answer at present is yes.”

However, the federal law that allows child victims to testify via closed-circuit TV prohibits a defendant who is acting as his own attorney from being in the room with the child. Video links, however, would show the defendant’s image.

That may be the only way to keep Duncan from directly questioning the girl, although there’s one other possibility: The judge could revoke Duncan’s right to represent himself for that portion of the trial and order lawyers to take over, if the judge finds there are special circumstances relating to maintaining a fair trial. Lodge already has warned Duncan’s standby attorneys that they could be asked to step back in.

The other question is whether the girl will be called to testify at all. She’s the government’s star witness against Duncan.

In December, both sides in the case agreed to spare her from testifying by instead relying on a videotaped statement she gave to law enforcement after her rescue from Duncan in 2005. That agreement, however, subsequently fell apart.

Lodge ruled that if Shasta testifies, she can be accompanied by an adult. While the courtroom would be closed to the press and public, a transcript of her testimony would be made public afterward.

“The court concludes that in this case, if the parties are unable to reach an alternative to having the minor victim testify, her live testimony is necessary as she is the only witness to most of the conduct alleged against Mr. Duncan,” the judge wrote.

In ruling that the court should remain open for the presentation of videotape evidence, Lodge wrote, “Ours is an open judicial system that requires a compelling interest that outweighs the lengthy history of public access to open court proceedings.”

Betsy Z. Russell can be reached toll-free at (866) 336-2854 or bzrussell@gmail.com.

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