August 7, 2008 in Idaho

Lawyers stuck with Duncan

They want to leave case, but judge says no
Betsy Z. Russell Staff writer
 
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S-R to appeal courtroom closure

BOISE – The Spokesman-Review has submitted notices to the parties in the Joseph Duncan case saying it will file an appeal today with the 9th U.S. Circuit Court of Appeals opposing closure of the courtroom for any proceedings in Duncan’s death penalty sentencing trial.

U.S. District Judge Edward Lodge ruled Tuesday that the courtroom will be closed for the testimony of Duncan’s surviving victim, 11-year-old Shasta Groene. He’s considering a request to have her testify via closed-circuit television, so she wouldn’t be in the same room as her attacker.

Spokane attorney Duane Swinton, who represents the newspaper, said in the notice that the appeal will include an emergency motion for writ of mandamus to keep the courtroom open, and if the testimony is by closed-circuit TV, to permit the public in the courtroom while the girl testifies from another room.

BOISE – Joseph Duncan’s standby attorneys told a federal judge Wednesday that the confessed killer is so irrational they can’t ethically follow his wishes, and they asked to withdraw from the case.

U.S. District Judge Edward Lodge refused.

“Motion denied,” he declared, then called a recess in the sentencing trial, which resumed Wednesday after a three-month delay. It’s scheduled to start again this morning with jury selection.

Duncan is acting as his own attorney and facing a possible death penalty for killing 9-year-old Dylan Groene after kidnapping and molesting Dylan and his sister, Shasta, then 8, in 2005.

He wanted his standby lawyers to question prospective jurors for him, though they objected that they’d violate his right to self-representation by doing so. On Monday, the judge overruled those objections and ordered them to participate in juror questioning.

Federal defender Judy Clarke, Duncan’s former lead attorney, pleaded with the judge Wednesday, saying their participation would violate the lawyers’ professional ethics.

“We are not gunslingers who do the bidding of someone who does not have a rational understanding,” she said.

Clarke said the lawyers don’t understand Duncan’s defense strategy, including his decision to forgo presenting any “mitigating” evidence such as a troubled childhood or past abuse. Mitigating evidence is weighed by jurors against aggravating factors to decide whether to impose the death penalty.

“We do not believe that he has a rational understanding or a rational … presentation to make,” Clarke told the court. “It is his view of the evidence, his view of the case, his view of the world. … We are not his counsel and do not share his irrational view of the process or how it should work.”

Questioning prospective jurors, also called voir dire, is among the “core duties” in the case, Clarke said, and it would be “beyond what our professional ethics allow us to do.”

Lodge responded: “Your statement was eloquent, just not relevant. The court’s already ruled on rationality.”

Duncan’s sentencing was delayed for three months for two court-ordered mental evaluations, after which the judge ruled Duncan competent to undergo sentencing and to waive his right to an attorney.

Also, Lodge said, “The purpose of voir dire is not to get your theory of the case across to a particular juror. … The purpose of voir dire is to get a fair and impartial juror who has an open mind and will listen to the evidence.”

No more delays, judge says

In a heated exchange with Clarke, Lodge said, “If you don’t feel comfortable with that, I’d suggest that you just step out of the case.”

Clarke said that she was speaking for all three of Duncan’s standby attorneys and that perhaps they all should withdraw.

“You can do whatever you want, but I can tell you in advance that you’re not going to be allowed to step down,” the judge said.

“We’re not going to delay this case one day longer.”

Duncan, sitting alone at the defense table with the lawyers relegated to a wall behind him, jumped in, saying his lawyers’ concerns raised concerns for him about whether they can help him.

“If they file to step out of this case, then I at that time will prepare a statement to the court to support that,” he told the court.

Lodge reminded Duncan: “I was specifically advised by you that you didn’t have a problem with your counsel other than ideological differences. … I am not delaying this case – we’re going forward.”

Defense attorney Tom Monaghan made the motion for all the standby attorneys to withdraw, and the judge refused it.

Jurors removed

The judge’s statements ended a day when the case moved backward a step: Four of the 26 jurors initially approved after questioning in April were removed.

Before the clash between the attorneys and the judge, the court had called in 24 of the 26 jurors, who were approved before jury selection was halted in April, and asked them whether they can still serve. Four said no and were excused.

Two said they’d made up their minds and would give Duncan the death penalty without having heard any evidence.

The third removed juror has twins due in a few days.

The fourth said she couldn’t be an impartial juror if Duncan, acting as his own attorney, were allowed to question his surviving victim, 11-year-old Shasta Groene.

“If he’s able to come face to face with the little girl … I think that’s ethically wrong. It’s not right, it’s not fair,” she said. “It’s like abusing her again. I feel extremely strongly about that.”

Two of the previously approved 26 jurors couldn’t make it to court Wednesday and will be called in next week.

That left 20 qualified jurors. A pool of more than 300 – the largest jury pool ever called in federal court in Idaho – is standing by.

Questioning of prospective jurors about their possible biases will continue until 59 jurors have survived the process. Then the prosecution and defense can exercise peremptory challenges – letting them reject jurors without giving a reason – to get down to the 12 jurors and three alternates who will hear the case.

The jury will decide whether Duncan should get the death penalty or life in prison without the possibility of release for killing Dylan Groene. Duncan also has pleaded guilty on state charges to murdering Dylan and Shasta’s 13-year-old brother, mother and mother’s fiance at the family’s North Idaho home so he could kidnap the younger children.

If Duncan doesn’t get the death penalty in federal court, he could still receive it in the state case.

He’s already serving a life term in the state case, but sentencing for the murders in that case is on hold until the federal sentencing trial is over.

Duncan also has been charged with killing 10-year-old Anthony Martinez of Riverside County, Calif., in 1997. That case also could bring a death penalty.

Betsy Z. Russell can be reached toll-free at (866) 336-2854 or bzrussell@gmail.com. For more news from Boise, go to spokesmanreview.com/boise.


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