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Judge lets Duncan question would-be jurors

Fri., Aug. 8, 2008

But after winning right, he keeps quiet

BOISE – Confessed killer Joseph Duncan insisted on taking over questioning his potential jurors Thursday, sidelining his standby attorneys, but then refused to ask any questions.

The move, which U.S. District Judge Edward Lodge urged Duncan to reconsider, left one legal observer befuddled.

“It’s very odd; it continues to get sort of odder by the moment,” said law professor James Cohen, of Fordham University. “Duncan seems hell-bent on making himself the poster child for the death penalty in terms of this phase. He’s already done that by his conduct and by his guilty plea.”

Duncan’s refusal to question potential jurors who will decide whether he is executed or imprisoned makes it more likely that he’ll receive the death penalty, observers say.

Duncan has pleaded guilty in U.S. District Court to three capital crimes for the kidnapping, molestation and murder of 9-year-old Dylan Groene. Dylan’s sister, Shasta, then 8, also was abducted from the family’s Wolf Lodge Bay home in 2005.

Duncan also pleaded guilty in Kootenai County to killing three of the children’s family members, but sentencing for those murders has been delayed until after the federal case is resolved.

“The defendant is saying, ‘I’m not going to ask any questions,’ sort of, ‘Do with me what you will,’ ” Cohen said. “That, in the context of this case, is very unlikely to result in a good outcome.”

Duncan’s standby lawyers had been ordered by the judge to continue questioning prospective jurors, even after they said Wednesday that it violates their professional ethics to follow Duncan’s wishes, whom they maintain is irrational. But the judge already ruled Duncan competent to undergo sentencing and to represent himself after two court-ordered mental evaluations delayed the sentencing trial for three months.

As jury selection was about to resume Thursday morning, Duncan sent a note to the judge asking to question jurors himself. Lodge initially denied the request, saying it was a last-minute request he’d not had any chance to review. He added, “I think your standby counsel is very capable.”

But Duncan stuck by his request even after hearing his lawyers conduct detailed questioning of the first two prospective jurors, and Lodge allowed him to take over – although Duncan said he probably wouldn’t ask any questions.

“I’m urging you and telling you that this is a huge mistake,” Lodge told Duncan. “You understand?”

“I understand that,” Duncan said.

As the next prospective juror came up for questioning, federal prosecutors asked questions, but Duncan sat alone at the defense table, looking down and resting his chin on his hand. Asked if he had any questions for the juror, he said, “No questions.”

The judge asked the woman to “assure the parties” she could be fair, keep an open mind, and make her decision in the sentencing trial based on evidence rather than emotion.

“I feel pretty confident that I can do that,” the juror said.

Thirteen jurors were found to be qualified, while eight were excused because they acknowledged that they couldn’t be impartial or because of hardship.

That brought the total of qualified jurors to 33, which marks progress toward the 59 who must be qualified before the pool can be whittled down to the 12 jurors and three alternates who will hear the case.

The fact that Duncan asked no questions sped up the process; at this rate, individual questioning of jurors could be done early next week. The process resumes this morning at 9.

The judge extensively questioned some of the jurors after federal prosecutors finished with them. In one case, a juror acknowledged he didn’t have an open mind, prompting his dismissal.

“That’s well within the normal role of a judge participating in this process,” said Cohen, who said the events in court Thursday are unlikely to lead to an appeal.

When Duncan first asked to take over from his standby attorneys Thursday, the judge told him that he would be able to ask any questions of prospective jurors he wanted, in addition to his lawyers’ questions. “If this just doesn’t work out after a few jurors, we may have to reconsider,” the judge said.

Two prospective jurors then were questioned.

The two women were approved after questioning from both sides. One said she had been abused by her stepfather as a child, and the stepfather had gone to prison for 12 years. Through questioning, she said that she would consider the evidence and follow the court’s instructions.

Then Lodge asked Duncan to think about what he’d seen with the first two jurors, and how they were questioned by his standby lawyers.

“Is it still your request to try to do this voir dire (juror questioning) on your own?” he asked.

“Yes,” Duncan responded.

But when the judge asked Duncan if he understood the disadvantages of that, Duncan said, “Not … completely.”

He said, “If I chose to, I probably could at least make an idiot of myself trying to … but obviously … I’m not a lawyer. … If I do voir dire, I probably will not ask questions, simply because it’s me.”

Duncan said it’d be like if he were asked to paint a painting – he’d leave the brush on the palette, he said, because he has no skill as a painter.

The judge warned Duncan, “This is not one of those types of cases where you just take chances. We’re talking about a death penalty or life in prison without the possibility of release.”

When the judge granted Duncan’s request, the three standby lawyers got up from the defense table, stacked up their files and moved to seats behind him. They sat silently the rest of the day.

Duncan is representing himself in the sentencing trial, rather than allow his expert legal team to represent him, because he said they couldn’t “ethically represent my ideology.”

Betsy Z. Russell can be reached toll-free at (866) 336-2854 or For more news from Boise go to

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