August 13, 2008 in Idaho

Shasta might not take stand

Talk in courtroom suggests deal reached with Duncan
Betsy Z. Russell Staff writer
 
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Background and the latest updates

Court rejects S-R appeal

The 9th Circuit U.S. Court of Appeals on Tuesday rejected an appeal from The Spokesman-Review of a federal judge’s decision to close the courtroom for key testimony in Joseph Duncan’s federal sentencing trial.

A three-judge panel of the court wrote that it could not reverse U.S. District Judge Edward Lodge’s order unless the district court “clearly erred” in ordering the courtroom closure, and they ruled, “It did not.” The ruling did not elaborate.

Lodge had ordered the courtroom closed for any testimony by Shasta Groene, the 11-year-old surviving victim of Duncan’s crimes.

Gary Graham, managing editor of the newspaper, said, “We’re obviously very disappointed in the court’s ruling.” He added, “We believe that the public and the news media have a right to know and see the same things the jury will hear and observe in the courtroom. … It’s critical that reporters be allowed to observe important testimony in order to produce a detailed account of the proceedings.”

Lodge had held that the First Amendment interests of the public were outweighed by the “compelling interests in protecting the minor victim from further harm and embarrassment.”

James Cohen, a law professor at Fordham University, said he was surprised the appeals court applied the strict “clear error” standard of review to a First Amendment case. “It sounds as if the 9th Circuit is giving the First Amendment short shrift,” he said.

Betsy Z. Russell

On the Web

Track the trial

You can use two methods to follow the Duncan proceedings:

1

Twitter: Use the Twitter messaging system to learn about developments in real time. Receive updates via twitter.com, mobile phone text messages, IM, RSS feed or other Web applications. Go to twitter.com to sign up for a free account and then choose to “follow” SpokesmanReview.

2

Spokesmanreview.com: Follow the “Duncan: Inside the Courtroom” blog at s-r.com/blogs /duncan.

BOISE – Shasta Groene, the only survivor of Joseph Duncan’s murderous rampage in 2005, may not have to testify against her attacker after all.

On the eve of today’s opening statements in Duncan’s death penalty sentencing trial in federal court, lawyers on both sides hinted that a deal is in the works.

No details were available, and just about anyone connected to the case is under a far-reaching gag order.

But in court on Tuesday, a federal prosecutor and a member of Duncan’s standby defense team referred to an agreement reached with Duncan about Shasta’s testimony. The comments came as the lawyers and U.S. District Judge Edward Lodge discussed various issues still to be resolved, including arguments over the admissibility of statements made to a police officer.

“We have been discussing with Mr. Duncan a stipulation which would negate the need for that motion, and the parties have signed that,” Assistant U.S. Attorney Traci Whelan told Lodge.

The movement could signal restoration of an agreement reached in December 2007, when both sides announced they’d reached a deal to spare Shasta, who was 8 during the attacks and now is 11, from having to testify. Under that deal, a videotaped statement Shasta gave to law enforcement officers after her rescue from Duncan would be used in court instead. The deal fell apart, however.

Since then, Duncan has sidelined his attorneys and is representing himself, so any deal on the victim’s testimony must be reached between federal prosecutors and Duncan himself.

“It sounds as if they’ve worked out a deal not to have her required to testify,” said James Cohen, a law professor at Fordham University.

The prospect of the child having to testify – and relive the horrific events of three years ago – was made more shocking by the notion that Duncan himself might get a chance to cross-examine the girl. Because he’s acting as his own attorney, his Sixth Amendment rights to confront witnesses against him would have accorded him that role.

Court documents unsealed last week revealed that Shasta doesn’t want to testify or see Duncan. “I don’t want to be in the same room as him,” she was quoted as saying. “I hate him and don’t want to see his face. He killed my family and he shouldn’t be here.”

Duncan faces a possible death penalty on three different counts related to his kidnapping and killing of 9-year-old Dylan Groene, Shasta’s brother. He pleaded guilty to all charges in a 10-count federal indictment for kidnapping and molesting both children before shooting Dylan at a remote Montana campsite in front of Shasta.

Duncan also pleaded guilty in state court to killing the children’s mother, Brenda Matthews Groene; the mother’s fiancé, Mark McKenzie; and Shasta’s 13-year-old brother, Slade Groene. He admitted bludgeoning the three to death with a hammer at their North Idaho home in order to kidnap the family’s two youngest children.

Shasta was rescued from Duncan seven weeks after the attack, when she was spotted with him at a Denny’s restaurant in Coeur d’Alene.

Duncan’s sentencing trial, which the judge estimated Tuesday could take four to six weeks, opens this morning in Boise. First, both sides in the case will have an opportunity to remove three-quarters of the 61 prospective jurors who’ve been approved to serve after undergoing individual questioning in court about their views on the death penalty and possible biases.

Then the 12-member jury and three alternates will be seated, and opening statements will begin. U.S. Attorney for Idaho Tom Moss will give the opening statement for the prosecution, and Duncan himself will speak for the defense – if he chooses to speak at all. There have been increasing indications that Duncan may not present a defense.

Court documents show he’s refusing to present any “mitigating” evidence, which is the evidence the defense is allowed to present in the final phase of the sentencing trial for jurors to weigh against the heinousness of the crime and other aggravating factors, in deciding whether he should get the death penalty. He doesn’t have to present mitigating evidence, such as proof of a troubled childhood or mental illness, but he has the right to if he wants.

That issue appeared to be part of his split with his expert legal defense team. The lawyers were preparing a mitigation case when he decided to sideline them and instead act as his own attorney.

Also Tuesday in court, the judge asked about three requests for subpoenas that the defense had filed in April, and Duncan responded, “I’m not aware of any subpoenas.” His former lead counsel, Judy Clarke, then told the court, “That’s moot right now.” That suggests Duncan may not call any witnesses in his defense.

“My guess of what’s going on here is he is consciously or subconsciously on a mission to be sentenced to death,” Cohen said.

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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