Shasta won’t have to testify

BOISE – Jurors frowned, pursed their lips, some reddened visibly and one gasped out loud as U.S. Attorney Tom Moss detailed the horrific tale of Joseph Duncan’s crimes, intricately planned in advance, culminating in the sexual torture and murder of a 9-year-old boy and an attempt to burn beyond recognition every piece of his body.

Federal prosecutors will call 90 witnesses over the coming weeks to show why Duncan should die for his 2005 crimes. Those witnesses, however, won’t include Duncan’s only surviving victim, 11-year-old Shasta Groene. Instead, Duncan and prosecutors filed an agreement with the court late Wednesday waiving Duncan’s right to cross-examine the girl and allowing two videotaped and four audiotaped interviews she gave to law enforcement officers after her rescue to serve as her testimony.

For two of those interviews, Shasta, who was 8 when Duncan kidnapped and molested her after killing three members of her family, returned with police to the Montana campsite where Duncan held her and her brother Dylan for weeks – and shot Dylan to death in front of her.

“She was the one they had to look to to find out what had gone on,” Moss told the jury panel of nine men and six women. “She agreed to go back to the mountains and go back up there, and show, at the scenes, what she recalled about what went on up there in the Lolo Forest of Montana.”

The agreement covers only the “eligibility” phase of the sentencing trial, in which prosecutors must prove that Duncan intentionally killed Dylan and that at least one aggravating factor was present, such as a vulnerable victim or a crime committed in an “especially cruel, depraved or heinous manner.” In the final phase of the sentencing trial, the government will focus on the impact on victims and their families and Duncan’s future dangerousness. The agreement states that Shasta can testify in that phase if she wants to.

Richard Seamon, a law professor at the University of Idaho, said, “She does have a right to testify on the victim impact issue. … If you’re the prosecutor, you don’t want to compromise any of her rights, even if you don’t expect her to exercise them.”

In court documents unsealed last week, Shasta said she doesn’t want to testify and doesn’t want to 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.”

Seamon said, “The thought of him examining her is one that would probably make the jurors’ skin crawl, and it would have been a terrible thing to try and couldn’t have gotten him any sympathy with the jury.”

The child’s reprieve from that, he said, is “a great relief, really. … No one wants (her to suffer) that sort of ordeal.”

The jury, seated on Wednesday, heard a chilling and detailed account from Moss of how Duncan traveled through at least seven states, hunting for children to attack, before setting his sights on the Groenes.

In journal entries found on his computer, Duncan referred to his potential victims as “flowers.” One entry read, “Saw a pretty flower, tried to pick it, but it got away,” while another said, “Drove to Missoula looking for flowers.”

A Global Positioning System unit in his vehicle tracked everywhere Duncan traveled on his quest in 2005, and he marked numerous points on it for later reference – all apparently targets where he hoped to attack children. Among them were numerous homes in Montana and Wyoming with signs of children, including trampolines, tricycles and swing sets. At one, he spied on the home for as long as two days and stole a 6-year-old girl’s bike. He also marked several day care centers on his GPS, a school bus stop in Missoula and one location in Spokane, Kindermusik, where a sign advertised, “Music taught to children 7 and under.”

Seamon said that evidence shows Duncan’s dangerousness. “Here, where he’s looking for a victim of any kind and has all kinds of future victims in mind, it’s kind of a roving evil, and not victim-specific at all,” he said. “That’s part of what makes it so scary, and what may help convince the jury.”

There are 12 jurors and three alternates, but U.S. District Judge Edward Lodge said they won’t be advised as to which of them are the alternates until the end. “The court has purposely mixed up the alternates with the other jurors,” he said. “In a case like this, we just need to make sure that they’re all paying attention.”

The jurors listened closely to Moss’ opening statement, which lasted about 90 minutes. At least one wiped away tears; some took notes; all frowned. Duncan watched Moss intently throughout the statement, leaning his face on one hand at the defense table, where he sits alone, dressed in bright yellow jail-issue scrubs and a gold sweatshirt.

Moss’ statement revealed that Duncan planned his crimes in advance, deliberated over every detail, and even made a spreadsheet assigning point values to various pluses and minuses as he debated whether to commit the crimes.

When he entered the Groene family home near Wolf Lodge Bay in North Idaho, he wore leather gloves, a hood and a mask, and told police later that he made sure to leave no trace of himself behind – no fingerprints, not even a hair.

After binding and bludgeoning the children’s brother Slade, their mother, Brenda Groene, and her fiancé, Mark McKenzie, to death with a hammer, Duncan went after his real targets – Dylan and Shasta. He then drove the siblings to a remote campsite in Montana, where he molested them and, at one point, made a videotape of his sexual torture of Dylan at a nearby cabin.

The first thing he did after he returned to the campsite was show the videos to Shasta, Moss told the court. “She was able to describe them to the police before they had been pulled off the computer,” he said. A female juror gasped audibly.

The torture at the cabin left Dylan injured, Moss said, and Duncan promised to take him to a hospital, but instead shot him to death as he pleaded for his life, and put his body in a campfire.

“He’s a little boy whose last days on earth were filled with experiences that no child should ever have to endure,” Moss told the jury. “He deserves the justice that only you can provide.”

Duncan, who is acting as his own attorney in his sentencing trial after pleading guilty to all charges, gave only a 1 1/2-minute opening statement of his own. “I debated whether or not to do an opening statement, simply because I don’t want to get into an argument with the government about what happened,” he told the jury. But, he said, the horrific tale of his crimes detailed by Moss was “fair and accurate – up to the point of what occurred at the campground, which is really the only part that I haven’t been interviewed by the police about.” Duncan said, “I will testify, and I will try to answer any questions about what happened at the campground in order to clarify things.”

He denied nothing and offered no explanation or defense – no reason why the jurors shouldn’t deem him eligible for the death penalty.

Said Seamon, “Everything he does seems to be against (his) interest. … The sort of question occurs whether he wants to go down in flames.”