August 21, 2008 in Idaho

Expert rebuts Duncan’s version of shooting

FBI agent testifies he couldn’t make gun misfire
Betsy Z. Russell Staff writer
 
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BOISE – Joseph Duncan’s story that his initial shooting of 9-year-old Dylan Groene was an accident was undermined in court Wednesday, when an FBI firearms expert testified that extensive testing showed Duncan’s shotgun couldn’t fire accidentally.

John Webb, an FBI firearms examiner expert from Fredericksburg, Va., told the court, “The Browning 500 is a quality firearm that’s been produced for over 100 years. … I could not make the Exhibit 41 shotgun fire without pulling the trigger.”

Webb said he subjected the shotgun to extensive testing, designed to see if an outside force, such as the gun being dropped or hit, could make it fire. It couldn’t.

He also performed numerous tests to see how much force was needed to pull the trigger; in every test, it took 5 pounds of pressure to pull the trigger hard enough to fire the gun.

Duncan is facing a possible death penalty for torturing and murdering Dylan, after kidnapping and molesting him and his then-8-year-old sister, Shasta, in 2005. Shasta told police Duncan’s first shot, which hit Dylan in the abdomen, was an accident, caused when Duncan reached into a bin for a beer and jostled the gun, although she couldn’t see exactly what happened.

Duncan then held the shotgun directly to the boy’s head and tried unsuccessfully to fire, while the boy pleaded for his life. He reloaded the gun, held it again to the boy’s head, and killed him.

Wednesday in court, Duncan, for the first time, vigorously objected to prosecutors’ evidence against him and repeatedly questioned an expert’s explanation of Dylan’s abdominal wound. Shasta had told authorities Duncan told her he had to kill Dylan, because he’d have died anyway from the abdominal wound.

But Dr. Sharon Cooper, one of only 500 forensic pediatricians in the country, testified Wednesday that Dylan’s abdominal wound likely wasn’t immediately fatal. “No, not at all,” she said, calling such a wound, “a very potentially salvageable injury – we see this in soldiers on the battlefield rather often. They can live for several hours like that,” she said, and surgery can repair the damage.

She described a range of possible injuries to a child from a gunshot to the abdomen, and said based on Shasta’s description, Dylan likely suffered an evisceration wound, the second-least damaging of five possible injuries she described. In that type of injury, internal organs protrude through the wound, but they can be put back in and the damage repaired, she said.

Duncan closely questioned Cooper, first asking if in her experience, traumatized children tend to exaggerate what they’ve seen, and if her testimony was “based primarily on a potential exaggeration from a traumatized child.”

Cooper disagreed, and said a child would typically expect a gunshot victim to fall down dead instantly, as happens in movies. “They would not likely describe an evisceration if an evisceration hadn’t occurred,” she said.

Duncan then suggested that food Dylan had eaten – ramen noodles – were actually all that protruded from the wound. Cooper said that’s unlikely; ramen noodles that had been eaten would have the consistency of grits, she said, and the stomach itself would protrude along with its contents. The organs that protrude in an evisceration wound, she said, have a “snake-like appearance.”

Duncan’s cross-examination marked his first real dispute of evidence or testimony offered by prosecutors. Jurors must decide if Duncan, who has admitted his guilt, should die or be sentenced to life in prison without the possibility of parole.

Duncan, who is representing himself, for the first time Wednesday formally and vehemently objected to a piece of prosecution evidence – the most grisly evidence presented in the case so far, a piece of his victim’s skull, with 9-year-old Dylan’s strawberry-blond hair. “I strongly object,” Duncan declared.

“Objection overruled,” U.S. District Judge Edward Lodge responded, and the evidence was admitted.

Jurors had just seen a photo of the piece of the child’s remains, described by FBI Special Agent Mike Sotka as a skullcap. It appeared to be at least three inches in diameter; Sotka testified that he found it in heavy foliage about 15 feet from where Duncan’s Jeep was parked at the campsite when he shot Dylan. FBI agents cleared the brush and photographed the item where it was found.

In his opening statements, U.S. Attorney Tom Moss said the skull fragment was the only piece of Dylan’s remains that could be tested for DNA. Duncan burned the child’s body in a campfire and dumped the ashes in a culvert; forensic experts testified Wednesday that only tiny fragments of bone and teeth could be recovered from the culvert and fire site.

Duncan has been mostly passive as prosecutors sought to prove that he intended to commit his crimes, and that aggravating factors are present that warrant the death penalty, including a vulnerable victim and a crime committed in a particularly heinous, cruel or depraved manner. But Duncan will get to present his side before the end of this first phase of the trial, which could conclude this week. Duncan said in his opening statement that he planned to “testify” to clarify what happened at the remote Montana campsite where Dylan died.

Prosecutors have said they’ll show jurors a videotape Duncan made of his sexual abuse of Dylan before he killed him.

The jury will deliberate on intent and aggravating factors at the close of the first phase, and if they agree unanimously that those exist, Duncan will be declared “eligible” for the death penalty. Then the second phase of the sentencing trial would start, in which prosecutors can present evidence about victim impact and Duncan’s future dangerousness, and Duncan has a chance to present evidence of mitigating factors, such as an abusive childhood – though he’s indicated he doesn’t plan to do that.

Shasta, the only surviving victim of Duncan’s 2005 crimes that also included the murder of her mother, mother’s fiancé and her 13-year-old brother, may testify in a closed courtroom during the final, victim-impact phase of the trial.

At the end of that phase, jurors would deliberate again, and would need to agree unanimously to hand down a death sentence.

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


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