July 26, 2008 in Idaho

Defense wants open court for video

Duncan team OK with closed court if Shasta testifies
Betsy Z. Russell Staff writer
 
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BOISE – Attorneys for Joseph Duncan argued Friday that the courtroom should remain open when prosecutors play graphic videotape evidence during his sentencing hearing, but that it should be closed if Shasta Groene testifies.

The defense was responding to motions filed by The Spokesman-Review and other news organizations arguing that the First Amendment requires that key evidence in the death penalty sentencing proceedings must be presented in open court.

Duncan could get the death penalty for murdering 9-year-old Dylan Groene after kidnapping him and his 8-year-old sister, Shasta, in 2005. He invaded the Groene family’s home near Coeur d’Alene and killed three family members before kidnapping and molesting the two children.

In documents filed Friday, Duncan’s attorneys said closing the courtroom for the video evidence would violate the First Amendment and Duncan’s Sixth Amendment right to a public trial. As far as closing the courtroom for the key victim testimony, defense attorneys noted that they’ve previously agreed to such a closure and did not elaborate.

That agreement was filed under seal with the court in July 2007. The news media also are seeking the unsealing of it and several other court documents in the case, in which dozens of documents have been kept from public view.

“The interesting thing is they’ve stipulated in a document we’ve never seen to closure of Shasta’s testimony,” said Duane Swinton, attorney for The Spokesman-Review and the other media outlets. “It’s difficult to understand why the stipulation was entered because we haven’t seen the record on which it was based.”

Swinton said his law firm was served Friday with a copy of the response from John Sahlin, guardian ad litem for Shasta Groene, backing closure of the courtroom for the videotape evidence and continued sealing of certain court documents, but suggesting the proceedings will be traumatic for the girl regardless of whether she testifies and whether the courtroom is open.

“The emotional impact exists merely because the case exists,” Swinton said the response suggests, “and it will occur if she has to confront him.” He noted that a motion to seal accompanied the documents, though nothing had been filed in court as of Friday, and Swinton did not release them. Summarizing them, he said “It shows the issues involved in a case like this, and it reflects the concern of all the parties as to those issues.”

In December 2007, both sides in the case reached an agreement to spare Shasta Groene, now 11, from testifying and instead to rely on videotaped statements she made to investigators after her rescue from Duncan in 2005. However, that agreement apparently fell apart.

Federal prosecutors, in their response to the media’s motions, argued earlier that the video evidence and victim testimony should occur in a closed court. They and the defense attorneys agreed that some court documents should be unsealed. The judge has not ruled on the matter.


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