Duncan’s psychiatric evaluation sealed

The public has no constitutional right to see the results of a mental evaluation of killer Joseph Duncan, a federal judge in Boise ruled Thursday.

Duncan’s right to a fair trial outweighs the public’s right under the First Amendment, U.S. District Court Judge Edward Lodge ruled before sealing the results.

“The defendant’s privacy interests are compelling, as are the interests in preventing prejudice to the pool of potential jurors,” the judge said.

Duncan’s psychiatric exam was ordered by the court to determine whether he is competent to act as his own attorney in the death-penalty phase, now on hold in U.S. District Court in Boise.

The evaluation, the judge said, “contains information which, if made public, creates a substantial likelihood the defendant’s right to a fair trial would be prejudiced.”

Lodge cited a 1996 case in Oklahoma in which a federal judge upheld the sealing of attorney-client records of Timothy McVeigh, ultimately convicted of the 1995 deadly bombing of the Alfred P. Murrah Federal Building in Oklahoma City.

Jury selection in the death-penalty phase for Duncan began last month but was temporarily halted after the defendant asked to represent himself. The judge said he was inclined to allow that but said Duncan would have to undergo a mental competency evaluation.

The exam was returned to the court and ordered immediately sealed by the judge in a five-page ruling explaining his action. Lodge is expected to rule soon on whether Duncan can act as his own attorney and order the resumption of jury selection.

Media outlets and open-government groups had sought access to Duncan’s mental evaluation and other documents sealed from public inspection. The judge said he would rule later on other sealed documents that media outlets are seeking to examine.

Duncan faces the death penalty for the 2005 North Idaho kidnapping and murder of 9-year-old Dylan Groene. His 8-year-old sister, Shasta, who also was kidnapped, is expected to testify in the death-penalty phase and could be questioned by her abductor.

Attorney Duane Swinton, representing The Spokesman-Review and other media outlets, said with the mental examination under seal, “it is difficult to understand how the judge will be able to refer to its contents and conclusions” when he decides whether Duncan can act as his own attorney.

“As we indicated in our briefing, how this case will proceed in terms, for instance, of Duncan being able to directly confront witnesses, will turn largely on the judge’s view of Duncan’s competency,” Swinton said.

The public should be told how the determination about Duncan’s mental health was reached, whether he was interviewed as part of that process and who conducted the exam, Swinton said.

Those are “issues of importance to the public concerning the credibility of the competency process and its resulting significant impact on the upcoming trial itself,” the media attorney said.

“It would appear that at least these portions of the report could be made public without jeopardizing the interests the judge wants to protect,” Swinton said.

Betsy Z. Russell, a Boise-based reporter for The Spokesman-Review and president of the Idaho Press Club, said the Duncan case “is very difficult for the public to follow because so many of the documents are being filed under seal.

“Yet it’s a case about which many people care very much – deciding whether a person who admits having committed a horrifying crime will receive the death penalty or life in prison,” said Russell, appointed by the court as media liaison for the Duncan case.

“As a reporter whose job is to help the public understand what happens in the case, I hope as much of it as possible will remain open to the public, so all can be satisfied that justice is done,” Russell said.