New judge picked for Duncan case

First District Judge Fred Gibler has been assigned to Kootenai County’s biggest criminal case after fellow Judge John Mitchell was disqualified by the Kootenai County prosecutor.

The prosecutor filed a motion Monday to automatically disqualify Mitchell from hearing the case against Joseph E. Duncan III, who is charged with three counts of first-degree murder, and three counts of first-degree kidnapping.

Prosecutor Bill Douglas did not say Tuesday why his office chose to disqualify Mitchell, noting that the rule does not require a reason to be stated.

“We simply exercised our statutory right to one automatic disqualification,” he said. “We try to use it sparingly.”

The rule is used more sparingly for some judges than others.

Mitchell’s disqualifications far outnumber Kootenai County’s seven other judges.

Since July 1, 2004, defense attorneys and prosecuting attorneys have exercised their right to disqualify a judge “without cause” a total of 146 times. Duncan’s case is the 141st time that Mitchell has been disqualified, according to unofficial administrative records kept by the court.

Duncan could face the death penalty or life in prison if found guilty. He’s accused of killing Brenda Groene, 40; her 13-year-old son, Slade Groene; and her 37-year-old boyfriend, Mark McKenzie, with a hammer after binding them with duct tape and zip ties.

He also faces additional federal charges in the abduction of the two youngest Groene children, Shasta and Dylan, and the subsequent murder of Dylan.

Duncan, 42, is a registered sex offender who has warrants for his arrest from Minnesota for avoiding prosecution for alleged sex offenses there, and Fargo, N.D., for failing to notify authorities of his change of address.

Also recently, prosecutors automatically disqualified Mitchell from adjudicating the case of Daniel Lee Dixon, 23, who has pleaded not guilty to kidnapping and lewd conduct with a child under 16.

Dixon is accused of grabbing a 12-year-old girl at Coeur d’Alene City Park on June 20, forcing her to a concealed area and molesting her, and is being held on a $1 million bond. His trial date is set for Dec. 19.

While it’s unclear why Mitchell was disqualified from either Duncan’s or Dixon’s cases, he does have a reputation for favoring rehabilitation, which often means giving defendants the opportunity to improve and prove themselves while on probation.

But nearly half of the disqualifications came from defense attorneys, who would generally favor giving their clients a second chance to stay out of prison. Public defender John Adams could not be reached for comment Tuesday afternoon.

Mitchell did not return a phone message left at his office Tuesday. In an interview with The Spokesman-Review early last year, Mitchell said he resisted sending child molesters straight to prison because Idaho prisons lack treatment. “Treatment is the bottom line,” he said.

Mitchell often sentences defendants to prison with a retained jurisdiction, which means the defendants spend six months in a prison boot camp in Cottonwood, Idaho, where they can get some treatment and are evaluated for their fitness for probation. After six months, the judge then decides whether to order probation or have them serve out their term in prison.

Deputy Prosecuting Attorney James Reierson recently had Mitchell disqualified from a case involving registered sex offender Daniel J. Willette, who was charged with failure to register.

When asked why he wanted a different judge, Reierson referred to Mitchell’s decisions in two other failure-to-register cases, which are felonies that can be punished with five years in prison.

In one 2003 case, Mitchell sentenced Charles Costner to one year in prison, with the retained jurisdiction. While Mitchell said failure to register is a “serious offense,” he said the circumstances in that particular violation didn’t get him “too excited” about sentencing Costner to five years. Costner didn’t have a place to live and claimed he didn’t have $25 to re-register, according to court records.

When Reierson argued that didn’t leave much potential prison time to ensure Costner’s success on probation, Mitchell responded, “I have to have the punishment fit the crime, and I don’t view this as a very important or serious crime.”

In the other failure-to-register case, Mitchell sentenced defendant Gary R. Hines to two days in jail, with credit for two days served, plus one year indeterminate time in prison, and ordered Hines to serve one day of unsupervised probation.

“That’s almost unheard of on any case,” Reierson said, explaining that without probation’s oversight, there’s little inducement to make sure Hines registered at his next address.

Reierson advocates strong penalties regarding failure to register, saying: “If there’s no effective sanction, why would anyone register? … You shouldn’t have to wait until there’s a heinous crime and someone has to ask, how could this happen?”

Duncan, however, was diligent about registering as a sex offender, according to Fargo police. It was only when he disappeared from Fargo in April, allegedly on the hunt for children to sexually assault, that authorities had reason to worry.