Duncan trial delay has risks

If suspected killer Joseph Duncan gets his triple-homicide trial postponed, it could be a double-edged sword for his legal team.

The extension would give Duncan’s lawyers more time to prepare a defense, but it also could give prosecutors an opportunity to bolster their case against the sex offender sitting in a Kootenai County jail cell.

Kootenai County Public Defender John Adams is asking 1st District Judge Fred Gibler to vacate Duncan’s April 4 trial and reset it for no sooner than November. Gibler was scheduled to consider the request in a hearing this morning.

Adams said in court papers he needs more time because of the overwhelming amount of evidence in the case, some of which he says prosecutors still haven’t turned over to his office. The trial first was slated to start in January, but Gibler granted Adams a continuance.

Such delays are not unusual in cases in which the defendant may be sentenced to death if convicted.

“It hasn’t been a year,” said John Rodgers, an attorney with the Spokane County Public Defender’s Office who has been involved in two death penalty cases. “This is well within a norm.”

Rodgers said his last aggravated murder case, a double homicide, didn’t begin until a year and a half after charges were filed. Postponing a trial is more likely, he said, because capital cases have two parts, the criminal trial and the penalty phase.

It’s almost like having two trials, said Spokane criminal defense attorney Phillip “Dutch” Wetzel. He said he understands why Duncan’s attorneys are asking for more time. He, too, has defended clients facing the death penalty.

“Usually the penalty phase comes directly after the guilt phase if there’s a conviction,” Wetzel said. “There’s just a tremendous amount of work to be done.”

Rodgers said he’s worked on capital cases where he’s actually gone back and talked to the defendant’s grade school teachers.

“There’s so much evidence that is relevant and so much more to go over,” he said. “The cases, by their nature, take substantially longer to get ready.”

Postponing the trial could be advantageous to Duncan’s attorneys, said former federal prosecutor Aitan Goelman, a criminal defense attorney in Washington, D.C.

“A lot of times, especially in really high-profile cases that have gotten a huge amount of publicity like this, the defense is worried about the ability to pick a fair jury,” Goelman said.

Delaying the case might “allow some of the outrage to subside,” making it easier to pick an unbiased jury, he said. The lapse also could affect the memory of those called to testify, he added.

But the request by Duncan’s attorneys to delay the trial also could backfire, Goelman said. Prosecutors could have more time to strengthen their case against the accused, and authorities may use the extra time to try to link Duncan to other crimes and present that as evidence against him at trial.

“He could keep writing these stupid letters to people, which the government can use as evidence,” Goelman said in reference to correspondence Duncan is believed to have sent from jail in recent months.

A Washington state woman backing a one-strike initiative for sex offenders recently received a letter allegedly written by Duncan in which he claimed he’s “not crazy” and asked for forgiveness.

Rodgers and Wetzel each said they see no strategic advantage to Adams’ request to push back the trial. Wetzel said he views the motion to postpone as the defense team trying to give Duncan the defense he’s entitled to under the Sixth Amendment, which outlines the rights of the accused in criminal prosecutions.

“I would be more worried, if I were in the prosecutor’s seat, of creating error by not allowing the defendant to adequately prepare,” Wetzel said.

According to court records, Adams is also asking the trial be postponed in anticipation of a pending Supreme Court ruling on the insanity defense. In a separate motion, the public defender has asked Gibler to declare the state’s repeal of the insanity defense as unconstitutional.

Kootenai County Prosecutor Bill Douglas wants the trial to begin in April as scheduled. In a court filing Tuesday, Douglas cited portions of Idaho law and the state constitution, which say victims are “entitled to a timely disposition of the case” and – where children are involved – courts should “minimize the length of time the child must endure the stress of his or her involvement in the proceedings.”

Shasta Groene, now 9, is expected to testify against Duncan, who is charged with the May 2005 slayings of her mother, brother and mother’s boyfriend. Duncan allegedly kidnapped Shasta and her 9-year-old brother Dylan from the crime scene, held them at a remote Montana campsite and later killed the boy.

Federal charges will likely be filed for the kidnapping and Dylan’s death once the state case against Duncan concludes.