Duncan tests limits of open trial

The death penalty is supposed to be reserved for the worst of the worst. Confessed killer Joseph Duncan certainly qualifies. He was cruising past Wolf Lodge Bay on I-90 on a warm spring day three years ago when he looked over and spied two little kids playing in a sprinkler. He wanted them. He got off the freeway, and spent a couple of days planning his attack. To procure those children, he bludgeoned three people to death with a claw hammer, including their mother and brother.

Joseph Duncan took Shasta Groene, then 8 years old, and her 9-year old brother, Dylan, away up into the mountains where he had his way with them for more than two months. He made a video of his sadistic sexual torture of Dylan, before killing him in front of his sister. Some time later, he was caught in Coeur d’Alene when an alert waitress at Denny’s recognized Shasta.

The case is so horrific in so many ways, it seems impossible for it to get worse. Yet in some ways, it has.

Duncan admitted what he’s done to the Groene family. For the penalty phase of his trial, underway right now, the jury will have only two choices. They can give him life without the possibility of parole, or they can give him death.

People are reviled by Duncan. Because his crimes are so heinous, and we know he’s guilty, there almost seems to be a feeling that we can dispense with his rights and the formalities of the penalty phase of the trial, and just get on with the business of killing him, or putting him away forever.

Duncan has managed to confound everybody with the freak show he has orchestrated in the federal courtroom in Boise. Although his court-appointed defense lawyers claim he’s crazy, he passed all the competency tests. He’s crazy like a fox. He has demonstrated an uncanny ability to expose and exploit disturbing loopholes in the justice system.

He has banked on two of his most unassailable constitutional rights, and won. He is acting as his own attorney, and is positioned to face his accuser.

His accuser is Shasta Groene, the sole surviving member of the vicious attack on her family. She is the prosecution’s star witness. While a deal has been struck that will spare her from having to testify, the public was long burdened with the idea that this child would have to relive the horrible events of that summer in court.

It was bad enough to think that Shasta would have to endure telling her story again to a defense attorney. The fact that she could have been compelled to look at Duncan’s face, hear his voice and answer his questions, is too hideous to contemplate.

While the question was still up in the air, U.S. District Judge Edward Lodge ordered that the courtroom be closed if Shasta were to testify, even is she was in another room. The judge said that protecting her from “further harm and embarrassment significantly outweighs the First Amendment interests of the public.”

A host of media organizations disagreed with the judge. The Spokesman Review went so far as to appeal his decision, but it was rejected this week by the 9th Circuit court.

The attempt to keep the proceedings open proved to be very unpopular. A lot of people feel the media is too intrusive, and believe that protecting the victim trumps everything else. Shasta’s interviews with law enforcement officers, no doubt filled with horrifying details, will still be entered into evidence.

A reader called the Spokesman’s assistant managing editor, Carla Savalli, and asked how she could live with herself for trying to get access to the videotape that Duncan made, and to Shasta’s testimony.

People are understandably wary. They don’t necessarily trust the media to be discreet, and they have a fervent desire to protect Shasta. The extent of her victimization is unfathomable, and there isn’t a soul who would want to see her suffer any more, apparently even Duncan (or at least that’s what he’d like us to believe). In this further perverse manipulation, he might actually benefit from agreeing to spare Shasta from testifying by coming across as compassionate or remorseful.

The media’s fight for open proceedings was never about acquiring material to publish. It is about maintaining access to an open, public trial. It’s about assuring that there is due process, no matter how repugnant the defendant and his crimes.

Some legal experts think that this particularly repugnant defendant is “committing suicide by court” with his weird machinations in the courtroom.

That’s the best reason I can think of for protecting his due process.