Shasta never testified

The testimony has come to a close in Joseph Duncan’s federal death penalty sentencing trial without the sole surviving victim, now-11-year-old Shasta Groene, having to take the stand and see her attacker again. The prosecution and defense had reached an agreement regarding Shasta’s testimony in the first phase, in which it was admitted through videotaped and audiotaped statements that the child gave to authorities shortly after her rescue from Duncan in 2005. But there still remained the possibility that she could testify in the victim-impact phase; according to court documents, that was her right as a victim.

However, Judge Lodge stopped federal prosecutors from questioning Steve Groene about the memorial that he and Shasta left for Dylan at the scene of Dylan’s murder, testimony that was to include a photo of the site where Duncan burned Dylan’s body, transformed into a memorial with matchbox cars and other items in memory of Dylan. The prosecution also had at the ready photos of a memorial stone engraved with a poem, which has been placed at the campsite where Dylan died. But Lodge asked them not to present them.

The issue first surfaced when prosecutors were questioning Nancy Ison, Shasta’s teacher at Fernan Elementary, and they were about to go into how the little girl had changed after the crimes. The judge sent the jury from the courtroom and cautioned the attorneys, “We are getting into an area that I consider very dangerous. … Since S.G. was also a victim of this … crime, I don’t know whether you’re going to be able to lay a foundation. … I think it’s a very dangerous area, because D.G. obviously is the victim.” Testimony, he said, could get into “something other than the loss of D.G.”

The judge is being very careful, in this capital case, to avoid anything not strictly permitted for this type of hearing – to ensure that the ultimate outcome of the case can withstand legal challenge. It seems like the judge’s concerns about the teacher’s testimony would have applied equally to victim-impact testimony by the child herself – it could give the jury a picture of the trauma the crimes caused to Shasta, not just the trauma she experienced because of Dylan’s death. Later, after a break and before Steve Groene’s testimony, with the jury still out of the room, Assistant U.S. Attorney Traci Whelan made her case to the judge for presenting the memorial photos. “That’s the only memorial he has of his son, and that is up at the very place where his son was killed,” Whelan told the court. But the judge said the purpose of victim impact testimony is to show the uniqueness of each victim, especially to his family. With the photos, he said, “I think the primary purpose is emotional rather than reasoned. … I don’t want you to go into it.”