Duncan lawyers seek sentence delay

BOISE – Attorneys for convicted murderer Joseph Edward Duncan III are asking a federal judge to postpone his sentencing hearing on 10 federal charges until September, and to prevent the only surviving victim from testifying about the effect the deaths of her mother, older brother and family friend had on her.

The flurry of defense motions, filed in U.S. District Court on Tuesday and Wednesday, also include a request to take the death penalty off the table for one of the charges against Duncan.

Duncan pleaded guilty in December to the charges, all stemming from the kidnapping of Shasta Groene, then 8, and her brother Dylan, 9. Both were taken from their Coeur d’Alene home in May 2005 and sexually abused before Duncan shot and killed Dylan at a campsite in Western Montana.

Duncan previously pleaded guilty in state court to killing the children’s mother, Brenda Groene; her fiance, Mark McKenzie; and 13-year-old Slade Groene at the family home.

Shasta was rescued about seven weeks after the abduction, on July 2, 2005, when a waitress spotted Duncan and the girl in a Coeur d’Alene restaurant.

A sentencing hearing is scheduled for April to determine whether Duncan should receive the death penalty. But Duncan’s attorneys told a judge that without a postponement, the case will “inevitably result in the denial of Mr. Duncan’s constitutional guarantee of effective counsel.”

U.S. District Judge Edward Lodge has already warned attorneys on both sides that if he can help it, there will be no more postponements. Duncan’s attorneys – Mark Larranaga, of Seattle, Thomas Monaghan, of Boise, and Judy Clark, a high-profile federal defense attorney from San Diego – maintain they need the extra time to find a “social history expert” who can narrate Duncan’s life history to sentencing jurors.

Often, social history experts are social workers or sociologists who research a defendant’s life, focusing on things that would explain a tendency toward criminal or violent behavior.

“Through its investigation and preparation, the defense has uncovered that Mr. Duncan’s life history is permeated with abuse, neglect, torture, rape, and betrayal; all lending to a horrific life of trauma that in fairness must be weighed by the sentencing jury – not as an excuse for the conduct, but in its consideration of whether to sentence Mr. Duncan to life in prison without possibility of release, or death,” the defense attorneys said in the motion.

So far, several of the social history experts asked to take the case have declined because there is not enough time to prepare, the attorneys said.

In a separate motion, defense attorneys asked Lodge to prohibit Shasta Groene from testifying about the effect that the murders of her mother, her brother Slade and McKenzie had on her. That’s because those charges were handled already in state court, the defense attorneys said, and so they should not be considered during the federal case.

The defense also wants the judge to require all potential victim impact witnesses to offer their proposed testimony before the sentencing hearing so the court can limit or exclude anything deemed inappropriate.

Finally, the defense attorneys are asking Lodge to eliminate the possibility of a death sentence for one of the charges against Duncan: sexual exploitation of a child resulting in death.

In pleading guilty to that charge and the others, Duncan admitted that he forced Dylan Groene (referred to as D.G. in court documents) to take part in videotaped sexual acts on June 22, 2005, in an old wooden cabin in the Lolo National Forest. Duncan also admitted that he killed Dylan on or about the same day by shooting him with a stolen shotgun. But his attorneys maintain that because the killing didn’t take place during the videotaped child pornography, the death penalty can’t apply.

“While the facts admitted by Mr. Duncan establish his guilt … they do not establish that his killing of D.G. occurred ‘in the course of’ that criminal conduct,” the defense attorneys wrote.

“To the contrary, the facts show that the production of the sexually explicit video and the shooting of D.G. were two discrete events that occurred at different times and not in the same location.”

Lodge has placed all those involved in the case under a gag order.