Duncan attorneys object to closed hearing

BOISE – Attorneys for murderer and child molester Joseph Duncan say there’s been too much secrecy in the killer’s death sentence proceedings, and they are objecting to a closed court hearing planned Thursday.

The secrecy violates both the First Amendment and Duncan’s Sixth Amendment right to a public trial, they contend.

U.S. District Judge Edward Lodge had ordered the closure of a status conference in the case, saying a closed courtroom was required “in order to minimize the likely prejudicial effects that pretrial publicity of such matters would have on the Court’s ability to ensure a fair trial.”

Duncan could face the death penalty for kidnapping and molesting two North Idaho children and killing one of them, 9-year-old Dylan Groene. He’s already pleaded guilty to all charges in a 10-count federal indictment. His sentencing hearings have been repeatedly delayed as the court sought evaluations of Duncan’s mental competency after he decided to act as his own attorney.

Duncan earlier pleaded guilty in state court to killing the children’s 13-year-old brother, mother, and mother’s fiancé in a bloody attack at the family’s Wolf Lodge Bay home so he could kidnap the two younger children. He also could face the death penalty for those killings.

Lodge said in his closure order that the hearing Thursday would involve sealed documents, potential evidence that may not be admissible, and materials in which Duncan has a right to privacy. However, Duncan has asserted no such right, his lawyers wrote in court documents filed Tuesday.

“Mr. Duncan’s privacy interests … cannot be raised for him by the court or the government to justify a closed courtroom,” Duncan’s attorneys wrote. “… By the defense’s rough count, approximately 173 documents in the court record have been filed under seal and are unavailable for public inspection.”

The extensive secrecy in the case has prompted an alliance of news media outlets, led by The Spokesman-Review, to file legal challenges to the planned closure of key portions of the sentencing proceedings, including the possible testimony of the surviving victim, Dylan’s sister, Shasta. The court has not yet ruled on those challenges.

In Tuesday’s filing, the defense attorneys said secrecy has gone too far. The court, they wrote, should “recognize the historical importance of open proceedings, particularly where the government seeks to take the life of one of its citizens.”

Duane Swinton, attorney for the media outlets, said, “It appears from what the defense is saying that they’ve come to the same conclusion that the various media representatives felt from day one, and that is, where you have a case involving the potential imposition of the death penalty, openness becomes even more important.”

He noted that the reason cited for much of the secrecy in the case was to protect the defendant’s right to a fair trial. “It would seem incongruous to continue with closed proceedings and sealed records when the defendant is taking the position that those matters should be open,” he said.

The defense attorneys asked that the judge rules swiftly on their motion, and that if he denies it, he grants a delay of Thursday’s status conference to allow them to appeal his decision to the 9th U.S. Circuit Court of Appeals.

Duncan, who was previously housed at the Idaho Maximum Security Institution, is now at the Federal Detention Center Sea-Tac, where he arrived just after 9 a.m. Tuesday. Earlier, attorneys and the judge had discussed sending him to a federal facility in Seattle where extensive mental evaluations are conducted.

In addition to the many sealed documents in the case, the judge has issued a gag order preventing all parties from speaking publicly about the case.