Duncan lawyers: Secrecy in court case has gone too far

From the Spokesman-Review

By Betsy Z. Russell, Staff writer

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

U.S. District Judge Edward Lodge had ordered the closure of a status conference on “evidentiary and discovery issues” in the case, saying the 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 faces a possible 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 he wanted to exercise his constitutional right to jettison his attorneys and represent himself.

Duncan earlier pleaded guilty in state court to killing the children’s 13-year-old brother, mother, and mother’s fiancée in a bloody attack at the family’s home in order to kidnap the two youngsters. 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, presumably referring to the mental competency evaluations. However, Duncan has asserted no such right, his lawyers wrote in court documents filed today.

“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.

They 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 unprecedented 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. The court has not yet ruled on those challenges, saying it will take them up after the mental competency and self-representation issues have been dealt with.

In today’s filing, the defense attorneys said the secrecy now has gone too far, and threatens Duncan’s right to a public trial under the 6th Amendment, as well as the 1st Amendment and common law rights of access to court proceedings cited by the media.

In addition, they wrote, the court 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 listed 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 rule swiftly on their motion, and if he denies it, grant a delay of the planned Thursday status conference to allow them to appeal his decision to the 9th Circuit U.S. Court of Appeals.

“The defense acknowledges its participation in the culture of secrecy in this case up to this point,” the attorneys, led by Seattle attorney Mark Larranaga, wrote in today’s filings. “Having now considered the issues implicated by such practices, the defense believes it has mistakenly gone along with the same in the past. The instant motion has been brought to avoid allowing that improper practice to continue.”

Duncan, who earlier had been housed at the Idaho Maximum Security Institution, today was admitted to the Federal Detention Center Sea-Tac in Seattle, Wash., where he arrived just after 9 a.m. today. Earlier, attorneys and the judge had discussed sending him to a federal facility in Seattle where extensive mental evaluations are conducted that include lengthy observation periods.

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.

In Idaho’s largest-ever jury pool called in federal court, more than 300 jurors are awaiting possible service in the case. They’ll decide whether Duncan should die or get life in prison without the possibility of parole.

From the Spokesman-Review

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