Wednesday, August 16, 2006

ONGOING COVERAGE: DUNCAN INVESTIGATION

Duncan lawyer investigating state's execution protocol

Move could be precursor to challenge

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Taryn Brodwater
Staff writer
August 11, 2006

Joseph Duncan isn't set to be tried on triple-murder charges until October, but his attorney is already asking for the state's protocol for lethal injection.

Public Defender John Adams sent a formal request to Kootenai County prosecutors this week asking for the state's protocol for the method of execution, which has become increasingly controversial in recent years.

Adams is also asking for details on the drugs that the state would administer and how they would be administered if Duncan were sentenced to death.

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"The prosecutor says that if they get a conviction they're going to seek a sentence of death," Adams told The Spokesman-Review. "There's a question of whether Idaho has a protocol that's constitutionally acceptable for executing prisoners. We want to know the protocol so we can address that."

Duncan has pleaded not guilty to the May 2005 murders of Brenda Matthews Groene, her fiancé, Mark McKenzie, and her son, 13-year-old Slade Groene.

While it might seem curious to the layperson that Adams is asking about the protocol for lethal injection before his client has been tried, other defense attorneys say they aren't surprised at all.

Spokane defense attorney Jeffry Finer said raising the issue now may help Adams evaluate how likely it is that he could successfully challenge the constitutionality of the execution method.

"The reason he's looking isn't that he's morbidly interested in how it's done," Finer said. He said Adams could want the information so he can evaluate whether Idaho's procedures are lawful.

In other states, Finer said, the constitutionality of lethal injection has been argued in death penalty cases with differing outcomes.

A Florida death row inmate is challenging the constitutionality of lethal injection, arguing that it amounts to cruel and unusual punishment.

Earlier this year, the execution of a California man was stayed after anesthesiologists refused to participate at the last minute.

Mark Vovos, a longtime Spokane defense attorney, said there was one case where a man didn't die for 25 minutes after the drugs were administered.

There are also questions, he said, about whether the person being executed feels pain and, if they'd been administered anesthesia, whether they would be able to communicate that they were in pain.

Potential jurors need to be questioned about whether they would be able to sentence a person to death if the accused was found guilty, said Vovos, who has represented clients in several death penalty cases.

"You have to talk to a jury before you even go to trial on whether they're innocent or guilty about the potential of what would happen," said Vovos.

"It's not unusual at all," he continued. "Any attorney who would be death-qualified is going to challenge every aspect of the death penalty law, and he has an obligation to do that."