Thursday, November 3, 2005

ONGOING COVERAGE: GROENE INVESTIGATION

Duncan's attorneys split over videos

Federal defender says privacy outweighs need for copies

Nicholas K. Geranios
Associated Press
October 30, 2005

Lawyers for sex offender Joseph Edward Duncan III are split over whether to press for copies of child-porn videos involving Duncan's alleged victims, Duncan's federal public defender said Saturday.

While Duncan's state-appointed attorneys are battling for copies in preparation for his trial next year on three counts of murder in an attack on a home in Coeur d'Alene, his public defenders in the pending federal case say it's unnecessary.

The possibility that the pornographic material could be accidentally released to the public outweighs any benefits to the defense team of having copies of the material, said federal defender Roger Peven, whose regional office is in Spokane.

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"What seems to have been lost in the legal argument is the obvious interests of the Groene family," Peven said.

He refers to Shasta Groene, the 8-year-old sole survivor of the mid-May attack. She and her brother vanished the night three family members were slain at the family home. The remains of 9-year-old Dylan were found in Montana after Shasta was rescued and Duncan arrested at a Coeur d'Alene restaurant July 2.

Idaho is prosecuting the Coeur d'Alene slayings, while federal charges are expected in the abduction of the children and Dylan's death after the state case concludes.

Peven sought appointment to the Duncan defense team in anticipation of the federal charges. He said his agency is working closely with lawyers in the state case but cannot support the request for copies of the videos described by Kootenai County prosecutors as "vile, horrific, shocking."

While Duncan is not yet charged with any crimes against the two children, Peven said the videos in question could be a factor in the state case if Duncan is convicted and the case reaches the death-penalty phase. Prosecutors could introduce the taped material to jurors charged with deciding whether Duncan lives or dies.

While prosecutors are required by law to share evidence with defense lawyers in criminal cases and make copies when possible, there is legal precedent for a judge to ban the making of copies of recordings involving child pornography on grounds that such copies could inadvertently be released to the public and cause further damage to the victims.

Kootenai County Prosecutor Bill Douglas has made that argument in asking a judge to reject the defense motion for copies.

Prosecutors contend the videos were made during the seven-week period when Duncan held the children captive in Montana.

First District Judge Fred Gibler ruled earlier this month that three videos, one over 30 minutes in length, must be copied and given to defense lawyers to ensure that Duncan receives an adequate defense.

Douglas is trying to get the judge to change his mind, and a hearing on the issue is scheduled for Wednesday. He asked the judge to view the videos himself before then.

Two other videos, one 25 minutes and the other five minutes, contain no child pornography and Douglas said he would share them with Duncan's lawyers. He would also make arrangements for the defense team to view the offensive videos, he said.

Public defender John Adams has demanded copies of the videos, saying Duncan's constitutional rights will be violated if defense lawyers can only view the material at the convenience of prosecutors.

"I don't see anything new or different in this pleading from the last time we were in court," Adams said at a Thursday hearing.

He said Douglas' use of adjectives like "horrific" has "absolutely no legal relevance whatsoever."

Gibler's order included stringent rules to safeguard the recordings, requiring that they be encrypted or password-protected and stored in a locked safe, and that access be limited.

In state court, Duncan faces three counts of first-degree murder in the bludgeoning deaths of the abducted children's mother, Brenda Groene; their 13-year-old brother, Slade; and their mother's boyfriend, Mark McKenzie.

Court documents allege the slayings were committed so Duncan could abduct the children for sex.