Sunday, September 3, 2006

ONGOING COVERAGE: DUNCAN INVESTIGATION

Lawyers clash over Duncan statements

Steve Groene, father of homicide victims Slade and Dylan Groene, chats with the media Tuesday prior to motions in the Joseph Edward Duncan trial. (JESSE TINSLEY The Spokesman-Review )

Taryn Brodwater
Staff writer
August 23, 2006

Public Defender John Adams fought passionately Tuesday to keep statements Joseph Duncan made about Shasta Groene and crimes against her family from being used against the triple-murder suspect at his trial this fall.

Most questions Adams asked witnesses during a hearing Tuesday focused on three issues: Was Duncan informed of his Miranda rights when he was arrested last year; was he questioned after invoking his rights; and should statements Duncan made to a chaplain and social worker have been kept in confidence.

Kootenai County Chief Deputy Prosecutor Rick Baughman called several law enforcement officers, along with the chaplain and social worker, to support the state's case.

The hearing included frequent objections from both attorneys and an especially heated exchange between Adams and an FBI agent who talked with Duncan at length last summer. Adams said those discussions took place after Duncan had asked for his attorney.

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Steve Groene, father of homicide victims Slade and Dylan Groene, and Lee McKenzie Wood, mother of homicide victim Mark McKenzie, were in the courtroom Tuesday.

McKenzie Wood said Tuesday's hearing was encouraging – a sign that the Oct. 16 trial is getting close.

"This thing has started finally. It's been over a year," she said.

McKenzie Wood said she was bothered by the contention of Duncan's attorneys that his rights were violated.

"As far as I'm concerned, he doesn't have any rights," she said.

Duncan is facing the death penalty for the May 2005 deaths of McKenzie, along with his fiancé, Brenda Matthews Groene, and her 13-year-old son Slade.

He has yet to be charged in the kidnappings of Shasta and Dylan Groene and the subsequent death of 9-year-old Dylan.

The children's father had hoped for a plea agreement that would keep his daughter off the witness stand. But Steve Groene said Tuesday he's been told there's no possibility of a plea deal in the triple-murder case.

"I guess it doesn't matter anymore what my hopes are," he said.

Though there have been a handful of motions made by the prosecution and defense, Tuesday's hearing only dealt with Adams' motion to suppress the statements Duncan allegedly made.

According to court testimony by officers Tuesday, Duncan wasn't read his Miranda rights until two hours after his arrest. In that time he allegedly made incriminating statements.

After Coeur d'Alene police officers responded to the Denny's restaurant where Shasta Groene, missing for weeks, was found with Duncan, he allegedly told officers he knew why they were there. He told them it was because he was there with Shasta, Officer Timothy Carroll testified.

"He said he brought Shasta to see her father," Carroll said.

Sheriff's Sgt. Art Dollard testified that while they were still at Denny's he asked Duncan if he had a car in the parking lot. Duncan responded that he'd rather not say without an attorney.

Adams said with that statement, Duncan was invoking his Fifth and Sixth Amendment rights. Dollard said he believed it was only Duncan's response to that one question.

Dollard took Duncan to the Kootenai County Sheriff's Department, where they sat together in an interview room for an hour, waiting for detectives to arrive.

During that time, Duncan made some of the incriminating statements that Adams doesn't want a jury to hear.

In the days following his arrest, Duncan spoke with Jail Chaplain Robert Smalley and a social worker with the Idaho Department of Health and Welfare.

As Baughman questioned Smalley and social worker Chrystal Hodgson, Adams repeatedly objected, saying their testimony was a violation of privilege.

Smalley testified that he informed Duncan there were three areas in which he couldn't hold out confidentiality: abuse or molestation of children, murder or intent to commit murder and information that Duncan might harm himself.

He prepared a memo detailing his conversation with Duncan, which he said included discussion of child abuse and molestation and murder.

Hodgson, who said she was called to the jail because of concerns about Duncan being suicidal, completed a report which detailed incriminating statements Duncan allegedly made to her.

During questioning of FBI Agent Michael Sotka on Tuesday, Adams accused the agent of ignoring Duncan's request for his attorney.

Sotka and FBI Agent William Long came to the Kootenai County Jail on July 19, 2005, with a federal warrant for Duncan's fingerprints.

During the first of three contacts between Duncan and the agents that day, Duncan asked, "Have you guys contacted my attorney regarding this?" according to transcripts from the interview.

Adams argued that Duncan invoked his right to have an attorney present, and that discussions the agents had with Duncan later that evening, including after Duncan summoned them to return to the jail, violated his rights.

"How long you been a cop?" Adams asked Sotka. "Seven years and you don't know that's a request?"

He accused Sotka of violating his agency's policy on interrogation.The hearing resumes at 9 a.m. today when Adams and Baughman are expected to make their final arguments in the motion to suppress.

First District Judge Fred Gibler isn't expected to rule on the motion today but said he plans to later issue a written opinion.

Other motions are set to be heard today, including motions by Adams to declare the state's repeal of the insanity defense unconstitutional and to strike the prosecution's notice of intent to seek the death penalty on grounds the proper paperwork wasn't filed.

Adams is also asking a jury be brought in from outside Kootenai County.

Prosecutor Bill Douglas is asking the court to approve special conditions under which Shasta Groene can testify against Duncan without having to face her alleged abuser.