Archives for April 2008

From the Spokesman-Review

By Bill Morlin
Staff writer
April 30, 2008

The U.S. Attorney for Idaho says the courtroom should be closed to the public during any testimony from Shasta Groene at the death penalty proceedings for confessed killer Joseph Duncan.

The public also should be prevented from being in the courtroom while the jury is shown a graphic videotape Duncan made three years ago inside a remote cabin on the Idaho-Montana border as he tortured and ultimately killed her brother, Dylan Groene, the U.S. Attorney’s Office said in a legal brief filed Tuesday.

Government prosecutors said although “harm may occur” to Shasta Groene if she takes the witness stand, “being forced to testify knowing that the whole world is watching and scrutinizing her every word and movement is likely to be even more psychologically damaging.”

The government document was filed in response to an earlier legal memorandum filed this month by 16 media and open-government organizations. They argued to U.S. District Court Judge Edward Lodge, who is presiding over the death-penalty phase in Boise, that the public has a constitutional right to observe all matters occurring in a courtroom.

“The United States moves to exclude, temporarily, the press and the public from the courtroom if S.G. testifies, and asks the court to consider closing the courtroom when the jury views the cabin video as well,” said the government brief filed by U.S. Attorney Thomas Moss and Assistant U.S. Attorney Syrena Hargrove.

Society has a “strong interest in protecting young victims of violent crime from further psychological harm,” matched against an equally “strong interest in ensuring the accuracy and completeness of testimony,” the 10-page legal brief said.

In court documents, the government refers to the Groene children by their initials only, even though their identities have been public since May 2005 when they were kidnapped from the North Idaho home where three murders occurred.

Shasta Groene and her father, Steve Groene, also have appeared on national television shows.

Spokane attorney Duane Swinton, representing The Spokesman-Review and others, said the media and open-government organizations are only asking to see and hear what the jury will see and hear in determining if Duncan should live or die.

“The media has suggested a reasonable alternative to Shasta testifying in an open courtroom and that is having her testify by closed circuit television where she would be in another room,” Swinton said.

Closing the courtroom will not accomplish what the government requests, he said, because the kidnap victim still must testify before the jury, attorneys, Duncan, the judge and a variety of court personnel.

Swinton said he also was disappointed to learn from the newly filed Justice Department’s brief that there apparently have been a variety of documents secretly filed with the court going back to July of last year.

These government documents, he said, contain legal arguments and factual material to the court urging closing part of the upcoming trial, “and yet this discussion has been going without any public notice or input until the recent briefing we filed.”

From the Spokesman-Review

From the Lewiston Tribune

Idaho attorney general in town
By David Cole
Tuesday, April 22, 2008

Idaho Attorney General Lawrence Wasden said the Legislature needs to act during its next session to address ambiguities in the state’s open meeting law that can make enforcement difficult.

“We need to have a serious discussion with the interested parties,” Wasden said Monday at the Lewiston Tribune. Members of the media need to contribute to the discussion, he said, along with those governed by the law.

“We believe that legislation is necessary to resolve some of these issues,” said Wasden, who enforces Idaho’s open meeting law for state government. His office also handles cases from local government referred to it by county prosecutors.

The attorney general said in February, his office’s investigation into an open meeting law complaint against the State Board of Education revealed it may have committed a “non-knowing violation.” But because the investigation didn’t find a “knowing violation,” no fine was imposed under the law.

That investigation highlighted how difficult enforcement can be, especially when proving a violation has occurred is not enough. It must be taken a step further, proving those violating the law were aware – at the time of the violation – it was wrong.

“Without some clarification from the Legislature the law is virtually unenforceable,” Wasden’s spokesman Bob Cooper said. “You have to prove knowingness. It’s an almost impossible burden for a prosecutor to prove.”

During his meeting at the Tribune, Wasden said he supports plans for a University of Idaho Law School branch campus in Boise. Wasden is a 1985 graduate of the law school in Moscow.

Major law firms are in Boise, along with internship opportunities. There is also a concentration of government.

“It’s really market-driven,” Wasden said. “There’s a demand in Boise. If you don’t recognize that you’re going to get run over.”

Also, Wasden, as the National Association of Attorneys General president, said he will host an energy issues conference May 5-7 in Coeur d’Alene.

Attorneys general across the country must be ready to provide advice on energy issues to governors, legislators and state agencies, Wasden said. He plans to bring representatives of industry, government and science together for the meeting.

It is intended to provide a forum to address every part of the energy field, including reliability, resource use, emissions, sustainability and environmental impact.

“We need to have a discussion of the reality, instead of the rhetoric,” Wasden said.

—
Cole may be contacted at dcole@lmtribune.com or at (208) 848-2278.

From the Lewiston Tribune

From the Times-News

AG’s looks into possible open meeting violations

By Sven Berg
Staff writer

BURLEY – The Idaho Attorney General’s office is investigating claims Cassia County commissioners in November 2006 broke state laws governing public meetings when they voted to change address coordinates in the Jackson area to fit Cassia County’s grid.

County Attorney Al Barrus said Deputy Attorney General Karin Jones interviewed commissioners Paul Christensen, Dennis Crane and Clay Handy separately by phone Monday morning in response to allegations raised by Jackson residents. A spokeswoman for the attorney general said the Jackson allegations are being investigated, but declined to comment further.

Jackson resident Stan Buckley also declined to comment Monday on details of the case, except to confirm Jackson residents had submitted paperwork to the attorney general’s office requesting the investigation.

Addressing in Jackson has long been a source of contention between residents of the area and county authorities. Prior to 2007, coordinates in Jackson – the area of Cassia County located north of Interstate 84 and south of the Snake River – corresponded to the Minidoka County grid.

In 2006, Cassia County emergency-service providers complained of confusion stemming from Jackson callers reporting Minidoka County coordinates to Cassia County dispatchers; they proposed switching Jackson addresses to Cassia County coordinates. Jackson residents protested in near unanimity, saying there had been much less confusion when Minidoka County handled dispatching for the Jackson area.

Barrus said Jackson residents have made several complaints in calling for the attorney general’s investigation, including reference to a comment Handy made following an October 2006 meeting of the county’s Planning and Zoning Commission. At that meeting, planning and zoning commissioners recommended allowing Jackson residents to continue using Minidoka County coordinates. Buckley said, following planning and zoning’s vote, Handy said, “I don’t care what they say, your addresses are going to change.”

Handy has acknowledged making the comment, but he says it was not an indication county commissioners had already made up their minds to change Jackson’s coordinates.

Buckley confirmed Monday that Handy’s comment was among Jackson residents’ allegations of improper procedure.

In November 2006, county commissioners went against the P&Z recommendation and voted to change Jackson coordinates. Several months later, residents requested incorporation of the area as a city. County commissioners denied that request.

Jackson residents have complained emergency services have not improved since their address change took effect in the fall of 2007. Commissioners and emergency service providers in Cassia County say more training and time to adjust to the change will clear up confusion.

Sven Berg may be reached at 208-677-8764 or sberg@southidahopress.com

From the Times-News

From the Spokesman-Review

Click here to read the brief.

Bill Morlin
Staff writer
April 16, 2008

The public should be able to “observe all matters” considered by a U.S. District Court jury that will decide if confessed killer Joseph Duncan should face the federal death penalty, 16 media and open-government organizations argued in a legal brief filed on Tuesday.

The organizations, including The Spokesman-Review and three Spokane television stations, urged U.S. District Court Judge Edward Lodge to keep his Boise courtroom open if kidnap victim Shasta Groene is called to testify or if the jury is shown a graphic videotape Duncan made as he tortured and killed her brother.

Public access is important so citizens “can fully comprehend how this unique judicial process works and how the various participants – judge, jury, counsel, witnesses and the defendant – perform their duties and conduct themselves concerning imposition of capital punishment,” states a legal brief filed by attorneys Duane Swinton and Joel Hazel, who represent The Spokesman-Review.

Selection of the jury, begun Monday in Boise, is expected to take several more weeks. The judge said he will decide on the courtroom-closure issues at an unspecified future date without hearing oral arguments.

The judge had asked the media, through court-designated media liaison Betsy Russell, whether he could exclude the public from viewing a videotape Duncan made if the court allows it to be shown to the jury, and if the courtroom also could be closed if Shasta Groene or other potential witnesses testify. Russell is a Boise-based reporter with The Spokesman-Review and also is president of the Idaho Press Club.

“Everyone really cares whether Joseph Duncan gets the death penalty or not,” Russell said Tuesday. “It’s our job to inform the public how the jury reaches that decision, and that’s extremely important. It’s a job we can’t do if the courtroom is closed.”

Duncan’s videotape and Shasta Groene’s testimony – either live or through a videotape – are expected to be used by the prosecution to show there were “aggravating circumstances” warranting the death penalty.

Before the court can close any of its proceedings, a judge must determine there is a “compelling reason for closure” outweighing the public’s right of access under the First Amendment, Swinton and Hazel argue in their legal brief.

Further, they said, the court must rule there would be a “substantial probability a compelling interest would be harmed” if closure didn’t occur, and there are no alternatives to closure that would adequately protect the compelling interest.

“Public access to the proceedings in this matter relating to potential imposition of the death sentence must be provided because this required test for closure cannot be satisfied,” the brief said.

Initially, defense attorneys and prosecutors had agreed to use the videotaped testimony of Shasta Groene to keep her from having to go to a federal courtroom and face the man who kidnapped and sexually abused her and killed her brother. But that legal agreement apparently has fallen apart, and the young victim may now be called as a witness.

The media outlets are not seeking to film or broadcast the girl’s testimony or the videotape Duncan made while holding the two kidnapped children at a remote cabin on the Idaho-Montana border.

The identities of the two Groene children have been in the public domain since May 2005 when their kidnapping and the related murders of their mother and two others generated national media attention for several weeks and regional media coverage for much longer. Shasta Groene appeared on the syndicated Geraldo Rivera show and her father was on Oprah, discussing the impact of the crimes on the family.

“As a result, closing the courtroom will not protect the privacy of (Shasta Groene) concerning the fact that she was assaulted by the defendant and observed the killing of (Dylan Groene) by the defendant,” the brief said.

“These facts and the general nature of the defendant’s treatment of (both children) have already been publicly disclosed and have been widely disseminated not only in Northern Idaho and Eastern Washington but throughout the country,” the brief said.

“We understand the sensitive and painful issues surrounding this case,” said Senior Editor Carla Savalli of The Spokesman-Review.

“It is not our intention to further harm the victims of Joseph Duncan, but we cannot lose sight of the fact that he is facing the death penalty,” Savalli said. “The public must be able to weigh the evidence in this case along with the jury in order to decide whether justice has been served.”

The Spokesman-Review, she said, “is focused on the principle of an open and transparent judicial process because that it what ultimately benefits us all.”

Others joining in petitioning the court are The Associated Press; the Idaho Statesman; the Idaho Press Club; the Idaho Newspaper Foundation; Idahoans for Openness in Government; Idaho Allied Dailies; Idaho State Broadcasters; Boise State Radio; KHQ-TV; KREM-TV; KXLY-TV; KTVB-TV; KTRV-TV; KBCI-TV and KIVI-TV.

Swinton said he was unaware of any recent case in the Inland Northwest where so many different media organizations joined together on an issue of public access to court proceedings.

“This unified effort underscores how important it is that the public be able to understand how the criminal justice system works, particularly where the case involves the extremely rare situation where a jury is to consider imposition of the death penalty under federal law,” Swinton said.

From the Spokesman-Review