Archives for August 2008

From KTVB-TV

BOISE — NewsChannel 7 talked to a well-known local attorney about the public’s access to a trial or hearing like Joseph Duncan’s despite the victim’s request that they not be allowed.

Steve Groene did not hide the fact that he didn’t want the public to see a graphic videotape of his young son Dylan being tortured and raped.

But against his requests, the Constitution says the public has the right to be there and see all evidence.

Enraged, Groene targeted two women — the only two members of the general public who chose to watch the disturbing video. Moments before the tapes were played, he rushed into the courtroom and made a profane hand gesture toward the women and verbally gave them a piece of his mind.

Groene was upset that U.S. District Judge Edward Lodge did not keep the courtroom closed from the public when the tapes were played, except to those pertinent to the hearing.

Boise attorney David Leroy says his actions were fitting for an outraged parent, but according to the law, his emotions could not be considered.

“We have in this country a constitutional right for a defendant to have a public and open trial, we have strong rights for the media and the public to see what is going on in our courts,” said Leroy.

The former Idaho attorney general and current defense attorney, David Leroy, says our constitutional rights stem from our founders who fled a king that decided a man’s fate behind closed doors. And when the Constitution was written it deemed that if life, liberty or property were at risk, then it was going to happen in a public arena — no matter how the victim felt.

“Idaho has very strong victim’s rights statues, we recognize that it’s terribly important for the sensitivity of victims to be considered in the courtroom and the sentencing process, even the parole process when people are being released from custody, however none of those victim’s rights, those statutes, control the outcome and the conduct of a case,” said Leroy.

With the outcome of the case being life or death, Leroy says the evidence for all to see must be in the bounds of reality, materiality, and relevance.

“This is a dreadful, dreadful case and a horrible set of allegations it’s probably among the worst 10 cases in the last 100 years in terms the abuse of children and those who have to sit and look at the evidence whether they’re trained police officers or whether they’re jurors drawn from the public, nevertheless the question is – what shall we do with this man? And it’s important to follow the procedure and look at the evidence objectively,” said Leroy.

The two women that Steve Groene made obscene gestures at did not want to go on camera, but quietly told us that they understood why he was mad.

They said they were in court to see the judicial process unfold and mean no disrespect toward the case and the Groene family.

From KTVB-TV

From the Spokesman-Review

Betsy Z. Russell
Staff writer

The 9th Circuit U.S. Court of Appeals on Tuesday rejected an appeal from The Spokesman-Review of a federal judge’s decision to close the courtroom for key testimony in Joseph Duncan’s federal sentencing trial.

A three-judge panel of the court wrote that it could not reverse U.S. District Judge Edward Lodge’s order unless the district court “clearly erred” in ordering the courtroom closure, and they ruled, “It did not.” The ruling did not elaborate.

Lodge had ordered the courtroom closed for any testimony by Shasta Groene, the 11-year-old surviving victim of Duncan’s crimes.

Gary Graham, managing editor of the newspaper, said, “We’re obviously very disappointed in the court’s ruling.” He added, “We believe that the public and the news media have a right to know and see the same things the jury will hear and observe in the courtroom. … It’s critical that reporters be allowed to observe important testimony in order to produce a detailed account of the proceedings.”

Lodge had held that the 1st Amendment interests of the public were outweighed by the “compelling interests in protecting the minor victim from further harm and embarrassment.”

James Cohen, a law professor at Fordham University, said he was surprised the appeals court applied the strict “clear error” standard of review to a 1st Amendment case. “It sounds as if the 9th Circuit is giving the 1st Amendment short shrift,” he said.

From the Spokesman-Review

Link to document: 9th Circuit appeal

From the Spokesman-Review

BOISE – The Spokesman-Review has submitted notices to the parties in the Joseph Duncan case saying it will file an appeal (8/7/08) today with the 9th U.S. Circuit Court of Appeals opposing closure of the courtroom for any proceedings in Duncan’s death penalty sentencing trial.

U.S. District Judge Edward Lodge ruled Tuesday that the courtroom will be closed for the testimony of Duncan’s surviving victim, 11-year-old Shasta Groene. He’s considering a request to have her testify via closed-circuit television, so she wouldn’t be in the same room as her attacker.

Spokane attorney Duane Swinton, who represents the newspaper, said in the notice that the appeal will include an emergency motion for writ of mandamus to keep the courtroom open, and if the testimony is by closed-circuit TV, to permit the public in the courtroom while the girl testifies from another room.

From the Spokesman-Review

Editorial from the Idaho Statesman

GUBERNATORIAL RECORDS

Dirk Kempthorne is lurching toward releasing papers from his seven-year tenure as governor – a mere 27 months after leaving office.

No one can accuse the governor-turned-interior secretary of rushing into this one.

The problem rests not just with Kempthorne, but with state law. Idaho code contains no guidelines and sets no deadlines for the release of the archives.

As a result, Kempthorne and the Idaho State Historical Society have been engaged in a protracted public records Kabuki dance that might result in the release of some 500 boxes of gubernatorial records by September. The two sides have been meeting over the past month. As society Executive Director Janet Gallimore describes it, “We’re just working out the details now.”

Gallimore may feel obliged to put the best face on this mess. We’ll take a detached, dimmer view. It is inexcusable that Kempthorne has dragged his feet for so long – thwarting people from seeing records of his public service. The archives have been available for public viewing only with Kempthorne’s approval. The Historical Society has routinely turned down records requests, since it doesn’t have the documents.

This cloak-and-dagger policy includes equal parts paranoia and entitlement. We’re not sure why Kempthorne is trying to keep people away from the archives, but he doesn’t have the right. These may be Kempthorne’s records, but this phrase describes authorship, not ownership. The records belong to all Idahoans, although Kempthorne’s behavior would have you think otherwise.

State law requires the release of records – but the law is open-ended, and the timetable is subject to the whims of a former governor. Kempthorne’s successor, Jim Risch, promptly released his papers – although, in fairness to Kempthorne, Risch had only seven months’ worth of papers to release.

There’s nothing wrong with putting a deadline in the law; the state’s public records law has guidelines in place. A government agency has three working days to decide whether a requested document falls under the public records law, and then has 10 working days to make it available. The agency’s obligations are clear – and the process is predictable for the business person, concerned citizen or journalist seeking a record.

We don’t expect a former governor to turn over years of paperwork within 10 days.

However, we also don’t believe a former governor has any good reason to sit on records for more than two years. Somewhere in between, a reasonable timeframe can be found – and it can be incorporated into state law.

“Our View” is the editorial position of the Idaho Statesman. It is an unsigned opinion expressing the consensus of the Statesman’s editorial board. To comment on an editorial or suggest a topic, e-mail editorial@idahostatesman.com.

Editorial from the Idaho Statesman

From the Twin Falls Times-News

By Damon Hunzeker, Staff writer

Members of the Cassia County Board of Commissioners sometimes eat lunch together, sometimes bump into each other around town, sometimes discuss personal opinions privately. But according to a report issued by Attorney General Lawrence Wasden’s office Wednesday, they have not violated the Idaho Open Meetings Act.

In March, 12 residents of the Jackson area sent a letter to Cassia County Attorney Al Barrus alleging various improprieties and negligence from county commissioners regarding the law.

“Because you represent the Cassia County Commission on legal matters, we request that an independent prosecutor be appointed,” they wrote.

Barrus forwarded the complaint to the attorney general’s office – which, five months later, refuted the allegations.

The dispute began several years ago when the Jackson area was re-zoned from Minidoka County coordinates and brought into Cassia County, after which residents claimed emergency-service calls were ineffectually received, based upon confusion arising from the address changes.

Jackson citizens wanted to retain Minidoka County status. Cassia County Planning and Zoning agreed with them. The commissioners disagreed, and the residents were zoned away from their former county.

That happened two years ago. The residents attempted to incorporate a new town – Jackson – which would be part of Minidoka County. The request was denied by Cassia County commissioners.

Meetings and deliberations ensued – often, according to Jackson residents’ complaints, without sufficient notice given to the public and sometimes during executive session.

The Open Meetings Act requires that “all meetings of a governing body of a public agency shall be open to the public and all persons shall be permitted to attend any meeting except as otherwise provided by this act.”

While granting executive-session allowances that prevent the public from attending during those moments, OMA prohibits the agency from taking any final action during that time.

The complainants’ letter includes five specific allegations and asks that their zoning address be returned to Minidoka County.

However, according to the attorney general’s report, the grievances “fail to meet the timing provisions of the OMA” – which requires that, in order to declare a decision null and void, it needs to be brought forth within 30 days of the time that OMA was violated.

That wasn’t done – regardless, the report denies that the commission violated anything in the first place.

While acknowledging the frustrations of Jackson residents regarding inadequate emergency services, the attorney general investigation found no reason to reverse the commission’s zoning-change decision, nor any reason to consider the commission in violation of OMA.

“A review of the record reveals that the board engaged in significant public debate over the issues and provided multiple opportunities for input and commentary from the Jackson residents,” the report states.

From the Twin Falls Times-News

From the Spokesman-Review

By Betsy Z. Russell, Staff writer

Related Document: Legal brief seeking open court [PDF]

BOISE – Attorneys for The Spokesman-Review and an array of news media organizations in Idaho and eastern Washington filed arguments in federal court today in favor of keeping court proceedings in the Joseph Duncan case open.

U.S. District Judge Edward Lodge is considering closing the courtroom for the testimony of Duncan’s only surviving victim, 11-year-old Shasta Groene, and for the showing of a videotape Duncan made of his abuse of 9-year-old victim Dylan Groene, whom Duncan admits murdering.

“Open and public process is an integral part of the American judicial system,” attorney Duane Swinton argued in a 20-page legal brief. “In fact, the Supreme Court has reiterated on numerous occasions how important it is for the media to be able to effectively cover judicial proceedings.” Swinton noted that the “fundamental principle of openness” has been found to be particularly important in cases involving violent crimes, so the public knows that justice is being done.

The brief also argues for unsealing some of the dozens of court documents that have been sealed from public view in the case. Attorneys on both sides in the case earlier filed arguments agreeing to the unsealing of some of the documents.

“What unfortunately has occurred in the case at bar is that so many documents have been

filed under seal without any indication to the public even as to the general topic of the

documents, that understanding how this case has unfolded has been difficult to follow. The unfortunate result is the undercutting of the ability of the public to have confidence that justice is being accomplished and that standards of fairness are being observed,” Swinton wrote.

He concluded, “Significant decisions and proceedings are yet to occur before the Court, and, given the complexity and public significance of the issues presented in this case, including potential imposition of the death penalty, openness, essential to the ability of the public to understand the proceedings and the fairness of the same, must be provided. The record before the Court does not support sealing of records or closure of proceedings.”

The judge is expected to rule soon on the openness question. Jury selection in the case is scheduled to resume next Wednesday.

From the Spokesman-Review