From the Spokesman-Review

By Betsy Z. Russell, Staff writer

BOISE – Attorneys for admitted multiple murderer and child molester Joseph Duncan now say there’s been too much secrecy in the killer’s death sentence proceedings, and they’re objecting to a planned closed court hearing on Thursday.

U.S. District Judge Edward Lodge had ordered the closure of a status conference on “evidentiary and discovery issues” in the case, saying the closed courtroom was required “in order to minimize the likely prejudicial effects that pretrial publicity of such matters would have on the Court’s ability to ensure a fair trial.”

Duncan faces a possible death penalty for kidnapping and molesting two North Idaho children and killing one of them, 9-year-old Dylan Groene. He’s already pleaded guilty to all charges in a 10-count federal indictment. His sentencing hearings have been repeatedly delayed as the court sought evaluations of Duncan’s mental competency after he decided he wanted to exercise his constitutional right to jettison his attorneys and represent himself.

Duncan earlier pleaded guilty in state court to killing the children’s 13-year-old brother, mother, and mother’s fiancée in a bloody attack at the family’s home in order to kidnap the two youngsters. He also could face the death penalty for those killings.

Lodge said in his closure order that the hearing Thursday would involve sealed documents, potential evidence that may not be admissible, and materials in which Duncan has a right to privacy, presumably referring to the mental competency evaluations. However, Duncan has asserted no such right, his lawyers wrote in court documents filed today.

“Mr. Duncan’s privacy interests … cannot be raised for him by the court or the government to justify a closed courtroom,” Duncan’s attorneys wrote.

They wrote, “By the defense’s rough count, approximately 173 documents in the court record have been filed under seal and are unavailable for public inspection.”

The extensive secrecy in the case has prompted an unprecedented alliance of news media outlets, led by The Spokesman-Review, to file legal challenges to the planned closure of key portions of the sentencing proceedings. The court has not yet ruled on those challenges, saying it will take them up after the mental competency and self-representation issues have been dealt with.

In today’s filing, the defense attorneys said the secrecy now has gone too far, and threatens Duncan’s right to a public trial under the 6th Amendment, as well as the 1st Amendment and common law rights of access to court proceedings cited by the media.

In addition, they wrote, the court should “recognize the historical importance of open proceedings, particularly where the government seeks to take the life of one of its citizens.”

Duane Swinton, attorney for the media outlets, said, “It appears from what the defense is saying that they’ve come to the same conclusion that the various media representatives felt from day one, and that is, where you have a case involving the potential imposition of the death penalty, openness becomes even more important.”

He noted that the reason listed for much of the secrecy in the case was to protect the defendant’s right to a fair trial. “It would seem incongruous to continue with closed proceedings and sealed records when the defendant is taking the position that those matters should be open,” he said.

The defense attorneys asked that the judge rule swiftly on their motion, and if he denies it, grant a delay of the planned Thursday status conference to allow them to appeal his decision to the 9th Circuit U.S. Court of Appeals.

“The defense acknowledges its participation in the culture of secrecy in this case up to this point,” the attorneys, led by Seattle attorney Mark Larranaga, wrote in today’s filings. “Having now considered the issues implicated by such practices, the defense believes it has mistakenly gone along with the same in the past. The instant motion has been brought to avoid allowing that improper practice to continue.”

Duncan, who earlier had been housed at the Idaho Maximum Security Institution, today was admitted to the Federal Detention Center Sea-Tac in Seattle, Wash., where he arrived just after 9 a.m. today. Earlier, attorneys and the judge had discussed sending him to a federal facility in Seattle where extensive mental evaluations are conducted that include lengthy observation periods.

In addition to the many sealed documents in the case, the judge has issued a gag order preventing all parties from speaking publicly about the case.

In Idaho’s largest-ever jury pool called in federal court, more than 300 jurors are awaiting possible service in the case. They’ll decide whether Duncan should die or get life in prison without the possibility of parole.

From the Spokesman-Review

From the IdahoStatesman.com

Forty-one attorneys general — including Idaho’s own Lawrence Wasden — support a federal shield law for journalists.

And on Monday, they wrote a letter to key senators, urging them to get moving on a shield law.

As the a.g.’s point out, shield laws that allow reporters to protect the anonymity of unnamed sources “advance a public policy favoring the free flow of information to the public.” Idaho and 48 other states already have shield laws, but a.g.’s make a strong argument on the need for a federal law.

“By exposing confidences protected under state law to discovery in federal courts, the lack of a corresponding federal reporter’s privilege law frustrates the purposes of the state-recognized privileges and undercuts the benefit to the public that the states have sought to bestow through their shield laws,” the attorneys general say in a letter to Senate Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky. Scroll down for the full text of the letter.

A federal shield law has made considerable headway in Congress. The House passed a version of the bill in October on a 398-21 vote (Idaho Rep. Mike Simpson voted yes; Rep. Bill Sali voted no). The Senate bill received a 15-4 yes vote in the Senate Judiciary Committee — but that was almost nine months ago.

Credit to Wasden and 40 other attorneys general for focusing some attention on this issue.

(In the interest of full disclosure, I wrote a letter on the Statesman’s behalf last week, urging Wasden to support the federal shield law.)

The text of the letter from the attorneys general:

We, the undersigned Attorneys General, write to express our support for the Free Flow of Information Act (S. 2035). The proposed legislation would recognize a qualified reporter’s privilege, bringing federal law in line with the laws of 49 states and the District of Columbia, which already recognize such a privilege. The Senate Judiciary Committee reported S. 2035 favorably on October 4, 2007, by a vote of 15-4. The House passed a
similar reporter’s privilege bill, H.R. 2102, by a vote of 398-21.

Justice Brandeis famously referred to the important function the states perform in our federal system as laboratories for democracy, testing policy innovations. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Reporter shield laws, which have been adopted — through either legislation or judicial decision — by every state but
one, must now be viewed as a policy experiment that has been thoroughly validated through successful implementation at the state level.

The reporter’s privilege that is recognized by the laws of 50 United States jurisdictions rests on a determination that an informed citizenry and the preservation of news information sources are vitally important to a free society. By affording some degree of protection against the compelled disclosure of a reporter’s confidential sources, these state laws advance
a public policy favoring the free flow of information to the public. An overwhelming consensus has developed among the states in support of this public policy, and United States Justice Department guidelines, on which the current legislation is largely modeled, likewise recognize the interest in protecting the news media from civil or criminal compulsory process
that might impair the news gathering function. Nevertheless, the federal courts are divided on the existence and scope of a reporter’s privilege, producing inconsistency and uncertainty for reporters and the confidential sources upon whom they rely.

By exposing confidences protected under state law to discovery in federal courts, the lack of a corresponding federal reporter’s privilege law frustrates the purposes of the state-recognized privileges and undercuts the benefit to the public that the states have sought to bestow through their shield laws. As the states’ chief legal officers, Attorneys General have
had significant experience with the operation of these state-law privileges; that experience demonstrates that recognition of such a privilege does not unduly impair the task of law enforcement or unnecessarily interfere with the truth-seeking function of the courts. The sponsors of S. 2035 have sensibly sought to strike a reasonable balance between these important interests, as the states have done, and we are confident that the legitimate concerns for national security and law enforcement can be addressed in the court procedures for evaluating a claim of privilege.

We urge you to support the Free Flow of Information Act and to enact legislation harmonizing federal law with state law on this important subject.

Thank you for your consideration of our views.

From the IdahoStatesman.com

Editorial from the Lewiston Morning Tribune

By Jim Fisher
Lewiston Morning Tribune
Tuesday, May 20, 2008

Television station KTVB in Boise calls itself “Idaho’s news channel,” but it acts like anything but a news organization.

Last week, the station taped what it called a debate among candidates for the Republican nomination to succeed Larry Craig in the U.S. Senate. But it did so behind doors closed to members of the public and to news organizations other than its co-sponsors in presenting the program, which you will not see identified as a debate on this page.

Those excluded weren’t on the approved guest list, explained Bryce Quarve, director of conferences and events for Northwest Nazarene University in Nampa, where the program was taped. Quarve said KTVB News Director Jim Gilchriest told him to block passage to anyone not on that list.

Those excluded include reporters for the Associated Press and for the state’s largest newspaper, the Idaho Statesman at Boise, as well as Rex Rammell, an independent candidate for the same office sought by those permitted in. The reporters left outside apparently thought they were going to cover a news event.

Shame on the Idaho Press Tribune of Nampa, the Idaho Business Review, KREM-TV of Spokane and KPVI of Pocatello for their participation in this affront to the mission of journalism. Their willingness to go along with KTVB’s exclusiveness made them look more like elected officials ducking behind closed doors to conduct the public’s business than like news organizations committed to the widest dissemination of information.

Thanks to those closed doors, there was only one print story about the program, from the Idaho Press Tribune – which appeared in Thursday’s Lewiston Tribune – and it was well short of exhaustive.

After people from other news organizations complained about the privacy of the event, Doug Armstrong, president and general manager of KTVB News Group, boasted in a written statement that his station’s taped programs promise to be “the fairest in the land.” And he charged that “other media comments unwittingly promote media homogeny [homogeneity?] and discourage media independence and diversity.”

The statement failed to explain why Armstrong’s station stiff-armed other journalists, but did sneer at actual debates such as those televised live statewide by Idaho Public Television, and co-sponsored by the Idaho League of Women Voters and the Idaho Press Cub.

“While other debates may probe fewer issues, ours provides information viewers may not get elsewhere,” he wrote.

Armstrong’s brazenness adds another chapter to the decline of what was once the Bullitt family’s great KING Broadcasting empire of Seattle, from which Belo Corp. of Dallas acquired KTVB and its sister stations – including Spokane’s KREM – in 1997.

At one time, KING-TV challenged Seattle’s newspapers for news leadership, broadcasting breaking news and investigative stories as well as incisive commentary from people like Charles Royer, who later served as the city’s mayor. Today, KTVB is reduced to asserting its superiority from behind closed doors instead of demonstrating it where it matters: in the ungated news community where quality is proved by competing with, not by silencing, others. – J.F.

Editorial from the Lewiston Morning Tribune

From the Idaho Statesman

Rows of records in Boise warehouse tell state’s story – minus Kempthorne’s chapter, for now

BY HEATH DRUZIN – hdruzin@idahostatesman.com
Edition Date: 05/13/08

Recent talks between officials with former Gov. Dirk Kempthorne and the Idaho State Historical Society finally could open Kempthorne’s gubernatorial records, which he has controlled since leaving office two years ago.

If they can reach a deal, the former governor’s papers would join a historical record of Idaho used by scholars, lawyers and curious citizens alike that documents everything from the Indian Wars to Micron.

Though Idaho law requires governors to turn over their records to the Historical Society, as every other former governor has done, Kempthorne has not complied.

But Kempthorne officials contacted the Historical Society last week after the Idaho Statesman reported Kempthorne was hanging on to his records, Historical Society Executive Director Janet Gallimore said.

Gallimore said she has not discussed a timetable for receiving the papers, which chronicle Kempthorne’s more than seven years in office but is willing to work out a deal with the former governor. Kempthorne originally wanted to give his papers to the University of Idaho.

“If they want them to be here, we’re happy to talk to them,” Gallimore said. “If they want them to be somewhere else, we’re happy to work with them.”

Before last week’s phone call, Historical Society officials say they had no contact with Kempthorne officials since shortly after Kempthorne left office in 2006 to become secretary of the interior.

A statement sent to the Statesman Monday by Kempthorne’s press secretary, Shane Wolfe, said Kempthorne officials are studying arrangements other former governors have with the Historical Society.

“Secretary Kempthorne’s representatives are in active and productive discussions with the Idaho Historical Society in hopes of forging a partnership to resolve any issues about Kempthorne administration records,” Wolfe said.

The flap over Kempthorne’s papers put a spotlight on the Historical Society, where the story of Idaho is stored box by box.

FROM SIX-SHOOTERS TO GROUCHO

If Kempthorne’s records do make their way to the Historical Society, they will join tons of documents held within the organization’s modern stone building on the eastern edge of Boise. The actions of everyone from prisoners to legislators are available.

Included in the archives is the paper trail of nearly every former Idaho governor’s time in office since statehood and many documents from the state’s rough-hewn territorial days, Historical Society Archivist Rod House said. The few gubernatorial records that are not housed in the building, save Kempthorne’s, are on loan from the society to institutions like Boise State University.

Rows of cardboard boxes and worn leather-bound books stacked 10 feet high in chilly, temperature-controlled rooms in the bowels of the building represent nearly 150 years worth of Idaho governors, from 19th century territorial leaders to Jim Risch, who served a whirlwind seven-month term in 2006.

Among the folders in the tightly packed boxes is Idaho’s history.

An 1876 letter to territorial governor David Thompson asks for a six-shooter and a carbine rifle to help mail carriers protect their Boise to Rocky Bar route. Another contains a “plea to have guns and stores ready for possibility of Indian trouble,” with the 132-year-old cursive nearly perfectly preserved on brittle, faded paper.

There are stacks and stacks of personal letters. A folder from 1956 includes letters to then-Gov. Robert Smylie complimenting him on his appearance on the Groucho Marx show.

Other letters are less cheery. In one, a woman complains to Gov. Phil Batt about ice and dead animals in the roads around Hailey; another decries a lack of school supplies.

“This is Idaho’s documentary heritage,” House said.

Most administrations have hundreds if not thousands of pounds of papers, everything from hand-scrawled constituent mail to orders for weapons.

Ironically, one of the few documents the society has from the Kempthorne administration is a proclamation in honor of Documentary Heritage Month, aimed, in Kempthorne’s words, as maintaining documents “crucial to the way we understand our past and plan for the future.”

TRUTH AND CONSEQUENCES

Governors’ papers are just a fraction of the about 80 tons of records housed at the historic society, but they are among the most highly read, House said. Already this year scholars, lawyers and curious citizens have requested 115 cubic feet of governors’ records, equivalent to about 345,000 pages.

The role of the state in preserving the historical record goes back to an 1864 act by Idaho’s territorial government, calling for newspapers to be bound and sent to the state archives. The Idaho Legislature created the State Archives in 1947 and gave them authority to catalog state records.

Many governors were of both state and national importance, said Todd Shallat, director of the Center for Idaho History and Politics. Gov. Moses Alexander, for instance, was a leader of the Progressive Movement and the first Jew elected as governor in the United States.

The records also provide puzzle pieces needed to determine whether the outcome of policy decisions reflects the intent, Shallat said.

“Ultimately, the governors’ papers are important for accountability in government,” he said. “We have to be able to see not only who did what, but we have to measure the impact over time. Who won and who lost?”

Businesses also use the archives. Barbara Perry Bauer, president of Tag Historical Research, said the archives are a “treasure trove” for her company, which compiles historical research reports for government agencies and private citizens.

“They’re invaluable,” she said. “There’s no way we can do the work that we do without accessing the state’s archives.”

Lawyers, too, rely on the archives. Correspondence can provide a window into a governor’s mind, which can be crucial in the courtroom, said Bob Cooper, spokesman for the attorney general’s office.

“They would be valuable in the way that legislative history is valuable,” he said. “In litigation, you are trying to demonstrate in some instances what the parties were thinking.”

Most of all, though, the records represent Idaho, warts and all, House said.

Echoing Kempthorne’s proclamation, he said, “The historical records of Idaho are crucial to the way we understand our past and plan for the future.”

Heath Druzin: 373-6617

From the Idaho Statesman

From the Idaho Statesman

Curtis Massood receives the honor in recognition of his efforts on behalf of open government.

BY JOE ESTRELLA – jestrella@idahostatesman.com
Edition Date: 05/10/08

Curtis Massood wasn’t looking for a fight when he asked Ada County for permission to build a billboard adjacent to a small coffee shop at 1035 E. Fairview Ave.

But he got one.

On Friday, two years after the county denied his request, the owner of Canyon Outdoor Media in Boise was presented with the 2008 Max Dalton Open Government Award for a successful lawsuit that declared the county’s e-mail system inaccessible to the public.

Along with the award, Massood received a $2,000 check, which he donated to The Shepherd’s Home, a children’s group shelter home in McCall.

The Max Dalton Award is dedicated to a former Idaho resident whose 1981 lawsuit against the Idaho Dairy Products Commission resulted in a landmark Idaho Supreme Court ruling reinforcing the public’s right to have access to state records.

“Curtis Massood has done an incredible service to the citizens of Ada County by ensuring the spirit of the Idaho Public Records Act is fulfilled,” said Idaho Newspaper Foundation Executive Director Tom Grote.

The legal fight with the county began when Kandy Sealy, a 50-year-old widow, and her father, an 88-year-old Pearl Harbor survivor, opened a coffee shop at the site on East Fairview Avenue after being greenlighted by the Ada County Department of Health, Massood said.

County planning officials told Sealy she needed to deal with Meridian city officials because the site was in that city’s impact area and would eventually be annexed, Massood said. When Sealy approached Meridian, he said, she was told she needed a $120,000 city sewer line to her shop.

In the meantime, the county had denied Massood’s request to put up his billboard adjacent to the coffee shop, arguing that it did not have the authority because the property would soon become part of Meridian, he said.

“I told the commissioners that they were trying to force annexation,” Massood said.

Acting under the Freedom of Information Act, Massood asked to see all e-mails between county employees and county agencies involving his case. What he got was a bill for $5,685.12, which the county claimed was the cost of complying with his request. He paid the bill, only to receive a second for $164,700.

“It was a real mess,” said Massood, who estimates it cost up to $80,000 in lawyer’s fees to win his case. “But the Legislature has clearly stated that e-mails are subject to the Freedom of Information Act.”

The two sides landed in court last year.

Massood said the county fell into a trap when it told Judge Kathryn Sticklen that it would involve too much work to retrieve the e-mails.

Sticklen ruled late last year that such a system put county e-mails out of the public’s reach and ordered that the county produce the e-mails.

“They finally had to admit that it would only require about two or three hours of work,” Massood said “We finally got about 20 of them last week, and some today (Friday).”

Massood’s billboard finally went up about two weeks ago, he said.

However, the story did not have a happy ending for Sealy or her father.

Their coffee shop was open for only a short time before they had to close it because most of their capital had been consumed in their fight with the county, Massood said.

Joe Estrella: 377-6465

From the Idaho Statesman

BOISE – The “Open Idaho” project is the winner of the 1st Amendment Award from the Idaho Press Club, announced on Saturday at the club’s annual awards banquet in Boise.

It was the latest honor for the project, which includes a DVD and website educating Idahoans about the state’s open meetings and public records laws, providing links and tips, presenting fun sketches to illustrate what the laws do and don’t allow, and providing lesson plans for Idaho high school teachers. The full title of the project is, “Open Idaho, A User’s Guide to Idaho’s Open Meeting and Records Laws.”

Earlier, the project was nominated for a regional Emmy Award, and also received a “Gold” award in the legal category at Worldfest, the Houston International Film and Video Festival.

The Idaho Press Club’s 1st Amendment Award honored IDOG, Idaho Public Television, the Idaho Attorney General’s Office, and “Fool Squad” actors Joe Golden and Tom Willmorth for their work on the project, which included a live call-in “Dialogue” show on Idaho Public Television in which host Joan Cartan-Hansen, Idaho Attorney General Lawrence Wasden and IDOG President Betsy Russell took calls from the public about Idaho’s open meetings and public records laws.

The “Open Idaho” project was funded by a grant from the John S. and James L. Knight Foundation through the National Freedom of Information Coalition.

The entire content of the “Open Idaho” project is available online for free, at www.openidaho.org.

From the Idaho Statesman

Two years after he left office, the ex-governor still hasn’t sent his files to Idaho’s archives, as state law requires.

Former Gov. Dirk Kempthorne’s records haven’t been sent to the state’s archives.

BY HEATH DRUZIN – hdruzin@idahostatesman.com
Edition Date: 05/06/08

Two years ago, the Idaho Attorney General’s office told Dirk Kempthorne to give his gubernatorial records to the Idaho State Historical Society – like every governor before him.

Kempthorne never complied.

Unbeknownst to the Historical Society, the dozens of boxes of documents from Kempthorne’s 7 years in office were locked away in the Department of Administration – access to the public given only with Kempthorne’s approval.

“They should be here,” said Linda Morton-Keithley, the administrator of public archives and research library at the State Historical Society.

LOST IN TRANSITION?

Kempthorne left office in May 2006 before the end of his second term, when President George W. Bush tapped him to become secretary of the Interior.

The quick transition to Washington, D.C., and Kempthorne’s busy schedule has made it difficult to properly vet the documents and cede control to the state, according to Kempthorne’s lawyer Michael Bogert, who called after the Statesman requested to speak to Kempthorne. Bogert, who also represented then-Gov. Kempthorne, said Kempthorne has given the state “jurisdiction” over the documents but admitted that any public records request has to be approved by the former governor.

“Once the governor leaves office, as with any governor, there are documents that might meet exemptions (from the public records law),” he said.

Bogert added that he has received no public records requests for Kempthorne’s gubernatorial papers.

That could be because the scholars and historians who normally ask for such records don’t know where to look.

Morton-Keithley said the society has received numerous requests to view the records since Kempthorne left office. They’ve had to turn every one down because they didn’t have the documents and thought Kempthorne was still holding onto them.

Bogert said the Historical Society has not requested Kempthorne’s papers, though Bogert was part of a public spat with the society over ownership of the records in 2006, which spilled onto newspaper pages.

Morton-Keithley said the society has requested the records.

A BROAD AUDIENCE

By law, the Historical Society oversees records generated during a governor’s term of office and those are considered state property. The society does loan them to institutions, such as Boise State University and the University of Idaho. If you want Kempthorne’s records, though, you have to ask his permission.

The records of every other Idaho governor are available to the public and are used by academics, lawyers, reporters and curious citizens, Morton-Keithley said.

“We have a pretty broad audience,” she said.

Idaho statute empowers the State Historical Society to “require that any state, county, or city, or any public official, deposit official books, records, documents, or original papers, not in current use, which are of definite historical importance, in the society for preservation…”

The Attorney General’s Office agrees.

Documents from a governor’s time in office, with a few exceptions, are public record and should go to the Historical Society, said Deputy Attorney General Bill von Tagen.

“We made it clear … that they had to go to the Historical Society,” he said.

TWO YEARS OF LIMBO

The brief fight over Kempthorne’s records started in spring 2006.

It was then that Kempthorne tried to give his gubernatorial records directly to the University of Idaho and have them sealed for 25 years. He backed off when the Idaho Attorney General’s Office told him such a move would be illegal. He has sealed the records from his one term in the U.S. Senate for 25 years, as allowed by federal law.

After the Attorney General’s opinion, however, Kempthorne’s lawyer said the records would be turned over to the state.

The Historical Society must make a formal request for the Attorney General’s Office to sue to recover the records, von Tagen said. There does not appear to be a deadline in statute for turning over gubernatorial documents.

The Historical Society has no plans to sue for the documents at the moment, said Executive Director Janet Gallimore, although she expressed surprise when told by a Statesman reporter that the records were held by the Department of Administration. Gallimore said she plans to talk to Department of Administration officials.

“I don’t know how that would have happened without us knowing about it,” she said.

ACCESS DENIED

Housing records at a university is no problem, given that the Historical Society retains ownership and public access is preserved, Morton-Keithley said.

“The issue isn’t as much where they go … as it is that we know where they are,” she said.

Right now any member of the public can view any gubernatorial record, except those exempted by state statute from the public records law, Morton-Keithley. No former governor, save Kempthorne, has any say over access, she said.

The University of Idaho has not heard from Kempthorne’s camp since shortly after he left office, said Lynn Baird, the university’s dean of library services. Baird said the university is still interested in adding Kempthorne’s records to their collection, which includes the records of Govs. C.A. Bottolfsen, Chase Clark., and Ben Ross. It also has Kempthorne’s Senate records.

“We would be delighted to have them,” she said.

Kempthorne’s actions are in stark contrast to his replacement, former Gov. Jim Risch, who turned the documents over nearly immediately after leaving office, said Morton-Keithley.

Risch, who is now lieutenant governor, said he had no issue with turning over the records from his seven months in office.

“I think transparency in government is critical,” he said. “No. 1, if you don’t have transparency, everyone assumes you’re trying to cover something up. … On top of it, people need to know what their government is doing.”

Heath Druzin: 373-6617

From the Idaho Statesman

From the Spokesman-Review

Click here to read the brief.

By Jim Camden
Staff writer
May 3, 2008

The public should be able to know results of the psychological exam that will help decide whether admitted murderer Joseph Duncan is competent to act as his own attorney in his sentencing hearing, lawyers for Idaho and Washington news organizations said Friday.

U.S. District Judge Edward Lodge should also unseal several documents that discuss why testimony from one of Duncan’s victims, Shasta Groene, should be heard in a closed courtroom, a motion filed in federal court in Boise said.

The Spokesman-Review, the Associated Press, and other newspapers and television stations are challenging an effort to exclude the public from Duncan’s sentencing hearing if Shasta Groene takes the stand or the jury is shown a video taken of the torture and murder of her 9-year-old brother, Dylan. Duncan faces life in prison or the death penalty for the 2005 kidnapping of the two children, whom he repeatedly molested, and slaying of Dylan.

“The decision whether to close courtrooms to the public and seal court documents from public view has serious constitutional implications,” attorneys for the news organizations argue in the motion. Letting the public see records that the prosecution or other parties use to argue in favor of closure would show people how the process works, they add.

Duane Swinton, an attorney for the news organizations, said more than a third of the 414 documents in the case have been sealed from public view. In some cases, the file merely says “sealed document” and doesn’t say what the document is.

Jury selection for the hearing is on hold until Lodge decides whether to grant Duncan’s request to serve as his own attorney. As part of that decision, the judge ordered a Boise psychologist to examine Duncan and report whether he is competent to represent himself. Lodge’s order for the exam indicates it will be kept from the public once it is filed.

A federal court in Ohio refused to seal a similar report in a death penalty case, the motion argues. In that case, a judge ruled there were “notable benefits to be gained from public access to reports” but no persuasive argument it would hurt the process.

Duncan’s competency report will be a key consideration in deciding whether he can act as his own lawyer, the motion argues.

Shasta’s father, Steven Groene, is objecting to the news organizations’ request to keep the hearing open, and he filed an affidavit to support his views. It was filed under seal with the court, so the public can’t see it even though the news organizations’ attorneys already have.

If the court is concerned about records that publicly identify Shasta or Dylan Groene, it could redact their names, the motion says. But the names are widely known, it adds.

Other documents, filed by the prosecution and Shasta’s guardian ad litem, apparently support closing the courtroom. They were filed under seal, the motion says.

“And, of course, responding to these documents as to arguments contained therein why the courtroom should be closed is an impossibility since the documents are sealed,” it adds.

Prosecution and defense attorneys are under a judge’s gag order that prohibits them from discussing the case.

From the Spokesman-Review

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.

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

From the Lewiston Tribune