COEUR D'ALENE, Idaho — A judge has ruled that Joseph Edward Duncan III may indeed face the death penalty if convicted in his upcoming triple murder trial and also left intact Idaho's ban on the insanity defense.
First District Judge Fred Gibler also rejected a defense request that a jury be brought in from another Idaho county for the trial because of the avalanche of news coverage after an abducted girl was found with Duncan last summer.
Gibler said there was no presumption that Duncan, 43, could not receive a fair trial from local jurors.
"The mere fact there is publicity does not require a change of venue," Gibler said Wednesday. "If possible, this case should be tried in Kootenai County with citizens of Kootenai County."
He said he would reconsider the motion if it became apparent during jury selection that an impartial panel could not be found. About 800 potential jurors will be called for a trial set for Oct. 16, lawyers said.
Defense lawyer John Adams submitted evidence showing nearly 700 newspaper articles, almost 200 letters to the editor, numerous local TV news reports and tens of thousands of Internet site hits involving the case.
"Duncan has been prejudged and sentenced to death," Adams complained.
Prosecutor Bill Douglas said finding people who had not heard of the case would be impossible.
"There is not a person in Idaho who has not heard of this case," Douglas said. But he said the test is whether a juror can follow the judge's instructions.
Duncan, a convicted sex offender, is charged with using a hammer to kill Brenda Groene; her fiance, Mark McKenzie; and Groene's 13-year-old son, Slade, in May 2005. He faces the death penalty, or life in prison without parole, if convicted in the killings at the family's home east of Coeur d'Alene. Court documents allege the killings were a means to kidnap Shasta Groene, then 8, and Dylan Groene, 9, for sex.
Duncan was arrested July 2, 2005, at a Denny's restaurant in Coeur d'Alene while eating with Shasta. Dylan's remains were later found at a campsite in Montana.
Gibler rejected a defense motion contending that Duncan should not face the death penalty because of technicalities in Idaho's charging laws. Gibler said state law was correctly followed in this case.
And the judge rejected a motion contending Idaho's ban on the insanity defense was unconstitutional. Adams said the ban was counter to hundreds of years of common law, but the judge ruled the state Supreme Court had already decided the issue.
Gibler will study a prosecution request that Shasta Groene, now 9, be allowed to testify at the trial without having to look at Duncan and with a supportive adult nearby. Court documents indicate Duncan held her captive for seven weeks before her rescue in Coeur d'Alene.
"Case law allows courts to make accommodations for a 'friendly face,"' Douglas told the judge. "We intend to have a supportive person with Shasta."
He identified that person as a female police officer who has bonded with the girl.
Adams argued that Duncan has a fundamental right to face his accuser. Having the girl testify with her back to Duncan, with a teddy bear on her lap and guarded by a uniformed police officer is not fair, Adams said.
"I have no willingness or intent to traumatize Shasta," Adams said. "However, I have a job to do."
The judge scheduled an Oct. 12 hearing on that issue.
Gibler also has yet to rule on whether incriminating statements Duncan made in the hours and days after his arrest can be used against him. Duncan's lawyers contend his right to have an attorney present was improperly denied by law enforcement officers.
Steve Groene, the girl's father, had earlier asked prosecutors to drop the death penalty option if Duncan would plead guilty and spare Shasta from having to testify.
But on Wednesday, Groene expressed satisfaction that Duncan could face capital punishment.
"I'd like to see this guy put to death," said Groene, who was in the courtroom for both days of hearings this week. Duncan did not attend the hearings.
Federal charges in the children's abduction, and the death of Dylan, are expected after the state case concludes.
Steve Groene added that Shasta had a good summer and was preparing to enter the fourth grade.