08/02/2008

By REBECCA BOONE  / Associated Press

Former defense attorneys for Joseph Edward Duncan III say a federal judge shouldn't force them to represent the convicted killer in selecting a jury for his death sentencing hearing.

Earlier this year, Duncan asked the court to allow him to represent himself. U.S. District Judge Edward Lodge granted the request on Monday, making Duncan's defense team standby counsel to assist him with any legal questions. But Lodge also told the attorneys that they could be responsible for selecting the jurors who will decide if Duncan should be sentenced to death on three of 10 federal charges involving the 2005 kidnapping of two northern Idaho children, and the slaying of one of them. Duncan earlier pleaded guilty to those charges.

Duncan has said he wanted to serve as his own attorney because his defense lawyers couldn't ethically represent his "ideologies."

But Duncan asked also Lodge if the court could conduct the jury selection — also called "voir dire" — without the participation of either prosecutors or himself. If that wasn't possible, Duncan said, he would like his standby attorneys to handle his part of the jury selection process.

But the standby attorneys — Mark Larranaga, Thomas Monaghan and Judy Clarke — objected to that proposal, saying that it would put them in a position to render ineffective assistance of counsel.

"Standby counsel, if required to conduct voir dire for Mr. Duncan, would be effectively eroding Mr. Duncan's right to self-representation while simultaneously providing ineffective representation," the lawyers wrote. "Neither standby counsel, nor this court, should ask Mr. Duncan to permit this trial role by standby counsel."

Duncan's comment about differing "ideologies" shows that the standby lawyers and Duncan would have "significantly different approaches to the overall strategies in this case; this necessarily would include the content of voir dire," the standby team wrote. "Standby counsel are therefore placed in a position to ask questions that would be strategically reasonable if counsel were in control of the case, but which will be in conflict with Mr. Duncan."

Federal prosecutors Traci Whelan, Wendy Olson and Tom Moss said they felt there was no legal reason not to have the standby team conduct jury selection. After all, they said, Duncan himself requested that his standby team handle jury selection if the court declined to do it, and attorneys on both sides could make it clear to the prospective jurors that once the hearing got under way, the standby attorneys would take a smaller role and Duncan would be representing himself.

Duncan, a convicted pedophile from Tacoma, Wash., pleaded guilty in December to the federal charges related to the kidnapping of Shasta Groene, then 8, and her brother Dylan, 9. The children were taken from their Coeur d'Alene home in May 2005 after Duncan fatally bludgeoned the children's mother, Brenda Groene, their 13-year-old brother Slade, and the mother's fiance, Mark McKenzie.

Both children were sexually abused before Duncan shot and killed Dylan at a campsite in western Montana. Shasta was rescued on July 2, 2005, when a waitress spotted Duncan and the girl in a Coeur d'Alene restaurant.

Duncan earlier pleaded guilty in state court to murdering McKenzie and Slade and Brenda Groene. Sentencing on those state counts is not at issue here.

Duncan has also asked the court for access to the files stored on the laptop computer found in the red Jeep that he was driving when he abducted the children, as well as files from the desktop computer confiscated from his apartment in Fargo, N.D. He wants the images, videos, audio and word document files, Duncan said.

"There are incrypted (sic) files on both computers that I understand I should not be permitted to have access to, so I understand that," Duncan wrote in a letter to the judge. "But I need the rest of the contents which are not volatily (sic) (illegal)."

Lodge found that the request wasn't specific enough for him to grant, and told Duncan to work with his standby lawyers on that or similar requests.