Judge opens Duncan hearing

BOISE – U.S. District Judge Edward Lodge has reversed himself and ordered today’s status hearing in killer Joseph Duncan’s death penalty proceedings opened to the press and public.

Meanwhile, prosecutors filed a motion characterizing the defense’s recent aversion to secrecy as “attempts to further delay these proceedings.”

Lodge scolded the defense attorneys in his order, noting that much of the secrecy in the case has occurred because they filed court documents under seal, without filing the required motion to seal them.

“They attempt to downplay their role as merely having ‘gone along with’ this practice,” the judge wrote. “The Court takes issue with such a characterization which entirely mischaracterizes these proceedings.”

Lodge wrote that he had found a valid basis for closing the court hearing, but “in light of defense counsel’s latest position favoring opening the proceedings, regardless of Mr. Duncan’s privacy interests, the Court will unseal the status conference.”

Defense attorneys had filed a motion suggesting excessive secrecy in the case violates the First Amendment and Duncan’s Sixth Amendment right to a public trial. They asked the judge to rule right away, and if he rejected the motion, that he delay the proceedings so they could appeal his decision to the 9th U.S. Circuit Court of Appeals.

Dozens of documents in the case have been filed under seal, and a sweeping gag order imposed by the court prevents all parties from speaking publicly about the case. A coalition of news media outlets has filed a legal challenge attempting to keep key portions of the sentencing proceedings open.

Duncan already has pleaded guilty to all charges in a 10-count federal indictment for kidnapping and molesting two North Idaho children and killing one, 9-year-old Dylan Groene. Duncan also pleaded guilty in state court to murdering the children’s 13-year-old brother, mother and mother’s fiancé in order to kidnap Dylan and his then-8-year-old sister, Shasta. He awaits sentencing, in which a federal jury will decide whether he gets the death penalty or life in prison without parole.

The case has been on hold for several months, since Duncan declared that he wanted to act as his own attorney. The judge ordered a mental evaluation to ensure Duncan is competent to waive his right to an attorney.