[Deathpenalty] death penalty news----TEXAS, OKLA., USA, IND., IDAHO

[Rick Halperin]

August 23


TEXAS----impending execution

Convicted killer in East Texas slaying set to die Thursday


Death row inmate Justin Fuller acknowledges being present when a
21-year-old Tyler man was abducted and robbed in 1997, but he says he
didn't kill the victim or show the body to friends and shouldn't be
executed for it.

Fuller faced lethal injection Thursday evening for the death of Donald
Whittington III, who prosecutors said was forced to make an ATM withdrawal
and then was taken to Lake Tyler where he was shot 3 times with a
.22-caliber pistol.

"I was just being a follower," Fuller said last week from outside death
row at the Texas Department of Criminal Justice Polunsky Unit. "I was
young, 18 years old. I feel like I just got caught up in a bad situation."

Fuller, who would turn 28 next week, would be the 19th Texas inmate
executed this year in Huntsville, equaling the total executions in the
nation's busiest death penalty state for all of 2005. Another condemned
inmate is set to die next week, and at least seven others are on the
execution calendar the rest of the year. Even if all are put to death, the
total would fall well short of the record 40 Texas executions in 2000.

Fuller's lawyers asked the U.S. Supreme Court to review the case and stop
the punishment.

Four people have been convicted in the Whittington case.

Samhermundre Wideman, of Tyler, and Elaine Hays, of Red Springs, are
serving life prison terms for murder. Wideman was 21 when arrested and
Hays 25. Brent Bates Chandler, 19 at the time of the killing, is serving
25 years for aggravated kidnapping and aggravated robbery. Chandler, who
testified against Fuller, is eligible for parole in 2009.

Whittington's ATM card was found in Fuller's wallet. His watch was in
Fuller's living room.

The body of Whittington, a hardware store employee, was found 4 days after
he had been reported missing and after numerous people apparently viewed
the decomposing remains without reporting it to police. Investigators
learned of the body after some who went to the grisly scene talked about
it at Tyler's Chapel Hill High School. A student who overheard the
conversation called police.

The 3 arrested for the slaying, along with the victim, had attended the
high school, and Wideman lived in the same apartment complex as
Whittington. Prosecutors said the robbery plot was hatched by Hays,
Wideman's girlfriend, who believed Whittington had received $15,000 from a
trust fund when he turned 21.

Hays' lawyers at her trial blamed the scheme on the 3 men.

"We were going to retrieve some rings that Elaine Hays loaned to this guy
for some money," Fuller said from death row. "That was the initial plan,
to get her rings back."

When they all were inside Whittington's apartment, the victim was sprayed
with a tear gas then wrapped with an elastic bandage that covered his
face. His hands and feet were bound and he was threatened with death if he
didn't surrender his ATM card and password.

Chandler took clothing and items from Whittington's apartment while the
other assailants threw Whittington in the back seat of his own car, drove
to the Chapel Hill Branch of the Arp State Bank and withdrew about $300,
then went to the lake area where Whittington was killed, about 200 yards
from a parking area.

Fuller told police he was urinating in the lake at the time of the
shooting. His partners disputed his story.

"They said I was the triggerman," said Fuller, who blamed Wideman for the
shooting. "Some kids went and seen the body. And what happened, they
started talking."

According to court records, Fuller took friends to see body the day after
the shooting and detailed his involvement. From death row, he denied that.

Fuller pointed to Chandler, who testified Fuller talked of how he shot the
victim, as "the one who got the deal, got the lesser sentence and told on
everybody."

Scheduled to die next is Derrick Frazier, 29, set for execution Aug. 31
for the slaying 9 years ago of a woman and her son at their home on a
ranch in Refugio County in South Texas. Jermaine Herron, a companion of
Frazier's also convicted in the double murder, was executed in May.

ON THE NET ---- Texas Department of Criminal Justice Death Row
http://www.tdcj.state.tx.us/stat/deathrow.htm

(source: Associated Press)

****************

Texas plans to execute a beautiful young man----Don't let them kill Justin


MY FRIEND Justin Fuller is scheduled to be executed on August 24.

Justin and I have been writing for about 8 years and visiting for at least
6 years. Over the years, we have grown to know one another well. He has
been a good friend to me, and I hope I have been to him.

He is a smart, generous and beautiful young man. I'd like to do whatever I
can to try to save his life, and I want you all to help me do that.

His case has numerous problems, like most death row cases. The main issues
in the case have to do with incompetent or ineffective assistance of
counsel.

The 2 things that stand out in particular are the fact that the
prosecution offered Justin a plea before trial and his defense lawyers
never told him about it, and that his state habeas lawyer filed a writ for
Justin that was actually a writ he had done for a previous client named
Henry Dunn. He didn't even change the name to Justin's in parts of the
writ, and it contained facts that had to do with Henry's case, not
Justin's.

Justin has admitted his involvement in the crime that landed him on death
row, but he has always maintained that he was not the triggerman in the
murder. Four people took part in a robbery, including Justin, a man named
Samhermundre Wideman and a young woman named Elaine Hays.

Justin claims Wideman was the shooter, a claim substantiated by Hays. She
has stated that she believes Wideman was the shooter. She says that after
Fuller and Wideman returned to the vehicle, where she had been waiting for
the two men, Wideman said, "It felt good to shoot someone."

The state of Texas denied Justin's appeal, arguing that the state can
still execute "non-triggermen." The case is at the U.S. Supreme Court
right now. So far, all the state and federal courts have denied Justin's
claims.

The Supreme Court will only decide if it will hear his case when it comes
back into session. If they do, Justin will get a stay. If they don't, the
case goes back down to the state courts for the 11th-hour appeals. If that
happens, Justin's lawyers will file a claim about lethal injection as
well, and there could be a stay based on that.

If Justin's execution goes forward, he has asked me to be a witness. This
means I would travel to Huntsville, Texas, and will have to watch them put
my friend to death--something I cannot even imagine.

When I visited him this week, he told me about how he had to ask his
parents to begin to make funeral arrangements. This is a healthy man, only
28 years old. It is so sick, I can hardly stand to think about it.

I am asking everyone to please fax, call and e-mail the governor of Texas
and the Board of Pardons and Paroles, asking them to stop this execution.
If there isn't a stay, I am asking folks in Austin and Huntsville to
participate in a protest against Justin's execution. Please take the time
to contact these people. The phone numbers are listed below, as well as an
option to send a fax and an e-mail requesting a stay.

Lily Mae Hughes, Campaign to End the Death Penalty, Austin, Texas

E-mails and faxes can be sent directly online from the Democracy in Action
Web site. Contact Gov. Rick Perry at 512-463-2000, 512-463-1849 (fax) or
at www.governor.state.tx.us/contact. Contact the Texas Board of Pardons
and Paroles at 512-406-5852, or 512-467-0945 (fax).

An interview with Justin Fuller, conducted by fellow activist and Texas
death row prisoner Tony Ford, is available at
www.myspace.com/tonyegbunaford999075.

(source: Socialist Worker)

********************

Final 2 defendants get 40 years each for their roles in Lovers Lane murder


The final 2 defendants in what became known as the Lovers Lane murder of
Tommy Garcia Jr. each received 40-year sentences.

But before they were hauled off to do their time, they heard from Garcia's
grieving family members.

Debra Espinosa, 29, had pleaded guilty to aggravated robbery with a deadly
weapon, and Francisco Martinez Gonzales, 36, pleaded guilty to murder.

The 2 stood together, handcuffed and flanked by bailiffs as Joyce Garza,
Garcia's mother, wailed and rebuked them for their roles in Garcia's
death.

"How could you call yourself a mother?" Garza said, sobbing. "Mine is 6
feet under and I have to visit him in the cemetery!"

"He was only 19! You go to sleep and think about that!"

Espinosa had acted as the bait in the Dec. 3, 2003 murder, luring Garcia
to the remote stretch of road that neighbors had dubbed Lovers Lane for
sex.

The 2 were there together when Gonzales and Juan Edward Castillo yanked
Garcia from his Camaro and demanded his money. Castillo, who was
Espinosa's boyfriend, then shot Garcia 7 times.

With the help of the other defendants' testimony, a jury convicted
Castillo and sentenced him to death in September of last year. The woman
who drove the 2 men to the site, Teresa Quintero, 37, pleaded no-contest
and was sentenced last week to 20 years in prison for robbery.

Quintero had remained stone-faced during the victim impact statement phase
of her sentencing, but Espinosa and Gonzales both appeared emotional as
Garcia's parents told them repeatedly about the hole torn in their lives.

"You know you did wrong," Tommy Garcia, Garcia's father, said as Gonzales
nodded his head and looked at the ground. "Y'all didn't have to do this to
him."

"You were the one that took him there!" cried Mary Garcia, Garcia's
stepmother, to a tearful Espinosa, who asked a bailiff if she could speak
to Garcia. The bailiff shook his head.

"I can't respond to you," Espinosa said.

(source: San Antonio Express-News)

*************************

JURY SELECTED FOR WILLIAMS MURDER TRIAL


A Smith County jury has been selected to decide the fate of Clifton Lamar
Williams, who faces the death penalty for allegedly murdering an elderly
woman and setting her house on fire.

After about 2 weeks of individual voir dire, the last juror was picked
Monday for the capital murder trial, set for Sept. 18.

Williams, 22, is charged with capital murder for allegedly beating,
stabbing and burning to death Cecilia Schneider, 93, and stealing her car
on July 9, 2005.

About 800 Smith County citizens were summoned to the courthouse July 27
for jury selection and 250 people appeared.

The people who made it through 114th District Judge Cynthia Stevens Kent's
questioning were called back individually beginning Aug. 7 for further
questioning by defense attorneys and prosecutors. Out of the 199 who made
it through, about 22 were excused because of excuses they sent to the
judge or because attorneys agreed that they did not want them on the
panel.

A dozen jurors and two alternates were selected by the attorneys.

If convicted of capital murder, Williams faces life in prison or the death
penalty.

Williams is being represented by defense attorneys Melvin Thompson and
LaJuanda Lacy.

Smith County District Attorney Matt Bingham has announced his intent to
seek the death penalty against Williams and defense attorneys have said
they could raise an insanity defense.

(source : Tyler Morning Telegraph)


*************************

Jurors hear confession at Medina murder trial


Bridget Townsend desperately tried to save her life, offering money, drugs
and finally sex, according to the man on trial in her Jan. 15, 2001,
slaying.

"She started crying for her mom and pleading with me," Ramiro F. Gonzales
said in a confession given in 2002 and entered into evidence on the 1st
day of his capital murder trial.

Instead of mercy, he forced her to have sex at gunpoint and then he shot
the Bandera 18-year-old, her body hitting the ground with a heavy thud in
the darkness of the Medina County ranch where Gonzales lived, according to
his confession.

Before Gonzales confessed, Bandera County deputies had spent 21 months on
a missing person investigation that went nowhere until Gonzales - then a
jail inmate - offered to solve the Townsend mystery.

Former Bandera County Sheriff James MacMillan initially suspected Gonzales
was making the story up to delay his transfer to prison to begin serving 2
life sentences that he'd received days earlier for abducting and
kidnapping another Bandera woman.

"Basically I told him I thought he was lying and he'd have to prove it to
me," MacMillan testified Tuesday. "He said he could show me where the body
was."

They traveled to the Middle Verde Ranch off FM 1077, MacMillan said, where
Gonzales guided him along dirt roads, through gates to a cedar break where
Townsend's skeletal remains, jewelry and clothing were found scattered.

Gonzales initially claimed Townsend had been killed on a hit arranged by
the Mexican Mafia, Texas Ranger Skylor Hearn testified, but within hours
the then-19-year-old admitted he alone was responsible.

In a written confession Hearn read aloud in court Tuesday, Gonzales said
that on the day of the crime he'd used $200 in cocaine and intended to
steal more from his drug dealer, Townsend's boyfriend Joe Leal, whom he
knew to be at work in San Antonio.

Townsend knew Gonzales and let him into the Wharton's Dock mobile home.
But when Gonzales rifled through Leal's room for money and drugs,
according to the confession, Townsend tried to call Leal, so Gonzales tied
her up.

>From there, he put her in his truck and drove to the Medina County ranch
where his grandfather worked and had raised him. En route, Gonzales said
in the confession, "she never screamed or yelled. She just kept asking me
what I was doing."

After shooting her, Gonzales told investigators, he chatted with his
family as if nothing had happened, saying, "It was like a dream."

Despite the confession and a television news interview in which jurors
also heard him confess, Gonzales pleaded not guilty to the robbery,
kidnap, rape and killing of Townsend. The trial is expected to last about
3 weeks.

In opening statements, prosecutor Laura Baymouth Popps promised the jury,
"When all the evidence is in, there will be no question in your mind that
the defendant is guilty."

Defense attorney Emmett Harris didn't say his client was innocent but
reminded jurors the state must prove its charges beyond a reasonable doubt
to deserve a conviction.

"You have the fate of this boy in your hands," Harris said, gesturing at
Gonzales. "Be careful with it."

(source: San Antonio Express-News)

*********************************

Hearing for Whitaker reset


The lawyer for Sugar Land capital murder suspect Bart Whitaker appeared in
court on Monday for pretrial hearings, but the hearings were rescheduled
for Sept. 25 to give lawyers more time to prepare.

Whitaker stands accused of the December 2003 murder of his mother,
Patricia Whitaker, and his brother, Kevin Whitaker. The Sugar Land Police
Department has alleged a man recruited by Whitaker, Chris Brashear,
pretended to be a burglar and killed the 2 family members. A 3rd
defendant, Steve Champaign, allegedly served as Brashear's driver.

All 3 have been charged with capital murder. The District Attorney's
Office has filed paperwork indicating their wish to pursue the death
penalty against Whitaker.

If convicted, Whitaker can be sentenced to either the death penalty or
life in prison.

Defense attorneys and prosecutors appeared in the 400th District Court of
Judge Cliff Vacek on Monday. The case is scheduled for trial in Vacek's
court in January.

The murders in 2003 left members of the Sugar Lakes community shocked, and
police did not arrest Whitaker until Sept. 22, 2005, when they found him
living in Monterey, Mexico.

(source: Rosenberg Herald Coaster)






OKLAHOMA:

Death row inmate likely won't testify in person


An Oklahoma death row inmate scheduled to testify at a competency hearing
for a fellow death row inmate will likely just give a deposition instead.

James Patrick Malicoat was scheduled to be executed on Tuesday. But the
Oklahoma Court of Criminal Appeals delayed the execution until August 31st
so he could testify in the competency hearing for Garry Thomas Allen.

Malicoat says he has personal knowledge of matters that might affect the
competency hearing. Allen's attorneys videotaped a statement and asked the
Pittsburg County District Attorney's Office allow the tape to be used.
Prosecutors declined.

The next possible date for Allen's competency hearing isn't until
December. So, Malicoat likely will give a formal deposition with
prosecutors and defense attorneys present.

(source: Associated Press)






USA:

Chief Justices Sound Alarm on Judicial Elections


The nation's state chief justices are launching a campaign to remind
voters of what used to be obvious: Judicial elections are different from
those for other offices.

Voicing "grave concern" over increasingly partisan and costly campaigns,
the Conference of Chief Justices -- representing the top jurists in all 50
states, the District of Columbia, and U.S. territories -- voted Aug. 2 on
measures to emphasize the "unique nature" of judicial elections. At least
some of the judges in 39 states are elected.

"It's the money, it's the judicial questionnaires, it's a whole
constellation of things happening now that don't advance the public's
confidence in the courts," says Indiana Supreme Court Chief Justice
Randall Shepard, outgoing chairman of the conference, who hosted the chief
justices' meeting in Indianapolis. "We need to get information to bar
associations and judges groups about what to do when the fire alarm goes
off, or before the alarm goes off, in an election."

The chief justices also targeted low judicial salaries, which may be
discouraging quality candidates from running. New data indicate that state
judges' salary increases are lagging behind those of other state employees
as well as private sector lawyers.

Though concern has been building for years about the increase in campaign
spending and partisanship in what used to be sedate judicial campaigns,
the main impetus for the latest effort by the chief justices is the
fallout from a 2002 U.S. Supreme Court decision, Republican Party of
Minnesota v. White.

That ruling struck down, on First Amendment grounds, a Minnesota canon of
judicial ethics that barred candidates from announcing their views on
disputed legal or political issues.

Several lower federal courts have responded to the decision by striking
down other state canons and rules aimed at keeping judicial candidates
from making campaign promises and partisan statements that may compromise
the substance and appearance of impartiality once they are elected.

On July 19, for example, Kansas Federal District Judge Julie Robinson
cited the White ruling when she enjoined enforcement of that state's canon
barring candidates from making promises about positions they will take on
the bench.

A judicial-watch organization sued after a state agency said judicial
candidates should not respond to the group's questionnaire about issues
including same-sex marriage and abortion rights.

"Most of the rulings so far run out ahead of the Supreme Court's decision,
by and large in ways that lead to behavior that is not good for the
judicial system," says Shepard, who fears the weakening of judicial canons
will only feed the cynical view that judges are like candidates for other
offices who can be pressured by interest groups and big donors. "No good
comes from fostering judicial food fights at the ballot box."

The White decision's main effect has been to encourage interest groups to
ply judicial candidates with questionnaires demanding that they take
positions on controversial issues, says Georgetown University Law Center
professor Roy Schotland, who studies judicial elections and worked with
the chief justices on the issue. "The situation is bad, getting worse,
with federal judges leading the way downhill."

At a symposium on the impact of the White decision at the National
Judicial College in Reno, Nev., last year, participants called on the
chief justices to move aggressively to improve public understanding of
courts and the need for open-minded judges, as well as to change the
"culture" of judicial elections.

A "call to action" endorsed by the participants at the Reno conference
urged, "Very high priority must be given to reducing the aspects of
judicial elections that jeopardize public confidence in our courts -- our
state courts directly, but unquestionably all our courts."

(source: Legal Times)

*********************

Nietzsche's Abyss


The German philosopher Friedrich Nietzsche wrote: "He who fights with
monsters might take care lest he thereby become a monster. And if you gaze
for long into an abyss, the abyss gazes also into you."That nicely sums up
my torturous feelings about capital punishment, the very topic I tell
students they may never write about for their final research papers.

I have been thinking about Nietzsche's words during the trial of Ricky
Javon Gray, one of the men accused of the Harvey slayings. At about the
time jury selection became a daily event in our local news last week, in
another state an elderly relative of a friend was the victim of an
unspeakably violent crime. The suspects are known in the community and
arrests are likely soon. I wish that would bring me some rest.

But it cannot. When criminals are executed, their deaths do not bring
families back to where they were before the crime. The death of a
perpetrator might, at best, lend assurance that the convicted would never
walk free again. Even the Briley brothers - who along with an accomplice
committed a 7-month-long series of random killings here in the late '70s -
escaped from prison, and that made them a potential threat to all of us
until they were caught and executed.

There is a darker reality to executions, however, that we rarely discuss.
The act tosses a pail of blood to the mob to show that punishment, if not
justice, is still possible. Effective punishment would deter others, yet
any number of studies show that execution does little if anything to stop
would-be killers. Other harder-nosed statistics show it less expensive to
incarcerate a felon for life than to go through the lengthy process of
appeals before an execution.

Yet today, despite this logic and my deep moral disgust over capital
punishment, I find myself in the mob, wanting blood. When death and
vengeance get closer to home, it gets even more confusing.

When a cousin was tortured and shot twice by robbers in the 1970s, our
whole family reeled, and the pain continued long after he recovered and
went back to his wife, children and career. Then a few years later, two
neighborhood friends were on the other side of the gun: one was convicted
of a murder that was racially motivated, and the other did his time for
what is euphemistically called "a crime of passion." Such personal
knowledge made it difficult to reduce my feelings to "kill 'em all and let
God sort 'em out," the sort of moronic words one reads on bumper stickers
or hears outside prison gates during an execution. One of the killers I
knew growing up helped me get to school in the morning; the other one and
I used to work on our cars together.

Still, there are cases where I badly want to be rid of a monster. It is
difficult to support that without being lumped together with the cretins
who chant "Burn baby, burn!" on the night that the deed is done. Instead I
side more often with the others at an execution, those folks holding their
candles and their ideals close to them, sheltering both against the wind.

If only I could do that in every case. I won't stand with them on their
vigils if one occurs for the Harveys' killers or for the 2 callous men who
so harmed my friend's relative. Sometimes I just want - wearily, sadly -
to exact revenge and give the mob the blood it craves.

And even as I do, I see Nietzsche's abyss gazing back at me.

(source: Style Weekly (Joe Essid teaches English at the University of
Richmond) (Virginia)






INDIANA:

Murder suspect's statements could be suppressed


Defense attorneys for murder suspect Michelle Gauvin want to prevent
prosecutors from using statements she gave to police the day of Aiyana
Gauvin's death.

Gauvin, who is charged with murder in the March 2005 death of her
stepdaughter, 4-year-old Aiyana, is scheduled for trial starting Oct. 18
in Tippecanoe Superior Court 2. Prosecutors are seeking the death penalty.

Defense attorney Tom O'Brien said Michelle Gauvin was not advised of her
rights and was too emotionally distraught to give valid statements the day
Aiyana died.

Michelle Gauvin and her husband, Christian Gauvin, are scheduled to be
tried together in a three-week trial related to Aiyana's death. Aiyana,
the daughter of Christian, died of blunt force trauma to the head after
what police suspect was months of abuse and neglect.

The motion to suppress has been scheduled for a hearing Sept. 5.

Christian Gauvin is charged with neglect of a dependent. If convicted, he
could face up to 50 years in prison.

The trial jury, selected from LaPorte County and brought to Lafayette to
hear evidence, will be sequestered.

Judge Thomas Busch told lawyers in the case Friday that LaPorte County
court officials have a viable list of about 80 prospective jurors after
200 summonses were mailed out. He and attorneys agreed that another 75
summonses should be sent in an effort to meet the court's goal of having
100 prospective jurors report for jury selection on Oct. 18.

Busch also asked attorneys to submit legal arguments in a dispute over
whether Michelle Gauvin's priest should have to disclose to prosecutors
information about his counseling sessions with Gauvin.

Prosecutors have issued a subpoena seeking such information from the Rev.
James Barnett, associate pastor at St. Thomas Aquinas Church. He has met
with Gauvin regularly at the Tippecanoe County Jail and is listed as a
witness.

"We believe the communication to be privileged," O'Brien said.

(source: Journal and Courier, Aug. 5)

*********************

Plea pulled from table in Britt case


A miscommunication in the Lake County Prosecutor's office led a judge to,
once again, postpone Eugene Britt's murder trial.

Just about everyone involved in the 10-year saga of multiple-murder
defendant Britt thought the case would end in a guilty plea to 6 murders
and 1 rape with agreed consecutive sentences of life without parole, plus
50 years.

Everyone, that is, but one person with a lot to say about the matter: Lake
County Prosecutor Bernard Carter.

In a hearing Wednesday, Deputy Prosecutor John J. Burke said after talking
to victims' families in the fall -- who all expressed satisfaction with a
plea -- he offered defense attorneys a plea.

Public defenders Gojko Kasich and John Maksimovich talked to Britt, who
agreed to the plea.

Burke sent out letters to the victims' families, telling them the case was
set for a plea Jan. 18.

But Carter said he never authorized a plea.

"The elected prosecutor makes that decision," said Carter, who intends to
seek the death penalty.

"I never said there was going to be a plea. The prosecutor has the right
to reject any kind of plea agreement right up to trial. I never tendered a
plea agreement. It was a miscommunication. No, they don't have an offer,
and they're not getting an offer."

Britt, 48, pleaded not guilty to the murders of women whose bodies were
found in various locations throughout Gary in 1995.

He is serving a life sentence for the rape and murder of Sarah Paulsen, 8,
of Portage.

Police said after they arrested Britt for Paulsen's Aug. 22, 1995, murder,
he confessed to killing the 6 Gary women. He was homeless and living in a
Gary shelter at the time of his arrest.

Burke told Judge Salvador Vasquez he found out there was no plea agreement
when Kasich told him.

Chief Deputy Prosecutor Barbara McConnell said she left a note on Burke's
desk telling him before she called defense attorneys.

Office workers quickly contacted victims' families to tell them there was
no plea agreement and the case will go to trial.

Carter said all family members are told at the beginning that while their
opinions matter, the final decision rests with him.

"We're dealing with a man who killed a number of women," Carter said.
"When he did so much harm to our community, I am not going to offer him a
plea."

The new trial date is Aug. 14.

A medical hearing is scheduled today to determine if Britt is mentally
retarded.

(source: Northwest Indiana Times)






IDAHO:

Judge: Death penalty remains an option in Duncan trial


In Coeur d'Alene, a judge ruled Wednesday 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 rejecting 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. "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.

Duncan lived in Fargo, N.D., and was a student at North Dakota State
University before his arrest on July 2, 2005.

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 4th grade.

(source: Associated Press)