Ambivalent death 

Capital punishment's most heinous cases

What does it take to become the poster child for the death penalty?

According to one retired criminal defense attorney, Joseph Duncan fits that bill. He's the unrepentant child rapist and murderer recently sentenced to death in federal court in Boise.

"They've shown me a person who really is ... perhaps, deserves to die," said Tom McCabe, a former chairman of the American Civil Liberties Union of Idaho's legal committee and founder of the Idaho Association of Criminal Defense Lawyers.

"If anybody's a poster child for the death penalty, Joseph Duncan is," McCabe said. "He's so totally self-centered, he is the center of his universe. You can't have people like that running around in society. He killed people for his own sexual pleasure. Here's a guy that doesn't have any restraint."

click to enlarge NOAH KROESE

Duncan was sentenced to die for the 2005 kidnapping, sexual abuse and murder of 9-year-old Dylan Groene. He had previously pled guilty to three murders in state court—those of Groene's family members in their North Idaho home, carried out with a large hammer during the kidnapping of Dylan and his little sister Shasta. Duncan, a longtime sex offender, is suspected in at least three other child murders, including a boy from Riverside, Calif., and two sisters from King County, Wash.

But while the Duncan case eliminates many of the arguments against the death penalty—he has admitted to the crimes and even filmed them, he presented the jury with no mitigating factors for his life of crime and he seems to have a desire to die quickly, saving the feds more costly appeals—McCabe and others who defend the worst criminals still add the "perhaps," before "deserves to die."

"Look at Texas," McCabe said. "Every garden-variety murder gets the death penalty, and they carry it out. You can't tell me there's that many people that deserve to die."

Death penalty critics prefer to keep the focus on the entire death penalty system in the United States, which varies greatly from state to state and from case to case.

"You can't have the death penalty for one person, you have it for a system," said Richard Dieter, an attorney and executive director of the Death Penalty Information Center in Washington, D.C. "So in that system, there ought to be a clear gain."

Duncan, who has only a prisoner's understanding of the law, chose to represent himself in his murder trial, though a team of top-notch defense attorneys stood by throughout. While Duncan constantly apologized for not understanding courtroom protocol, he expertly manipulated the system to achieve what he wanted.

"He managed to control it and manipulate it to an end that's eventually going to execute him," Dieter said. "He's sort of in control of this ... that's part of his depravity."

Prosecutors counter that they do not decide to charge a death penalty case based on the wishes of the defendant.

"What punishment a prosecutor pursues is based on what that prosecutor believes is justice in that case and rarely on what a defendant wants," said Grant Loebs, the Twin Falls County prosecutor and an officer in the Idaho Prosecuting Attorney's Association. "I rarely take into account what the defendant wants because his wants can be either irrational or self serving."

Loebs agrees that the death penalty is subjectively administered, but said that's as it should be.

"Just checking boxes isn't the way to arrive at that decision," Loebs said. "I would consider that to be your bare minimum analysis."

But Kootenai County public defender John Adams said that the subjectivity in the death penalty is part and parcel to his conditional objection to capital punishment.

"You can't pick and choose which cases you're so sure about because in every case you're supposed to be so sure," Adams said.

And now, as a growing number of felons are released from death rows after DNA or other evidence exonerates them, those life-or-death decisions have been proven wrong in more than 100 cases, Adams pointed out.

"Every time somebody is sentenced to death in this country, presumably you have 12 jurors, a prosecutor and a judge who are adamant that this person did the crime that there is no doubt about it," Adams said. "People make false confessions all the time. All the time people ask for death."

Adams, who remains Duncan's attorney of record in the state's case against him, declined to speak about the Duncan trial specifically. Attorneys in the federal case also declined to speak about the case, though a gag order has been lifted.

Another factor in death penalty cases is the deterrent argument, which McCabe said is not supported by statistics and may even encourage more brutal crimes.

"Nobody gives a shit anymore whether it actually deters anybody other than the guy," McCabe said.

Kootenai County prosecutor Bill Douglas, who allowed the federal government to prosecute the capital case and has declined to seek a second death penalty in state court, said it is not known how many other crimes the death penalty has prevented.

Douglas compared capital punishment to a lighthouse on the Oregon-Washington coast that has kept countless ships off the rocky shore.

"Simply because you can't measure that doesn't mean you tear down the lighthouse," Douglas said.

Groene family members, law enforcement officers from North Idaho who were involved in the six-week search for Shasta and Dylan, and many, many people who have been touched by the tragedy across North Idaho and beyond, have expressed relief, closure, a sense of revenge and even excitement at the Aug. 27 verdict.

"I've told people in the past the only way there'll be closure is if they let me kill this guy myself," Dylan's father Steve Groene told the Spokesman Review. "That wouldn't even do it," he continued. "I'm not really happy that another life is going to get taken now."

But Groene's response to the verdict is similar to many others in this case and in other capital cases in expressing a desire for closure combined with an uneasiness with more killing and an awareness that the death of the perpetrator does not, ultimately, restore what has been lost.

It's an uneasiness that goes all the way to the nation's highest court: "From this day forward, I no longer shall tinker with the machinery of death," Supreme Court Justice Harry Blackmun said prior to his retirement in 1994. Justice John Paul Stevens also renounced the death penalty earlier this year.

And it's an uneasiness that even prosecutor Douglas, now a close friend of Steve Groene, senses in his community.

"The term closure rings hollow. That's bantered around in all of these cases. The word rings hollow if two of your sons have been murdered in cold blood," Douglas said. "I think [Groene] reflects the ambivalence of the country, of this community on the death penalty."

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