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Joseph Duncan Update August 3, 2008

Posted by Nina Rosenstand in Criminal Justice, Current Events, Ethics, Nina Rosenstand's Posts.

If you go back to April 30, 2008, you’ll find my post on the serial child-killer Joseph Duncan and his wish to represent himself in his federal sentence hearing. I have an update for you, but I’ll forego a repetition of who he is and what he has done—the April 30 post was fairly specific. Suffice it to say that he has, faced with overwhelming evidence and his own statements, confessed to the 2005 killings of 9-year old Dylan and his older brother, as well as their mother and her fiancé, and the kidnapping of Dylan and 8-year old Shasta. Shasta was the victim of weeks of sexual abuse by Duncan, and in addition she was forced to watch him murder Dylan. Shasta survived, and her taped testimony against Duncan is on file, but because of legal squabbles it is now inadmissible. Duncan petitioned earlier this year to be his own defense attorney in his federal death penalty hearing, where his sentence will be determined by a jury: Life without the possibility of parole, or death. The court, obviously reluctant to grant him this constitutional right, ordered a new psychiatric evaluation of him.

A short while ago the results were made public: Duncan is legally sane, and can thus proceed with the preparation of his own defense. Voir Dire (the jury selection) which had been underway, will be restarted this week so he can question the jurors himself. And, in addition, it is expected that he will indeed do what everyone feared might be his entire purpose for this charade: call Shasta as a witness. There is now nothing to prevent him from doing this—nothing that will protect Shasta from having to face this man who ruined her life, at his pleasure.

            Legal commentators point to the fact that now his death sentence seems more likely than ever—because the jurors will turn on him in an instant, knowing that the question isn’t a matter of guilt, but of whether there are mitigating circumstances. And a man who chooses to continue the torture of his victim, in public, with the help of the Constitution, hardly seems to deserve leniency. Unless, of course, he intends to use the podium to fall on his sword, have the little girl stand up and point to him, Hollywood-style, and accuse him, upon which he will demand the death penalty for himself. Anything is possible. But either way, this will be Duncan playing the court according to his own fantasy, and the victim of all this will, again, be Shasta.

            So I appreciate having this opportunity to vent—because this is nauseating to me, as a private person. But as a blogging philosopher (which I hope doesn’t make me less of a person) I’d also like to use this infuriating story to launch a further discussion. We’ve already talked about whether Duncan is evil. But there are at least two other subjects that are tied to this story: (1) the nature and definition of sanity, and (2) the question of victims’ rights vs. defendants’ rights. What to most people would qualify as insanity is outrageous and harmful behavior they wouldn’t engage in themselves and find repugnant, but since this is a very subjective issue, the court has a narrower definition. Legally, Duncan is sane because he has an understanding of the consequences of his actions, and of the moral rules of society, and he doesn’t have a severe mental illness. That’s all it takes, folks. It is known as the McNaughton Rule, with modern modifications. When the hearing gets underway this fall, I hope to give you another update, and perhaps we can get into the rights question at that time.



1. Paul Moloney - August 4, 2008

I admit being ignorant of jurisprudence, but it would seem there would be no reason for Shasta to be called as a witness. The accused may have the right to face their accuser in court, but the accuser does not necessarily have to be the victim. The defendant is not being accused by the other victims in this case because they are dead. It is the state that is accusing the defendant. The state is accusing the defendant even though the other victims cannot witness on their own behalf. If the state is bringing charges, even though the murdered victims cannot give witness, it would also seem that there would be no need for Shasta to give witness. The accusers would be representatives of the state, such as forensic experts. The violated body of Shasta also gives witness.

What is legal may not necessarily be reasonable, at least in certain circumstances. The law is supposed to be based on reason. If a legality puts a person in an unreasonable position, to say the least, there must be changes made to it. Human reasoning is not infallible, and therefore not every law is necessarily absolutely just in every respect.

2. Nina Rosenstand - August 5, 2008

I quite agree wuth your analysis, but it seems that the rule, not reason, is going to prevail here. Excellent argument against an absolutist rule-based ethic, and a good opportunity to point out that a rational response is not always a rule-based one (or at least based on an established set of rules).

3. Paul Moloney - August 5, 2008

My analysis was merely based on general information. I really have no knowledge of the particulars in this case. Considering the information on hand, though, and considering it reliable, if it is legal to rape a child mentally and emotionally in court, and, therefore, in public, it seems it should not be illegal to rape her physically and in private, and so, Duncan proves his case.

My analysis was also nothing more than common knowledge that I myself learned from others. That is, a general principle does not apply to every particular circumstance, which also applies to rule-based ethics. Even lawyers argue that laws do not apply to every situation.

Rule-based ethics do not seem to be ethical at all, at least on a personal level. My own rule-based ethics ruined my personal relationships when I was younger because my rule-based ethics caused me to be unreasonable. A relationship is based on reason rather than rules.

Rule-based ethics seem to be peculiar to the person holding the rule or to a group acting as a cult. The person becomes related to the rule rather than to people. The person relates to the rule rather than to people. It can be easy to allow rules to do our thinking for us, as it was for me.

4. Nina Rosenstand - August 6, 2008

This would make a good discussion thread in itself!
Here is a link to the latest court ruling: http://www.spokesmanreview.com/media/pdf/20080805_duncan_closedcourtconditions.pdf
In brief: Shasta’s live testimony is considered necessary, but the courtroom will be closed to the media, and two-way live closed circuit television is being considered (so she won’t be in the same room with her assailant).
This hardly seems a sufficient compromise to me.

5. Dwight Furrow - August 9, 2008

I have always been puzzled by the assumptions built into the McNaughton Rule. Essentially, the rule says that if a person lacks the ability to make causal inferences or is unable to associate herself with the act she is performing, then she is insane.

However, if a person lacks a moral conscience–i.e., she knows what she is doing, knows the harm the act will cause and knows society disapproves but is unmoved by these considerations–she is sane.

Why is the absence of moral conscience not a mental defect? The McNaugton Rule seems to assume that a person who lacks the capacity to process basic information about the world is not reasons-responsive and lacks the capacity to choose. But isn’t someone who lacks the capacity for empathy or the motivations for morality equally incapable of processing certain kinds of information and lacking in the ability respond to a moral reason?

The assumption seems to be that someone who fails to respond to a moral reason could have chosen differently but did not. By contrast, someone who fails to make causal inferences or respond to a prudential reason could not have chosen differently.

I am not convinced that this distinction will withstand scrutiny.

6. Paul Moloney - August 10, 2008

It does not seem that there will ever be anything definitive said about insanity if the nature of insanity is a matter of opinion. As Dwight points out, people differ in their concepts as to what characterizes insanity. The prevailing opinion seems to belong to those who have more power in this or that situation, at least in some circumstances, such as a judge in their courtroom.

One of the most basic things that might be said about insanity is that it is a state or quality of mind. The problem with that analysis is that the concept of mind is in dispute. If the mind does not exist, as some argue, there could be no quality of mind and therefore no insanity.

The same could be said about the topic of free will. The two positions concerning free will are that there is free will or that there is not free will. Both opposing sides assume the existence of the will. One side maintains that freedom is an essential characteristic of the will. If there is no will then there is certainly no freedom of the will. I do not remember anyone arguing against the existence of will.

7. Nina Rosenstand - August 11, 2008

I have the same misgivings about the McNaughton Rule; there is something deeply disturbing about calling the ability to recognize the moral rules of others without necessarily having those rules resonate within one’s own conscience “sanity.” It gives sanity a bad name…But the underlying rationale is surely that whenever we call someone “insane,” we give them a built-in excuse, and a free pass. I think it is time to leave this outdated dichotomy behind and, with the help of neuroscience and moral philosophy create an updated set of legal criteria for awareness of guilt and comprehension of harm done to others.

8. Carnal - August 25, 2008

the courts are now in the process of deciding whether or not to allow Ms Shasta Groene to testify via closed circuit television in order to avoid having her face the killer Duncan again – everyone will be able to see her testify in present time sans all the pressure and the trauma of having to come in contact with this sicko ever again –

in which case, if it is a matter of the media being allowed to be present in the courtroom then i dont see why they shouldnt so long as she is not there physically so that solves the issue of the media getting their pound of news flesh.

in the case of whether the killer Duncan is sentenced to death then even in that event it would take close to 10 years if not more to mete out his punishment given hes even still around to see the day.

the killer Duncan is playing this exactly the way he wants it – whatever his last sick game is – and alot of us feel strongly that he really desires death by now – his whole life has been one twisted and sick nightmare and this is most likely his way of finally putting those demons of his to bed. So I say, lets accommodate him and give him his wish.

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