US Attorney Tom Moss on Prosecuting Joseph Duncan

After a judge sentenced him to death more than 20 years ago, convicted murderer Randy McKinney shouted a message to the man who prosecuted his case. "Moss, I got your number," McKinney told Bingham County Prosecutor Tom Moss. "You remember that." Later that night, Moss found his teenage son in bed with a shotgun. He wanted to be ready in case something happened.

Moss has spent his career dealing with the worst people society has to offer. But nothing compares to his most recent experience. The U.S. attorney for Idaho, the state's lead federal prosecutor, Moss led the prosecution of Joseph Duncan, the Minnesota man who earned national infamy after he bludgeoned three people to death in their northern Idaho home and took two small children, Dylan and Shasta Groene. Duncan videotaped himself sexually molesting both children, and eventually murdered Dylan at a remote Montana campsite.

Moss, appointed by President Bush to his position seven years ago, sat down with the Post Register this week to talk about the Duncan prosecution, which ended in a death sentence.

Post Register: The state had already settled its case against Joseph Duncan. At a minimum, he would have spent his life behind bars. Why did the federal government get involved?

Moss: What Duncan did was so horrific, it's just something you can't ignore. People who commit certain crimes, and under certain conditions, dictates that you should get a death sentence. And, if you ignore that, then you in effect ignore the law. And if you look at what Joseph Duncan did,
there was no question of what my responsibility was, and that was to seek a death sentence. So, we did.

Post Register: You've prosecuted some of Idaho's most high-profile murderers, including three men on death row. How did the Duncan prosecution compare with these?

Moss: The thing about the Duncan case that made it worse ... it involved children. It involved multiple murders. It involved extensive planning and premeditation. It involved a person who was out to kidnap, abuse and kill children. And he is a person who is fairly intelligent. And something about all that just makes it very vile and very violent.

Post Register: Your job was to travel into a place few would want to go, into Joseph Duncan's mind. What can you tell us about that journey?

Moss: He was a very evil person, a very wicked person. It reminded me that there are people who are just evil. And he fit that category, in my opinion. He preyed on children. He preyed on defenseless people. His excuse in some of his writings was that society made him what he was, what he is, by sending him to prison. ... But he went to prison for raping a little boy at gunpoint. It was not a small item and he says we turned him into what he is. Well, he was doing that before the government really affected him.

Post Register: You talked earlier about how Duncan was a pretty intelligent guy. Were you surprised that a guy capable of these atrocities was also fairly intelligent?

Moss: Well that's what makes him especially evil. It isn't like someone who is acting on a whim or out of a sudden heat of passion. ... This man is selecting his victims very arbitrarily. And he is planning very carefully how he's going to do it. And his victims are children. He says he's getting even with society. ... He explained it in one place in his writings. One of his statements was something to the effect that the best way to hurt society is to get to their children. That scares them more than anything. And that causes more pain than anything you can do to society and that's what he wanted to do.

Post Register: One reporter covering the case wrote about having difficulty sleeping. Jurors were offered counseling because of the graphic nature of the evidence. You obviously heard more and saw more than any reporter or juror. How do you personally walk into that fire and keep yourself from getting scorched?

Moss: You have a job to do and that's it. And let me say this. I don't want to sound overly heroic because there are people out there whose exposure is much worse than mine. That's like police officers who come upon the scene and they're the first ones to see what is there. ... And I think of pathologists that have to take the dead body of a child, for example, and examine it and go through and be very intimately involved with what's happened. I think their job's tougher than mine.

Post Register: Duncan was a repeat sex offender who committed rape at gunpoint as a teenager. You did a stretch in the state Legislature. Does society need to be tougher on sex offenders?

Moss: We are pretty tough on sex offenders. But I would never say we're too tough. Sex offenders have a tendency to repeat. It's just the way it is. That's what history tells us. We all want to be able to believe that people can change. But it seems like when it comes to pedophilia and people who abuse children, they have a hard time getting over it. The big consideration has got to be the protection of society. Joseph Duncan had probably a better chance of rehabilitating than anybody else. He had good friends that supported him. They gave him money. Some would pay his tuition in college. They bought him cars. ... He had friends that liked him. His mother was devoted to him. ... He had that support available to him and he still goes and does what he did.

Post Register: Duncan skipped out on his probation in Minnesota. Officials there knew of his violent past and his tendency to travel. Is there anything in our system right now to let people know he's out there and on the move?

Moss: There's certainly the ability to put the word out, but it doesn't happen very often. In some stuff we recovered from his computer, he expressed surprise that his bond ($15,000) was so low in that (Minnesota case). ... And also, they didn't arrest him. They gave him a summons to appear in court. My goodness, that's what you give people for traffic violations. They didn't arrest him. He appeared in court and posted bond, didn't spend a day in jail. And that was for sexually molesting a little 6-year-old boy.

Post Register: What was the single most memorable moment from the trial?

Moss: The portion of the trial that will be probably longest remembered is the displaying of that video to the jury. That was a sad time and it was a very hard time for the jurors. You could see they were going through some real difficulty dealing with that.

Post Register: Duncan represented himself at trial. What impact do you think this had on the trial and what potential impact do you think this could have on appeal?

Moss: I don't think his representing himself changed the outcome. He couldn't change the facts. That video, he couldn't change it. ... I think the result would have been the same. We may have been required to use Shasta as a witness because his lawyers before they left, they hadn't agreed that she could not testify and he did. ... On appeal, it will be an issue I'm sure. But I think the record is pretty good. His lawyers, they were claiming he was delusional and had these fantasies ... that made him incompetent. ... But his conduct (at trial) kind of runs in the face of those allegations.

Post Register: Potential jurors knew what they were getting into. But still, what impact did you see this have on them throughout the trial?

Moss: Well, it was hard for them. You saw about every emotion you can dream of during the course of this trial from those jurors. ... We presented that video. We didn't try to explain it. We said, "here it is." ... In this case, the jurors did not see a lot of graphic evidence that we had. They didn't see the photographs of the bodies at the home at Wolf Lodge. They were very graphic. These people had been bludgeoned to death with a hammer.

Post Register: The guys you put on death row (Randy McKinney, Paul Ezra Rhoades and Richard Leavitt) are still there. Do you think you'll see Joseph Duncan get executed?

Moss: Oh, I don't know; probably not. You know, I might, Joseph Duncan is a special case.

Post Register: With what you read on serial killers ... you hear the same thing, this guy assimilated into society, you never would have guessed it. Does Duncan fit that profile?

Moss: I'm sure the people who met him never thought for a minute they were somehow in danger in his presence. He would never give that appearance. by COREY TAULE, Post Register