October 17, 2006 in Idaho

Password is key bargaining chip

By The Spokesman-Review
 
The Spokesman-Review photo

Steve Groene shows a statement he wrote thanking the community for support after Monday’s court hearing.
(Full-size photo)

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Background and the latest updates

What’s next

» Joseph Duncan is expected to be indicted on federal kidnapping charges by a grand jury in Coeur d’Alene.

» Once indicted, Duncan will be taken into custody by FBI agents and brought before a U.S. magistrate judge for an initial appearance, followed by an arraignment.

» After his arraignment on the kidnapping charges, federal prosecutors would have to be ready to go to trial within 70 days under the Speedy Trial Act.

» That 70-day deadline, however, is rarely met because defendants frequently waive their right to speedy trial by asking for more time for trial preparation or plea negotiations, which routinely occur outside of public view.

Joseph Duncan didn’t throw in all his cards when he accepted a last-minute plea deal that short-circuited the need for a jury trial.

As part of the unique plea bargain, the 43-year-old confessed killer must answer questions put to him by Kootenai County sheriff’s detectives who investigated the grisly triple-murders at Wolf Lodge Bay in May 2005.

But Duncan still retains at least one card: He won’t have to give detectives the password to encrypted files on his laptop computer found in his stolen Jeep after his arrest in July 2005.

Detectives and FBI agents – specially trained computer forensic experts – have been unable to crack the encrypted files to determine if they hold the secrets to other crimes Duncan either committed or planned.

Duncan already has given the password “key” to Federal Defender Roger Peven, who confirmed Monday he used it a few weeks ago to partially examine the laptop files at the FBI’s regional office in Salt Lake City.

“The only one who has been in that computer is me,” Peven told The Spokesman-Review.

Peven declined to describe what the encrypted files contain. He has attorney-client privilege and can’t be required to disclose what he knows about his client.

The federal defender is expected to use the password to the encrypted computer files as a bargaining chip for Duncan, who is expected to be indicted in the next few weeks, on federal kidnapping and murder charges.

Those charges are expected to include kidnapping, kidnapping resulting in death, use of firearms in an act of violence resulting in death and child sexual exploitation resulting in death. The death penalty is possibly for any one of the last three of those charges.

Federal prosecutors have been authorized to seek the death penalty against Duncan, and Peven is expected to fight that effort.

The federal charges, expected to be returned by a federal grand jury in Coeur d’Alene, would stem from the kidnapping of Shasta and Dylan Groene after Duncan used a hammer in the bludgeoning deaths of Mark McKenzie, his fiancée, Brenda Matthews Groene, and her 13-year-old son Slade.

After the killings, the children were taken from their mother’s home to a remote campsite on the Idaho-Montana border, where they were held for several weeks.

Dylan was killed during the six-week ordeal. Shasta was rescued after Duncan took her to Coeur d’Alene, where she was spotted on July 2, 2005, in a restaurant.

In the suspect’s Jeep, investigators found Duncan’s laptop – one he may have used to store and possibly upload digital images. While the Groene children were being held, their abductor is believed to have visited a truck stop along Interstate 90 near Superior, Mont., where there is wireless Internet access, sources familiar with the case have said.

The significant remaining mystery for investigators is: What is on the encrypted files on Duncan’s laptop?

“That will obviously be something we can talk about with the federal government,” said Peven, who has a reputation as one of the toughest, most-adept defense attorneys in the Inland Northwest.

“They’ve had since July 2005 to try and figure out what’s on those encrypted files, and I’m told they’ve been unable to gain access,” Peven said.

Don Robinson, the supervisory agent for the FBI’s Coeur d’Alene office, said he couldn’t comment on the encrypted files on Duncan’s computer.

The three-page written plea agreement that Duncan signed makes only brief mention of the computer files.

“Mr. Duncan will provide the password and or keys to his encrypted computer files to his federal public defender,” it says, with no requirement he give that information to Kootenai County detectives.

Kootenai County Prosecutor Bill Douglas was somewhat tight-lipped when asked about the files.

“I wouldn’t care to speculate what they might contain,” he said.

Duncan’s guilty pleas to three state murder charges and three additional kidnapping counts now turns the focus to U.S. District Court and federal charges.

“This kicks our trial preparations into high gear,” Robinson said.

While the Kootenai County prosecutor and public defender have been getting ready for the state trial, the federal investigation has been advancing, largely behind the scenes.

“Our federal case continues to advance,” Robinson said.

The FBI, he said, continues to follow up investigative leads and is talking with jurisdictions “across the country.”

“This story is a long way from over,” Robinson said.


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