Kootenai County Prosecutor Bill Douglas said Wednesday he feels bad for family members of Joseph Duncan’s murder victims if they misunderstood key points in the plea deal that Douglas crafted and Duncan accepted over the weekend.
“Perhaps to some of the family members it was unclear,” Douglas told The Spokesman-Review.
Nine-year-old Shasta Groene still might be called to testify against Duncan in the upcoming federal case against the killer, Douglas acknowledged. When the plea deal was announced Monday, several family members said they were relieved Shasta would “never” have to face the man who killed her mother and brother and is accused of kidnapping the girl and her other brother, Dylan, and killing Dylan.
Also, family members said Monday they were happy with the plea agreement because they wanted Duncan to turn over passwords to his encrypted computer files, which may document other crimes of his but which the FBI has been unable to crack. But the deal Douglas gave Duncan only requires that Duncan give the passwords to one of his attorneys, federal Public Defender Roger Peven, who indicated that he may use the passwords as leverage to settle the federal case. Duncan earlier had offered to give those passwords directly to federal investigators, but Douglas rejected that plea deal.
“I feel very bad for the family members,” Douglas said.
He added, “If I didn’t make it clear enough that the codes would be given up to Duncan’s attorney and not to law enforcement directly, then that’s my fault.”
As for Shasta having to testify, Douglas said, “I think what I said is that it’s highly unlikely.
“I do not feel the feds would require Shasta to testify if there are other ways to prove the case,” the county prosecutor said. “I did tell the family that the chances of her ever having to testify in a federal case are extremely remote. I did tell them that.”
Douglas said he called to apologize to family members Wednesday night and that he also contacted Steve Groene, Shasta’s father. “He is totally satisfied and he has no problems. He was fully informed,” Douglas said.
Other family members said this week they put a premium on gaining access to the computer files and keeping Shasta, the only eyewitness to Duncan’s crimes last year, off the witness stand.
Sam Doble, sister to murder victim Brenda Matthews Groene, said there were a few things that sealed the deal for the family, “like opening up the crypt.”
“We want other families to be helped,” Doble said, referring to possible evidence of other crimes the computer files may reveal.
Matthews Groene’s son, Jesse Groene, also mentioned the encrypted files Monday when he and other relatives emerged from a court hearing where Duncan pleaded guilty to three counts of first-degree murder.
“If it could lead to some more families finding closure in their cases, I’m very happy about that,” Jesse Groene said.
Family members said their top concern, though, was Shasta.
“We don’t want Shasta to have to testify at all,” said Misty Cooper, another of Matthews Groene’s sisters.
Doble said the family didn’t want Shasta to have to face Duncan or for Duncan to have the “privilege” of seeing Shasta again.
In a press release Monday, Douglas said the deal means “Shasta will never be required to relive the events of 2005 in a courtroom.”
“I told (the family members) there’s no chance she’s ever going to testify in Kootenai County,” he said Wednesday. “I thought I made it clear the chances of her testifying in a federal trial are remote.”
Lee McKenzie Wood, the mother of murder victim Mark McKenzie, said she did understand that the plea deal only applied to the county’s case.
Douglas said he believed federal prosecutors had also told the families that Shasta likely would not have to testify in the federal case. But U.S. Attorney Marc Haws said he won’t comment on the likelihood of Shasta being called as a federal witness.
Haws did say federal prosecutors “have great concern about Shasta.”
“We’re taking into consideration concerns about Shasta having to testify,” he said. “How much of the case is built upon Shasta is a matter of very great importance to us.”
Haws also wouldn’t say when Duncan might be indicted in the federal case, but a source close to the case said it will likely be some time after the first of the year. Duncan is expected to face charges including 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 possible for any one of the latter three charges.
Though federal prosecutors weren’t included in the weekend negotiations that led to Monday’s plea deal, Haws said his office respects Douglas’ decision.
“We don’t expect he’s necessarily going to be out there giving us some advantage on our federal case,” Haws said. “We’re prepared to go forward and handle this case at the federal level.”
He declined to comment on the key to the encrypted files being provided to Duncan’s federal defender rather than investigators.
Kootenai County Deputy Prosecutor Marty Raap said the county’s priorities in negotiating an agreement with Duncan were to keep Shasta from having to testify, if possible, and to preserve the county’s right to seek the death penalty.
“This deal accomplished both primary deals for us,” Raap said.
As for the key to the encrypted files, “It’s a nice goal,” Raap said, “but it’s a secondary goal.”
He said county prosecutors had to “weigh out the idea of ultimately getting justice versus getting some codes that may or may not have something on it.”
Douglas said the encrypted files could contain “SpongeBob cartoons, I don’t know.”
“I was not going to make that a deal-breaker,” he said.
Peven, who will represent Duncan in the federal case, indicated the code to the encrypted files could be used as a bargaining chip in negotiations with federal prosecutors, who intend to seek the death penalty for Duncan.
Peven told The Spokesman-Review he used the key a few weeks ago to examine the encrypted files at an FBI office in Utah. He won’t say what is in the encrypted files, and because of attorney-client privilege, he doesn’t have to disclose the contents, he said.
The deal announced Monday and the offer Douglas earlier rejected differed in other aspects. Duncan had offered to cooperate with both local and federal law enforcement and to admit to all crimes against Dylan and Shasta Groene. But under the accepted plea deal, Duncan agreed to cooperate only with Kootenai County investigators and only regarding the three murders at Wolf Lodge in May 2005 and kidnapping charges related to those crimes. He hasn’t made any promises to discuss alleged crimes against Dylan and Shasta – crimes that fall under federal jurisdiction because the children were abducted and taken across the state line into Montana.
Douglas said Kootenai County investigators will likely interview Duncan before the end of the week. Kootenai County Public Defender John Adams said he will be there to make sure the conversation is about “strictly stuff to which he pleaded guilty, nothing else. I will be there to make sure the police obey the guidelines.”
Duncan was sentenced Monday to three life terms in prison for the kidnappings of the three murder victims at Wolf Lodge. He now is a prisoner of the Idaho Department of Corrections and has been issued an inmate identification number: 83655.
That means Kootenai County is no longer paying for the costs of housing Duncan, even as he remains in the Kootenai County Jail.
It’s unclear when he will be moved and where he will be incarcerated to await trial in the federal case. For security reasons, the details won’t be released until after Duncan is moved, Kootenai County sheriff’s Capt. Ben Wolfinger said.
If Duncan doesn’t receive a federal death sentence, he will be returned to Kootenai County to face the death penalty in Idaho – the key provision Douglas sought in the plea agreement.
Douglas said federal authorities “have a very good case” and he has “every confidence in the world” they will succeed in getting Duncan sentenced to death.
Adams said he believes the chances are “slim to none” that Duncan will ever come back to North Idaho. “I think it’s over for Kootenai County,” he said.