Originally Published: April 3, 2010 10 p.m.
In a rare move, the Yavapai County Attorney's Office filed a motion Friday asking that the judge hearing the Steven DeMocker capital murder case be removed, claiming an offhand remark that he made showed "undue or deep-seated favoritism toward the defendant."
After listening to arguments, Presiding Judge Robert M. Brutinel denied that motion, allowing the May 4 trial to go forward.
DeMocker, 56, a Prescott stockbroker, stands accused of first-degree murder in the July 2, 2008 slaying of his former wife, Carol Kennedy. Kennedy, 53, was bludgeoned to death in her Williamson Valley home, three months after the couple divorced. A judge awarded her $6,000 a month alimony and half of a retirement account in the divorce settlement. Prosecutors allege that financial gain motivated DeMocker, who claims he was riding a mountain bike on a trail at the time of his ex-wife's demise, to strike Kennedy repeatedly with a golf club.
Deputy County Attorney Joseph C. Butner III said that Superior Court Judge Thomas B. Lindberg made the remark that showed "undue or deep-seated antagonism towards the Yavapai County Sheriff's Office and the state" during a discussion in his chambers on Tuesday. During the discussion, Butner told the judge he didn't plan to introduce certain evidence during the guilt phase but would during the penalty phase.
In a death penalty case, a jury must first determine if the defendant is guilty, then if there are aggravating circumstances, and finally whether to sentence the defendant to death.
"I don't believe we're going to get there," Butner quoted Lindberg as saying about the death penalty phase.
"We feel as if we're not going to get a fair and impartial trial from Judge Lindberg on the basis of the comment," Butner said. That comment "shows he's not unbiased."
Butner called Lindberg in to testify before Brutinel. Lindberg recalled the meeting but did not remember his exact words.
"To the best of my knowledge it was along the line of 'If we reach the penalty phase' or 'I don't know if we will reach the penalty phase,'" Lindberg said. As to what Butner claimed to have heard, Lindberg said, "I don't believe I would have made that statement." But the judge conceded, "It was probably a flip comment never intended to reflect the merits of this case."
Lindberg denied pre-judging what verdict the jury might reach, noting that in his 42 years of experience as a lawyer and a judge, juries often surprise him.
Butner also took issue with Lindberg asking him whether the state continued to evaluate whether it should seek the death penalty in the DeMocker case.
"Whenever the ultimate sanction is being requested by the government, it's always a concern," Lindberg said.
Butner asked, "Were you concerned there wasn't enough evidence in this case for the death penalty?" Lindberg told him no, that it was the prosecutor's decision, not the judge's. Lindberg, a former deputy county attorney, said he'd never presided at a death penalty case but does not oppose capital punishment.
Defense lawyer Larry Hammond demanded to see the notes that Butner made on Lindberg's remark and Brutinel insisted that Butner hand them over.
Hammond accused Butner of bringing the motion after Lindberg ruled against the state during a closed-door hearing on Tuesday.
"We believe this (motion) has been filed in bad faith," Hammond said. Lindberg has been "fair and impartial" during the many pretrial hearings and denied many defense motions. "We're on the lip of trial. We have jurors here. At the last moment this county attorney's office has attempted to stop the show ... the trial Mr. DeMocker is entitled to. There is no evidence this judge is biased."
Butner hotly denied he acted "in bad faith."
"The fact of the matter is, that remark was made," he said. "It does demonstrate he's looking into the future. He has a prejudice or bias and said we will never be able to make this case."
However, Brutinel said it made sense to delay discussion of penalty phase evidence until that juncture. And even if Lindberg made the remark as Butner alleges, court rules do not require his removal, Brutinel said.