Originally Published: April 8, 2010 11:01 p.m.
Saying that prosecutors violated "the spirit if not the letter of the discovery rules," a Superior Court judge Thursday dismissed two out of three death penalty aggravators lodged against Steven DeMocker.
However, a jury still could impose the ultimate punishment against DeMocker, 56 - a Prescott stockbroker charged with first-degree murder in the July 2, 2008 bludgeoning death of his ex-wife, Carol Kennedy - if it finds him guilty.
DeMocker's defense lawyers asked Judge Thomas B. Lindberg to sanction the prosecutors for handing over evidence in the discovery process beyond court-imposed deadlines. Defense attorney Anne Chapman recited a litany of examples in which the state handed over thousands of pages of information in recent months so that the defense could not reasonably prepare for the May 4 trial.
Deputy County Attorney Joseph C. Butner III argued that the state complied with the rules but also asserted that his office has a duty to continue to investigate the case.
Lindberg said one option would be to postpone the trial, but DeMocker has been in custody since October 2008 and a delay might "reward the dilatory actions of his opponent."
Lindberg dismissed "heinous and depraved" as aggravators, along with the burglary of Kennedy's house, leaving monetary gain as the only remaining factor for the jury to consider.
Prosecutors claim DeMocker used a golf club to kill Kennedy three months after their divorce to avoid paying her $6,000 a month in alimony and splitting a retirement account. Defense lawyers contend that the couple reached that settlement out of court and that DeMocker could afford his obligations.
After the hearing, DeMocker defense lawyer Larry Hammond said the death penalty remains a possibility for his client, albeit with fewer aggravators to disprove.
"It's still a death penalty case and has to be approached by us as a death penalty case," Hammond said.
Chief Deputy County Attorney Dennis McGrane said, "We're currently analyzing the judge's ruling and exploring the different options that we have."
Lindberg also approved Butner's request for a grant of immunity to allow DeMocker's girlfriend, Renee Girard, to testify about conversations that she had with DeMocker while he was in the jail in Camp Verde. Butner alleges that the two spoke in a "secret code about materials he had secreted in preparation for fleeing." Those actions constitute "further indications of guilt," Butner said.
John Sears, another DeMocker defense lawyer, said Butner should not have mentioned his allegations concerning the secret code in open court.
"It's unfair to Miss Girard and prejudicial to my client," Sears said.
John Napper, a lawyer for Girard, told the judge that without the grant of immunity she would invoke her Fifth Amendment "privilege against self-incrimination" and refuse to testify.
Lindberg then warned Girard that she must testify truthfully or risk prosecution.
Butner also sought to use FBI crime scene specialist, Gregory Cooper, as an expert witness who would testify about the bloody aftermath found in Kennedy's Bridle Path home and the motivation of whoever attacked her.
"This woman was severely beaten to death," Butner said. "It was overkill. It was not a theft or sexual assault. The way she was beaten, there was personal animosity involved, a personal cause."
After the slaying, the murderer moved some things around, including a ladder, Butner said. The killer also tried to disguise his identity, Butner said. He called the death "a logical and rational, planned criminal offense."
Chapman argued that Arizona law doesn't permit the type of expert testimony Cooper could provide. Rather, she said, the jury must determine the motive.
Lindberg agreed with Chapman and excluded Cooper from the witness list, saying jurors know about FBI profilers from television shows and might give Cooper's testimony undue consideration.