Originally Published: January 12, 2010 9:57 p.m.
A Superior Court judge Tuesday ordered Yavapai County jail officials and the county sheriff to allow Steven DeMocker to have a computer supplied by his defense lawyers and a secure room to study legal materials.
However, Judge Thomas B. Lindberg denied a request by his defense lawyers to allow DeMocker, 56, who is charged with first-degree murder in the July 2, 2008, death of his ex-wife Carol Kennedy, to be released from jail on house arrest pending his May 4 trial.
Kennedy, 53, who was bludgeoned to death at her Williamson Valley home, died just 35 days after the couple divorced. Prosecutors allege that DeMocker killed his former spouse with a golf club to avoid paying her $6,000 a month in alimony and splitting a retirement account with her. DeMocker, who maintains his innocence, claims that he was riding a dirt bike at the time of her demise. DeMocker could face the death penalty if convicted by a jury.
Defense lawyer John Sears argued that the jailers have kept DeMocker from helping his lawyers prepare his defense by not allowing him access to some 35,000 pages of documents and requiring him to use a phone in a dormitory shared by 30 other inmates with the TV blaring. Sears said he does not visit DeMocker often because DeMocker is strip-searched by officers beforehand.
"At last count (there were) over 75 strip searches of a man who is presumed innocent," Sears said. "I believe Mr. DeMocker's rights to a fair trial are being violated .... We are way too close to trial for him to be held incommunicado. We are frustrated beyond imagination."
In addition to the password-protected defense computer, Lindberg said DeMocker could have an external hard drive, any wires needed, headphones for privacy and at least eight hours a day in a secure room to work on his case.
"I would like to know why we can't have a secure phone line in that room," Lindberg added. He told Deputy County Attorney Joseph Butner III to check into that aspect. "We're dealing with a significant case that's getting up toward trial."
Lindberg will hear a series of defense motions this week designed to limit what is presented by the prosecution at trial, said Larry Hammond, a Phoenix lawyer who also represents DeMocker. DeMocker, wearing a dark suit, appeared thoughtful as he listened to the lawyers argue and occasionally glanced back to offer a smile to his girlfriend.
A court employee mistakenly placed the defense motions under review under seal, Sears said. He released copies of the motions to The Daily Courier Tuesday.
Hammond told the judge that he needs to be able to interview the scientists who studied DNA from the crime scene as soon as possible, but he is still waiting for them to conclude their tests and issue reports. Last month Butner said that he wanted to submit 14 addition items for DNA testing.
Butner also agreed that one item, a bloody tank top that Kennedy was wearing at the time of her death, can be tested at a private Phoenix crime laboratory so that defense experts could be present as well as a DPS scientist.
Hammond told Lindberg that he is concerned about how the state's witnesses might testify to try to minimize the significance the unknown DNA sample found under one or more fingernails on the victim's hand.
"We believe it is unquestionably true that DNA is male, a substantial quantity and sufficient to provide a full DNA profile," Hammond said. "It does not belong to Steve DeMocker and is not in any DNA database."
In his motion, Hammond said juries often have problems understanding DNA evidence and "tend to want to be able to rely on strong scientific evidence to support their impressions and conclusions about the guilt of the accused. This tendency is called the 'CSI effect.' In this case the jury should be told one and only one thing about the biological evidence: To whatever extent biological evidence has been found, that evidence excludes Steve DeMocker."
Lindberg delayed ruling on the DNA issue until the tests are concluded.
Lindberg will conduct a hearing behind closed doors on Friday to determine which autopsy, crime scene and other photos the jury will be allowed to view. Of the 1,000 or so photos that Butner has, he will select "the least gruesome of the bunch" to introduce as evidence. Meanwhile, the lawyers are expected to continue to argue various pretrial motions today and Thursday.