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Mon, Dec. 09

DeMocker trial: Judge won't dismiss death penalty

Steven DeMocker

Steven DeMocker

After hearing arguments Tuesday that prosecutors "randomly and arbitrarily" file for capital punishment, a Superior Court judge declined to dismiss the death penalty that murder defendant Steven DeMocker could face if convicted.

The Prescott stockbroker faces a first-degree murder charge in the July 2, 2008, bludgeoning death of his ex-wife, Carol Kennedy. DeMocker, 56, and Kennedy, 53, divorced one month before her brutal slaying. Prosecutors allege DeMocker killed Kennedy to avoid paying her $6,000 a month in alimony and splitting a retirement account with her.

DeMocker's defense team studied the death penalty as used in Yavapai, Maricopa and Coconino counties between 2002 and 2009.

Yavapai County, with 3 percent of the state's population, experienced 80 homicides in that time period. Of those, the county attorney charged 38 percent as first-degree murder, 26 percent as second-degree murder and 36 percent as manslaughter. In nine cases or 34 percent of first-degree murder cases, prosecutors filed notice they sought the death penalty.

"The likelihood of the death penalty being sought in a first-degree murder case in Yavapai County varies wildly from year to year," lawyer Larry Hammond argued in a motion. "For example, between 2002 and 2004, not a single death penalty notice was filed," although prosecutors charged seven people with first-degree murder. Of the eight inter-spousal murders in Yavapai County during that time, prosecutors filed for the death penalty twice.

In Coconino County, with 2 percent of the state population, 25 homicides occurred in that time period. Two cases of spouse-killing-spouse happened and prosecutors sought the death penalty in one.

"One must wonder whether there is some rational basis for arguing that the Carol Kennedy homicide would not have been a death penalty case if the death had occurred a few miles north of Williamson Valley," Hammond wrote.

Because of the large number of homicides in Maricopa County, 1,635, defense lawyers studied a 10 percent sample, finding that the county filed for the death penalty in 36 percent of those first-degree cases.

"Our results clearly demonstrate that the death penalty is not applied to the worst of the worst," Hammond told the judge. Its application "is undeniably random and arbitrary."

Hammond also argued that the U.S. joins China, Iraq, Iran, Saudi Arabia and Pakistan in carrying out 95 percent of executions and that 15 states, including New Mexico, have abolished capital punishment. Of the remaining states, only Arizona law includes a crime occurring at the same time - such as the charge of burglary in the DeMocker case - as an aggravating factor, Hammond said.

Deputy County Attorney Joseph Butner III argued that the Arizona death penalty law passes constitutional muster and that the Supreme Court previously discussed the issues the DeMocker defense raised.

"The U.S. and Arizona refused to surrender to a trend that absolves individuals of responsibility," Butner said. "Individuals are responsible for their own actions and suffer the consequences."

"It takes courage, it takes willingness to be your brother's keeper and your brother's protector," Butner added. "Yavapai County has shouldered that load."

Although he upheld the constitutionality of the death penalty, Judge Thomas B. Lindberg termed himself "not without concern about the issues raised by the defendant." However, as a trial level judge, he said the appellate court binds him. But the aggravating factor of a burglary at the time of the killing charged against DeMocker "has been more troubling to me on a philosophical level," Lindberg said.

Lindberg has yet to rule on a defense request that he sanction the prosecution for delays in turning over evidence by dismissing the death penalty against DeMocker. But on Tuesday Lindberg ruled that prosecutors cannot use 23,000 pages of e-mails obtained from DeMocker's employer UBS that he sent via his Blackberry device because they did not turn the messages over to the defense in a timely fashion.

"I don't think the state acted with due diligence regarding these materials," Lindberg said.

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