Originally Published: May 11, 2010 10:01 p.m.
PRESCOTT - Hoping to remove testimony from an FBI expert about shoe prints that prosecutors contend may link Steven DeMocker to tracks found behind his former wife's house shortly after her murder, defense lawyers filed a motion Tuesday claiming that type of evidence has no scientific validity.
Prosecutors charged DeMocker, 56, a Prescott stockbroker, with first-degree murder in the July 2, 2008, death of Carol Kennedy. Sheriff's deputies found Kennedy's savagely bludgeoned body in her Williamson Valley home after she broke off a phone call with her mother by saying, "Oh no!"
DeMocker, who maintains his innocence, told detectives that he was riding his mountain bike at the time of the slaying.
Defense lawyers asked Superior Court Judge Thomas B. Lindberg to bar testimony from FBI shoe print expert Eric Gilkerson and John Hoang, a scientist with the Department of Public Safety. The lawyers cite a new law signed by the governor on Monday that tightens standards for forensic evidence. The law, SB1189, requires state courts to use the same standard as federal courts and that expert witnesses have the "knowledge, skill, experience, training or education" to offer an opinion "based on sufficient facts and data."
"They are doing something finally about unreliable comparison evidence about the use of this class of unreliable comparison evidence because the use of this class of unreviewed and untested testimony offends our basic notions of the right of a defendant to due process and a fair trial," the lawyers said in the motion.
The motion also quotes retired federal Judge Harry Edwards, co-chairman of the Forensic Science Project of the National Academy of Sciences, that issued a report concerning the reliability of expert testimony in areas such as fingerprints, comparative bullet lead analysis and hair comparisons.
"With the exception of nuclear DNA analysis, no forensic method has been rigorously shown to have the capacity to consistently, with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source," Edwards said. "Yet for years, the courts have been led to believe that disciplines such as fingerprinting stand on par with nuclear DNA analysis."
Previously, Deputy County Attorney Joseph C. Butner III said that the shoeprint evidence would show that tracks at the scene could be from La Sportiva shoes like a pair that receipts show DeMocker bought in 2006. However, detectives did not find those shoes when they searched DeMocker's house.
Also Tuesday, defense lawyer Anne Chapman argued that information from the computer forensic program, EnCase, that deciphered a file from DeMocker's computer should not be presented to the jury because the state disclosed it past the deadline to turn over evidence and it would prejudice the jury against her client.
When the defense first asked for the EnCase file in January, the head of the DPS lab told them that no EnCase file existed, she said.
"It's astonishing the head of the DPS lab isn't familiar with the primary software program used," Chapman said. Prosecutors finally turned it over last week, too late for defense experts to have time to properly analyze, she said. Jury selection began last week, she noted. Also, none of the Internet searches found by Sheriff's Detective Steve Page "relate to the way Carol Kennedy was killed," she said.
Butner called the computer information "critical" to the state's case because it demonstrates "a key element of premeditation."
"We're trying to demonstrate to the jury that he was trying to kill someone," Butner argued. Lindberg ruled that Page may testify about two searches found on DeMocker's computer that date from the month before Kennedy's murder on the topics of "how to kill and make it look like a suicide" and "how to kill someone." He ruled against four other searches with dates determined only by "cookies" or applications downloaded by websites into the user's web browser. At an earlier hearing, defense lawyer John Sears said his client's Internet searches related to research for a novel.
In the meantime, the lawyers agreed on 21 potential jurors as of Friday. They hope to find 38, who will be reduced to a jury of 12 with six alternates, said Richard Robertson, a spokesman for the defense.
However, the defense lawyers also filed a motion asking Lindberg to remove two of them and to add a third who was dismissed. Jury selection resumes today. Lawyers could give their opening arguments next week.
DeMocker, who remains in custody in lieu of a $2.5 million bond, could face the death penalty if convicted.