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Fri, Aug. 23

Top Stories of 2011: #8 - DeMocker case dragged on through 2011; retrial starts next year

Les Stukenberg/The Daily Courier<br>
Steven DeMocker sits stoically during opening statements at his trial for the murder of his former wife Carole Kennedy in Yavapai County Superior Court June 3, 2010.

Les Stukenberg/The Daily Courier<br> Steven DeMocker sits stoically during opening statements at his trial for the murder of his former wife Carole Kennedy in Yavapai County Superior Court June 3, 2010.

PRESCOTT - The first Steven DeMocker murder trial ended in late November 2010, and the retrial isn't slated to begin until 2012, but this year has been full of the legal twists and turns in the case for which it has become known.

DeMocker is the Prescott money manager accused of killing his former wife, Carol Kennedy, in 2008, allegedly by beating her to death with a golf club. DeMocker's first trial, on a charge of first-degree murder, had already become a national spectacle before it ended in a mistrial when his defense team abruptly quit.

2011 started with Yavapai Superior Court Judge Warren R. Darrow ruling against a prosecution request to replace him. DeMocker's new defense team, Craig Williams and Greg Parzych, argued that the state had gone "judge shopping," by obtaining a new indictment against DeMocker. Since the state had already used its one opportunity to replace a judge (it had previously swapped Judge Ralph M. Hess for Judge Thomas Lindberg, who subsequently collapsed and, in April, died from a brain tumor), the defense argued that simply getting a new indictment against DeMocker should not allow the state to ask for another new judge. Darrow agreed.

In March, lab results showed that DNA found on fingernail clippings of Carol Kenned were those of a dead man unrelated to the case. The sample had been used by the defense to assert that someone other than DeMocker attacked Kennedy and that she fought back; instead, it appeared to support previous allegations that the Yavapai County Medical Examiner had contaminated the test samples.

Defense attorney Williams in April filed the first of several motions intended to get his client out of custody. The motion claimed DeMocker, held in a solitary confinement cell, was living in conditions that "are not a humane arrangement." Williams said DeMocker is confined to a cell for all but 30 minutes a day and had not been outdoors since September 2010.

The motion asked for DeMocker to be released on his own recognizance, given a lower bond amount (he is being held on a million dollars' cash-only bond), or moved to the Coconino County jail.

Before Darrow could rule on that motion, Parzych filed one in which he said that the solitary confinement was "negatively affecting" his client's mental state. "Defense counsel has concerns as to whether Mr. DeMocker is going to be able to assist in his own defense if his current confinement conditions do not change."

While Darrow appeared to be somewhat sympathetic, he ultimately decided that he did not have the constitutional authority to change the conditions under which DeMocker was jailed.

Then, in May, came "docugate." Williams argued that the entire case should be thrown out because members of the County Attorney's Office, among others, "illegally viewed and printed ex parte pleadings using the OnBase system." An ex parte pleading is one that is intended to be seen only by the party filing it and the judge. OnBase is the computer system used by the County Attorney's office.

Chief Deputy County Attorney Dennis McGrane explained that a "computer programming oversight" allowed access OnBase to people who should not have had the right to see the sealed documents, and that there was no warning to those staffers that the documents were not to be viewed.

It was not until July that Darrow's clerk, looking at the original paperwork, found that at least 14 of the sealed filings had a routing stamp indicating they were supposed to be sent to the Yavapai County Attorney's Office. Neither side had been aware of that.

The prosecution tried to have the trial moved to a Prescott courtroom, rather than at Camp Verde, filing a motion that was denied and then asking Darrow to reconsider his decision.

The second time, Deputy County Attorney Jeffrey Paupore attached census data and wrote that "the majority of the jurors in this trial will be from western Yavapai County." He also noted that, of the 16 jurors impaneled in DeMocker's first trial, 10 were from Prescott and Prescott Valley.

The defense team argued that holding the trial in Prescott would be unfair to DeMocker because he would have to be up at about 5 a.m. to travel from the jail at Camp Verde to Prescott to make his court time each day.

Darrow denied the second request to move the trial.

In July, the prosecution asked Darrow to order former DeMocker attorney John Sears to give a deposition as a material witness in the case. Sears is one of the attorneys who quit the DeMocker case in October 2010, along with Larry Hammond, citing a "conflict of interest."

Paupore asserted that Sears "secreted" a key piece of evidence, a golf club cover "for over three months without informing law enforcement."

Early in August, Craig Williams, writing in a response to a prosecution filing regarding sealed files that were sent to the Yavapai County Attorney's Office, said that Deputy County Attorney Jeff Paupore's explanation that most of those files were found in a "banker's box" in the office of now-retired YCAO prosecutor Joe Butner "strains credulity."

Williams suggested that the state must have known about the filed documents. "This discovery by the state of the previously 'unknown' orders happened on the very same day this court brought the issue up," he wrote, and went to on say it was unlikely the YCAO "did not comb over what was in his files" when Butner left.

He then repeated his request to have Darrow dismiss the case or disqualify the YCAO from prosecuting it.

Arguments by an attorney for Western News&Info, parent company of the Daily Courier, that sealed records should be opened to public viewing resulted in the release of documents; some were from the jury selection process, while others, heavily redacted, dealt with DeMocker's financial situation and the court's appointment of experts.

Later in August, Williams also requested a change of venue for the trial. He wanted it moved to another county, saying coverage by the Courier and a local radio station prejudiced the jury pool.

Yavapai County Superior Court Presiding Judge David L. Mackey decided that he wanted to reassign Darrow from the DeMocker case, because Darrow spent most of 2011 dealing with the lengthy James Arthur Ray sweat-lodge trial and other cases on his daily calendar as well as DeMocker. However, he noted that only he and Judge Michael Bluff had time to hear the DeMocker trial. When he chose Bluff, the defense filed an immediate motion to change judges and Mackey asked a retired Maricopa County judge, Gary E. Donahoe, to hear the case instead.

It appears that Donahoe will hear the case in a Prescott's Division 1 courtroom (which the prosecution prefers) rather than a Camp Verde courtroom (the defense team's choice).

Williams tried again to have DeMocker released in September, when he filed a motion suggesting that, if it was unconstitutional for a judge to change the conditions of his confinement, he could simply lower the bond amount so DeMocker could bond out.

That motion was also rejected.

In October, Bill Williams, an independent journalist to whom Darrow had granted standing as an intervenor so he could argue for the release of sealed documents, found himself once again on the outside looking in after he filed a motion supporting the defense request to have DeMocker released from solitary confinement. Williams was rebuked by Darrow for the "highly improper" move and rescinded his intervenor status.

Mackey ordered prosecution and defense to try to work out a plea deal, something for which neither side had much enthusiasm. He allotted two days for the November conference, but after just three hours, and bringing in two judges from Phoenix to hear the meetings, the two teams returned with a decision that they could not come to an agreement.

On Dec. 22, Donahoe heard arguments on about a dozen motions that had been awaiting a new judge's ruling, among them the change of venue (denied), and the motion to dismiss the case or disqualify the Yavapai County Attorney (denied).

Donahoe said he would like to set a trial date as soon as possible, possibly in February or March.

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