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Tue, Oct. 22

DeMocker Trial: Defense again presses for dismissal



CAMP VERDE - Attorneys for Steven DeMocker have renewed their call for dismissal of his murder case on the grounds of prosecutorial misconduct, due process violations and "possible ethical violations," according to a motion filed with the court.

The allegations come in a 21-page motion written by defense attorney Craig Williams. He claimed that the state's response to his original motion amounts to a "confession" of wrongdoing.

DeMocker, 56, is awaiting a retrial, currently set for September. He is accused of killing his ex-wife, Carol Kennedy, in 2008.

In the reply motion, Williams restated his major allegation: "The state illegally viewed and printed ex parte pleadings using the OnBase (computerized records) system. And not just a little. Not by accident. Not inadvertently."

Ex parte information is intended to be kept between one side, in this case, the defense, and the judge. Williams has produced copies demonstrating that the documents were so marked.

Williams asserted that the defense team's check of the computerized database records turned up 60 instances of such activity, and that the prosecution admitted to the violations. He quoted the state's response: "The State concedes that its employees viewed and/or printed the subject documents ... "

The response offered by Deputy Yavapai County Attorney Dennis McGrane last month essentially said that a "computer programming oversight" allowed access via the OnBase document system 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.

Williams pounced on that statement, writing, " ... this assumes a free-for-all at the County Attorney's Office, where there is no supervision nor oversight as to what documents are being viewed and/or printed."

Williams specifically addressed actions taken by Deputy County Attorney Jack Fields, noting that "The state confessed that Jack Fields told (Deputy County Attorney) Jeff Paupore (who is prosecuting the DeMocker case) some of the DeMocker records he reviewed dealt with ex parte information, and that Paupore said he did not want to know any ex parte information ... "

The in-house investigation conducted by Jimmy Jarrell, a Yavapai County Attorney's Office employee, designed to show who saw which documents, when and why, came under fire as well, with Williams calling it "ridiculous" and writing that, "It is impossible to take this 'investigation' seriously."

Williams listed several employees at the County Attorney's Office who had seen the documents and argued how having seen them could have affected the outcome of the case.

He renewed his call for Judge Warren R. Darrow to dismiss the case with prejudice, which would keep it from being refilled later, or to disqualify the Yavapai County Attorney's Office from prosecuting it.

A gag order prevents either side from commenting publicly on the case.

Darrow held an informal conference Thursday morning to discuss the questionnaire to be sent to potential jurors.

He noted the unusual circumstances of working out the questions for a jury while a motion to dismiss hung over the court. "It is awkward to be doing this when that is out there," but the timetable makes it necessary to do both simultaneously, he said.

The form tries to establish what potential jurors might know about the case and whether they feel they can be impartial in hearing it. It also addresses "hardship" issues that might keep jurors from fulfilling their obligation.

Williams objected to some of the wording - "the victim was abruptly interrupted," which presumably refers to the call Carol Kennedy was making when she was killed - and Darrow gave both sides about 24 hours to work those details out.

Darrow himself wanted to add to the information the schedule for the trial; there will be no court on Oct. 10-14, Nov. 21-25, and Dec. 23 through Jan. 3. Specifying those dates, Darrow said, would make it possible for jurors to know they would not be tied up during the holidays.

He also wanted language that would note the anticipated length of the trial, five to six months, to be included in the document.

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