Judge considers allowing '09 DeMocker interview into evidence
PRESCOTT - A judge is considering whether to allow the prosecution in Steven DeMocker's murder trial to introduce into evidence a recorded interview DeMocker gave with the Yavapai County Attorney's Office in 2009.
DeMocker is preparing for an April retrial on a charge that he killed his ex-wife, Carol Kennedy, in 2008.
Visiting Superior Court Judge Gary Donahoe heard arguments Tuesday on the prosecution's motion to allow the interview.
At issue is whether using the interview violates the concept of "free talk," in which a defendant can speak openly without concern that his words will be used against him.
Deputy County Attorney Jeff Paupore called former DeMocker attorney John Sears as a witness. Sears said he had requested the interview because he wanted the YCAO to investigate leads he thought might clear his client: the "voice-in-the-vent," which DeMocker claimed he heard in jail - the person allegedly told him who had murdered Kennedy; and two anonymous emails Sears had received, purporting to have similar information.
The prosecution believes DeMocker made up the "voice" claim; the emails were later shown to have been written by his daughter, Charlotte.
Defense attorney Craig Williams objected to having Sears testify at all, saying that DeMocker did not waive his attorney client privilege. Donahoe said he would allow the testimony, and that Williams would have to object to specific testimony. Williams did, objecting frequently, and, generally, without success.
A key piece of evidence was a letter, prepared by Sears, which would have limited the conversation and its later use.
Written to former Deputy County Attorney Joe Butner, who was prosecuting the case at the time, it begins, "This letter is intended to memorialize the agreements we have reached regarding the disclosure by us to you of certain matters that we have now discussed in general terms."
The letter was never signed.
Sears said, "I came away from that meeting (prior to the interview) with the understanding that your office ... would agree to a limited waiver of attorney-client privilege."
Williams pointed out that Sears could not agree to waive DeMocker's privilege unilaterally.
Paupore called Butner to the stand and asked him about the letter.
"I would not sign a letter like that (limiting the parameters)," he said. "I told Mr. Sears it was unlikely that it would be agreed to by anybody in the County Attorney's Office."
"So it was your understanding that attorney-client privilege was waived for those two items (the voice-in-the-vent and the emails)?" Paupore asked.
"Right," Butner answered.
He also said that he believed the interview was not "free talk."
Williams argued that, "The one thing you didn't hear anybody say was whether Mr. DeMocker thought he was giving a voluntary statement. Nowhere in this (recording) did anyone say to Mr. DeMocker, 'Are you aware there is no agreement?' "
"This was a voluntary statement that could have been beneficial to his defense," Paupore said. With Sears sitting right beside him, "it stretches the imagination that Mr. DeMocker would not know" what he was doing.
Donahoe took the transcript and interview recording and said he would rule after examining the evidence.