Originally Published: November 13, 2012 9:56 p.m.
PRESCOTT - The date has been set for a judge to hear arguments on Steven DeMocker's Docugate motion, which, if he's successful, could result in disqualification of the Yavapai County Attorney's Office as the prosecution or could mean the dismissal of charges against him.
DeMocker's trial on charges that he bludgeoned to death his ex-wife, Carol Kennedy, in 2008, has been on hold while this matter is hashed out.
DeMocker's attorneys claimed that documents intended to be seen only by his lawyers and the judge were viewed and printed by unauthorized people in the Yavapai County Attorney's Office (YCAO) after the documents were made available on its OnBase computer system. YCAO doesn't dispute that the documents were accessed, arguing only that it was unintentional and caused no harm to his case.
The motion requesting a hearing to either disqualify the YCAO from prosecuting the case or dismiss it outright was filed with now-retired Judge Warren R. Darrow; Visiting Judge Gary Donahoe, who has since taken over the case, ruled on the motion last December, denying a hearing on it.
DeMocker next took the request to the Arizona Court of Appeals, which declined to hear oral arguments, but decided in his favor based on written briefs, and ordered Donahoe to hold a hearing.
The hearing has taken months to set up because of what the defense called a "Catch-22:" the YCAO said it couldn't defend itself unless it knew what the documents were and what they said, but defense attorney Craig Williams said giving them the materials "repeats the violation of the defendant's due process rights."
Two Phoenix attorneys, Georgia Staton and Russell Yurk, were hired to litigate the hearing so that YCAO lawyers Steven Young and Jeff Paupore, who are prosecuting DeMocker, would not be privy to the documents.
The Arizona Supreme Court ruled that the defense would have to turn over the material to Yurk and Staton.
The hearing will turn on two issues: who saw what documents and what they did with them; and whether the county attorney's staff is allowed to see sealed documents. Williams argues that two classes of documents are protected-ex parte filings, which are intended to be seen only by the party that files them and the judge, and sealed documents, which the prosecution claims are only to be kept secret from the public, not the state.
Back in July 2011, road to the hearing took a bizarre turn when a Darrow staffer pointed out to him that the documents in question had a routing stamp that was hard to see in copies, but on the originals clearly denoted that they were to go to the YCAO. Both defense and prosecution were taken by surprise. The point of contention had been that the YCAO was able to access private documents via a security flaw in it's computer system.
The prosecution jumped on the discovery. "The only reasonable explanation is that Judge Lindberg (who was the original judge hearing the DeMocker case, until he fell ill and ultimately passed away) never intended the offices of YCAO and the Victim Advocate be kept in the blind on his orders," Deputy County Attorney Jeff Paupore wrote in a filing.
"The order states '(UNDER SEAL)' on its face and this can only mean Judge Lindberg intended the order sealed from (only) the general public," he concluded.
The hearing, now set for four days, will determine whether Donahoe should disqualify the YCAO from prosecuting the case, throw out the indictment, or allow the trial to go on as planned.
The hearing is set to begin Dec. 10.