Then No One Can Have Her (30 page)

 

 

Although defense investigator Rich Robertson denied doing anything wrong in the ethical mess of the anonymous e-mail and voice story, he was sucked in by implication.

In September 2007, a man and his girlfriend were attacked in his home in Williamson Valley, bound with duct tape and robbed of money, a laptop and video games. The man, who was hit in the head with a crowbar, was seriously injured but recovered.

Prosecutors viewed it as no coincidence that Robertson had requested a copy of the sheriff's investigative report about the incident, and three months later, Steve DeMocker came up with his voice-in-the-vent story.

“It's like a blueprint for the voice in the vent and the anonymous e-mail,” prosecutor Jeff Paupore said in early 2014, recalling the chain of events before being appointed to the bench later that year.

This inference became the basis for a defense motion for a mistrial during the second trial, which the judge denied.

Robertson characterized this imbroglio as another example of the prosecution twisting the facts around to match its wild speculative theories, because he never gave the report to Steve. “There was no reason to,” he said, although he acknowledged that he did tell Steve about the incident and it also came up during the trial in 2010.

Robertson said he asked for an investigative report on this incident in the Hootenanny Holler neighborhood as part of his own investigation into similar home-invasion crimes in the Williamson Valley area.

The assault victim “was hit in the head with a blunt-force object and left there,” he said. “Our point there was . . . whether [the sheriff's detectives] knew where that guy wound up, and where did the guy who was attacked go, because they never arrested anyone.”

What infuriated Robertson was that prosecutors left the jury with the inference that he provided the report to Steve “so he could then come up with this information. After I raised hell about it, they came back after a break and said, ‘We aren't saying they had anything to do with this, but Steve somehow ended up with this report and used it as the blueprint for the voice-in-the-vent story.' It's absolute bullshit.”

Sadly, he said, all of this just hurt the case, and was used against Steve to show that he'd lied about the e-mail.

“Ultimately, it probably was true that people would believe that if he was willing to lie about that, then maybe he's lying about not committing the murder,” he said. But, he added, “those things are not mutually exclusive.”

Even though Robertson acknowledged that Steve's actions were “not appropriate” and were “not something that we can tolerate, frankly, in the criminal justice system,” he said people should consider the context in which they occurred.

“He was facing the death penalty at that time and he was in fear of his life, and I guess people sort of need to look at themselves and say, ‘What would [I] do to save [myself]?' Just because he did something in a panic doesn't mean that he killed Carol.”

In late October, the Yavapai County Public Defender's Office, which had a conflict in this case, had to find a new defense team to represent Steve, because he'd been declared indigent.

Although this was no longer a death penalty case, it was still a very complex one, so Steve was allowed to have two taxpayer-subsidized lawyers. Craig Williams, a private attorney in Prescott who was the former chief public defender of La Paz County, and was on the county's list of eligible contract attorneys, was designated lead counsel on October 28.

When no other local attorney would agree to be second chair, the public defender had to go outside the county to find Greg Parzych, who worked for the Maricopa County Office of the Legal Defender in Phoenix.

Williams and Parzych did not ask Judge Darrow for a mistrial, but they did say they would need months to get up to speed on the case before they could move forward.

Rich Robertson, who stayed on the team as investigator, now served as the fount of institutional knowledge. His first briefing about the already massive and complicated case—a PowerPoint presentation with photos—lasted eight hours.

 

 

That same month Steve was placed in a single “administrative segregation” cell, which spanned seven by eleven feet, at the county jail in Camp Verde. Otherwise known as solitary confinement, that meant Steve was kept in his cell for 23.5 hours a day, with just thirty minutes to shower, exercise or call his family.

According to defense court filings, jail officials said they placed Steve there for his own safety after an inmate reported that Steve was involved in the ordering of a “beat down” of that inmate.

Attorney Craig Williams maintained that this inmate was not credible, and that the inmate's report about Steve's participation in the fight “was simply NOT true.”

In a motion to modify Steve's conditions, Williams contended that the defense had interviewed nine of the jurors after the mistrial was declared. Five of them told Rich Robertson that they had been “leaning toward an acquittal,” three toward a conviction and one undecided. This was before the state had finished presenting its case and before the defense had even started, but Robertson said the defense took that to mean that the first jury was headed toward a “possible acquittal or, at worst, a hung jury.”

And yet, Williams wrote in a sentence that forecasted the defense's subsequent third-party culpability strategy,
[Steve] remained the only suspect, despite the fact that the state documented some truly bizarre behavior by those close to Ms. Kennedy.
Nonetheless, the request to release Steve on his own recognizance with a GPS bracelet or move him to a jail in Coconino County was rejected again.

In the legal back-and-forth, the defense claimed that the stint in solitary was negatively affecting Steve's mental stability so much that they were concerned whether he would be able to assist in trial preparation.

Despite the state's “hyperbole” that Steve's defenses had been eliminated, attorney Greg Parzych wrote that the DNA under Carol's fingernail was still
not Steve DeMocker's. . . . The most powerful facts remain intact. The state cannot place the defendant at the scene of the crime.... Importantly, these facts will never change—no new evidence will surface that will place him at the scene of the crime—because he was not there and did not kill Carol Kennedy.
That
is what is known as a defense.

Based upon a review of court filings, Steve was apparently still in a single cell as of March 2012. Sheriff 's off icials cited “security concerns” as the reason.

In response to the defense's claims that these conditions amounted to punishment, prosecutor Jeff Paupore countered that Steve had “continued to break the law even while incarcerated.”

 

 

Once the ruling came down that the first defense team was entirely off the case, Judge Darrow declared a mistrial on November 12, 2010.

It was an extremely emotional day when the jury was called back to court to be officially dismissed, and Judge Lindberg came to watch.

“He looked awful,” Robertson recalled. “He was gaunt, he'd been undergoing chemo and had lost a lot of hair, and he was certainly much thinner and paler. He just looked sickly and weak.”

Some of the jurors made some nice, sympathetic comments to Lindberg that day. Some months later, on April 3, 2011, the judge passed away. He was fifty-eight.

As the prosecution team prepared for the second trial, investigators were still working to determine the identity of Mr. 603, whose full DNA profile had been developed from material under Carol's fingernails.

In early 2011, after taking DNA from dozens of people who might have come in contact with Carol at her house, Mike Sechez and Doug Brown were discussing how they could determine, once and for all, where this DNA had come from.

“Why don't we go back to the DNA and look at the men's autopsies preceding hers?” one of them said. “Maybe it was contamination.”

Deciding to start with the three autopsies done before Carol's and work backward, they took blood samples from the Yavapai County Medical Examiner's Office and sent them to the DPS crime lab.

In mid-February, Sechez got a call from the lab. “Are you sitting down?”

“Yeah, why?” he said.

“You know that blood you sent up from the ME's? It matches with the blood under the fingernails.”

And just like that, the mystery was solved at last: Mr. 603 was Ronald Birman, whose autopsy Dr. Philip Keen had conducted right before Carol's. Birman's body had been found near a puddle of blood in his trailer bathroom in Chino Valley, and because his doctor wouldn't sign the death certificate, his family had asked the ME to do an autopsy. Keen determined that the blood had seeped from an open, bandaged hole over stitches in Birman's chest from recent heart surgery. The death was deemed to be of natural causes from an exsanguinating hemorrhage.

In addition to Birman's DNA, partial DNA from one or possibly two other men was also found under Carol fingernails, but not enough to draw any forensic conclusions other than that the genetic material did not match Steve DeMocker's or Jim Knapp's.

As soon as defense attorney Craig Williams learned of this new development, he went on the warpath, requesting documents to check state and county policies, procedures and crime lab operations, the accreditation of the DNA-TESTING lab and its personnel, and the chain of custody of biological evidence in this case.

And then came yet another bombshell.

 

 

On May 2, 2011, the defense filed a motion to dismiss the case with prejudice—meaning it couldn't be refiled—based on prosecutorial misconduct. The only other option would be to disqualify the county attorney's office as the prosecutor.

The defense accused the county attorney and victim services offices of repeatedly viewing and printing sealed ex parte documents filed by the defense in this case. Ex parte filings are supposed to be available only to the judge and the party filing them. However, in this case, the defense said, employees in these county offices had been viewing these documents on a computer system they shared with the court clerk's office.

This came to light, the defense said, through the state's allegations that the defense had violated state rules of criminal procedure, professional conduct and judicial conduct when filing the indigency and other ex parte motions back in 2010.

These alleged violations, the defense charged, were tantamount to an “illegal investigation” into the defense's case, first by complaining about secret and sealed motions that they weren't supposed to know about, then by alleging violations by the defense. But how could the state even know about the secret pleadings if it wasn't improperly accessing them?

The state illegally viewed and printed ex parte pleadings using the OnBase [court computer] system!
the defense wrote, describing this revelation as “the awful truth.”

In addition, the defense claimed, “sealed documents” were also viewed and printed 104 times by those offices and the sheriff's office.

Put on the defensive, County Attorney Sheila Polk stood up for the honor and integrity of her office, blaming the court clerk for changing the computer system in a way that was out of Polk's control and against her wishes. Characterizing this chain of events as stemming from an innocent computer glitch that amounted to harmless error, Polk claimed she had no malicious intent.

Polk said members of her office regularly—and appropriately—read certain documents that were mislabeled “ex parte,” as well as others that were labeled as such but were not appropriate for prosecutors to read. However, she said, the latter category was not read past the basic identifiers unless—and until—a supervisor had deemed it was okay. She also noted that the first defense team never objected to the “ex parte” routing stamp on numerous documents sent to the county attorney's office.

This scandal, which came to be known as “Docugate,” resulted in many months of delay, including an eleven-day evidentiary hearing. In court filings fueled by high-octane language, each side accused the other with vitriol, which also spilled into courthouse hallways.

This was all very serious to the participants, of course, but from an outsider's perspective, the whole scandal seemed to be just one more tedious, and albeit very long, chapter of the small-town drama and circus atmosphere that hung over this case.

 

 

Steve passed the time that summer by playing chess by phone with his father, using a paper board and pieces made of toilet paper, as the defense filed a mountain of other motions. These included requests for a change of venue and to sever all the new counts from the original murder and burglary charges, arguing that the motive the state attributed to Steve's fraudulent acts was “distinct and different.”

Jury selection had been set to start September 7, but the trial date was vacated because of all the pending issues—Docugate, most importantly.

Stepping in for Judge Darrow, who was busy with the time-consuming sweat lodge case and was set to retire soon anyway, Presiding Judge David Mackey tried to get both sides to sit down at a settlement conference and bring an end to this protracted legal battle.

But neither party wanted to participate in any such conference, and only did so after being forced by the court. They were supposed to confer for two days, but the meeting ended after just two hours.

 

 

In December, Mackey appointed a new judge, who was then promptly removed. Mackey subsequently recalled into duty a retired judge from Maricopa County, Gary E. Donahoe, known as a “law and order” judge. Donahoe had fought and survived his own political and legal battles, including a complicated and highly publicized dispute with Joe Arpaio, Maricopa's notorious sheriff, and Andrew Thomas, the county attorney.

Donahoe seemed like the perfect judge to take charge of this high-profile and politically sensitive case.