CHAPTER 41
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.”
And not just a little. Not by accident. Not inadvertently. No, the state intentionally viewed and printed ex parte pleadings using the OnBase . . . a total of 60 times! . . . This was not a one-time curious peek at forbidden fruit, it was systematic.
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.