CHAPTER 44
The second trial took place in the same courthouse, but in a different courtroom, in which space and sound worked in no one’s favor. The first courtroom felt cavernous, which made it easy to move around in; the second one was so cramped that members of the defense team felt as if they were sitting on top of each other.
The acoustics in the second room also frequently made it difficult for people to hear each other talk. Questions had to be repeated and witnesses had to wear microphones. Testimony also had to stop when the old steam radiators banged as they warmed up, and the air-conditioning was often so loud that the judge had to ask for it to be turned off, especially when badly recorded audiotapes were being played. Water dripping from the leaky ceiling had to be caught by pans when it rained.
Jury selection finally began on July 16, 2013, but without the death penalty it only took several days to impanel a jury.
With all the fraud charges at stake, the defense tried to preclude the state from admitting Steve’s conversation with the prosecution team in July 2009 about his voice-in-the-vent story, contending that this had been a “free talk” and couldn’t be used against him.
The judge, however, denied the motion, saying that the previous prosecutor and defense attorney admitted under oath that this was an “investigative interview.” Steve was no different than an ordinary citizen offering details of what he claimed was a crime committed.
“Of course he hoped it would exonerate him, but there were no promises, no coercion, no quid pro quo,” Judge Donahoe said.
When both sides delivered their opening statements on July 19, it had been nearly three years since the first trial ended with Detective Hoover’s testimony.
In his ninety-minute opening, Deputy County Attorney Steve Young outlined all the state’s evidence that pointed to Steve DeMocker as the killer of his very recent ex-wife, with whom he had been fighting about money up until the day he murdered her.
“The defendant has a financial motive to murder his ex-wife, Carol,” Young said, noting that Steve didn’t want to pay her $6,000 in alimony monthly for the next eight years, totaling $576,000.
The state would present evidence, he said, of Steve’s pattern of overspending, his losses related to the market crash, coupled with his personal and financial split with Barb O’Non, and how he, as the beneficiary, immediately tried to collect on Carol’s two life insurance policies that would pay out the $750,000 he ultimately used to pay his first defense team.
Young covered evidence ranging from the staged crime scene to the blood spatter pattern, shoe prints, bike tracks, computer searches, “dead” cell phone, and golf club head cover that had gone missing by the second search. He noted that the pattern of injuries to Carol’s skull was consistent with a left-handed golf club, that Steve was left-handed and he also lacked an alibi. All of this, he said, would persuade the jury beyond a reasonable doubt that Steve murdered Carol on the evening of July 2, 2008.
To support the other charges, he said, the state would illustrate Steve’s manipulative and fraudulent moves to persuade his family members to help perpetuate the voice-in-the-vent story, to send the anonymous e-mail and to make the insurance money transfers, which led to the other charges and required his own relatives to obtain immunity before testifying.
And finally, anticipating that the defense was going to point to Jim Knapp as a homicide suspect involved in a prescription drug ring, Young said the state would prove that Jim couldn’t have killed Carol.
“The only evidence in this case that’s going to suggest that Jim Knapp is a seller of drugs or involved in some nefarious drug ring from Phoenix is the voice-in-the-vent [story] that cannot be corroborated and the anonymous e-mail that was produced by the defendant,” he said.
Before the defense made its opening statement, attorney Greg Parzych made one of many mistrial motions he would make, this one based on e-mails and other evidence precluded in previous rulings by other judges. Donahoe said he wasn’t bound by these rulings, and he also believed that the e-mails “all seem to go to the financial motive.”
After lunch attorney Craig Williams countered the state’s position in his brief twelve-minute opening. Williams stated, in essence, that with no physical evidence in Steve’s car, house, or washing machine that tied him to the crime scene, he couldn’t and shouldn’t be found guilty.
“There’s no murder weapon, there’s no domestic violence in this case, and there’s no motive,” Williams said in a statement that would come back to haunt him.
Williams faulted the state’s investigation for being “conclusion-based” and inadequate, focusing unfairly and prematurely on Steve rather than exploring other leads and suspects, including Jim Knapp. It was sloppy as well, he said, noting that “contamination is the rule”—an allusion to the mystery DNA from Mr. 603, Ronald Birman, under Carol’s fingernails.
Once Steve was arrested and in jail, he said, Steve acted out of fear, not guilt. He did the same when he put together his plan to flee, which he never carried out. Caring too much about his daughters, Steve decided to stay and fight the charges.
“We can place somebody in that [Bridle Path] house and we will,” Williams said. Asking the jurors to keep an open mind, Williams said the defense would firmly convince them that Steve did not kill Carol.
As the prosecution called its witnesses, Williams pounded them during cross-examination about professional protocol failures with regard to the photographing and preservation of the shoe and bike tracks.
Not allowed to argue until his closing argument, he still managed to put forth his theories, sometimes inserting misstatements of fact, which no one corrected, as he did when Scott Mascher, now the sheriff, took the stand, dressed in full uniform:
“So to recap, Mr. DeMocker, who is a very bright individual, comes out there. He has these cuts on his arm. He makes no attempt to hide them. He gives financial information. He gives voluntary statements. He talks about his divorce,” Williams said. “His alibi is he’s across the street, basically riding his bike and he gets a flat, and he gets a very thorough investigation. Mr. Knapp, who says that he was at a hockey game with his kid, doesn’t. Am I summing that up right?” (Jim Knapp never said he was at a hockey game; he said he was home babysitting his younger son while his ex-wife took his older son to hockey practice.)
After the jury left and Mascher had stepped down for the day, Donahoe chastised Williams for taking too long with his duplicative and pointless cross-examination, saying that he’d shown Mascher irrelevant photos and asked him too many of the wrong questions.
As Williams explained his line of argument, Donahoe told him to do it faster so as not to waste the jury’s time. “That takes two questions. It doesn’t take half an hour showing him [crime scene] pictures he doesn’t know about.... If I see this continuing . . . I’m going to set some time limits. This is the second warning, and that’s all the warnings I’m going to give.”
Despite the words of caution, Mascher ended up being on the stand for parts of three days.
The prosecution called Dr. Laura Fulginiti to discuss the nature of Carol’s various injuries, and she never faltered from her position even when the defense tried to trip her up.
In March 2010, Fulginiti said, she was asked to examine Carol’s desk and compare it to the curvilinear skull injuries to determine whether the desk could have caused them, rather than the golf club. As she later testified, “I felt that [the desk] was inconsistent with those patterns.”
But there were additional injured areas, she said, such as above Carol’s eye on the left side of her forehead, that were apparently caused by an impact with a different object—where “something struck the skull, as opposed to the skull striking something.... It’s a distinction that’s very important.”
In this instance, she said, that “something” appeared to be the corner of the desk. (This comment, compounded with other testimony later in the trial, suggests that in additional to beating Carol’s skull with a golf club, the killer also likely slammed her forehead into the desk, as opposed to her head passively hitting the desk as she fell to the ground.)
In total, she testified, “I’m saying that her head is impacted seven times minimum.”
Under cross-examination by the defense, Fulginiti testified that she wasn’t aware that Dr. Keen had first transported Carol’s body in the back of his pickup truck. She said she didn’t think the trip would have caused further significant damage, although that factor couldn’t be ruled out. If anything, the skull “would get jostled and the pieces would separate a little bit more, but I don’t think it would create new pieces.”
Asked about other possible murder weapons, she said she couldn’t rule out the end of a maul or an axe handle.
When Williams questioned why she’d changed her position on this point, Fulginiti went off on him, because she clearly didn’t see it that way.
“You lawyers,” she said. “Okay, here’s the deal. You cannot rule out a golf club, period. You cannot rule it out. So, is that opining that it is a golf club? No. What it is saying is that a golf club has all the characteristics that you need to create any one of those injuries on the skull. And it fits very nicely into one of those injuries.”
As a motive for the murder charges, the prosecution focused on Steve’s spending habits, his financial troubles and his battles over money with Carol—up to the day she was killed. To support the fraud charges, they presented witnesses to show how Steve manipulated the people closest to him, even his daughters, for his own needs.
Peter Davis, a forensic accountant who examined Steve’s financial records, said he issued an “objective” report of Steve’s fiscal picture from September 1, 2004, through the day of the murder in July 2008. During this time, Davis said, Steve spent $900,000 more than he earned, and he earned quite a bit.
From 2005 to 2007, Steve’s gross earnings went from $315,000 to $525,000, of which he netted $117,000 and $191,000, respectively. And in the first six months of 2008, he grossed $190,000 and netted only $67,000, partially due to the market crash, but also because of tax withholdings due to two forgivable loans totaling $557,000 he’d received when he joined UBS. In addition to his commissions, Steve had spent virtually all of the forgivable loan money by May 2007.
Steve received the first and larger forgivable loan as a sort of signing bonus when he joined the firm in 2004. UBS wrote him a check for $546,938, with no taxes withheld, to spend as he pleased. One-sixth of that amount, considered taxable income, was “forgiven” each year for the next six years. The idea was to help out the broker until he could build a client base.
But that still wasn’t enough money to subsidize Steve’s luxury tastes. Grabbing money wherever he could, Steve took out second mortgages on his condo and on Bridle Path, and borrowed against $129,000 in credit lines on both properties, Davis said. Steve also withdrew $7,000 from his daughters’ bank accounts, took out loans against his 401(k), liquidated an IRA and borrowed tens of thousands from his parents, telling Carol it was to “pay our bills.” At times, his three credit cards were maxed out—on which he historically carried a balance of $70,000—and yet he never seemed to cut back or tighten his belt, even in the face of his ballooning debt.
“I never saw any sort of significant decline in the nature of his spending, even though Mr. DeMocker was overspending on these sorts of items,” Davis testified. “It never stopped.”
From May 2007 to July 2008, Steve spent a monthly average of $1,500 on clothing, $1,100 on cash withdrawals, $800 on meals out, $600 for the Hassayampa Golf Club, $500 on electronic equipment such as computers, $160 on haircuts, and $120 on spa treatments, Davis said. Steve was also leasing three BMWs for himself and his daughters, purchasing sporting equipment, taking trips and paying alimony to Carol.
At the time of Carol’s murder, Davis said, Steve was personally insolvent, meaning that his total assets were less than his liabilities by nearly $400,000.
By Steve’s own admission in the affidavits he submitted during the divorce, his personal debt totaled $1.4 million as of March 2007, which he called “crushing.” In his February 2008 amended affidavit, he listed his overall monthly expenses at $30,000, more than double his average net monthly paycheck of $12,860.
As a result of Carol’s death, Davis said, Steve’s financial condition improved dramatically. His worth escalated by $881,000, meaning that his assets were then $485,000 in the red. Of that, there was the nearly $576,000 in alimony he didn’t have to pay; and as the beneficiary of Carol’s life insurance, he also was set to receive $750,000 in benefits. The only drawback was that he was then obligated to pay for the Bridle Path mortgage.
DeMocker’s emails and text messages demonstrated his financial desperation and stress, Davis wrote in his report. The day before Kennedy’s death, DeMocker emails Kennedy that he is unable to float his alimony payment without her payment to him.
On cross-examination, Craig Williams got Davis to concede that Steve eventually waived his interest in the life insurance.
So on redirect Steve Young made sure to have Davis acknowledge that this waiver “only came after the life insurance company consistently said that they were not going to pay the benefits to Mr. DeMocker because he was suspected of a homicide in this case.” Young also got him to underscore Steve’s “benefit” of receiving that $750,000, a point crucial to proving the prosecution’s case.
“Based on your evaluation, Mr. DeMocker ultimately got the benefit of those life insurance proceeds?” Young asked.
“Correct,” Davis testified. “Mr. DeMocker coordinated that the monies from the life insurance company be paid.”
The last page of Steve’s UBS personnel file shows the firm put him on unpaid administrative leave on October 24, 2008, the day after he was arrested. A “stop draw” was placed on his salary on November 20, apparently ending his relationship with the company. However, his former boss, Jim Van Steenhuyse, testified that Steve wasn’t officially terminated by the company until April 24, 2009, when he failed to return from leave. Steve’s “book of clients” went to Barb O’Non, with another advisor working as backup.
The prosecution laid out the forensics of Jim Knapp’s cell phone calls the night of the murder, based on the cell tower testimony of Detective Sy Ray. The prosecution also presented evidence linking the shoe and bike tracks behind Carol’s house to Steve through testimony of witnesses, including FBI forensic examiner Eric Gilkerson.
As Gilkerson had conceded at trial in 2010, he reiterated that the detectives who photographed the shoe prints did not use a ruler to show scale, although some included a flashlight, apparently for that purpose. They also didn’t use identifying techniques, such as labeling shots with corresponding evidence numbers to show the tracks traveling in different directions, for example, or adding a date and case number. Gilkerson recommended that castings be made of shoe prints in soil to make three-dimensional impressions because it is difficult to capture uneven surfaces in a photograph.
Holding up a Pikes Peak shoe and photos of the prints left at the crime scene, defense attorney Greg Parzych asked Gilkerson if it was “possible that this shoe created the image” prosecutors said was Steve’s shoe print.
“It’s possible that a make and model of that shoe could have made the impression, yes,” Gilkerson testified.
“But it’s also possible that the make and model did not make that impression?”
Yes, Gilkerson said. “The Ultranord and the Imogene could also have made the impression.”
On day nine, forensic analyst Jonathyn Priest, a former major-crimes commander in Denver, testified about Carol’s injuries and the corresponding blood spatter patterns at the crime scene.
The two marks on her back, Priest said, were similar to those he’d seen in another murder case in which investigators found a golf club at the scene in 1995. The killer later admitted using the club to beat his victim to death.
Specifically, he said, the elliptical marks, shaped like teardrops, on Carol’s back looked like they were made by the hosel, the area where the club shaft joins the head in an inverted V. The two parallel linear marks on her forearm, he added, were consistent with the long thin metal shaft, and six of her head injuries were consistent with the head of the club.
Asked whether the injuries could have been caused by an ASP baton, a baseball bat or a maul handle, Priest said he didn’t think so, based on the corresponding nature and curvilinear shape of both the club head and Carol’s injuries. He said he came to that conclusion independently, not from reading reports from the medical examiner or anyone else.
As for the blood, he said, the “radiating” patterns emanating from Carol’s head were typical of blunt-force trauma incidents, while other marks and patterns showed that her body had been moved. That’s because some blood spots had dried before others were made, and others were made by transferring blood from one place to another.
“The victim is either moving or being moved or a combination of both,” he said, adding that Carol had to be “upright or semi-upright to cause a number of the stain patterns.”
Asked for his conclusion about where and how the killer delivered the blows, Priest said the killer was likely standing over Carol, swinging the club from left to right, and pivoting.
In his opinion, Priest testified, six of the seven lacerations on her head were created by a similar object, the golf club, and the last one, over her left eye, “was created by her head striking the corner of the desk.”
After the beating, he said, he could tell that the bookcase was moved, because the elliptical stains had a “downward flow appearance,” meaning that the bookcase was standing upright during the beating, but was then moved so it was tilting down. The direction of blood flow didn’t change because the blood had already dried.
Priest noted that the ladder had no blood on it, but should have, based on the radiating pattern of blood on objects around it.
“So the fact that I have zero evidence of blood on the ladder leads me to the conclusion the ladder was placed there after the bloodletting event,” Priest said.
On cross-examination by Williams, Priest conceded that he could have done a more thorough and accurate crime scene analysis if the detectives had taken such procedural steps as measuring how far Carol’s body was from the wall, for example. And just because there were left-sided swings, he said, didn’t mean the attacker had to be left-handed. He also acknowledged that visiting the original crime scene would have been better than basing his conclusions primarily on photos, which, being two-dimensional, could be deceiving.
“There is a lot you can do at a crime scene that wasn’t done here,” Priest said. He added, however, that with 1,280 photos, he had enough information to render an opinion.
As a murder weapon, he said, he couldn’t rule out rebar, which was found on Carol’s property, but “any cylindrical object” could have produced marks similar to those found on her arm, just not the ones on her back.
The attack happened fast, he said, “less than a few minutes,” but he saw “no evidence in there of two people” attacking her. He also added that “somebody could move her and not get blood on them,” as he had done hundreds of times at homicide scenes.
In the end Priest did not move from his opinion that a golf club was the likeliest murder weapon to have produced most of the injuries on Carol’s body.
On day nineteen, Jim Knapp’s ex-wife, Ann Saxerud, testified that she’d been concerned about his prescription drug use. On the day of Carol’s murder, however, he didn’t appear to be under the influence of any drugs when he showed up at her house to spend the evening with their son Alex.
She confirmed that Jim was wearing the same clothes that evening that he was wearing in the Safeway video the prosecution showed her while she was on the stand.
“Did Jim keep his visitation up with Alex and Jay after that time?”
“Yes,” she said.
“And was there any real change, as you could see, in his behavior?”
“No.”
Under cross-examination by Williams, Ann seemed angry that the defense was pointing fingers at her late ex-husband for Carol’s murder. She also acknowledged that she didn’t appreciate her privacy being violated by having to testify about her divorce. All of this was hurtful to her and her sons, she said.
“I thought it was inaccurate and inappropriate,” she said. “I don’t think Jim has anything to do with Carol’s murder.”
Williams reminded her that when she first talked to law enforcement, she said she got home between eight and eight-thirty that night, and that Jim had left her house “shortly after that.” But after she talked repeatedly with Detective Doug Brown, they moved the times she left and got home to be later and later. She even told Brown that she didn’t “remember Jim coming [to her house] that night,” Williams said. All of this, he later argued, helped illustrate that she and law enforcement were unfairly trying to reshape their timelines to fit their theory that Steve DeMocker, not Jim Knapp, had killed Carol.
“I think at the time I didn’t understand how far this would go, and didn’t put the effort into remembering [the exact times]” Ann countered. “But since then, I’ve changed my mind.” She added that it was “very unclear” to her at the time that she needed to be more precise, because she’d never been involved in a murder investigation before.
When the prosecution called Katie DeMocker to the stand, prosecutor Jeff Paupore created some high drama in the courtroom by playing a recording of the young woman battling with her father over the insurance money transfers in March 2009.
Although it was clear on the recording that she didn’t want to go along with the plan, she would not concede to Paupore’s implication that Steve had pressured her into accepting the “agreement of how the money was going to be spent,” specifically for his defense.
“I wouldn’t phrase it like that,” she said, contending that she wasn’t initially comfortable transferring the money, but she did agree after “lengthy discussions” in which her family provided her with assurances that Charlotte would have enough money for college “and be taken care of, like I was, in that process.”
As trustee, Katie testified, she was empowered to move all that money out of Carol’s trust, thus exhausting it, even though she was still five years from being twenty-five, as her mother’s will dictated. At this point, Judge Donahoe interrupted and told the jury to take a break.
Calling a bench conference, Donahoe, who had spent seven years on the probate bench, told the attorneys that the jury was receiving inaccurate information from the witness.
“I can understand why criminal lawyers don’t practice probate, because you’ve got the law all confused,” he said, adding that he wasn’t criticizing Katie, but she didn’t understand what she was saying.
“Despite what she’s saying from the stand, she had no right to dissolve this estate at the age—whenever she wanted to—or the trust. . . . She’s mixing the two, and she’s telling the jury wrong things.”
Donahoe said they needed to find a way to remedy this so the jury got the correct probate law information. Greg Parzych piped up, renewing his motion to sever count three, “fraudulent schemes and artifices.”
Donahoe snapped back that this was not the solution. “Don’t even bother me with that again. I’m tired of hearing that severance,” he retorted, noting that he’d already ruled on it several times.
Back on the record once more, Jeff Paupore restated the wishes in Carol’s will to Katie, saying that “it was very clear that there would be no distributions until you reached the age of twenty-five.”
Asked if she had discussed that issue with her attorney, Katie said she didn’t recall specifically, but it was her understanding that she, as trustee, “was in charge of administering the money as I saw fit . . . that it was mine to do whatever I wanted with.”
Saying she “frankly didn’t want anything to do with” transferring her half of the insurance money, she came to believe that it was appropriate to hand over her share to her grandparents after a family meeting and getting those written assurances. She then left the other half for Charlotte “in the account until she turned eighteen.”
“But you knew that your grandparents were going to use that money for attorneys’ fees?”
“That was my understanding,” she said. “Some or all of it. I didn’t really care at that point.”
As Paupore questioned Steve’s eighty-three-year-old mother, Jan DeMocker, he played a couple of taped conversations between her and Steve in jail, talking about the money transfers. He also pointed out for the jury that just the day before testifying, she’d received immunity from being charged with a crime.
“Do you know why you were in the middle of this?” he asked.
“I guess I was handy,” she said.
Pushing past the flip answer, Paupore asked if she could think of any reason why the girls didn’t send all that money directly to Steve’s attorneys.
“I don’t really know,” she said. “There was an issue of quite a bit of money that . . . my husband and I already spent, that they owed us, Steve owed us, probably close to that amount of money.” She and her husband had been paying Steve’s legal fees for more than a year, she said, so “it allowed them to give us a gift, to pay us back. It gave us the freedom of using that money in whatever way we wanted. Although I think they were very aware at that time that our burning concern was for Steve’s safety at that point.”
Jan said that Steve and Carol owed them that money, which had been spent on their lawyers and lawyers for the girls. “Our output at that point had totaled somewhere between five hundred thousand and seven hundred thousand dollars,” she said. “I don’t know exactly what it was. My husband was keeping track of accounts.”
“Okay, is it your testimony, then, that you decided to take that seven hundred thousand dollars and then pay Steven’s attorneys’ fees with it?”
“That was a decision my husband and I made with input from other members of the family, yes,” she said.
“Was your son Jim part of that discussion?”
“Yes.”
After another audiotape was played for the jury, Jan explained that Katie was supposed to transfer the first $355,000, but only transferred $350,000. Jan said the $5,000 difference went to pay the second attorney named Chris—referring to Chris Dupont—to help the girls get their victims’ rights back.
On cross-examination, Craig Williams had Jan explain the motivation behind the insurance transfers, painting the transactions as innocent and noting that the planning for them occurred on phone lines they knew were being recorded.
Jan said she wanted to make sure the girls “would be taken care of,” in terms of college and future support. “I knew we could support both of them, but I didn’t know how long we could do it. And there was always that horrible chance, way out at the end, that, even though we were very positive that Steve was innocent, and we thought there was a ninety-nine percent chance that he would be acquitted, there was still the possibility—he was facing the death penalty then—that he would spend his life in prison or that we could see him executed. And we had to consider that also, what would happen to the girls if their father is never freed. And that’s where the family came from. And we had other people in the family say, ‘We have your back and we will take over if we need to.’”
After Jan acknowledged that Katie was stubborn, Williams asked, “In your mind, do you think that Steve could get Katie to do something that she didn’t want to do?”
“I can imagine he would try,” Jan said. “I can’t imagine he would succeed.”
Moving on, Williams asked Jan the same question he asked several witnesses during the trial: “In the entire time that you were around Steve and Carol, did you ever see any physical violence at all?”
“Absolutely not.”
Jan added that she never heard Steve threaten Carol, nor did she ever sense any fear on her part. Carol never came to her to say he’d been violent, either.
Steve’s daughter Charlotte was called to the stand next, but her memory still wasn’t very clear, despite the prosecution telling her that she needed to be more cooperative than she was during the first trial or she could lose her immunity. Nonetheless, she didn’t have much to add.
Barb O’Non testified as well. However, her comments weren’t nearly as detailed as they were during her previous interviews with investigators or at the pretrial hearing in 2010.
Renee Girard also testified, going over much of the same ground about the anonymous e-mail and the insurance money transfers that she’d discussed with investigators.
“I trusted what I was being told [by John Sears and the DeMocker family] . . . that it was legitimate,” she said, referring to the money transfers. “I trusted that Steve was not asking me to do something illegal.”
Doug Brown, the former lead detective on the case who was back to working as a patrol deputy, was the last of the prosecution’s forty-six witnesses. Brown was on the stand for six days—longer than any other witness.
On Brown’s second day, September 4, the prosecution tried to introduce into evidence an e-mail that could change the whole landscape of the case. Carol had sent the e-mail, dated May 7, 2007, to Steve. It described a violent incident in which he came into her house while she was on the phone, grabbed it from her hand, threw it against the wall and shoved her.
The defense immediately objected, arguing in a bench conference that the prosecution should have announced this late and surprising disclosure earlier in the trial.
Prosecutor Steve Young countered that the state had properly disclosed the e-mail long ago, but acknowledged that it was part of the case’s massive 33,000 pages of discovery. The e-mail, as it turned out, had been part of the prosecution’s court filing on August 12, 2012, one of dozens of supplemental evidence disclosures.
“This particular e-mail has been disclosed for over a year, whether he remembers it or not,” Young said, referring to Craig Williams.
Williams admitted that he had missed the e-mail, but he argued that the state still should have highlighted the document prior to the trial as evidence it intended to produce.
“I would have approached it a little different if I knew that e-mail was going to be admitted in this trial, an e-mail I didn’t even know about, so what we have now is we have an irrevocable tainting in this trial,” Williams said, questioning whether the e-mail was even real, given that it never came up during the divorce. “I question the veracity of this e-mail.”
Williams complained that the state waited until its last witness to present the document, not while several of Steve’s family members were testifying, when the defense could have questioned them in more detail about their knowledge of domestic violence between Carol and Steve. Williams even went so far as to ask for sanctions against the state.
Judge Donahoe, however, pointed out that so far the defense was the only party to have brought up domestic violence by saying there was none in this couple’s relationship.
“And this is the voice from the grave saying that isn’t true,” the judge said. “This is rebutting the defense’s assertion that Mr. DeMocker has a peaceful character and that there was no domestic violence.”
Young pointed out that the defense had been questioning witnesses all along if they knew of any instances of domestic violence between Steve and Carol, which had opened the door to the e-mail. Furthermore, he said, the state had already notified the defense a week in advance of its plans to introduce the e-mail in court.
Williams referenced a “comeback” e-mail from Steve, saying it “calls her a liar and says that’s all incorrect,” but the state didn’t submit it for admission.
“Is that the one that he’s in the shower and thinking about she’s coming to kill him, and the one where he admits they shoved each other?” Young asked.
“No,” Williams answered curtly.
“That one should be brought up,” Young said, underscoring the existence of additional e-mails from Steve to Carol, indicating “that they had shoved each other in arguments before.” He said Steve also mentioned in a recorded jail call that “he would have arguments with Carol and they would both end up shaking.”
Donahoe noted that there was more at issue here than just the domestic violence. “This almost goes to the murder. Well, almost—it does go to the murder, because it’s the same thing that happened.”
Reading Carol’s e-mail aloud, Donahoe said, “‘You had Ashley come over to the house and come in against my will, and once you grabbed the phone out of my hands and threw it so violently against the wall.’ So when she says, ‘Oh, no,’ or ‘Not again’ . . . the jury could conclude, this is exactly what happened the night of the murder. That he came in unannounced, like she’s accusing him of doing before, grabs the phone out of her hand and bludgeons her to death.... It’s not only domestic violence, it’s what happened on the evening in question.”
Calling the e-mail “a dynamite bombshell in this case,” Donahoe said he needed some time to do research. He would announce his decision on whether to allow the e-mail the following day.
The next day Judge Donahoe faulted Craig Williams for failing to recognize the importance of this e-mail during his trial preparation, especially when the county was paying for a four-person defense team, which included two attorneys, experts, paralegals and other staff. Williams said he took responsibility for that oversight.
Donahoe said the state shared some fault, too, and should have “fired a shot across the bow” to say, “‘If you’re going to go down this road, here’s what we’ve got. You might want to change your tactic here.’ But again, there’s not much I can do to unring the bell. I think the situation the defendant finds himself in at this stage of the trial is entirely the defendant’s own making.”
Although the judge acknowledged that domestic violence “is generally a very secret matter between couples,” and the victim “is often silent because they are embarrassed or intimidated,” he wasn’t surprised that family members didn’t know about this or other incidents.
Nonetheless, Donahoe said, he believed parts of the e-mail were “unfairly prejudicial.” The e-mail not only drew “parallels to the circumstances of the murder,” but also had Carol talking about being “frightened and concerned about disappearing,” and mentioned that Steve owned guns and had some weapons training. Donahoe suggested redacting those parts of the e-mail so it could be admitted.
But as prosecutor Jeff Paupore watched this play out in court, he’d become concerned that he could jeopardize the case on appeal if he pushed the e-mail into evidence at this point. He didn’t want to create an opportunity for Steve’s appellate attorney to make a claim of ineffective trial counsel.
So, after a long bench conference, both sides agreed to a stipulation: The prosecution would withdraw the e-mail as long as the defense didn’t present any more “evidence” or question witnesses about Steve’s supposedly nonviolent nature and good character. The defense also wouldn’t point to a lack of domestic violence in the marriage, or mention the topic in its closing argument.
With that defense crisis averted, Williams kept Deputy Brown on the stand with an extended cross-examination that continued to wear on the judge’s patience.
“In the bigger picture, is there an end to this endless cross-examination?” Donahoe asked during Brown’s fifth day on the stand.
Williams had already run through a long list of people who were asked to give DNA swabs, including three named in the defense’s third-party culpability paperwork—David Soule, John Stoler and Barb O’Non—noting that they were never subjected to the same level of interrogation or investigation as Steve. But the list of potential murder suspects seemed to go on ad infinitum.
“How many people committed that murder?” Donahoe asked.
“Well, you know, Judge, you will recall when you told me that I shouldn’t put all my ducks in one pond,” Williams said.
When Donahoe said he didn’t remember saying that, Williams conceded that he might be mixing his colloquialisms. However, he said, he believed he had “to open up the Japanese van here and say there was more than one possibility” of how Carol was murdered.
Prosecutor Steve Young added his objections to the judge’s. “There’s got to be some reasonable link between third-party culpability so that doesn’t open the floodgates to anything and everything,” he said.
Donahoe agreed. “I’m getting more and more skeptical as the net widens here on this third-party culpability.”
Still, back on cross-examination, Williams continued pounding Brown on this point: “Do you know what tunnel vision is?”
“‘Tunnel vision’?” Brown echoed. “Yes.”
“The focus had narrowed down on Mr. DeMocker. Would you agree?”
“It did at a certain time, yes.”
“I’d say it happened pretty early in this case.”
“During the investigation in the early-morning hours of the third [of July], yes.”
Williams spent the rest of his time focusing on Jim Knapp, trying to persuade the jury that it was Carol’s tenant, not her ex-husband, who had the motive to kill her and could have done the deed.
Numerous times during bench conferences, out of the jury’s earshot, the defense attorney detailed his theories extrapolating on how and why this could have happened. In one instance he tried to persuade the judge to let him present evidence of Jim’s victimization in several get-rich-quick schemes, while Young argued that it lacked relevancy.
“There’s a series of disastrous events in his life and the fact that he’s going through one thing after another to get rich,” Williams said, referring to the Maui Wowi franchise and Jim’s other moneymaking ideas. “And I think it shows state of mind that leads up to the dam burst and he actually killed Carol Kennedy. So I think we have to be able to demonstrate state of mind through disastrous financial decisions.”
“I may buy a lottery ticket after this, Judge, and I don’t know, I hope that doesn’t go to my state of mind,” Young quipped.
“Our whole argument is this guy is a con man. He cons a lot of people,” Williams said. “He had an ongoing con trying to set up e-mails trying to pay for his fake cancer.”
“ ‘Fake cancer’?” Young asked incredulously. “The autopsy report says he has melanoma. I don’t know why you keep saying ‘fake cancer.’”
Williams continued during another bench conference: “If you get down to the end where he’s telling people in the world that Carol Kennedy was penniless, right, and that Steven DeMocker robbed her of everything, but then we have a deposit slip of one hundred thirty thousand dollars, we have [Jim’s] thumbprint on the financial documents that list out how much money she’s got. So our theory is that he found out, felt double-crossed, and that’s what happened.”
“There’s no evidence,” Jeff Paupore countered. “You asked for the evidence, Your Honor, about Carol Kennedy going into a joint venture [for the Maui Wowi franchise].... There’s no evidence that she was going to fund anything. Other than in Knapp’s mind, and we’ve been in there.... We know it’s an empty shell.”
Williams proceeded to hammer his points in front of the jury. While Deputy Brown was still on the stand on September 10, Williams noted that law enforcement admitted to a lack of crucial physical evidence in this case the day before they arrested Steve.
Quoting Brown’s search warrant, Williams said: “‘We have not been able to locate a murder weapon, the shoes that created the shoe tracks, or any physical evidence tying Steven DeMocker directly to the house . . . from the night of the murder.’ Correct?”
“Yes, that’s correct,” Brown replied, “that’s what I wrote.”
“And he was arrested the next day, wasn’t he?”
“Correct.”
“Okay, no more questions.”
As the prosecution finished up with Brown, the deputy countered that he and the other detectives did, in fact, investigate the alibis and whereabouts at the time of the murder of all four suspects Williams suggested in his third-party culpability defense, including Jim Knapp. And that the physical evidence—the staged crime scene, the blood spatter heading out the back door and the nasty e-mail exchanges between Carol and Steve—still pointed to Steve as the killer, who bludgeoned her to death, ran out to his bike in the bushes behind the house and back to his car.
Brown noted that investigators also collected a DNA specimen and fingerprints from Jim Knapp, and had them tested and compared with other evidence at the crime lab. Even though Jim gave inconsistent statements, his memory wasn’t good and he offered various theories about how Carol was killed, Brown said he and the other investigators retraced Jim’s steps, interviewed his ex-wife and son, examined his bank, cell phone and other records, and, in the end, simply did not see him as the killer. As a result they put together a “Knapp-exonerating timeline,” as Young put it.
Brown said he and other detectives did the same type of investigation into Steve’s story to try to prove that he, too, was where he said he was. Based on the timing of Carol’s last messages to Steve and her handwritten notes on the financial documents in her home office, Brown agreed that it seemed Carol was prepared to talk with Steve that night about the check dispute when he came to collect Katie’s car. But even Steve admitted to investigators that he couldn’t prove where he was during those missing hours, and he had no alibi.
“‘I don’t really have proof where I was,’” Brown said, quoting Steve’s statement on the night of the murder.
And that was that.
“No further questions,” Young said.
During the jury’s Q&A with Brown, the former detective touched on his theory on how and when the killer entered the house. Based on the shoe tracks, the timing of Carol’s run, her text messages, the phone call with her mom, the unscrewed lightbulbs and the fact that she didn’t generally lock the back door while she was out running, he said, “I think it’s while she was on a run.”
With that, the state rested. The jury was dismissed for lunch and the defense immediately moved for judgment of acquittal for a lack of evidence.
On the murder charge the defense argued once again that there was no evidence of premeditation, because the killer was clearly in a rage. And there was no evidence—“blood, hair, fiber, eyewitness, confession”—tying Steve to the crime scene.
Jeff Paupore countered that Steve showed premeditation as early as February 2008, when he installed the Anonymizer software on his computer to hide his Web-surfing history. But investigators found his incriminating searches anyway.
After the defense went through each count and argued why it should be dismissed, the judge responded by reiterating the state’s evidence supporting each count, stating that he believed there was “substantial evidence” to support counts one and two, for first-degree murder and burglary. Curiously, though, Donahoe said he had some doubts about the merits of the state’s case on those two primary counts.
“I’m not saying this is the strongest case, and it wouldn’t surprise me if there was a not-guilty verdict or a hung jury on count one and count two or both,” he said, “but I think there’s enough here to go to the jury on both of those counts.”
He said he saw enough evidence to support all the other charges, except count six, which he described as “e-mail forgery.” For that count he entered a judgment for acquittal, explaining that Charlotte was “the only one that created or committed forgery regarding the e-mail,” but she was not charged and had been granted immunity.