Then No One Can Have Her Page 27

  She didn’t see the man’s face, but she remembered his hair being short, and his bike tires being fat and wide, not thin like a racing bike, more like a mountain bike. He was wearing blue jeans, a short-sleeved shirt and a backpack. And he was pedaling unusually fast for the neighborhood, “like he was on a mission.”

  He was pedaling from the direction of Williamson Valley Road—heading west to east—toward the end of Glenshandra, where the detectives later found the bike tracks they said were consistent with Steve’s. The bike was “a normal boy’s bike,” she said, with a bar across it.

  In 2008, she originally said she saw the man between 2 and 5 P.M., but by the time she testified a year and a half later, she’d expanded the time frame to 1:30 to 6:30 P.M. She also said she remembered that the sun was starting to go down, and that it could have been closer to seven-thirty or even “eightish” at night. (Records show that the sun actually set at seven forty-six that evening.) She blamed her confusion during her earlier statements to being “rattled” by detectives questioning her.

  Defense investigator Rich Robertson interviewed her at her home in May 2010, just a couple of weeks before the hearing, and returned the next day with photos. Jana Johnson then talked to prosecutor Joe Butner by phone and again during a visit to his office.

  When she talked to Robertson, she said the man could have been younger—college age or older—with long dark hair flying in the wind. She acknowledged that the detectives had never shown her any photos of Steve or his bike. After seeing photos of Steve in the newspaper, she said, she didn’t remember the bicyclist having gray hair.

  During the hearing Jana was clearly confused about what she actually saw after being interviewed repeatedly by both sides. She acknowledged that some of her recollections had changed accordingly, and were now at odds. By this point, she couldn’t remember details about the man’s hair or whether he was young or older.

  “Now you’re saying you just don’t know what you remember?” defense attorney John Sears asked.

  “Well, no,” she said. “Because at the beginning when I talked to the detective, I told him that [the bicyclist] had short hair, right in the first one, and then when I talked to you again, it was long hair. So I—I guess I am confused, I don’t know.”

  Sears argued that Jana was not only confused, she also wasn’t able to connect Steve or his bike to what she saw that day, and her testimony should be precluded at trial.

  Arguing against the defense’s motion, Butner said Jana was “pushed around during the interview process,” after the defense conducted an “ambush interview” in which she was “led down the garden path” to make contrary statements to what she’d said before.

  Nonetheless, he said, her testimony still bolstered the state’s theory that Steve parked his car across Williamson Valley Road, rode his bike to the Glenshandra trailhead, where he lifted it over the fence, hiked toward Carol’s house, rested the bike in some bushes, then hiked the rest of the way, killed Carol and rode his bike back to his car.

  “We believe we are missing things from the homicide scene that could have been carried away in a backpack,” Butner said. “We also think our killer probably either brought attire with him or her, or . . . took attire away, so to speak.... A backpack could have been used for that. And that is the approximate time of day when the killer would have arrived.”

  The judge conceded that the evidence was relevant in that Jana Johnson saw a man riding a bike that day in the same area where detectives found bike tracks and shoe prints. However, agreeing with the defense that Jana’s testimony could mislead and confuse the jury, he granted the defense motion to preclude it.

  On August 19, 2010, Detective John McDormett received in his mailbox a one-page typed anonymous letter, dated August 16, that read: On the night of the murder of Carol Kennedy, Steven DeMocker wore a disguise that included dark blue overalls and a long, disheveled gray-haired wig with matted hair just above shoulder length. The letter was signed: A concerned citizen.

  CHAPTER 38

  When jury selection began on May 4, it proved to be a serious, long and grueling task. The judge and attorneys needed to seat eighteen jurors, including six alternates, who could be objective and willing to vote for a death sentence if Steve was found guilty of murder.

  A somewhat intimidating prospect for members of the jury pool, they were called in, one at a time, to sit in the front row and were questioned for hours. The two prosecutors sat at one table, but there were so many men in suits at the defense table that some prospective jurors couldn’t tell who was who.

  During voir dire one man stopped speaking abruptly, as if he’d just had an epiphany. “Oh, my gosh, I thought you were the defendant,” he said to prosecutor Joe Butner.

  The jury had yet to be impaneled when the state decided at the last minute to drop the remaining “pecuniary value” death penalty aggravator. The state filed a motion to do so on May 26, which the judge granted that day.

  Chief Deputy County Attorney Dennis McGrane told the Daily Courier that Carol’s “surviving family members opposed the death penalty and prosecutors take victims’ view into account.”

  After the attorneys had spent nearly a month choosing a jury that was going to be able to mete out a death sentence, the defense balked, arguing that “death-qualified” juries were more prone to convict than “non-death-qualified” juries. The judge, however, ruled that the panel they had selected was just fine.

  As defense attorney John Sears was delivering his opening statement on June 3, the prosecution team, which had prepared to present 186 witnesses, learned for the first time that Hartford had paid out on Carol’s life insurance policies. Detectives were under the impression that Hartford wasn’t going to pay on the policies unless and until Steve was cleared of murder, as it had indicated in the five denial letters it sent to Steve rejecting his attempts to collect the money.

  Robertson watched as the prosecution’s investigators scrambled into action in the courtroom.

  “You could see their eyebrows shooting up and they started ducking out,” he said. “It was kind of mystifying at first as to what caused that. And, of course, we had no idea that they didn’t know that the life insurance had been paid out to the girls. They failed to ask the right questions of the life insurance company. There was no attempt to hide anything. They kept asking whether the proceeds had been paid out to Steve.”

  Judge Lindberg was usually prompt in starting the proceedings each day, taking regular breaks at certain times. But on June 16, the eighth day of trial, Lindberg interrupted the testimony of Sergeant Luis Huante to break for lunch fifteen minutes sooner than usual, with fifty-three juror questions pending.

  “We’re going to take our break a little bit early,” he said, prompting the attorneys and investigators to look at each other, wondering what was up.

  As the jury was filing out and people were gathering their belongings, Lindberg stood up and walked down the steps that led to his chambers. He sat down in his easy chair and promptly fell onto the floor.

  Seeing Lindberg collapse, one of the deputies ran in, helped the judge back into the chair and emerged a minute later. “He’s fine,” he said. “The judge just fell down.”

  Startled by this chain of events, defense investigator Rich Robertson now understood what had precipitated the judge’s abrupt manner. He wasn’t feeling well.

  A minute later the judge rose from his chair and collapsed again.

  “The judge fell!” the defense team’s paralegal shouted, prompting Robertson and Lieutenant Dave Rhodes to run into chambers to help.

  Finding the judge flat on his back, Rhodes felt for a pulse and started chest compressions, while Robertson got into position to begin mouth-to-mouth resuscitation. It took only a couple of compressions before the judge took a huge breath and opened his eyes wide, a bewildered and frightened expression spreading over his face.

  “Do you have any nitroglycerin?” Robertson asked, thinking that Lindberg had
suffered a heart attack. The judge shook his head slightly.

  As they let him sit up and gather himself, Lindberg seemed embarrassed at the public spectacle he’d caused.

  “At this point we weren’t sure exactly what was happening,” Robertson said later. “Dave Rhodes concluded he was in full cardiac arrest. But looking back, I’m not so sure.”

  When the paramedics arrived, Robertson stepped out of the courtroom just in time to see the judge’s wife and son, who lived fairly close to the courthouse, running up the stairs.

  “This damn case,” Lindberg’s wife said. “This damn case.”

  A crowd of onlookers that had gathered watched as paramedics wheeled the judge into the elevator on a gurney and into the ambulance outside. After Lindberg got to the hospital, the doctors “realized fairly quickly this wasn’t a heart thing,” Robertson said. Diagnosed with a brain tumor, the judge was flown by helicopter that evening to a Phoenix hospital specializing in brain injuries.

  Robertson said he didn’t remember seeing any signs of the brain tumor before this incident, but he had no doubt that the judge had been “stressed out” about this high-profile case.

  “He was very religious, a staunch Catholic, which made it difficult for him sitting on a death penalty case, and I know that added a certain amount of stress to his job,” Robertson said. “These were highly litigious attorneys on both sides, so there were a lot of pretrial motions, and they weren’t used to this amount of pretrial litigation.”

  The trial was suspended until a new judge could be assigned, during which time the defense tried again to get a further reduction in Steve’s bail, which was now at $1 million. After a previous attempt to lower it to $250,000 had failed, this time they tried for $350,000, but no deal.

  Judge Warren R. Darrow, who was making a name for himself with the highly publicized “sweat lodge” case of so-called “spiritual warrior” and self-help author James Ray, was appointed on July 2. (Ray didn’t go to trial until 2011, when he was convicted of negligent homicide. Three people had died and eighteen others were hospitalized after participating in his ritualistic “spiritual cleansing” ceremony near Sedona in 2009.)

  The DeMocker trial resumed on July 21, 2010, with Sergeant Huante back on the stand.

  But the drama did not end there. More allegations erupted behind the scenes as Judge Darrow held a series of closed hearings on issues filed in sealed briefs, stemming from the state’s request to disqualify the defense team after the county attorney’s office had opened a separate criminal investigation into the transfer and payment of Carol’s insurance money.

  By this time the prosecution had learned that the money had been paid to the girls, to Steve’s parents and then to Steve’s defense attorneys, and the state believed that this was not only improper but criminal. The pleadings and hearing minutes were later unsealed.

  John Sears, named as a witness to several notarized filings, including the switch of trustee from Katie to Renee, described the issues that the prosecution had raised concerning the money transfer as “irrelevant” and “unfairly prejudicial” to Steve. He summed them up as an attempt by the state to distract the court from the murder case and to “dirty up” and “smear Mr. DeMocker and his lawyers to the jury.”

  Joe Butner countered that the nature and details of the money transfer were entirely relevant, saying, “Mr. DeMocker managed to gain the benefit of those life insurance proceeds after he had killed his ex-wife, and that is something the state is entitled to argue to this jury.”

  At issue was whether the defense team could continue to represent Steve while a criminal investigation hung over its head. The defense attorneys indicated that they “would not be able to continue with the trial while they are defending themselves.”

  Judge Darrow initially agreed, saying he believed “that the situation gives rise to an unwaivable conflict of interest.” He also said, however, that he didn’t agree with the state “that the situation rises to substantiating a criminal offense,” meaning “some type of theft.” He agreed to suspend the trial while the defense team conferred with its client.

  After hearing more of the state’s evidence, Darrow found it did not support the prosecution’s allegations. He also ruled that the defense had no conflict in proceeding. The state agreed, in turn, to stay the investigation into the defense team, and to refer the matter of any potential criminal involvement by defense attorneys to an agency outside the county attorney’s office. That did not stop the prosecution’s investigation into Steve’s role in the money transfer, however.

  The trial started up again with some surprising testimony by Dr. Philip Keen, the county medical examiner.

  Keen testified that one evening after the autopsy he’d transported Carol’s body, in a body bag in the back of his pickup truck, to the Forensic Science Center in Phoenix. He was going to Phoenix anyway, so this “just was convenient,” he said.

  “It was tied down,” Keen testified. “I had a little bungee strap. The vinyl bags have handles and I have hooks in the bed of my truck. Just put the bungee strap to the corner so it doesn’t go anywhere.”

  Keen acknowledged that July evening temperatures in Phoenix could rise to “in excess of a hundred degrees.”

  His goal was to have Dr. Laura Fulginiti, the forensic anthropologist, examine Carol’s skull fractures and do a reconstruction. However, she was unable to do the project at that time, so a transport service returned the body to Prescott a few days later.

  Keen testified that sheriff’s off icials brought him a golf club—the exemplar Callaway Big Bertha #7—to see if the shape of the club’s head matched up with the margins of Carol’s skull fractures. At this point Keen decided to do his own reconstruction to validate his theory that Carol had been beaten with a wooden driver club.

  He took a Styrofoam ball, laid some papier-mâché over it, then placed the pieces of her scalp and skull over the paper, taking care not to damage the tissue and bones any further, because he still wanted Fulginiti to do her own reconstruction.

  “And you found . . . the golf club and the fracture to be similar?” defense attorney Larry Hammond asked.

  “Yes, sir.”

  Keen acknowledged, however, that he made no notes of this effort, nor did he write up a report until later. He chose to wait until after Fulginiti did her reconstruction, which involved flushing and cleaning the skull pieces, then gluing them back together.

  Although he and Fulginiti agreed that some of the fractures were “consistent” with a golf club beating, he said, they “could not specify precisely what instrument caused” the other fractures. They also couldn’t rule out the use of multiple instruments or multiple attackers. In the end the golf club was still his “primary explanation” for a weapon, but not Fulginiti’s.

  On redirect by prosecutor Joe Butner, Keen discussed how he originally settled on the golf club as the most likely murder weapon, after he’d “dismissed a variety of things which you may see in beating-type deaths. The injuries just don’t conform to those other kinds of objects.”

  Keen acknowledged that he’d used unsterilized nail clippers to cut Carol’s nails, which he admitted was “not good practice.”

  Under cross-examination by Hammond, Keen said his assistant tried to identify other autopsies in which those clippers might have been used and potentially contaminated evidence in this case.

  “And what she found,” Hammond asked, “was that there was no occasion upon which those clippers were used in which there was a reasonable possibility that DNA from someone in a prior autopsy could have been transferred to the body of this woman?”

  “I think that’s also correct,” Keen said.

  In September, shortly after his testimony, Keen landed a $205,000-a-year job as chief medical examiner for the state of Oklahoma.

  After all, the sixty-seven-year-old had a good résumé: Keen had been Yavapai County’s ME for nearly thirty years, until 2009, and had spent twenty years working for Maricopa County
’s office, fourteen as chief ME, until 2006. For the six years he was associate chief in Maricopa County, he was working in Yavapai as well. During his career he’d performed twelve thousand autopsies and had spent a year as president of the Arizona Medical Association.

  But less than a month after the Oklahoman published a story recounting the highlights of Keen’s testimony in the DeMocker case, the Oklahoma Board of Medicolegal Investigations withdrew its job offer.

  “In retrospect . . . I probably would have done it differently,” Keen told the Oklahoman. “There was a lot of urgency in this particular case.... It was an unusual event.”

  Although Keen acknowledged that he’d moved eight or ten other bodies in his truck or in a sheriff’s vehicle over the past thirty years, he contended that he was not a kook.

  “If people think I’m a little bit kooky, they might consider the fact that I’m the only pathologist that’s been elected to be the president of the Arizona Medical Association. That’s not exactly a credential of a kooky person,” he said.

  CHAPTER 39

  As the trial proceeded in the courtroom, investigators for the prosecution were still pursuing leads in the field that they’d been following for quite some time, working against the clock to nail down evidence to dispute Steve’s voice-in-the-vent story before it was too late and the case was sent to the jury.

  Over a period of nine months in 2009 and 2010, Randy Schmidt and other investigators had tracked down and interviewed a series of inmates—in and out of jail—who could have been the voice. But none admitted to being the voice or knowing about the e-mail.

  One prisoner said the only time he’d heard anything about Jim Knapp was when he overheard Steve telling other inmates that Jim was involved in an OxyContin drug ring. Steve denied making that statement, and the information couldn’t be independently traced to anyone else. (Defense investigator Rich Robertson said he could not disclose any details from his own investigation into this alleged drug ring, saying it was proprietary work product.)