Then No One Can Have Her Read online

  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.

  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 t
his 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.

  CHAPTER 42

  Once Steve’s attorneys realized they could no longer use the DNA of the mystery man, Mr. 603, as their line of defense, they shifted their focus to other identifiable third-party suspects, zeroing in primarily on Jim Knapp.

  His motive? “Jim Knapp—(a) was not psychologically stable, and (b) he was angry at Carol,” said defense investigator Rich Robertson. “He had kind of a romantic interest in her that appeared to be unreciprocated, and (c) he was telling people that she was going to fund his investment in this coffee franchise that he wanted to start and she was going to be his partner and fund it with the money from the divorce. He found out this wasn’t going to happen right before she died.”

  Attorney Craig Williams also came up with a theory to explain away Jim’s 7:58 P.M. call from his ex-wife’s house: “Just because [Carol’s] phone went dead at eight P.M. doesn’t mean that’s when Carol died,” Robertson said. “That just means the phone went dead. She was discovered dead well after ten o’clock, so she was killed sometime between when the phone went dead and the time when she was found, so there was time for Jim Knapp to get out there.”

  Robertson noted that Jim was involved in a number of get-rich-quick scams, in which he ended up being a victim; he was also lying to people—including Robertson—about his cancer in an effort to get people to give him money.

  “He told me that he had stage-four cancer that had been miraculously cured,” Robertson said, referring to meetings a week or two after Carol’s murder. “He told me that doctors wanted to study him because he’d had this stage-four cancer that had suddenly gone into remission and there must have been something in his genetic makeup.”

  Another theory being floated, which was more along the lines of the hit man tale and the voice-in-the-vent story, was that Carol had been killed by the drug ring with which Jim had allegedly been involved, but that was not part of the defense’s case, Robertson said.

  The defense’s Jim Knapp theories held no water with Carol’s friends. From what Katherine Morris knew, there was nothing romantic between him and Carol.

  That said, Katherine wouldn’t have been surprised if Jim had been in love with Carol, as Steve told her he suspected. Even so, in her view, Jim had no ill will toward Carol.

  “I know he was devastated, absolutely,” she said. “He was the one with her in those final days and knew the most about what Steve was doing to her recently. I don’t think he had anything to do with her death.”

  Debbie Wren Hill agreed. “He might have been a little wacky, but they were very, very close friends. He might have had a crush on her, but you don’t beat people mercifully if you have a crush on someone. This was a crime of passion. This wasn’t someone slipping something into her drink.”

  The prosecution wasn’t bothered by the defense’s new strategy, either.

  “Once we figured out who Mr. 603 was, they said someone else did it, and it was Jim Knapp,” prosecutor Jeff Paupore recalled. “That was a mistake. Because we had cell phone evidence.”

  Paupore looked at it this way: “The more they go after Jim Knapp, the stronger our case will be, because they’ve got nothing else. And they didn’t.”

  Nonetheless, the defense’s new direction did force investigators for the prosecution to delve deeper into the evidence to prove more definitively that Jim was where he said he’d been and could not physically have been able to commit the murder. As such, they developed a timeline of his activity that day, based mostly on witness interviews and Jim’s cell phone records:

  By the time Jim got up the day of the murder, Carol was already at work. As was his routine, he went over to her house around noon and let the dogs out to run around. It was unclear when he left the house that afternoon, but he drove to Hastings Entertainment and rented two videos for his younger son at two fifty-three.

  From there, he went to a doctor’s appointment with Dr. Kent Ward, an osteopath, between 3:15 and 3:44 P.M., during which he turned off his cell phone. The four calls he received from his ex-wife’s landline during that time went straight to voice mail. Jim had complained of back discomfort.

  At 3:44 P.M., Jim checked his voice mail and returned the calls to his ex-wife’s house.

  His ex, Ann Saxerud, told investigators that he arrived at her house at five-ten in the evening. She and their older son, Jay, left the house for his hockey practice around six o’clock. She dropped off Jay half an hour later, then went hiking nearby with a friend.

  At 7:58 P.M., one minute before Carol’s call to her mother was disconnected, Jim checked his voice mail on his cell phone.

  While Ann and Jay were gone, Alex said he and his dad watched the movie Harold & Kumar Go to White Castle, until Alex got bored and went to play video games on the computer for a while. Alex later testified that his father did not leave the house until Ann returned.

  After Jay’s hockey practice ended at eight o’clock, Ann and her son left the rink around eight-fifteen, arriving home between eight-thirty and eight-forty. She estimated that Jim left her house at eight forty-five.

  Jim put the videos into Hastings’ drop box, and headed to Safeway, off Iron Springs and Willow Creek Road, which is six miles and eleven minutes from Carol’s house. The security footage showed him entering the store just before 9 P.M. And just as Jim told the deputies, records confirmed that he bought sweet red cherries for $8.46 and a bottle of Freixenet Cordon Negro Brut sparkling wine for $17.96, at 8:58 P.M.

  Jim arrived at Bridle Path around 9:15 P.M., after which the deputies ran his driver’s license through their database.

  Meanwhile, the defense developed an explanation for the searches and files on Steve’s computer that he claimed were for book research.

  “He liked the idea of writing the book, and the actual writing is hard work, so he had a lot of stuff in that computer that was mentioned that had zero to do with the murder, that seemed to fit that whole spy-novel thing people are talking about,” Rich Robertson explained.

  For example? “He had some stuff in there for gases. He was researching carbon monoxide. Even the book titles, the ones that seemed to be the most damaging, or portrayed to be the most damaging, or hit man, nothing about the murder fit that.... It was ‘how to make a homicide look like a suicide.’ There was nothing in this scene, if it was staged, that even [given] the state testimony, was staged to look like a suicide.”

  CHAPTER 43

  Within two weeks of being appointed in December 2011, Judge Gary Donahoe got down to business by ruling on the slew of pending motions that had backed up during the months of delays. In so doing, he rejected a defense motion to dismiss the case based on matters raised in the Docugate scandal.

  The defense appealed, and three months later, the Arizona Court of Appeals poured water all over Donahoe’s ruling. Finding that an intrusion into Steve’s attorney-client privilege had been committed, the court ordered Donahoe to conduct a mini trial known as an evidentiary hearing.

  Due to appeals and the highly sensitive issues involved, that hearing did not begin until December 12, 2012, and then lasted for several months. The proceedings featured testimony by the very passionate county attorney herself, Sheila Polk, who continued to defend the ethics and integrity of her office.

  “I have tried and I
believe I have successfully accomplished an office and a culture of ethics, a culture where everyone understands that it’s not about some end out there,” she testified. “It’s about at all times respecting and upholding our obligation of the Constitution to defend and protect the individual rights of citizens and of the defendant as we go through the process.”

  Admitting that some mistakes by her office “will happen,” she also argued that the state had not impaired its ability to provide due process for Steve DeMocker. “If I thought for even an instant that Mr. DeMocker could not get a fair trial from my office, I would conflict off the case,” she said. “I have not seen a scintilla of evidence . . . that would deprive Mr. DeMocker of a fair trial.”

  Aiming to finish the hearing in April, the judge issued a preliminary fifty-three-page ruling in the state’s favor in March, which sent Craig Williams into fits once again.

  With Donahoe’s final ruling in April, the county attorney’s office was allowed to move ahead as prosecutor, and the trial process started up again with motions and hearings.

  Preparing for the second trial, the prosecution team made a conscious choice to reduce the number of witnesses it had planned to call during the first trial, especially now that there were additional charges to support. The team pared back and simplified its case to rely mostly on evidence and elements of the crime that carried the greatest weight.

  “This is a murder trial where we could have gone for weeks on the money part of it,” prosecutor Jeff Paupore recalled later. “I made a decision, let’s just get enough out there, on these other charges—I care about them, but I really care about getting the conviction on Carol’s murder.”