Then No One Can Have Her Read online

  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 ellip
tical 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.