Then No One Can Have Her (33 page)

“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.”